/ , ...

i'''"'"
(
\_
\ i...J)..
··...,_

LL.B. Semester TI :
113 K Principles of Political Science & Theory
The students of LL.B. Semester fi are informed that the compilation for

. the above subject supplied is merely extract of the ca_ses/legal principles. AIJ
. '
the ·s tudents are re.quested to go through the entire syllabi from the suggested

Reference Books. The compili!tion attached herewith is.merely to have broad

idea abot the subject content. Students are requested not to solely depend
·- . . . ' ' ... .... .....
\::• •,. . ... ,..,.;, ' -- . ,. .
up.on the above material for'the ·pUl:l)OSe of thorough preparation for the
yi examination.
• ,: ... . . .

I
I

4
1 .
--a
:
 I!

LL.B. Semester - II
FOUNDATION 113 F PRINOPLES OF-POLJTICAL SCIENCE & THEORY

Syllabus:
1. Concept of Citizenship, nd Federalism :
1.1 Citizenship : Definition under the Constitution ofIndia
1.2 State-Citizen : Inter-relatio nship, Rights-Duties towards each ot er
1.3 Federalism : Unitary and Federal System : Distinction, True Federalism and
Quasi-Federalism - meaning, distinction, Merits & Dej:nerits of Quasi
Federali sm
1.4 Federal and State Power
1..5 Federalism : Basic Structur e of the Consti tution, Golaknath 's case and
Kesavanan da Bharti's case and other relevant cases
. . .
for reference
.

1.6 Doctrine of Judiciai Review: Meaning, need and importance in

democratic system·

2. Meaning of "State" under Article 12 and its Significance and otber

· Constitutional Prbiclples : · ·
. .
2.1 Definit ion of''Statej under Art icle 12 ofthe Constitution ofIndia
2.2 Chan ging notion of"State " under Article 12 of the Constitution of
India through Judicial Pronouncements . •- ·
23 Chan ge of trend in the Definition
.
of State in the era of. Liberalization

2.4 Change in the Judicial Trend in interpreting the definition of State

after the year 2002 · ·
25 Sovereignty : Definition, concept, characteristics, Austin 's theory on
sovereignty
2.6 Supremacy of the Constitution: Meaning and importance along v,ith
the Supreme Court decisions
'•

3. Democratic Systems and Constitutional Doctrines :

3.1 Democracy: Parliamentary Democratic Sy,;tem vis-a-vis Presidential
Democratic System, Merits & Demerits
3.2 Doctrine of Separation of Powers Legislat ure, Judiciary & Ezecutive
3.3 Doct ine of Eclipse: Application and Importance
3.4 Doctrine of Waiver ofFu i z : t a! Rights : Circumstancs
3.5 Principie of Rule of La, application in India and other count ies,

5?cc:szeesru!iste±cy la{ cer zsdcezi,:,s ing,i i erpct iox vy

the Judiciary and its importance
 i .
.I

··._.,., .
. "l:" )

SUGGESTED READING
. ' ..rs
·#%

·,!_; s.
Ii -::·: Ratlirii-e
. '· .... ;;,,,···· & s.Air.-.Haqqi:
. • · ... '.
.' .' ·..Ptinctpies ofPolitical
: . ·.'' ,:, ' . Theory
• . and Organ:isntio.n
..
1
Baste.en.
'

d
 po

2
THE NATUF{E OF THE IN-DIAN .
CONSTITUTION

• Is the Constitution of India Federal ?-According to the traditional,

} classification followed by the political scientists, Constitutions are either unitary or
federal. Ina unitary Constitution the .powers of the Governrpint :are centralised in one,
sgzp.gpp±es;rz.gaff5fzs
i'. ••...

[£
; ': ··._ ,:r,~gernl' a11? t.li.e State Governments and both are independent in their own spheres. , ·
There is a difference of opinion amongst the constitutional jurists about the nature
·of the Indian Constitution. One view.is that.it is a quasi-federal constitution and contains
#pipreunitaryfeatures than federal. The other view is that it is a federal constitution withia
· novel feature adopting its.elf to national emernencies. Th.e view _of the framers of the
Constitutionis that the India
n Constitution is a Federal Constitution. Dr. Ambedkar, the
Chairman of the Pra.fting Committee. observed thus, "I think it IS· agreed thatour
Constitution notwithstanding the many provisions which are contained in it whereby the·
· Centre has been given powers to civerride the Provinces (Sta.tes) nonetheless, is a Federal .
· Constit-ution ". 1 · · - . . . · · · .

But some constitutional jurists hesitate to characterize the Indian Constitution as

.· federal. !tis, therefore, necessary to ascertainfirstly, what federal Constitution is and what
are its essential charactetistlc·s, and sec·ondly, to oxnmim, whether qur· Constitution
po.sseases t~ose characteristics.
. Federal Principle.-''By the Federal Principles", Prof. Wheare2 observes~. ~'is
meant the method of di.vidirig powers, so that the general and regional Governments .µ-e
each within• a sphere co-ordinate and independent. Both the federal and the regional
Governments are co-ordinate and independent in their spheres and not subordinate to one
another"; · ·
. . ·.
TH American Constitution is universally regarded as.
,~. · ·- : :--- :. ; ', . •.:, · -: T,:. · · ·· · :.1.:-.1-.. • : , , t· ·. · - :
an example of federal
. - . , . ·· ~ .- .

. '
-.:. ....s.-.c.>. :is.}or.soi&our ii.ccuai ard tie ate Governments, are
divided and both are independent in their own spheres. The existence of co-ordina!e
authoritiej independent of each other is the.gisr of rhe federal principl~.
: · Prof. \Vheare, after giving the above definirion 2.s ro what the federal principle is,
himself proceeds to examine whether the American Constitution satisfies the above.test.·
- ; He observes: "Are we to confine the forms to ens ts where the federal principle Jrns been
.
, . applied completely and without exception? lt would not be sensible to do this. After 2.li,
'

I. C.A.D. Vol. 4, p. i 33, See also C.A.D, Vol. 5. pp. 33-36.

2. K.C. Whe.:i{e: Feder~! Government, p. 27; Jeonings-Somc: Cl12ra cteristics of the lndian Const.ituLio~,
p. L

(17).
 CCi"-iST ITUTiC;·:
[CHAP.2
. ihe Constitution of the United States itself,' as· originally drawn up cdntained at least one
':elc~ption 10 :rhe federai Ptinciple in that the se·nate \Vas compos~ci 6(representatives II,

.selected by the Legislatures of the State. Thus a part of the general Government of the _ (
. United States was dependent to some extent upon a part of the regional Government. This t
exception to the federal principle was maintained in law until .1913. Yet the American C
- . Constitution .from 1787-19.13 was and ·must be called a "federal tConstitution·· for.. the s
federal principle was predominant in it. Thus the criterion "ls the federal principle is d
predomin,1nt in the COJlstitution? If sol
that Consiittltion may be caUed a "federal 0

•• Constitution". If, on theother hand, there are many modifications, in the so application
of the federal principle' that' it ceases'to be of any significahce,.then the Constitution. . i.s
, .cannot be termed as federal. This appears to be .the most instructive and respohsiplfWiy '<
ir
in which to'se the term 'federal Constitution'. It seems essential t6 define federal fr...
a@i%%#is$%#it.sfisiiii#ii#iii#ii@ .-P
g;jp2le rigidly, butt6 4ply the term 'federalcobs6iii0' morewidely? Thg$,pr.%
·f•i:· . . ·l\J,
%
· · ·' · . .·-Essential charactel!istics. of a. -federal Con,stitut,i-on• fii
. . . .
. . ..
,· ... ·-,,· .. . '·
.t.
. A federal Constitution tisuajly has the following essentiaf characte.nstics:-: ., ._ ..: .,.
±j$_fit): pritbton or Posers.The atstriuton of powersisa sseital teaid"r
. · .. . federalisrrLFederaiism means the distribution of the powers of the State among a number.
Cc
do
.•of co-ordinate bodies each originating ih and controlledby the C8risHiiitidn.4' The' ba§{s°of at
such.distributionof powers is that in matters of national importance, in which a uniform G
policy is desirable in the interest or the units, authority is entrusted to the Union, and o.f
matters of local concern remain with the States. . . . - '' . . . cdi
· (2) Supremacy of Constitution.-A federal State derives its existence from .the·. the
Constitution, just as a corporation derives its existence from the grant by which it is Uri
·created. Hence, every power. executive, tegislative or judicial whether it belongs to.the <?d
·. nation or to the individual State is subordinate to and controlled by the ConstHutfofr:5 . 1-
The Constitution in a federal State constitutes the supreme law ·o f the land. Prof. Wheaie tru:
says ••,that those· two institutiqns- the iupreme Constitution and the written consti'tutiOf! em
are then, essential institutions· to a federal Government. The ~uprer,10 Constitution Is sut
essenti.nl if Government is .to 'be federal; the written Constitution is ~ssential if federal
Government is to work we]l."6 ..
ex
fea
(3) A .Written Constitution._:_:_A federa·l constitution must almost ~ecessarily be a
Go
written Constitution:The foundations of a federal State are complicated contracts. It will Jea.
cha
be practically impossible to maintain the .supremacy of the Constitution unless the terms
_ . ·..-.•.•,•,",···.,· ·.•.•..' ct of ±is k ·_
·.::- ~
O Z£! 0~
??3
· ,.· _
i ,
p.
23%%
- - 1 ,,. .. ·- .1
%5i ~ :. _._ _ ·
7 %' %. : .· ., •. ·.··'!:,·
;-"!°",··
1--. .! 1- - ·--~- -
,c:·.,,....~ •.,'.'.. -..·.. . -- · i._-,·.• ,·..".I
upon undcrsrcinciings or conventions 'Nould oe certain to generate rnisunde:rstandings and p.r.j
disagreements.7 . . the
con
·. (4) Rigidiry.-A natural corollary of a written constitution is its rigidity. A
- Constitution which is the supreme law of the land must also be rigid. In a rigid
Pre
3. K.C. \Vhe.are-"Federal Government'\ p. 15 (4th Ed:, 1963). mu
4. A. V. Dicey-The Law of the ConslituLion. p; 157 ( 1 Otr, ed.).
sha
5. Jbid., at p.144. Co
6. K.C. Whezne-Feder.:il Governmcot, p. 56.
of I
i. "l t can be said that a wriuen Coils ii tu,ion is not logical ly required by 1he fedci•;:i i pri nciple. The truth .lfi• .
·7
..;,-..:
seems to be tha1 while it is essential for a Federal Govemment that its Constitution is supreme ,o the .

extent defined :ibo··.,e, it is also essenri~i for a good federal gove.rnrnent ,hat the Supreme Constitutior:
be wri1ten''.-X.C. Wheare-Feder,il Gove·rnment, p. 56.
5
I{
 CHAP. 2]
THE NATURE OF THE !i,!OJAN CONSTITUTION
. . .
19
,Constitution the procedure of amendment is very complicated and difficult This does not
mean that the-Constitution should be legally unalterat>le. It sirriply means ·that the power
ofamending the Constitution should not remain exclusively with eirher the Central or
State Governments.
I
A Constitution
. . . .
of a country is considered to be a . permanent.
document. It is the supreme· 1aw of the land. This supremacy of the_ Constitution can
only be maintained if the method of amendment is rigid. -

(5) Authority of Courrs.-In o. federal State the legal supremacy of the Constitution
is essential for the e:..istOnee of !he federal system. The very nature of a. federal State
involves a division of powers between the Central and State Governments under the
» framework of the. Constitution, It is; therefore, esseµtia I to . !Tl ain tai n this. division .of
powers between the two levels of Governments. .This must be done by some independent
and impartial authority above and beyond the ordinary l,odies whether federal or State
'_ legislatures existing under the Constitution. The judiciary has, in a federal polity, the
, finalpowertointerpret"fhhi"""
sic6istis6%" the Constitution and guard
".
the entrenched provisions f ie

'I' · ' · The· Indian.. Coiistitu tio n possesses a II the esse n ti a I characteristics of a federal
Constitution mentioned above. The Constitution establishes a dual polity, a system of
double Government with the Central Government at one level and the State Government
. at the other. There is a division_ of powers between the Cenfral and the State
Governments. Each level of Government is supreme in its own sphere. The Constitution
o( India is written and is supreme. The provisions of the Constitution which· are
concerned with federal principles cannot be altered without the consent of the majority of
the-States. The Constitution establishes a Supreme Court to decide disputes between the
. Constitution.
Union and the States, or· the Stutes Inter S(!· interpret
· fin"aHy the provisions of -the

__ But. as
said earlier, some scholars hesitate to characterise Indian Constitution as the
truly federal because according to them in certain cifcumstanCes the Constitution
empowers the Centre to interfere in the State matters and thus, places the States iri a
_ subQrciinate position which violates the federal principle.° They, therefore, use such
expressions for it <IS 'quasi-federal', 'unitary with federal features' .or 'federal with unitaiy
features'. In the opinion of Prof. Wheare : 'The Constitution establisheS a system' of
Government which is almost quasi-federal............. a unitary State with subsidiai-y federal
features rather ihan a federal State with sUbsidiary Unitary features'. 9 Jenning$ has
characterised it as 'a federation with a strong centralising tendency'. Jo -

Drodl,rLet
•· -··i
us now examine"what are those provisions of the Cons6±4;-
'" _·., · :. .-_,-,.c, ,·, .,,---_ ·_·. --.·_- •·_·.-, -: ·.•.- - ,._:,·· •, · ·
A1,, •••
_-. !'
·... • . <·...i s i
.ii::..si....-. .it ire ii@owing ratters, it is pointed out, the Indian Constitution
contains thie modifications of the federal principle :-
· ·

. · Cl) Appointment of Governors'.-The Governors of the States are appointed by the

President (Articles 155 and 156) and answerable to him. This is, however, not a matter of
much signifiC-ance, for, the Governor __is only the constitutional head of the State who
_shall normally act on the adyicef his Ministers. There - are provisions in the
Constitution under which the G6vemor is required send certain State laws for the assen, to
of the. President. The President has power to ve10 <hose State laws e.g., Arts. 200,.

8. ln Stale of es
Bengal v. U:ion of tdia, AJ l 963 S_C l 24 l, the Supreme Court has held by __
majority that it is not truly federal. Subba Rao, ) in his treats H o w e v e r , d i s s e n t i t b a s i c a l l y f e d e r a l .

9. K.C. Wheare-India's New Constitution Analysed, I 950 AU 22. -,,

10. Jennings--Some Characteristics of L'le Jndi;:in Consiitution, p. l.
 . .
• 20 CONS'.ITUT!ONAL LAW OF !_NOIA [CHAP. 2
288{2). But whatever. be the letter of the Constitution, in practice there are not many
· examples where the President has vet_oed the State Laws. The only example has been the ±]
11
Ker£da Edncmiun Bifl. But here- also the Centre obtuined.the advisory opinion of the t
Supreme Court before sending it back to the Slate Legislature for suitable amendments in
·. the light of the Court's opinion. · · '
C

(2) Parliament's power to legislate iii tbe national interest. . . .:. .Under Art. 249. 0
.. Parliament is.en;ipowered to .mak~)aws with Jespect to every matter enumerated in the ...cti
State List if the Rajya Sabha passes a resolution by 2/3 majority. that it is necessary in
... the natio,na1 i_nterest. There cannot be any objection· to this provision : First, no one will : a¢
.deny that if a subject in the State,List assumes national character. Parliament should'
. -make a law on it. In normal course this cannot be done unless the Constitution is ;

"?%
are#$formallyamending
%jiem4jg@.Bt,i9 bis,thepf@vtsi6 e have 4sf6s4,an'siedisisay y.ihis,iii9ft±./
Constitution we can achieve th@desired effect, namely,the · ·
acquisition by the Centre of the power toadminister and legislate upon a subject which
has assumed national importance. Secondly, it should also be noted that this power_is
given to Pnr1iament by the Council of States )tself by passing a resolution supported by I
in
2/3 majorityof the members present. Thus; effect this device the Constitution is by i
amended. by the agreement of majority of the States. We. therefore. fail to understand how }
Article
.
249places
.. ·--·
•· .
th
-.
•
State in subordinate position.
.... . .. . . . . . .. . . .
i.'
. ·-

(3) Parliaments' power to form

ne States and alter boundaries of existing
. States.-·Th~ -Parliament 9r
lt_1dia rnny form new States; it. may increase. or diminish the
area of any State and it may
alter the boundaries or name of any State (Art. 3). The very
existence of the State thus depends upon the sweetwi1J of the Union. Government. The.
power conferred on Parliament to make territorial. ndjustrrtent is better e,rplained on the
historical basis. The Government- of Irid-la, for the first time, e·stablish federa},.. pc:>Hty tfi
India. It deliberately-created the constituerit units of the federation although they had no
organic roots in the past. The framers of the Constitution were well aware of thepeculiar
conditions under which and the reasons for which the States were formed and their
boundaries were defined and so they deliberately accepted the provisions in Article 3 with
· ·. a' view to meeting the possibility cf the redistribution of the S.tate territory' after the
integration ofIndian States. The provisions in Art. 3 take into' account the fact that the
Co_ristitution c.optemplate.d readjustment of the territories of !constituent States which ·
might_aris_e in future, . i . . .

(4) Emergericy provisions.-The Constitution envisages three types of;

emergencies : (1) emergency caused by war or external aggression or anned rebellion (Art..
352);(2) emergency caused by failure of constitutional machinery in States (Art. 3.56);:
and (3) financial emergeric)' (Art. 360). When the procfa.mation of emergency is made
under /\rt. 352, the normal distribution of powers between the Centre and -the States
undergo a vital change. Parliament is empowered to make l~ws \1iith respect to any matter
enumerated in the State List. The Centre is empowered to give directions to any State as .
to manner in. which the SL:ite's executive power is to be exercised. Further, the President
. may by ,or.der direct that all or any of the provisions of
Arts. 278 to 279 re1_ating
distribution of revenue between the Centre and the State shall take effect with such ·
.tol[
exception or modific.atiofis, as .he thinks fit. Under Art. 356, if the President is satisfied•
that Government-of a State cannot be carried on in accordance with the provisions of the , :
Constitution he can dismiss the State ministry and dissolve the Legislature and assume ,;
all the functions of the State. Thus the normal distribution of powers between the Cen_trc
and the
... States,
. , which
. is the. basic element of a federal constitution, is comple'tely
. . .

I!. In rt!, Kcral:i Eduot.ion Bili, AW 1958 SC 956.

 -., -CHAP. 2j THE NATURE OF THE INDlAN CONSTITUTION · 2i

·.-·_·:suspended. It is alleged that these provisions enable the Union Parliam.;nt to convert the
, inion into a unitary State which vitally affects the federal character of the Indian ··
. Constitution.
Do these provisions modify the federal character of the Indian Constitution? "The
correct view", observes Dr: V.N. Shukla, "is thal emergency provisions which come into
operation only on the happening of the specific contingencies, do noi-modify or destroy
the federal.systern. It is rather a merit of the Constitution that it visualises the
contingencies when the strict application of the federal principle might destroy the basic_
·assumption on which our Constitution is built. The Constitution by adopting itself to a
. ch:anged Circµrnstances strel)gtl:}ens the Government in its endeavour to overcome the
crisis. In an emergency the behaviour of each federal Constitution is very much different
'-- from that in peace time. Though the Constitution of the U.S'A., Australia and Canada do
• expressly
not provide for enlargement of federal power during the periods of emergency,
.bu! %iring.#jg.£y9.World,Wars,the defence power of the Federal Government was given , ..
soextended"an"interpretation by the courts that these countries behaved more likely
·. unitary than' federal State. For the above reasons we maintain that the fodian Constitution
.in
. is federal nature.'?Prof. Wheare has coined a phrase 'quasi-federation' as applicable to
India but he has nowhere defined what a 'quasi-federation' is. ''It is not necessary to use
$uh a vague,perm/'quasi-federal' tocharacterise it". The term 'quasi-federal' is extremely
vagueasit'des not denote how powerful the Centre is, how much deviation there is from
- the pure 'federal model' or what kind of special position a particular quasi-federation
--· ccupies between a unitary State and a fed.erat1on proper, The· fundamental pnnc1ple Q-f
federation is that .the powers are distjibuted between the Centre and the St.ates a:nd that is ·
done by the Constitution. That is what the Constitution does. The States do not depend
upon the Centre, for, in normal times the Centre cannot intrude. It may be that the Centre
has been assigned a larger role than the Sates but that by itself does not detract from the
federal nature of the Constitution, for ii is not the essence of federa1ism to say that only
so. much, and more power, is to be given to the Centre.13
Prof.Wheare appears to feel that the American Constitution is truly of federal type.
He snys 'among examples of federal coqstitutions there may be mentlone_d those of the
· United States. Switzerland and Australia'. It may, however, be clearly understood that the
· nature of federalism is more of historical growth based on a nation's necessity. To a~cept
the same pattern of federalism in all countries is well nigh impossible. With all respects
to Prof. Wheare, we may tell him that federalism varies from place to place, and from
time to time depending on so mauy factorshistorical, geographical, economical and
. political. So what is good for America is not necessarily good· for India. The people of a·
country can take in onlv the required dosa.?_es. c,ther,.,.,ise they may stunt or destroy their
._·_.· ,·· ·~.· ·: ·.._-_.-
· _·_.· . ·_:_·~- _'._,_ ·.,
.· -·'.··. .-__-._1 ,:_··•.: _,._.._ .. _. . ~-.' ;••·: t·--; 0
. . . -· -. ~ . :.. . •-5ii '.::,
organised pattern befitting each wearer ar.d he}ping him to the next and superior stages of.
federalism. Ind1a's federalism is unique and good for itself. America's federalism is not
· perfect as it is stated to be. lt h:::s got its own drawback. Indian Constitutiou is
sufficiently federal. lt is not less federal than American federalism which on paper is of
- higher degree but in the actual practice the leaning is towards centralisation of national
interest. The term 'quasi' is a misnomer. Idia is federal al America is more federal in
. the outline of the Constitution. ln practice there is not much difference between the
two.14 ·

12. V .N. Shuk!i- Conslin1lion of lodia, p. 40 ( 1969).

I3. M.P. Jain-Indian Constitutional Law, P. 347
. .
at p 357 (3rd ed. 1978).
14. V.G. Ramchand.ran-1953 (SCJ), p. 79.
 122
0
CONSTITUTIONAL LAW OF INDIA
[CHAP. 2
#3.
. .l

... ·.:

. It may be that \.Ve deviated Iri respect

of-certain matters_ from the strict federalism as . -.
operating 'in the U.S.A. or Switzerland, but the reasons are obvious. The Indian
· Constitution makers defined the Indian federal struct-ure no"t with an eye on theoretical but . j'

on practical considerations in designing federalism. Under the impact of world. wars,

international crisis, scientific and technological progress and de_velopin.ents. and the
emergence of the ideal of soda} Welfare State, the whole concept of federalism had been .
undergoing a change for sometime throughout the world. There are centralising tendencies - · .
in ev.itjence .In every federation and whether .it is in U.S.A. or
in Australia, strong'and
goV6ri,il}~nis have emeried in every fedecition. The fiarnerS <>f the
pe>Weifiil n":iti(Jnal
I n dConstitution took note
i a n tendencies and kept in vie; the practical hee~Is"of
o f th es e

· the country designed on federal structure nOt on the footing that lt should conform to .
· some theoreticiil, defi11ite or standard pattern, but on the basis that it should be. abl:¢. to ,_,:

res"ts.%4t'#is#ii±ff.sh.ii:
In short, it may be concluded that the Constitution of India neither purely federal is
iii'
nor purely unitary but- is a combtnation of both. It is a utiion of composite Stnte of .a
novel type. I enshrines the principle that inspite of federalism, the.
national interest ought
to be.paramount. Thus, the· Indian Constitution 1s maihlY'fede.ral With unique safeguards
for e.nforcfng national Qnity and gfowtb.15
I ..

. .• -.-.i

15. Jcr;t1ings--Some Characteristics of lndi:io Constilution, p. 55.

''1:f'•

6
CITIZENSHIP
. (ARTICLES 5-11)

Meaning of Citizenship.The population of State is divided into two classes

Citizensand aliens. A citiienof a State isa person who enjoys full civil and political
rightsCitizens:aredifferent forialiens;who'd6not enjoyall these rights.citizenship
carries with it certain advantages conferred by
the-Constitution. Aliens do not enjoy these
advantages. The following fundamental rights are available only to citizens : -
(1) The right not to be discriminated against any citizen on grounds of religion,
race, caste,
. ..
sex or. place
. . . . ·.., . .
. .. ' . .
.
of birth (Article
. . . .. .
: . ~- -~ .
15).
. .
.. . .
(2) The right to equality of opportunity in the matter of public employment (Anicle
16).
(3) The fight to six freedoms enumerated in Article 19, i.e., freedom of speech and
· expression; assembly; association; movement; residence; profession.
(4) Culturnl a.nd educai1onal rights conferred. by Articles 29-nnd 30.
(5) There are certain offices under the Constitution which can be occupied by
. citizens only e:g., office of.tJ-ie.Presiqent [Article 58 (l)(a)]; Vice7President [ArtiGle 67
(3)(a)]; Judges of the Supreme Court tArticle 124 (3)] or of a.High Court [Article 217 ·
(2)); Attorney-General [Article 76 (l)];. Governor of a State [Article 157]; Advocate-
General
., ; i
of a State [Article 165]. ·
.
(6) The right to vote for election to the House of the People and the Leg1slative
Assemblies of States is available to the citizens only and only they can become· members
of the Union and the State Legislatures.
The rights guaranteed by Articles 14 and 2i are available to alien also.
Constitut{$l Provisions.The Constitution does not lay down a permanent or
comprehensive provision relating to citizenship in India. Part U of the Constitqtion
simply describes classes of persons who would b_c deemed to be the citizens ofindia at the
<·
commencement of the Constitution, the 26th Janu~ry, 1950, and leaves the entire law of
the citizenship to be regulated by law made by Par liament. Article 11 expressly confers
power on Parliament to make laws to pr-ovide for such matters. In exercise of its power
the Parliament has enacted the Indian Citizenship Act, 1955. This Act provides for the
acquisition and termination qt-citizenship subsequent to the commencement of the
<;.:onsti tu ti on. ·

Citizenship at the commencement of the Constitution, i.e., January 26,

1950.--The following persons under Articles S to.8 of·the Constitution of India shall
become citizens of
India at the commencement of the Constitution :
1 .. Citizenship by domicile (Anicie·:S).

(4 ])
 42 CONSTITUTIONAL LAW OF INDIA [CHAP,,6
· 2. Citizenship of ernigra_nt_s froni Pakistan, (Article 6).
3. Citizenship of migrants to Pakist;m (~ rtkle 7).
4 ..Citizenship of Indians: abr.oa.d (Article 8).
e

(1) Citizenship by Domicile ( Article 5).-LAccording to Arti'cle 5 a person is

entitled to citizenship by domicile if he fulfils the following two conditions: First.Ly, . he
~ · must, at the commencement of the Constitution, have his domitjle in the territory of
·. India. Secondly, such person must fulfil any one of the three conditions laid down in that
: Article, namely, (1) he was born in India. {2) either· of his parents·was born in India, (3) · .
. he must have been ordinarily resident in the territory India
immedi.ately before the commencement of.the Constitution.
of
not 1ess than five years for I
i#$%,1.Dorie«le t is1id#a considered
an essential requirementfor
acquiring the stagsoff.
. Indian Citizenship. But the term 'd0rnicile' is not defined the Constitution.Tie 3"#" .in
. domici!e of a person is in that country in. which he either .has or deemed by law to have . . :- l is
his.permanent house. There is distinction between 'domicile' 'residence'. Residence and
alone in a place is not sufficient to constitute the domiciie. must be accompanied by It
the intention tomake'it his permanent
home. But it is basicallya:legal conceptforthe ±#%.
purpose of determining what is the personal law applicable to individual, and even if ··· an
an individual has no permanent home, he is invested with a domicile by law.
. . . . - - . . t . . ' . . . . -: . . . ;· ·. . . .

1
There are two main ~lasses of domicile viz., domicile of origin and domicile of
choice.· While the former attaches to the individual by birth, the latter is acquired: by
. residence in territory subject to a distinctive legal system, with the intention reside
ther.e .permanently. In Pradeep Jain v. Union oi India, 1 the:supf.eme Coui-t'hM'hiitfthat
to
in. India Article 5 recognises _only .one domicile viz, domicile of India.It does not
recognise the notion of State domicile. When a person who is permanently resident one in
State goes to another State with intention to reside there pe_hfiarierttly'or irid<;tlrli.t ~ly~·hi:s · •
a
do:rnid1e. does not change and he does not acquire new domicile of choice. Indiais not a
. f'ederal State in the. traditional sense of the term,. It bas. only one citizenship viz., the
· · citizenship of India. It has also one single unified legal system applicable throughoutthe
. country. The concept of 'domicile; has relevance to the applicability of municipal laws
whether made by the Union of India or by the States. .
Two e1ements are necessary for the existence of domi.cile-:-
(i) a residence of a particular kind, and
(ii) an intention of a particular kind.
', The resldc:ncc:: Deed not be continuous but it must be
indefinite, tot purely ftecit.g.
The intention must be a permanent intention to reside for ever in the country where the •
residence has been taken up. Domicileis not the same thing as residence. Mer~ residence
in a place is not sufficienl to constitute domicile. It must be accompanied by the
intention to make it his permanent home. Thus, there must be both the factum and
animis to constitute the existence of domicile for neither domicile nor mere residence is .·
sufficient to make him an Indian_citizen. Domiciie accompanied with five years' reside'nce
-I !
i
are necessary to make a person-a citizen. Thus a person born in Goa of Goan parents.came
to Bombay in his boyhood, was educated there, had resided there, since then and did his
father's business there. He was held to be an Indian citizen by domicile.2
I I
!
l
I
t
I I
J. AJR 1984 SC 142: (1984) 3 sec 654.
2. Michud v. State ofBombay. AlR 1956 llnm. 729. i
./:

!
 :° CHAP. 6}
.
CITIZENSHIP
I .
43

In Mohmnmad Raw V. Srpte of Bombay, 3 the appellant came to India in 1938. He

went on pilgrimage to Ira in 1945. On 'return, he was registered as
a foreigner and several
times- his stay in India was extended. In 1957 his request to. extend the stay perid was l

refused. He contended that he must be regarded as a citizen of India uudcr Article 5, but his
appeal was dismissed. The Court held that though he was original resident, he did not
acquire Indiancitizenship because he did not have a domicile in India, When the appellant
returned. from Iraq, he took over the job of a cashier in a hcitel. That by itself was held
insufficient to establish that there was a change in his mind of the kind necessary _to·
acquire a new domicile. His application for extending his stay in India made from-time to·
time fortified this conclu·sion. The domicile of choice continues until the former domicile
has •·been resumed
.•·
or. another
. 1
has been acquired.. : .
.. s In Louis De Raerlt v. Union oflndia,4 the petitioner-, who were foreign nationals
- challenged the order of the Central Government expelling them form India on their failure
.et6cqj@ireIndian Citizenship. The petitionerscame to India before Independence and were
· staying continuously on the basis of foreign passport and residential permits. They were
·· engaged in Christian missionary. work .. They contended that they became citizens of India
by virtue of Article 5. (c) of the Constitution as they were staying.in India for more than 5
· ·- . years immediately bfore the commencement of the Constitution. The Court held that
,.
' ·t iny an
failedto establish that they had intention to reside in India permanently. The
petitioners did not have their domicile in India. For the acquisition of a domicile of
a
choice, it must be shown that the person.concerned had certain state of mind the
a.nimus manendi." If he claims that he
had acquired a new domicile a particular time he
must prove that he had formed the 'intention of making his permanent home the in
country of. residence'. Re~idence alone, _1.n 1ac~otnpan1ed by this state of mind, is
insufficienL Domicile of origin is lost only on acquisition of domicile of choice and. not 1
on mere continuous stay in other country. · ·
A minor or married wbman is not independent person. Neither of these classes has
the legal capacity to make::a change of doiniciie. Therefore, the: domicile of an infant
_g enerally follows the domicile of his father,' while a married woman takes the domicile ,
of her husband.~ A widow :retains the domicile of her husband until changed by _her own
7 . . . ·-·
ac. . ; . · . . ..
t
Intention is an important element in determining the domicile of a person. It c::an be·
inferred form the condutt of persons'. Thus a person in Government service, who was
given the choice for opting for India or Pakistan, who opted for Pakistan, actually went to
. Pakistan, served there under the .Governrnent of Pakistan, but who su_b sequently resigned
his job there and came to India cann6tc1aim the benefit of Article 5 for he never became
the citizen of India.
G) .ricers. 5 iign.s o iiisjr..is.see(ersici}.- visors do:..-s
migrated from Pakistan to India have been cla$sified into two categories for the purpose of
citizenship, i.e., (i) those who came to India before Ju1y 19, 1948; and (ii) those who .-
came on or after July 19, 1948. ,
Article 6 provides that a person who has migratccl to India from Pakistan shall be
deemed to be a citizen of India at the comrnenccmc.nt of the Constitution, i.e., on 26h

3. AIR 1956 SC 1436.

4. (1991)3$€ C554
5. Naziranbaiv. StareoJNJ.P __ AlR i957MB l;Shnrnfa1 v. S•n,r::oj UP .. A1R 1960All.637.
6. Ka rim:nissa v. State of MP , AIR 1955Ngg.6.
7- Praxash v. Slrahni. AlK 1956 j & K 3.
8. A.slam Khan v. Fa&! Khan. AIR 1959 Ali. 79.
- ·44 CONSTITUTIONAL LAW OF INDIA
[CHAP.6
. ianuary,. t950. if he or either of 1,is parents or any of his· grandparents were born in India
~- - as defined in the Governmeat of India Act, 1935, and in addiiion. to above condit1on, · 1
which· applies in both cases fulfils _one of the foJiowfog. two conci tions :-
- - . · · (i) in case he migrated fo India before July 19, 1948 (the ua_te on which the permit
system for such migration was introduced) he has been ordinarily'residing in India since
the date of his migration; or . . . . ..

(ii) in case he migrated on or-after July 19, 1948 he has been registered as citizen of
India by an officer appointedby the Gove-rnment of Indiafor the purpose:
Provided that no person'sball be so registered unless he has been residing in India ..
for at least six months immediately before the date of his application for registr ation. If •
the above conditions are satisfied, aperson shall be deemed to be a citizen India. fig.pa?J.. of
_3) cester Merante rat±ct« atez.-'-u#diA#di 7a sicki e
domicile {Article 5) or by migration (Article 6) ceases to be-a citizen if he has migrated to
Pakistan after March 1, 1947. An exception is, howeyer, made in favour of a person who
has returned to Indin on thc··basis .o f permit for resettlement in India. Su.ch a person .is
entitled to
become a citizen of
India if he fulfils necessary. otherconditions for
in:imigrants from Pakistan after July 19, 1948, under 6. He register himself as Article can
citize,n of India in the same manner as· a person migrating from Pakistan after July 19,
1948_ •. . . . . . ' •;, · · .

Article.7 thus ove;ride·~- Articles 5 and 6? Both Articles 6 ~nd 7 U$ethe)erm ·

'migrated'. The meaningof the 'migrated'
t e rm consideration before th e Supreme
c a m e f o r

Court in Kulathi v. State,of:Ketlila.10 According to the Court the term 'migrated' used in
Articles 6 and 7 has.to be construed with reference tothe context and purpose and the
prevailing political condition at the time the Constitution was being enacted.. So
interpreted, the word 'migrated' could men
nothing except voluntarily going from India
. to Pakistan permanently or temporarily. The majority held that the word 'migrate".was
used in a wider sense of moving fonn one country to another with the quaJifiia.tion that
such movement was not fo.r a short visitor for a special purpose.
Thus, it is .a question of fact whether a person has migrated to or has, gon_e to
Pakistan on a temporary visit only and has to be decided on the facts and circumstances
11
of.each case. Citizenship comes to an end only \vhen .there is a migration and riot where
there was oniy a temporary visit. But in the context of the Constitution, it has. the notion
of transference of alJegiance from India to Pakistan_ A temporary visit on business or
. otherwise cannot a~ount to migi:ation.12 ·

rg in she .tr Li zd :aim& to he lawfully w'ded wife of an idian

citizen whose domicile was India at all material times, left India for Pakistap in July
- 1948, returned to India in December, 1948 on a temporary permit and went back to
0

Pakistan in April 1949. On May 14, 1953 she came back to India under permanent permit

I - .
9. Sime ofBil11JJ v. Kunar Amar Singh, (:)JR !'955 SC 282.
10. AIR 1967 SC 1614, followed inMti.rl;k11i-ul Hassan v. Union of India. ALR 1967 SC 565. lt should be
noted that the Supreme Court has in this case overruled its earlier decision in .Sml. Shanno Devi v.
Mangal Sain, A}R 1961 SC 58, in which it was held that the word 'migrated' meant going from one
pl.ace to mother with the intention of perTT12oentJy residing in the latter place.
i l.: Nisar v. Union o_[luha, i\ IR i 958 Raj. 65: See also Sro:e of Eilar v. Kuna Amar Singh, AIR I 955
SC 232.
12. Atar Rehman v. State of,WP., AIR 1951 !'fag. 44.
1
13. AIR 1955 SC 282.
 CHAP. 6] ·

obtained from High Commissioner for India in Pakistan, which was cancelled on July 12,
1950, because it was wrongly issue( without the concurrence of
45

the _Government as
3
required hy the rules· made under the Influx form Pakistan (Control) Act, 1949. Se
contended first that she had never ceased to be a citizen of India because she was born in
India and her domicile was the domicile of her husband. who was an Indian and
consequently she was a citizen of India. She contended, alternatively that the proviso to
Article 7 applied to her since she had returned to India on a permanent permit and the
subsequent cancellation of the permit was illegal and irrelevant. It was held that "there
· could be no doubt that the lady. inust be held to 'have migrated from the territory of India
after 1st March, 1947, although her husband stayed in India, but she could not prove that
she went to Pakistan for a temporary purpose." The Supreme Court observed: "Article 7
dearly qverrldes Article S. It is pre-emptory in its scope and makes no exception for such
· a case. i.e, of the wife migrating to Pakistan leaving herhusband in India." :
# 4rep.J.am:teer@nyo@er@in«it tie sore#e cosr 4s
·
siaa#i ii6± $4 .a"
voluntarily migrated to Pakistan and became citizens of Pakistan cannot claim the
crtizenship of India on the ground that they had been living in India for a long time and
a
their names have been included in the voters list. In this case, lady Bhanwaroo Khan had
claimed Indian citizenship on the ground that she had returned to Ind ia iri-1955.and had
been living here since then. The Court held that "a foreign lady cannot claim Indian
citizenship merely on the ground of long stay and inclusion of her name in the voters'
list." · ·· · · · ·
(4) Citizenship ofpersons of Indian origin residing outside India;- · .· Article 8,
pr ovi de sthat an yor either of whose parents or any of those grand-parents was born
pe r s on

· in India as defined in the Government of Indie Act, 1935; and who is ordinarilyresidihg in
a
any country outside India, shall be deemed to be citizen of India as if he has been
· registered as
a citizen of India by the Diplomatic or Consular representatives of India in
the country where he is for the time being residingon application made by hull to such .
diplomatic or consular representative, whether before or after 26th January, 1950, in the
form and manner prescribed by the Government of the Dominio_n of India oi Government
of India. Article 8 confers citizenship on Indian nationals residing abroad on their
complying with its provisions: · ·

Article 9 provides that if a person voluntarily acquires the citizenship of any foreign
State he shaii not be able to claim citizenship of India under Articles 5, 6 and 8. lt deals
only with voluntary acquisition of citizenship f a foreign State before the Constitution
came into force. Cases of voluntary acquisition of a foreign citizenship before the
commencement of the Constitution Will have td'Be dealt with the Government of India
under the Citizenship Act of 1955.

+ Article lO provides that every person who is or is deemed to be a citizen of India

- under any of the foregoing provisions shall continue to be a citizen of India subject,
however, to the provisions of any law that may be made by Parliament. Thus, in exercise
'Of this power, Parliament may take away the righr of citizenship of any person. But the
right !O citizenship given under the foregoing provisions can only be taken away by an
express law made by Patiiar:ueri( It cannot be Uken away indirectly. ln Ebrahim azir v.
State of Bombay,"° the constitutional validity of Influx form Pakistan (Control) Act,
1949, was involved. This Act provides that no person domiciled in India or Pakistan shall
enter India from Pakistan without a perrnir. If a person enters India v,1ithoul a pennit he

14. The Hindt1st:an Times, 5 April, 2C•J2 ..

!5. AIR !952SC229
• .• Ll.6
CONSTITUTIONAL LA SE LAA
[CHAP. 6
commits an offence punishable under the Act. Section 7 of
the Act autho~ises ti1e Central
Government 10 direct the removal froin India of ariy · person who has committed, or
-
against whom a reasonable.
suspicion
. .
exists
I
that he has
.
committed
• .
an offence
. .
under the .
Act. Th Supreme Court held that Section 7 was ultra vires of Parliament because to
allow the forcible removal of an Indian· citizen from India would be tantamount to
destroying the right of citizenship conferred by Part 2 of the Constitution. The right of
·citizenship, the Court said, could 6n1y be taken away by recourse to Article 11 of the.
Constitution. Thus, in absence of any law expressly made under Article·11 the right of
citizenship cannot be destroyed by an Act made for a different purpose.
. . . . . i. : ·..
Citizenship µ.nder the C!HZ<f9ship Act, 1955.---Parliafnetit, in exercise of the
power given to it under Article 11 of the Constitution, has passed the Citizenship Act,
citizenship
.7et2ff5
after
z$% ways,
: :$
birth,
the commencement of the Constitution in five i.e, descent,
t

registratioh, naturalization and incorporation of territory. !

Amendment of Citizenship Act.The Citizenship (Amendment) Act, 2003 has

almost overhauled the Citizenship Act,
1955. Its main aim
i"to provide double
citizenship to "overseas citizen of India" of specified countries mentioned in the new
Fourth Schedule to the Act added by the amendment.
The Act has substituted new clauses for clauses (b) an'd (c) and proviso to (c) of
Section 2 which says that "illegal migrants means who entered into lndia-(i) without
valid passport or other ttaveldocurrierits as provided by any law (ii) and remained therein
beyond the permitted
- .
.
period of time,
.

Overseas Citizens of India.The new Clause (ee) of Section 2 says, that

overseas citizen of India means a person who (i) is of Indian origin being citizerfof a
specified country or· (ii). was a citizen of India iminediately before becoming a citizen of
specifi~d: country and is registered as an overseas citizen of India by the Central
Government under sub-section (1) of Section 7A. New Clause (gg) says that "specified
country" means a country specifkd in the Fourth. Schedule. The Fourth Schedu)e
mentions the following c.ountries-Australia, Canada, Finland, France, Greece, Ireland,
Israel, Italy, Netherland, New Zealand, Purtugal, Republic of Cyprus, Sweden,
Switzerland, United Kingdom and United States of America.
Citizenship by birth (Section 3). The new Section 3 for the existing Sectiori
3 provides that except as provided in sub-sec;tion (2) every person born in India (a) on or i
after 26th J.t.n., 1950 but before 1st July, 1987 (b) on or after 1stJuly, 1987 but before
the. comrnenct:nient of the Citizenship (Ame111Jment) Act, 2003 and either of ;whose
parents is a citizen of India at the time of his birth (c) on or after the commencement of
the Citizenship (Amendment) Act, 2003 where (i) both of his parents are citizens of lndia,
or (ii)_ one of whose parents is a citizen of India and other is not an il]egal migrant at the
of
time his birth, shall be a citizen of India by birth. ':
A person shaJl not be a cit_izen of
India by virtue of this section, if at the time of
his birth (a) either his father-or mother, possesses. such immunity from suits and legal
process as is accorded to an envoy of a foreign sovereign power accredited to the President
of India and he or she, as the case may .be, is not citizen of India, or (b) his father and
mother is an enemy'alien.

Citizenship by descent (Section 4).- According to new sub-section (1) of

Section 4--A person born outside India shall be citizen of India by descent-{a) on or
 CHAP. 6] CITIZENSHIP

after 26th Jan.-, 1950 but before 10th of Dee., 1992 if his father is a citizen of Ina.
time of his birth, or· (b) on or after IOth. day of Dee., 1992 if either of his-parent:, -
"
at
citizen of India the time of his birth. ' .
.
i
.
.,
'Provided that if the father of a person referred to in clause (a) was a ci.ti,zen of India
by descent only, that person shall not be . a citizen of India by virtue of :this section
- unless (a) his birth is registered at the Indian Consulate within one year of its occurrence
· or the commencement of this Act, whichever is-later, 6r with the permission of the.
Central Govemment, after the expiry of the said period, or (b) either of his parents is at
of
; the tune his birth, in service under Government in India. . .
-1 : ., . ·,. ·... · . :.:,. .• . . I . . .
Provided also that on or after the commencement of the Citizenship (Amendment)
Act, 2003, a person sha11 not be a citizen of. India by virtue of this section unless his
birth is registered at an Indian Consulate such in form
and manner as may be prescribed @)
6iii' 6ie'yearof or the
its occurrence commencement of the Citizenship (Amendment)
Ad; 2003 whichever is later or (ii) with the perrnission of the Central Government, after
the expiry of the said period.
But no such birth shall be. registered unless the parents of such person declare that
the minor doesnot hold the passportf another country. A minor who is citizen of India
by virtue of this section and is also citizen of another country shall cease tc 'be
citizen of
. India if he does not renounce the citizenship of another country w1thm s1~ months of
his attaining full age. . - · . · . ' · · ·
Citizenship by Registration (Section 5).The prescribed authority may on
application register a citizen of India any person not being an illegal migrant who is not
pf
already such citizen by viriue of 'the <;0nstittiti6n or of any other provisions fuis Act if
he belongs to any of. the_ following categories-Ca) a person of Indian origin who is
ordinarily resident of India for seven years before making an application forregistrati on
of
· (b) persons Indian origin who is ordinarily resident in any
country or· place outside
undivided India(c) person who is married to acitizen of India and is ordinarily resident of
lnd.ia. for seven years before making an application for registration (d) minor children of
persons who are citizens of India (e) a person of full age and capacity whose parents are
registered as citizens of India under clause (a) of this sub-section or sub-section (d) of .
Section 6 (f) a person of full age and
capacity who either of his parents; was earlier citizen
of Independent India, and has been residing in India for one year immediately before
making an application for registration (g) a person of full age and capacity who has been
registered as an overseas citizen oflndia for five years, and who has been residing in India
• for two years before making an application for registration · ·
For purposes of
Clauses (a) and (c) an applicant shall be
deemed to be ordinarily
resident of India (i) if he has resided in India for 12 months immediately before making an
application for registration (ii) he has resided in India during 8 years immediately
preceding the said period of 12 months for a period of not less than 6 ·years.
' Citizenship bjnaturalisation.Where an application in the prescribed manner
16
is made by any persons ·of fqJl-age and capacity, "not beihg an illegal migrant" the
Central Government may, if satisfied that the applicant is qualified for naturalization,
•
grant him a certificate of naturalization. The au3lifications for naturalization are the
• . i • •

following :-. /
(a) he must not be a citizen of a country where Indian ciliz.ens are prevented from
becoming citizen by naturalization,

· 16. Substituted by the Citizenship (Amendment) Act. 2.003.

 c>
·.s° .

. ~ -·
\;.> I
CONSTITU110NAL LAW OF INDIA. __ [CHAP. 6·
- :.. -··
· (b) he h_as renounced the citizenship of the other country, \;
ti
(c) he has either resided in India or has been in Government seryice for 12
months before the date of making the application for naturalization, or during
7 years prior. to these 12 months, he has resided or has been in the
Government service for not less than four years,
(d) he -must take an oath -of allegiance, - ·ax .i,

(e) lie is of a good character,

(f) he has an adequate knowledge of a language
_ _
recognised-by the
__
Constitution,
..
. .
\ ..
·. ,. . . . . . . . .

(g) that after naturalization being granted to him, ne intends to reside in India or "
a:::sc:
of
cause
.salt#2£%
science, phi-losophy. art, literature, world peace Oi human progress,
it17 may waive all or any of the above conditions for naturalization iri his
case. (Section 6) · · · · · .· · · · · · ·
Citizenship by incorporation ofterritory.-If any new territory becomes a part
of India, the Government ofIndia shall specify the persons· of the territ_ory to be citizens
of India. (Section 7). . . -
OVERSEAS CITIZENSHIP
(New Sections 7-A, 7-B, 7-C and 7-D Added by Amendment Act, 2003)
Registration of overseas citizenship (Section 7-A).-When the application is
made in this behalf, the Central Government may, subject to conditions and restrictions
including the condition of reciprocity as may be prescribed, register any an person,as
overseas citizen of India if (a) that person is of Indian origin, of full age andcapacity
who is a citizen of a specified country, or (b) that person is of full age and capacity who
- h.as obtained the citizenship of a spedfied country on or after the commencement of the
Citizenship (Amendment) Act, 2003 and whp was a citizen of India immediately before
such commencement. or (c) that person is a minor of a person mentioned in clause (a) or
- I -
clause {b) · ·
(2) The person registered as_an_ overseas dtizen of India under sub-section (1) shall
- be an overseas citizen bf India as from the date on: which he is registered. -
{3) No person who has been deprived of his citizenship under this Act shall be
reg istered
- + .l il overseas citiz. of {a!a
as +i
an E t- i h i i -« il' sub-gee27
gr ! r ?+
ink i .,# ·- #}
~ • • -/ rt b;
_- · · · _~ g
.,_ order
- .._..c.. of the
""

Central Government. . . ' -

. '

For the purposes of Sections 7-A, 7-B, 7-C and 7-D /t.h.e expression "person of
Indian origin" sha11 mean a citizen of another country who (ii) was eligible to becom~ a
citizen of ~Jndia at the commencement of the Constitutio11. df India, (ii) belonged to a
territory that became part of India after 15th August, 1947 and (iii) children and grand
children of a person covered aider clauses (i) and (ii) but does not include a person who is
a·
or had been at a time citizen of Pakistan, Bangladesh such other country as the or
Centra.l Government may by notification in the official Gazette specify.
Conferient of rig
hts on overseas Citizens of India (Sec. 7-B).An overseas
citizen of India shall be entitled to such rights notwithstanding any thing in any

--··--------
l 7. Provis to Sect.ion 6 of Cit.iz.e□ship ;\er, J 955.
 CHAP. 6] CITIZENSHIP 49
law for the time being in force, (other than the rights specified unde:- sub-section (2),) as
the Central Government may by official Gazette specify in this behalf.
An overseas citizen of India shall not be entitled to the rights conferred on a citizen
of Ind1a-(a) under Article 16 with regard to equality of opportunity ih matters of pubiic
employment, (b) under Article 58
for ·election as President, (c) under Article 66 for·
election of Vice-President, (d) and (e) under Article 124 and Article 217 for appointment
of Judges of the Supren1e. Coun and High Courts, (f) under SccH011 16 of the .
Representation of People Act, _l950 _regarding the registration. as a voter, (g) under
Sections 3 and 4 of Representatioo of Peoples Act, 1951 · for being members of the House.
. _ - of People or the C:ouncil of States, (h) under Sections 5, 5-A and 6 of the Representation
of Peoples Act, 1951 to be eligible for being member of the Legislative Assembly or a
Legislative Council of States they cannot be eligible for appointment to public services
.,and
· :_
nlgr.9pion or
posts excp}
States services andposts a$.£he
for appointment for such
-Central Government may specify by order. Every such notification must_be laid before the·.
Parliament, [Sec. 7B1) &2)). ·-
Renunciation of overseas citizenship (Section 7-C).-If any overseas citizen
· of India of full age and capacity makes in the prescribed manner a declaration renouncing
his overseas citizenship of India, the declaration shall be registered by the Central
Government and upon.such registration, that person shall cease to he an overs.eas citizen
of India. Where such person ceases to be an overseas citizen of India every minor children
of that person shall thereupon cease to be an overseas citizen of India.
Cancellation of registration as overseas citlzen of India. (Section 7-D)-
'fpe Cef1tral Govemm_ent may by order cancel the registration if it is satisfied that (a) the
registration as an overseas citizen of India was obtained by means of fraud, false
r~presentation or the conce_alment of any material fact, or (b) the overseas citizen of India
· has shown disaffection towards the Constitution of India, or (c) the overseas citizen of·
India has during any war in which in
India may be engaged unlawfully traded or
communicated with an enemy or been engaged in or associated with any busines_s or.
cqmmercial activity that was to his knowledge carried on iri such manner as to assist an
enemy in that war, or (d) be has y,ithin. 5 years after his registration been sentenced· to: · ·
imprisonment for a term of not less than two. years, or' (e) it is necessary so to do in the
interest of the sovereignty ·and integrity· of India, the security of India; friendly
relationship of India with any foreign country or in the interest of general public. The
A171endmerit has omitted Sections 11 and 12 of the main Act. Section 14 has been
a_mended and for Sections 5 and 6 ihe Sections 5, 6 and 6A have been subsituted.
Ice of National Identity Cards (New Section 14).--This section prov}s
; at th Central Government may compulsorily register very citizen of 'India and issue
· _ national identity card to him. The Ccntrnl Government rriay maintain a Natior:al Register
.: of Indi<1n citizens and for that purpose establi-sh a National Registration Authority. From
the commencement of the Citizenship (Amendment) Act, 2003 the Registrar Generai of
- India appoihted under sub-sections (l}.of Section 3 of Registration of Births and Deaths
Act, 1969 sha11 act Ls the National Registration Authority and he shall function as the
Registrar General of Citizen'Registration. The Central Government may appoint other
:staff to assist the Registrar General of Citizen Registratiorr in discharging his funclions.
The procedure to be followed for compulsory registration of citizens of India shal1 be
prescribed · / · !

Termination of citizenship. The Citizenship Act, 1955, also lays down.

·} how the. citizenship of India may be lost whether iL wns acquired under the Citizenship
 5%
-50 CONSTITUTJONAL LAW OF .INDIA 6 · [CHAP,
I . •

Act, 19S5, or prior to it, under the provisions of the Constitution. It may happen in- any - ·
of the three ways: (a) renunciation, or (b) termination,.and (c) deprivation .
.·· . (a) Renunciarion of citizenship.-An Indian citizen of fo]l! age and capacity "[ who
is also a citizen or n.ationa{ of another country] can renounce his Indian citizenship by
making a declaration to that effect and having it registered. But if such a declaration is
made during any war in which India is engaged, the registration shall be withheld until the
Central Government otherwise directs. When a male person renounces
his citizenship,
every mirior child of his censes to be an Indian citizen. Such a ·c.hild may, however,
resume Indian citizenship if he makes a declaration to that effect· within a year of his
attaining full age, that is, 18 years. (Section 8). ,.

_,-(9),Tern«anon of cir#ensh.-If a citizen.of,Idia,vgluarily, acquires.thsa.j

citizenship of another country he shall cease to be a citizen of India.This provision, .
war in
however, does not apply to a citizen who during a may engaged
which Idia be
voluntarily acquires the citizenship of anoter country. If any question arises to as
whether. when or how any person has acquired the citizenship of another country, it to is
be determined by such authority and in such manner
{Section 9) · . ·
may be prescribed
· · ·. · ' ,,. . ·
as
by the rules,
: . ·' .

. (c) Deprivation ofcitizenship.Deprivation is a compulsory termination of the

citizenship of India. A citizen of 'India by nati1ralization, registration. dotnicite and'
residence, may be deprived of his citizenship by nn order ofthe Central Government If it
· (a) registration 01 natu,ralizat_ion was obtained by means of fraud, false
· is satisfied 'that-
of
. tepre.sentatiqn or concealment any material fact; or (b) he has shown himself by act Ot
speech to be disloyal or disaffectionate towards the Indian Constitution; or (c) during .a. t
war in which India may be eng"aged he has unlawfu lly traded or communicatedwith the
enemy; or{d) within five years of his registration or naturaJization ·he has been sentenced
-to _imprisonment for not less than two years; or (e) he has been ordinarily residing of . out
India for seven years continuously: 19 . .· . .· . · · .

Before making an order depriving citizenship, the Central Governtnertt is to give to

. the person concerned a written not.ice containing the ground on which the order is
propQsed to be made and in certain cases he might have his case referred to a Committee
····of Inquiry. TP.e Central Government is then bound to refer the case to a Committee
·.. :consisting ofa Chairman and two other members: The Committee of Inquiry shall hold
the inguir;,and the Central Government is to be ordinarily guided by its report in making .i
. the order. . . , I
• I
sue. A±,
/sea±th C;Citizenshir---'ection
3,:.S 11 otFl
·S 1' Act
the CG'itiznship
±,
·id Rfor
act provides
'.Cii
a;o n
±.±iii e;z;
1¥YG ;r,,eh;3. Eye;y person
ziiii i42iii>ili. 'i hi ·who
iy ii! i! is
i, a citizen
i!!i.ii of Corna]j; countv ±;y,
ii:iiiii?ii/is

shali by virtue of that cit£:zenship h,;ve

the status of Commonwealth citizenship in India.
Section 12 empo-.:/ers the Central Government to make provisions on the basis of
reciprocity for the enforcement of all or any of the rights of a citizen of India on the
citizens of the U.K., Australia, Canada, Ceylon, New Zealand, Pakistan, Federation of
Sout..h Rhodesia a~d Nyasa.1an_d.,. Section 18 of the Act Yes ts in t.he Central Government an
authority to make rules under the Act. This section of the Indian Citizenship Act, 1955,

18. Words prin1:::ci in bra ckets bave been om i'ited by Citizenship (Am endm ent) Act, 2003.
19. This i ll not apply if he is a student nbroad, or is in service of a Governm ent of India or an
lutcrn;itional Orgauisation of which· India is a m em ber or has registered annually at an lndian
Consulate his intention to retain his Indian Citizenship. ·
20. Sccti6f1 10, Indian Citizenship Act.
 CITIZENSHIP 51
- - - -

makes.it clear that it is very comprehensive legislation, covering up all possible details
regarding citizenship.. . .-
One Citizenship in lndia.- It ;;hould be noted thal our Constitution, though
federal, recognises one citizenship only, that is, the citizenship of India. Therei is no
separat_e State citizenship. Every citizen has the same rights, privileges.and immunities of
citizenship, no matter in what State he resides. In fecieral States like U.S.A. and_
Switzerland, there is a dual citizenship, namely, the citi_zensbip of U.S.A. and the
citizenship of the State where a_person is born and permanently .resides, and there are
distinct nghts and obhgat10ns flowmg from the two kmds o(-c1t1~ensh1p. In India, a
person born ()f _resident in any State can acquire only one citizenship, that is, the
citizenship of India.

-.,,%%2\#.2.5%.2:.2. 23:
-. A Company or

Supreme Court heldthat company

Corporation whether Citizen under Article 19.Citizenship

or
corporation is not a citiz¢n of ~ridia and c:an.not,
therefore, claim such of the fundamental rights as have been conferred upon citi~ns. The
' dtizenship copferred O-n a citizen, by_ Part II of_ the Constitut.iq~; ine' ~c~.l;lft )i_aid, is .
concerned only with natural persons,and not juristic persons. Ii this ·case the. State
Trading Corporation was sought to be taxed in respect of sales effected by tlie.m in the
course of their business operation. The Corporation contended that'its transaction related
] to inter-State sales and was, therefore,exempted from taxationunder Article 286 (1). The
impugned tax was, .therefore, an infringement of its FundamentalRight under
Article.19
- (l)(g); The Supreme Court,' however, held that the State Ttading°torp_oration-was_n"i~t a
citizen anc;l therefore could-not claim-the right under Article 19 (l)(g). In Tata Engineering' .
and Locomotive Co. v. State ofBihar, 22 in a petition by the company"som~ sharehq.lders
also-joined. They argued that though the company was not a citizen _but its shareholders:
were citizens and if it was shown that all .'its shareholders were citizens the veil of
corporate personality might be lifted to protect their fundamental rights. The rejected court
this argument"" and held that "if this plea is upheld, it would really mean that..what the
corporations and companies_ cannot achieve directly can be achieved by diem indirectly by
relying upon the doctrine of
lifting the corporate veil." . .
But in the Bank.Nati~nali;ation case,23 the Court ildd that "A measure execut1ve or
legislative may impair the right of the company alone, and not of its shareholders; it may
impair the rights of the shareholders and not of the company, it may impair the right of
_the shareholders as well as of
the company. Jurisdiction of court to grant relief cannot be
denied when by State action, the_ rights of the individual shareholders are impa.ire<l, if that
· action imoairs the rights of the Company as el] The test in determining whether the
• .l • ._. ~. .,/ . ._,

• action impairs the right of the sharehoiders els weli as of the company the Court will not,
., only upon technical ground, deny itself jurisdiction to grant relief. A shareholder is
eptit1ed lo the protection of _A_'rticle 19 of the Constitution. The Fundamental Rights1 of
the shareholders as citizens are not lost wher they associaic to fonrt'a compar:y. When
their Fundamental Rights as shareholders are impaired by State action their rights as
.shareholders are protected.-The reason is that the shareholder's rights are equally and
-necessarily effected if the rights of the company are effected."

21. AIR 1963 SC 184_

22. AIR 1965SC 40. See also Bcri_:m1 Chen;ca!s Ltd. v. Company La w card, AIR. 1957__ SC 295.
23. AIR 197O SC 564_

- I
 ..
,

CONSTITUTIONAL U..W OF !NOIA [QHAP:.6 • -·

52
The result cif the Bank Nationalisation case, is t_hat if the action of the-State itj1p.airs
-the right of the. company thereby affecting the rights -of an individual shareholder the
. protection ofArticle 19 will be available to him_. This ruling of the Supreme Court has
... th-us neutralise<l much of the· adverse effect of the State Trading Corporation case?A ·
The Bank Nationalisation case was followeq by the Supreme Court in the Bennett
Coleman and Co. v. Union of !ildia.25 In that case, the question was whether the
shar~hokfer. thy editort the printer have tight to -freedom under Article 19 qf tp~-
Constitution. Relying on the Bctrlk Nationalisqtion case the Court held that the
ptotectfon of Arlicle was available to a shiiteho-ld"er, editor-, printer and publisher a of
newspaper. The Court said the rights of shareholders with regard t6 Article t-9 (i.}(a,) y,,ere ·
·_ . protected_ and rnanifested.-by the newspapers owed and controlled by the shareholders
.ihrough the medium ofthe corporation. The idiyid@alrights ofspeechande8pr$$i91.9gf..
editors, directors and shareholders .are all exercised· through their newspapers through
which they speak. The press reaches the public through the newspapers. The shareholders
speak through their editor. The locus standi of the shareholders is beyond challenge after
theruling of the Supreme Court in the Bank NafiOn!ll:is.atlon cas.e.: . . . . .

±#.5%.±%%$2%3223E:;
COJ:llP.'Al:lY liad-tjgh:t tQ carry on business through agency of compariy and if that right was .
. ta.Jce~•awayor:abiidgeclh~:wasnqt disabled fiom·challe.nging. the vaHdiW_ofthe pi:tiv.isions
any
of Act whichaffectedhis right. '-}.-
. Ft>Hbwjµg Batik Natio~lisation and Bennett Coleman cases the Supreine'-C01.frl
. in D.C. & G.M. v. Ury.toitof India,21 has held that writ petition filed by a coi:rfpariy
compfaming denial of Fundamental Rights guaranteed under Article 19 .is maintainable. In
matter
the of fundamental freedoms guaranteed by Article 19, Desai, I., held, theright of
· a shareholder and the company which the. shareholders have forrr,ied are co-extensive aid
the denial to one or-the fundamental freedomifwould bedenial;to the other; TheJu'dge
.. pointed out that this is· the modem trend and suggested that the controv_ersy on the po1nt
should be put to an end by passing appropriate leg~slation. l · . .

* * * * *

24. M.P Jain~C:orn,'11ents on ,be Bo:Ni! Coleman case, 154, ( l 5) J1LT l 973.
25. AIR 1973 SC lOjS-
26. AIR 1975SC32.
27. AIR 1983 SC 937
 .. CHAP.4o)
·• THE ;\MENDMENT OF THE CONSTITUTION
769 ·.

ratifica_tion by the l/2 of the States.

in
mentioned in Articie 368 requires addition to the special majority mentioned above the
··

Article 368, however, does not constitute the complete Code. The process
of amending
process. the Constitution is the legislative process governed by 'the rules of that

Thus it is clear that most of the provisions of Constitution can be amended by an

-•
ordinary legislative process. Only a few provisions which deal with thefederlll principle ·
require a Special. majority plus ratification by the States. The procedure to amend these
pmvisiOns is in conformity with the. federal principle. The procedure to amend the
Constitution fa, however, not so di fficu It as in . America or Australia. The difficult
Procedure of referendum followed in Australia and Switzerland or constitutionf
conventions followed in America, have.not been adopted in Indian Constitution.Most $f
Sf}g_provisions of the Indian Constitution can be arended
by thie special majority. Tio4i
differentfrom tile ordinary Legislative process, the Special majority rules do not result m
'very rigid method of amendment as is clear from the fact that the Constitution-has beilri
amended as many as 58 timeswithin the period of 40 years. Even the procedure to ameni)
the constitution with the consent of the States, . thougt, . more rigid than the· Sj,ecfiil ·
..majority rule, - is not so difficult. as that of American or Ausirafian
: -: ' Constitution. - prOCedure
- to affiend
· that

· ln Australia; the constitutional amendment mus! be proposed by an ilbsol-ure

majority-pf both Houses of Pii,Hament. It must be subinitted to the electors for approval'
within 6 months and must
States.. " be approved by a majori.ty of ' tlie electors in a majority of the

In America, a constitutional amendment can be proposed in either of the two

Ways-'-(1) by _2/3 of the
votes Of both Houses Congress, or (2) by a convention Called on
the applicatjon of the Legislatures of 2i3 of the States. An Amendment proposed iii either
of the abovi, two-ways can·be ratified in either of two ways : (I) by the Legislatures of
' -
3/4 of the States, or (2) by convention . in 3/4
.
of the States. . .

From the above, it is clear that u;·~

amending procCdu;e in Australian arid the
. American Consdtution is much more difficult than in the Indian Conslitutiori.

Thlls, it may be said that the Indian Constitution-makers have sought to find a via
media, between the two extremes-extreme flexibility and.eXtreme rigidity, as this, it is
hoped, will duty meet the needs of a growing society. · · · .·~'· .

\_.,.- Amendment of fundamental rights.---Tie question ether iu auental rights

· can be amended under Article 368 came fo, consideration of the s,,p,·:ne Court ;,,
Sankari, Pres • ·s
v. Union r p.7 1,-.zse tie vtd, ~
. j
Amendment) At, 195, which inserted
ts,.•. .')
i ·i ' s» ',, •
±l! .<
er cle, Aricis 3I
_) .... , \ • .,
,2 }
.,34,1.,, +..
... ._' _,_., ... , ....,., '.,...
A 3I- g the
j Cons ti tut ion was challenged. The Arne nd men t was clJ_al Jen ged on i he.ground that i !

I,
purported to take away or abridge the rights conferred y Part Ill which fell \Vithjn the
prohibition of Anicle 13 (2) and hence was void. lt was argued that the "State" in Article
12 i ocluded Pad iament and the word "La" in Anicle 13 (2 ). therefoce, rimst include
constitution arnendment. The Su])re;ne Cour!, howevec, rejected <he above argument and
t held !hat the power to amend the Constitution including the fundamental righ,s is·
l
'I contained in Article 368, and that the word 'LaW· in Ariele 13 (8) includes only a
I
ordinary law made in exercise of the_.-Legisiati ve oowers and does not include
Ii constitutional amendment which is made in exercise of constitutent power. Therefore, a
7. AIR 1951 SC 45S at p. 458.
~
35
770 CONSTITUT!ONAL U, 1N _OF INDIA
[CHAP. 40
constitutional amendry,ent will be valid even if it abridges· or takes any of the fundamental
rights_ · ·

In Sajjan Singh v. State of Rajasthaii, 8 the validity of_ the Constitution (17th·
Amendment) Act, 1964 was challenged. The Supreme Court apptoved the majority
judgment given in Shankari Prasad's case and held that the words "amendment of the
Constitution" mcans amendment of all the provisions of the Constitution.
Gajendragadkar, C. J. said that if the. Constitution-makers intended to exclude the ·•'<'
fundamental rights from th e scope of the amending power they would have made a clear
provision in that behalf. .

In Golak Nath V. State of Purijab, 9 the validity the Constitution (17th I ·> . of
Amendment) Act, 1964, which inserted certain State Acts in Ninth Schedule was again · · :·
challenged.The Supreme
Count by a majority 6 5prospectively overruled of to
#j,4$.4 itsearlier
decision in Shankari Prasad's and Sajjan Singh cases and held that Parliament had $ [ no
power fromthe date of this decision to .amend hi.rt HI or the Constitution so as to take
away or-abridge the fundamental rights. Subba Rao, C. J., supported his judgment on the
following reasonings:, ..A. ...-.. k @ate±
(E}The Chief Justice rejected the argument that power to amend the ,Constitution • .
was a sovereign power and the said power was supreme to the legislative power and that it
did not permit any implied limitations and that amendments made in exercise of that·
power involve political
. . . . . -
q u es t i o n s and that therefore
. . .
t

.
h ey

.
w e

.
re outside of judicial
. .
review.
:.
(2) The power of Par1iament to amend the Constitution is derived from Artide 245,
read wfth. Entry 97 of List l of-the· Constitution and no(from Art. 368. Article 368 fays
down merely the procedure for 'amendment of the Constitution. Amendment· fs ·a
legislative:process. · · ·
,".
(2) An amendment is a 'law; within the meaning of Article 13 (2) and therefore, if
it; violates. any of the fundamental rights it may be declared void. The word 'Law' in
· Article 13 (2) includes every kind of law; statutory as well as constitutional law and· hence
a constitutional amendment which contravened Article 13 (2) will be declared void.
The Chief Justice said that the fundamental rights are assigned transcendental place.
under our Constitution and, therefore, they are kept beyond the reach of Parliament. The
Chief Justice applied the doctrine of Prospective Overruling and held that this decision
will have· only prospective operation and, therefore, the Ist, 4th and 17th Amendment will
continue to be valid. It means that all cases decide_d before the Golak Nath's case shall
remain valid.

The minority, however, held that the word 'law' in Article 13 (2) referred to only
a
ordinary law and not constitutional amendment and hence Shankari Prasad's and Sajjan
Singh cases were rightly decided. According to
them, Article 368 deals with not only the
;
i
i
procedute of amending the Constitution but also. contains the. power to amend the
Constitution.
24th Amendment Act, 1971.I n order to remove difficulties created by the
l
decision of Supreme Court in Golak Nath's case Parliament enacted . the (24th I
i
Amendment) Act. The amendment has made th e following amendments: (1) It has added a
new clause (4) to .f.rticle 13 ·v.,hich provides that 'nothing in this Article shall apply to
any amendment of
this Constitution made under Article 368. (2) It substituted a new

8. Affi 196.5 SC 845.

9. A1R 197! SC 16'13.
 ·l ,..---
_,,;,Jr---,

,, ,l
4pg,r,gr E THE CONST]T
i
!it: tN}Nib?k Ok fl I UTION
77]
. . . .

marginal heading to Article 368 in place of the old heading "Procedure for ameudment cf
the Constitution". The new heading is "Power of Parliamen_t to amend the Constitution ·
and Procedure therefor.". (3) Jt inserted a new sub-section (1) in Article 368 which provides;
that "notwithstanding anything in this Conslitution, Parliament may, in exercise of its
constitutent power amend by way of addition, variation, OT repeal any provision of this
- Constitution in accordance with the procedure laid down in this Article." (4) It substituted
--.· .
the words, "it shall be presented to the President who shall give his assent co the Bill and
. · thereupon" for the words "it shall be presented to the President: for his ass.ent and upon
such assent.being given to the Bin" Thus it makes it obligatory for the President to give·
his assent· to the Bill amending the Co'nstitution. (5) It has added a new clause (3) to ·
Article 368 which provides that "nothing in Article 13 shall apply to any amendment
made under this Article.n · · ·

A.,,[g,~e,29,Amendmentnaoty restore@ me amen«ae o»er or oe Para#en

bit@also@fended iis scope by adding the words "to amend by way of the addition or
Yanaton or repeal any provision of this Constitution in accordance with the procedure
laid down in this Article". ·
.
'_Theory of Basic Structure : A limitation on Amending power.Th e validity .

· of th~ .Const.Jttipo11 (24th Amendment) Act, 1971, was challenged rn Keshvananda Bharati
v. State of Kerala", popularly known as the Fundamental Right's case the petitioners had
challenged the validity of the Kerala Laru:i Reforms Act 1963. But during the pendency of
the petitien the Kerala Act was amended in 1971 and was placed in the Nin th Scheduled
by the 29th· Amendment Act. The petitioner were permitted to challenge the validity of
Twenty Fourth. Twenty Fifth and Twenty Ninth Amendment to the Constitution also.
The questmn mvo]ved was as to what was the extent of the amending power conferred by
Article 368 of the Constitution? On behalf of the Union of India it was claimed thai
amending power was unlimited and short of repeal of the Constitution any change could
be effected. On the other hand, the petitioner contended that the amending power was wide
but not unlimited. Under Article 368 Parliament cannot destroy' the "basic feature of ihe
Consti~tion. A Special Bench of 13 Judges was constituted to hear the case. Out of the
13 judges (II judges) delivered separat~judgments. - .

The Court by majority overruled the Golak Nath's case which denied Parliament the·
power to amend fundamental rights of citizens. The majority held that Article 368 everi
before the 24th Amendment contained the power as well as the procedure of amendment.
The 24th amendment merely .made explicit what was implicit in the unamended Article
368-A. The 24th Amendment does not enlarge the amending power of the Parliament.
The 24th Amendment is declaratory in nature. It only declares the true legal position as it
was before that amendment hence it is valid. The Court held that under Art. 358
Parliament is not empowered to amend the basic structure or framework of the
Constitution. It held that the first part of the twenty-fifth Amendment Act is. valid, but
held that the second part, namely, "no such law, containing the declaration that it is for
. giving effect so such policy shall be caljed in question in any Court on the ground that it·
does ot give effect to such pol~cy.''..-is invalid.

As regards the scope of amending power contained in Article 368, six judges (Sikri,
A. J., Shelat, Grover, Hegde. Reddy and Mukherjee, JJ.) held that rhere are inherent or
implied limitations on the amending power of Parliament and Article 368 does not confer
power to amend the Constitution so as to damage or destroy the essential elements or
basic features of the Constitution, Khanna, J, held :hat though there is no implied
/)' .
IO. AIR 1973 SC 161.

.. )_.•
 -772 CONSTITUTIONAL LAW OF lNDIA [CHAP. 40

. .

- limitation on the amending power but the power to amend does not include the. power to
...abrogate the Constitution. The word "amendment'.', he said postulated that the old·
· Constitution must survive without loss of indemnity and it must be retained through in
the amended form and, therefore, the power does not include the power to destroy or
abrogate the basic structure or framework of the Constitution. The remaining six judges
(A. N. Ray, Chandrachud, Mathew, Beg, Dwivedi and Palekar, JJ.) held that there are no
•- limitations. express or implied on the amending power. Thus the Court by majority of 7
to 6 held that the Parliament lias wide powers of amending the Constitution and it extends -
to all the Articles; but the amending power is not unlimited and does not include the
power to d,estroy pr abrogate the 'basic feature' or 'framework' of:the Constitution. There
on power
+±
are impliedlimitations the of amendment under Article 368. Within these, < '

%ff#ff#iii#incest#
• '.. I • • . •

Delivering the leading majority judgment Sikri, C. J.", said : "in the Constitution._
: the ward, 'amendment' or 'amend' has been used in various places to mean different
things.
I
some
In •
articles,
•
the word 'amendment'
• -
in the context,
- •
has
'
a wide meaning
• • •
and
-- ,. -

another context it has a •narrow meaning'. In view of the great variatfon of the phrases
used all through the Constitution. it follows that the word "amendment" must derive its
colour from Article 368 and the 'rest of the. provisions of the Constitution. Reading the
Preamble, the fundamental importance of the freedom of the individual, its inalienability
and the importance of the economic, social and political jµstice mentioned·: in the
Preamble. the importance of directive principles, the non-indusion in. Article 368 of
provisions like-Articles 52,. 5.3 and various other provisions, an irresistihle conclusion
emerges that it was not the intention to us.e the word "arne.n dment".in the widest sense. It
- was· the common understanding that the fundamental .rights would remain in substance as
they are and they would riot be 'amended out of existence. It seems also to havebeen a ·
common uriderstanding that the· fondamentar features of the Constitution, namely,
secularism, democracy and the freedom of the individual would always subsist in the
welfare State. In view of the above reasons, a necessary implication arises on the power
of Parliament that the expression "amendment of this Constitution" has consequently a
limited meaning in our Constitution and not the meaning suggested by the Attorney-
General. The· expressicm "amendment of this_ Constitution" in Article 368 means any
addition or change in any of the provisi-ons of the Constitutfon within the broad contours
¢f 1he Preamble and the Constitution to carry out the objectives in the Preamble and the
Directive ?rin@pie appied te fund,nae.s! iigits, it vld mean that while fundamental
rights, ;::annot be abrogated reasonable oidgements cf fudarentai rights can be e.Cfoctc:d
in the public interest. "If this meaning is given", the Chief Justice said "it would enable
Parliament to adjust fundamental rights in order to secure what the Directive Principles
direct to be accomplished, while maintaining the freedom and dignity of every citizen."
On behalf of the Union and the States, it was urged that the conceptions of basic elements
and fundamental features are illusive conceptions and therefore it would be very
uHsatisfactory test for the Parliament to comprehend and follow. The Chief fostice said,
that the concept of amendment within ihe contours of the Preamt,s and of Constitrion
cannot be said to be a vague and unsatisfactory idea which Parliamentarians and the public
would nm b-e able to t:indtrstand. He said that the argument that because something cannot
be cut and dricd or nicely weighed or measured and therefore does not exist is fallacious.
There are many concepts of law which are not capable of exact definition, but it does not
mean that i't does not exist. It was also argued that every provision of the Constututuon 1s
essential, otherwise it wgnld not have been put in the Constitution. The Chief Justice
further said, "Put this does not place every provisions of the Conslitution in the same
 . CHAP .40]
fHE AMENQIYIENT OF THE CONSTITUTION
· 773

position. The true position is that every provision of the Constitution can be amended
1-
provided in the result the basic foundation and struct.ure of the Constitution remains the
same.

What is the basjc structure ? What then are the essentials of the basic structure
of the Constitution ? Al though the Judges enumerated· certain essentials of the basic
structure of the Constitution, but they also made it clear that the.y Were only illustrative
and not exhaustive. They .v.,ill be determined on the basis
1
of
the facts iri each case.
In M.
Nagra) v.Union of India, '5 Judge Bench of the Supreme Court has explained the basic
feature theory again in detail as. follows.- Basic siruc,ture a:re systematic principles
,. underlying and connecting provisions of the Constitution. They give coherence and
. . durability to Constitution. These principles are pait of con stitutional law 'even,if not
,%Pr%by8aed This 4getrips has,essentially
developed from
the Gena Constitiiti6»' 1
±ti#tis"notbased on'literal words. These principles are part f constitutional law even if not
i expressly stated. Theory of basic structure is based on the concept of Constitution
identity. The main object behind the theory is continuity and within that continuity of
identity. " •

• In Keshwananda Bharati, the Judges has enumerated certain essentials of basic

structure as follows : According to Sjkri; C. J., the basic structure of the Constitution
. consists. of the following features :
(1) Supremacy of the Constitution, (2) Republican
and democratic fonns .of the·Govemment, (3) secular character of the Constitution, (4j
Separation of powers betweenthe Legislature, the Excutive and the J udiciaty, (5) Feder.it ·
character of the Constitution.
According fo Shelilt and
Grover, JI., of
the following are. the illustrations the basic
structure of the Constitution. f.e.; (l) Supremacy of the Co_n stitution, (2) Republican and
Democratic form of Governm'.ent and sovereignty of the country, (3) Secular and -federal
character of
the Constitution, (4) Demarcation of power between -the Legislature, the
Executive and the ludiciary, (.5) Dig'n f ty of the individual secured by various freedoms and
basic rights in Part III and the mandate to build a welfare State contained by Part V, {6) .
Unity and
integrity of the nation. - .

. According to Hegde and Mukherjee, JJ., the following are the examples· of
the basic
structure: (1) Sovereignty o(Jndia,. (2) The dernocratic character of our policy, 3) The
Unity cf the country, (4) Esset;al features of ±dividual freedoms secured to the citizens,
S} Mand:.: to hid a welfare $±ate. However, they said that these limitations are only
.: v=.

According to Mr. Jag mo~

Reddy, j_, (I) a sovereign democratic republic, and (2)
Parliamentary democracy certainly constitute the basic structure:
Khanna, J., concurred with the majority decision but delivered a separate judgment,
He snid: · .· · . · ·

"The amendment of the Constitution necessarily contempl<1tes rhar the ConstitLllion

has not to be abrogated. (Indeed, this much has been concede! by the Attorney-General).
The ri 'amxeirn.en' postulates that tie old Constitution survives without loss of is
identity despite the change and continues even though it has been subject to alterations.
As a result ofthe amendment, the oid Constitution cannot be destroyed, and done away
with; it is retained though in the amended form. The words 'amendment of the
Constitution • with all their wide sweep and amplitude cannot ha Ve the effect Of destroying
and ::ibrogating the basic structure or framework of _the Constitution. It would not be

l l. ,.._IR 20117 SC 71.

 W
."'-. /.
774 CONSTITUTIONAL LAW OF INDlA
! .
.f
-
[CHAP. '-+0 1
l
·-
competent under the garb of amendment, for instanc,e," to change the democratic
~ gov~mment ·into dictatorship/ of _hereditary monarchy nor it would be permissible to
abolish the Lok .Sabha a11tl ll1e: RUjya Sabha. The secularcharacter of the State according
to which the State shall be discriminated against any citizen on the ground of religion · .I
only cannot· likewise be don·i
away with. Provision· regarding the a1fa:iidment of th.e
Constitution docs not furnish pretence for subverting the structure of the Consti,tution
.. · nor can Article 368 be so cmn#trued as to embody the death wish of the Constitution or
provide sun¢tion for what may perhaps be called its lawful harakiri. Such subversion or
destruction cannot be described to be amendment of Constitution as contemplated by
Article. 368". i! · · , · · · · ·• , · · ·
. ' . i ·-. , . . . . . . . . . ,-;,
His Lordship further held that the power of amendment under Ar. 368 does not .
t%2%±±
or
z%2if
of
structure framework of tlje Constitution the power amendnienit is plenary and
iffier
· includes within itself the power to amend vanous articles of .the Const1t.un:on. mcludmg
· those relating to fundamentajl rights as well as those which may be said to relate to
essential feature. No partof a
fundamental right can claimimmunity from amandatory.
process by befog described asi the essence or core of that right.The power amendment of
would aJso.:include Within itself the power to add, alter or repeal the various articles. There
• . • . • . . •. .. • I •. . • ·., . . . . . •· . ' ' . . ··•.. . . . .. . . . •
are no implied inherent limitations on the power of amendment apartfrom those which
inhere and are implicit 'in the J..ord 'nmenctment· .· The said po.wer can also not be restricted.
. · by reference to •n~tural ot h6rnan rights'. Apart front the part·of i:he·Preamble Which
. restrict the.power of amendment.
I
relates to the basic structure or framework of the Constitution, the preamble does not
·
· · However, he held that the right to property did not perta'in to the basic stmxture of
framework of the Constitution.· ·· . · , · · . . - ·. 1 ') } .

The minority view of 6'Jud@cs ut.of 13 was that the 'amending under Article power
368 was unlimited. It includes power to add, alter or repeal the various articies. There are
no inherent and implied limitations on the amending power· in Article 368. The leading
.· minority judgment was delivered by Mr. Justice A. N. Ray to which Justices (Beg,
· Dwivedi and Palek.er, 11) concurred but delivered separate judgments. A. N. Ray, J., held: ·
"The power to amend is wide and unlimited. Th; power to amend mcans the power
to add, alter or repeal any provisions of Constitution. There can be or is no distinction
between essential and unessential feature of the Constitution to arise any impediment to
a°· . :.fess±,} 2A." ?za g!o Er se tent aw an amend
ny puiun of te .CCns
··J } UF. » I -
}t i . {rd; ,z±!e 3? Ate
i ia .4 '
or to
... " ~·
e;; a also he
!-'··'· J : - ·•·· .•.. ,·' ' • -- ' ·• ·• ~ ,, •.• " ·· J, • • ,, •

increased. He accepted that an amendment does not mean mere abrogation or wholesale
repeal of Constitution. An amendment must have an organic mechanism providing the
Constitution·, organisation and system fpr State". ·

'.'. . According to Afr. Justice Beg, though the \.VOrd "amendment" ,did not include the
·power to comp!etely abrogating the Constitution at one stroke, it was, however, wide
enough. to erode the Constitut.ion .coi-iiplctely step by_ step so as to replace it by another.·
Constitution. According to. Mr. Justice Divedi, the word 'amendment' in Article 368
was broad enough to. authorise the varying, repealing or abrogating each and .every
provision in the Consti,tution including Part III. ·
In Indira Nehru Gandhi v. Raj Narayan,'? the Supreme Court applied the theory of
basic structure and sruck down Cl. (4) of Article 329-A . which was inserted by the

12. ,\IR !975 SC 2299.

; I
 CHAP. 4j
s ' THE AMENDMENT OF THE CONSTITUTION
·775
. ri....
Constitution (39th Amendment) Act. 1975 on t_he ground that it was beyond the
amending power of Parliament as it destroyed the 'basic feature' of the Constitution. The
amendment was made to validate wirh retrospective effecL the election of the then-Prime
Ministers which was set aside by rhe Allahabad High Court. Khanna, J., struck down th.e
c.Jause- on the ground that it violated the free and fair elections which was an essential_·
postulate of democracy which in tur wus a part of the basic structure of the Constitution;
~--:--·' Chat1.dr4chud, J., struck down Cls. (4) and (5) as unconstitutional- 011 the ground that they
were outright negation of thc right of equality conferred by Art. 14, a right which is a,
basic postulate of our Constitution. He held that these provisions were arbitrary and were'
calculated to damage or destroy the Rule of law. The Supreme Court has thus added the
following of
features as basic features the Constitution to the ,list of basic features laid
i. ·. down in the Keshavezharua Bhara1i's case : . . .
, ·if ins
, + 2.Judicial Review.

3. Democracy, which implies free and fair Election.

It has been. held that the Jurisdiction of the Supreme Court under Article 32, is the
basic feature of the Constitution. " " .

In Minerva Mills Ltd v. Union of India,'? Supreme Court has· held that the.
following are the basic features of the Constitution :
l. limited power of Parliament to amend the Constitution;
-
·2. hannony and balance between fundamental rights and directive principles;
3. fundamental rights. in certain cases;
4. power of judicial review in certain cases.
Independence of judiciary is part of the basic structure 14•
The doctrine of bask structure has been vehemently. criticised. It has be en said that
the Court has not precisely defined as to 'JV hat are the essential features of the basic
structure and if this doctrine is accepted every amencin)ent is likely to
be challenged on the
ground that it effects seine or the other essential features of the basic structure. In other
words, it is urged, that the amending power of the Parliament cannot-be subjected to this
... _ vague and uncertain doctrine. - . .. .

it is,i.o., gin: .tr .:' :sicisra { th: doctrine of basic structure cannot
ve justified ontie ground that it lays down a vague and uncertain test. The basic structure
of the Constitution is not a vague ·concept. The fact that a complete Jist of the essential
<elements constituting the basic structure cannot be enumerated is no ground for denying
. that these do not exist, There are many concepts of law which cannot still be defined
_precisely, bur they do exists ar.d play vei=y-·-important part in our law: Quoting Lord Reid i
in Ridge v. Baldvin in Keslwvananda Bhnrcti's case 15 Sikri, C. J., said, "in modem times·
opinions have sometimes been expressed that natural justice is so vague as to be I
I
practically meaningless. But I would regard these as tainied by the perennialfallacy tlw.r ·I
because something cannot be ct and dried or nicely weighed or meas1,red th~refore it does I
I

13.

l 4.
AIR 1980 SC 1789.

Shri Kumar Padma Prasad :. Union of India, ( l 992) 2 SCC 2 8. In this case appointment of a High
Coun Judge was quashed cn the ground that he was ur.qu::!lificd.
I
15. 1964 AC40J
i ·
 776 CONSTITUTIONAL LAW OF iNDIA [CHAP. 40 ·
. . . . . . .

_ -~_nor exist. The idea of negligence is equally insusceptible of exact definition, but what a
· r.easona_ble man would regard as negligence in particular circumstances are equally capable _
. of serving as tests in law, and· na_tt.iral justice· as it has been interpreted in the courts is
· ' much more defined than that".;

If the· historical background, the Preamble, the entire scheme of the Constitution
and the relevant provisions thereof including Art. 368_are kept in.mind then there can be
no difficulty, in detenninirig•what are basic elements of
the basic structure of the
Consthution. These words apply with greater force to the doctrine of
the basic structure, . .
because; the federal and democratic structure of the Constitution, the separation of powers, .·
the secular character of our State are very much more definite than/ either negligence or . ... . _ ..
natural justice.'6 • f . $±±

· and Amerideni an@Arte 3«s.±-A#ertie@es6#sor so## cs##r1447$%2%%5...

Keshav.ananda Bharati and Idira Nehru Gandhi cases the Constitution Amendment) ·•
b
(42nd
Act, 1976, was passed which added two new clauses_, namely, clauses (d) and (S) to Art. ·
368 of the Constitution. Clause (4). provided that "no constitutiQnal amendment .
(including the provision of Pant
III) or purporting to have been made under Art. 368.24$%
whether before or after the commencement of the Constitution(42nd Amendment) Act,e"·
1976 shall be called in arty court on .any ground. Clause (S) removed any doubts about the
scope of the amending power. It declared that there shall be no limitation whatever on the
. constit~ent power of Parliament to amend by way of addition, vadatioii or repeal of the
provision's of the Constitution under this Article. Thus by inse"rtihg clause (5) it made it
dear that even the "basic feature" of the Constitution could be amended. . ..
. . This amendment would, according to Mr. Swanin Singh, the Chairman, Congress
Committee on Constitutional Amendments, put an end to any controversy s to which is
. supreme, Parliament or the Supreme Court. Clause (4) asserted the supremacy of
Parliament. It was urged that Parliament represents the will of the people and if people
desir e to amend the C<!mstitution through Parliament there can be no limitation whatever
on the exercise -of this power.
This amendment removed the limitation imposed on the amending pow_er of
Parliament by the ruling of the Supreme Court in Keshavananda Bharati's case. It was
said that the theory 'of 'basic structure as'invented by the Supreme Court is vague and
will create difficulties. The amendment was intended to rectify this situation. It was,
a:"..tine !s::iys towhat were the diff5cries faced by Parliament due
to the basic structure theory. I

..
A question may be asked here, Can we. say that an m_nendment made by Parliamenr
- is an amendment made by the people? The 42nd Amendment was intended to achieve this·
~- - object. 1t was argued that the amending body under Article 368 has the full constituent
• power. 1n other words, the Parliament acts in the same capacity as the Constituent
· · Assembiy when exercising the Power of amendment under Art. 368. It is submitted that
. this proposition is fota1ly wrong. The reasons are :~ · ·
First, arnmiendment made by P;rliament cannot be said to be an amendment made
by the people. There is a distinction between the power of the people to amend a
Constitution and the power of the legislature to amend. it. lt is true that Parhament
represents the will of the people. But it is no_t equally true that v.ihatever Pariiament does
is usually approved by the people. The Lok-Sabha election held in 1977 is a good
examp1e to show that the rspresentatives of the people in Parliament do not always reflec_t

16. H. M. Seervai: Constitutional Liw of lndia Voi. 11. p. 1568 (2nd Ed).
;
 THE AMENDMENT OF THE CONSTiTUTiON
777
... the people'.s will. Whatever was done during the emergency was done in the name of the
people. But from the election result it Was clear that they had rejected all what had been in
. ;their name by their representatives. Therefore it is not possible to derive support for arr
unfettered amending power from the theory that the representatives of the people always
reflect the people's will. The theory of basic structure propounded-by the Supreme Court
in Keshavananda Bharati's case is correct and will act as a safety-valve against arbitrary
Use of the amending power. In Australia out of 30 amendnients ·proposed by the absolute ... --
of
majority Australia Parlfa nient ,on ly four were accepted and 26 were rejected by the ·
people.
of the people. " clear that Parliament does not always represent the will ·
This illustration makes it

Secondly, the assertion of parliamentary supremacy is based on wrong nations. The

ls suprerijcy,of.Parliamentis.the
#!!!!l1!5ti.kff6!!/%±ff%h:&if! main
!!!!"SP? -' " of ',"
characteristics the British Constitution, the ss . ,_.

: ""Parliamentary"supremacy means that Parliament has unlimited law-making power. It

includes both the constituent power and ordinary law-mak_ing powers. Parliament can .
change, the Constitution by Passing an Ordinary law. l t means that there is distinction no
in England between constitutional law and ordinary law, Secundly, no law passed by
#.Parliament can be declared unconstitutio nal by the courts. In India, Parliament is ht
supreme but the Constitution is Supreme Parliament is a creature of the Constitution and
derives its powers fmm the provisions of the_ Constitution including the power to amend
the Constitution under Art.368, Laws passed by Parliament can be declared ultra vires ¢e
Constitution. There is distinction between the con sti tuen t power of Parliament and its
ordinary law-making power. The amending power under Article 368, therefore, Cannot be
exercised in such'a way so as to subvert or abrogate the Constitution.

Thus the Constitutional amendments made under Article 368 can still be challenged
on the ground that they are destructive of the 'basic features' of the Constitution.

1n Minerva Mms V, Union of India,'? the Supreme Court by 4 to· I majority

struck down clauses (4) and (5) of Article· 368 inserted by the 42nd Amendment, on the
grOund that these clauses destroyed the essential feature of the basic structure of the
Constitution. Limited amending power is a basic. structure. of the Constitutioii:
Since these clauses removed all limitations on the amending power and thereby'
conferred an unlimited
Constitution.· · amending· power, it was destrnctive of the basic feature of the

Th~ i1>,.1..-,,r.,,·-.~ - ..,,,.;,, 1· ,. - • ·h ~ .. ,- ·

c:., .. ,·=·i-.~ r'.-.. ,_. ·· ~ •v·•t-,. .. - t·
""3 · 'ii?i ii =it clear that the Constitution no
ii[iii tf U;us i:&kcs it
the Parliamentis supreme in India. this is in accordance with the intention of the • I

framers who adopted a written Constitution for. ihe country. Under the written
Constitution there is a clear distihction between the oidinary legislative power and the
constituent power (amending power) of Patliamerit. POr!iament cannot have unlimited
amending power so as to damage or destroy the Constitution to which if"i,wes its
existence ilnd also derives its power. The Parliament elected for a fixed period of five years
is meant for certain specific puri,,oscs Ond cannot be vested with unlimited amending
. pdwer. The Court, however, held that the doctrine of basic structure is to be applied only
in judging the validity of ainendments to the ConstitUtion and it dces not apply for
.. judging the validity of ordinary laws made by iegislatures. The decision of the Count on
the point is correct. It has put at rest the long-drawn controversy between he Courts and
the Executive. The Gover mcnr should nonake the dee ision of ihe Court as a ch alien ge
against it but in the spirit of the compro,nise and co-operation between the two organs of
I
the Government. · i
. I
- I
17. AIR 1980 $C 1789.
I
-I
'
~- 778
CONSTITUilONAL LAW OF !NOIA
[CHAP. 40.

In Waman Rao v. Union of lndia 18 the Supreme Court held that all amendment to
the Constitution which were made before April 24; 1973 (i.e., the date.on \.Vhich the··
judgment of Kesavananda Bharati was delivered) including those by which the Ninth
Sc:h-edule fo the Constitution was amended from time to time were valid and
constitutional. But amendments to the Constitution matje on or after that date by which
the Ninth Schedule was amendment were left open to. challenge on
the ground that they
werP. heyond the constituent power of. Parl i ament because they damaged the basic structure ·
of the Constitution. ·

. . ln S. P: v.
Union of fndia 19 the constitutional validity of Art..
Sampar Kumar
323-A and the provisiqns of. Administrative Tribunafs Ac_t, 1985 was challenged on the
ground that the Act by excluding..thejurisdiction_ of the High Courts under Arts. 226 and ..
of
227 in service .matters had destroyed the power was
judicialreview which a basic
feature oftheConstitution,The Supreme court upheldhevalidity ofArt:323-44i4
Act as the necessary changes _suggested by the Court were incorporatedin the
ff%
Administrative Tribunal Act. It held that though the Act has excluded the judicial review
of High _Court in service· matters. under Arts. 226 · and 227, but as it has not excluded
judicial review under Arts. 32 and 136 the Act is valid. The Amendment does not affect
basic structure of the Constitution as it has vested the of
power judicial revieir i4
alternative'institutional mechanism, after taking it from the High Courts which is not
less effective than the fiigh Courts. . . .· . . . . ... . . .
. . . . .. , .. ' .

. lo a landmark judgment in L Chandra Kumar v. Union of1di?O a seven-member

. Constitution Beneh of the Supreme Court has unanimously while
reconsidering the
Sampat Kumar's case, has struck down clause 2(d) of Arts. 3234 and clause 3 (d) of
Art. 323-B which "provided for the exclusion of the_jurisdiction of_the High Courts under
Arts. 226 and 227 and _the Supreme Court under Art. 32 · of the Constitution as ·
unconstitutional and invalid as they damage the power of judicial review which is the
basic feature of the Constitution. The Court has held that power ofjudicial review over
legislative action vested in the High Courts under Ar. 226 and the Supreme Court under
"A rt•. 32 of the Constitution is an integral.and essential feature of the Constitution and
formed part ofits basic structure. "Ordinarily, therefore, the power of the High Courts and
the Supreme Court to test the constitutional validity of legis.Jations can never be ousted
excluded". Following the Kesvananda Bharati's case the Courtdeclared unconstitutional.
clause 2 (d) of Art. 323A and clause 3 (d) of Art. 323-B of the Constitution. to the extent
that they exclu_ded the jurisdiction of the High Courts under Arts. 226 and 227 and the
Supreme-Court. under An.
32 of the Constitution. . .

The {Coar sd EEzt Aile d±s jaisdiction cant ±e ousted, other Coars and
tribunals may perforrn a supplemental role in discharging the powers conferred by Arts.·
226 and 227 and 32 of the Constitution, so Icing as the jurfodiction of the Hih Cours
under Arts. 226 and 227 and of the Supreme Court under_ Ar. 32 is retained there is no
reason the power to test the validity of legislations against the provisions of the.
Constitution cannot be conferred upon Administrative Tribunils created unde_r Arts. 323-A
, .- T
and 323-B of"the Constitution. . . --- · · · •_ . · . .

"All decisions of these tribunals will, however, be subject to the scrutiny befor~ a
Division Bench of the High Court which has to jurisdiction over the tribunal concerned.
The tribunals would, however, continue as the Courts of first instance in respect of areas

18. AlR 1981 SC27i.

19. i AIR 1987 SC 386.
20. AIR 1997 SC i 125.
 ±
·:'
i
i ..
I •
I
I
' j ·•
CHAP 40]
. THE AMENDMENT OF THE CONSTITUTION
779

-. of the law for which· they had been constituted. It will not, 1herefore, be open to litigants
. to directly approach the High _Courts even in cases where they question the vires of
..
statutory legislations except where the legislation which created the. particular Tribunal
was challenged by overlooking the jurisdiction of the concerned Tribunal. Section 5 (6) of ·
the Central Administrative Tribunal Act is constitutional.

. The Court held that Section 28 of the Administrative Tribunal Act, 1985 and the. '
"exclusion of jurisdiction clauses in all other legislations enacted under Arts. 323-A and
· 323-B will to the same extent be unconstitutional. ·

On the question of appointment to the Tribunals the Court suggested the Central

EE##±±;er5#±±if$$ii$
There shoildbea single mode] Ministry to oversee the working of the Tribunals. The
·· · · creation of a single umbrella organisation to supervise the working of the·tribunals, the
Court said, will remove many of the ills of the present systein If the need arises there pan.
a
be separate umbrella organisation at the
Central and State level. i. ,

Ti Sarene cor got an oporuiy in this case to serte beyond dour the
. question whether judicial review is a basic feature of the Constitution. In short, no
amendment passed ·b y Parliament in future can bar the Courts from pronouncing ·
. judgments on its constitutional validity. . ·

. Two recent landmark Judgments of the Supreme Court are worth-mentioning : One
is M. Nagraj v. Union of Indra land the other is I.R. Coelho v. Stare of Tamil Nadu a ·
nine bench judgment.·In M. Nagraj v. Union of India, the petitioners challenged·
the Constitutional validity of the Constitution (77th Amendment) Act. introducing · ·
. Art. 164-A nullifying number of decisions, the 81st Amendment Act, 2000 introducing
Art. 16 (4-B), introducing promotion in reservation also which was stopped in Indra .
Sawhney's case, and 82nd Amendment Act, 2000 introducing proviso to Art. 355 which:
emphasis the impoi-tnnce of maintaining efficiency in administration and the 85th
Amendment Act, 2001 adding words- with consequential seniority in ~rt. 16 (4-A} ·
nullifying dee-is ions in Ajit Singh's case on the groun_d thnt they violate bask features of
the Constitution. However, a five Judge Bench of the Supreme Court headed by
CJI Shabharwal unanimously held that these amendments do not· violate the basic
feature of the Constitution. They are enabling provisions and only apply to SC and ST.
They do not obliterate constitutional requirements, such as--50% ceiling limit in
reservation, Creamy Layer Rule and post based rost_er sub-classification oetwe_en O.B.C. ·
on one hand, and Second STs on the other hand, as held in Indra Sawhney's case. They do ·
.'not alter structure of equality codes, therefore, they are not beyond amending power of
· Parliament.

t In 1.R. Coelho v. State of Tamil Nad?? headed by the Chief Justice Y.K.
· Sabh2r.wai (comprising Ashok Bhan, Arijir Pasayat, B.P. Singh, S.H. Kapadia, C.P.
Thakkar, P.K. Balasubramanyan, Alman Kabil and D.K. Jain, JJ) held that any law
placed in the Ninth Schedule after April 24, I 974 when Keshwanand Bhani's judgment
. was delivered will be open to challenge. The Court said that even though an Act is put in
: the Ni;ith Schedule by a constitutional amendment its provisions would be open to
challenge on the ground that they destroy or damage the basic feature, if the fundamental
rights are taken away or abrogated pertaining to the basic feature of the ConstitLtion. The
21. AIR 2007 SC 7 I.
22. AIR 2007 SC 8617.
 .780 CON3TITUTIONAL LAW OF !NOIA
[CHAP. 40

Ninth Schedule was introduced to th_e Constitution ·thro"ugh· Art. 31 (b) by the First
· Constjtuti9riil (Ameridmem) Act, 1951. The object of the Ninth·-Schedule. was 10 s2.ve
liirid•Rttfrifrihs_La\.ys e'1\ac_ted by v~fious ·states from being cha]lenged in the Court. Lat.er.
on, it became an omnibus anc_i every !<ind of laws whether it related to election, nifoet and
·. ry,j_,.{fu,iJ~.,itjifui.°frjaJ 'i-eiation~. requi.~i.tion of property·, monopolies, coal or copper
natic:maiisati'on! general insurance, sick industries· acquiring the A1tcock Ashdown ...
Company, Kerala- Chilies Act, T a Nadu reservation
m i l o f and soon were inserted in
6 9 %

. it:°i4'◊ prj.n¢iplf ut1cletrtr¢s chis selectz0n. Today't-he total number of Act<;1 in~erted in iris
1 .28tLTbe Tamil Nadu law in it was included because of the Supreme Court' s ruiing in the ·

Mardal case that overall reservation cannot exceed 50%. I the instant case, the

iii$2jii$z.3#
to
$ $$$if: f
open challenge it again, but if a law is held to. be violative of fu_ndan1ental rights·.
incorporated in the Ninth after the date· of the judgment in the Kesha}Vanand ·
Schedµle
Bharti's case, such
a violation shall be open to challenge on the ground that it destroys ·
ordamages the basic structure ofConstitution. hf ± . "]

1.

. _;
i
 \.»
~ONSTl1:UTIONAL 'LAW OF !NOIA [C_HAP. 7

inconsistent with the provisions of Parr- III of the Consti_tution. Clause (2) of this article
-'prdvides that the State shall not make any law which takes away or abridges the
fundamental rights conferred by Part III of the Constitution; and any law made in
contravention of fundamental rights shall. to the extent of ,contravention, be void. Clause
(3) of this article gives the· term 'iaw' a. very- broad connotation which indudes any
_-or~inanc_e. order. by-law. rule, regulation, notification, custom or usage having the force
of law. Thus no_t only" the legislative enactment, - but anything mentioned here can be
- 'challenged as infringing a fundamental right.
- in
- Power ofJudicial Review.-Article 13 fact provides for the 'judicial review·
_ of all legislations in Tndia, past as well as future. This power has been conferred on the ·
·I High Cours and the Supreme Court of India (Article 226, Article 32) which can declare a
la unconstitutional if it is inconsistent- with any of the provisions of Part III of the
Constiiution. · _ _ . . · . _ · _ _ _ __ _ _ · _
.o±·Meaningand basis'of.Judicial Review.- 'Judicial Review' is the power of
. courts to pronounce upon the constitutionality of legislative acts which fall within their
normal jurisdiction to enforce and the power to refusti to enforce such_ as they find to be
unconstitutional' and hence void.70 "JudicialRe~iew" said Khanna, J., in the Fu:ndamental
Rights case.71 ..has thus_ become an
integral part of our Constitutional System and a
power has been
vested in
the' High Courts and the Supreme Court to d.ecide abo.ut the
· constitutional validity of the_ provisions of statutes. If the provisions of the statutes, are
._found to be violative of any of the articles of the· Constitution which is the touchstone
or
- - f the validity of all laws the Supreme Court and the High Courts are· empowered to
· _strike down the said provisions". _ . _
. ihat power coriupts a man and absolute power corrupts absolutely whichultimately
leads. to tyranny, .anarchy - and chaos has been sufficientlyestablished in course of
evolution of human history, and all round attempts have been made to erect institutional
Jis:nitaticins on its.exercise. When Montesquieu gave his doctrine of separation of powers;
he a
was.obviously moved by his desire to put curb on absolute and uncontrollable power
m any one organ of the Government: A legislature, an execu,tlye and a Judicial power
comprehend.the whole of what is meant and understood by <;:}overnment. It is. by
balancing each of
these two powers against the other two that the efforts in human nature
, towards tyranny" can alone be checked and restrained and any freedom preserved in the
Constitution.72
Judicial Revie_w is thus the _interposition ofju(:iicial restraint on the legislative as . ij•
theGexecutive or~adns. ofhthethGovemfment.lThe concepdt _h?,S the _odrigin in thee· thc:.ohry. _-·-I
wfell: a~ ed
o 1m1t_ _overnment an mt e eory o two aws-an or mary a.n supreme- z.e., t e ·.. ·1-.
r ..9:.)7e.,·'• ·erg neio. ±EE·e: cure;± ls; which constitutes

±%.±%%e s i
or authority to pronounce such legislative acts void.73 . ~,

The doctrine of judic:ia1 review was for the firs.t ::me propounded by the Supreme
Court of_America. Originally, the United States Constitution did r:.ot contain an express·
I
~
;psrovisia.n
upreme
cfo~ourjut_ di~iA
al rev(e,.v._ T~e P~_,ver ?f juclicialrr}e;ie~:✓ \VaS, ],M
or .menca 111 tne 111stonc case OT fjarcury v. ,naison. ,.
_ow~ver, ~5,_sT
umh e.df
b y t~~
e acts Oi
.
!:
t
,,
'-_:.
~
::
-,:
·:
~.
·
:_~.
1_
:_
•-~:1-:_

70.
71.
72.
73.
74.
E.S. Crow--Essay on the Judicial Review in Encyclopaedia of So il Sciences, Vol VIII, p. 457.
Kesavcnanda Bharani v. State,ofKercla, A!R i 973 SC 1461.
Letters by James Adams to Richard Heary.
. . .
Esu's Commentaries on Constitution of India, Vol l.
2L Ed. 60.
.
i~
iS'l1
s3
~
~l'J
11
_-

I
 FUNDArAENT,4.L RIGHTS
69.
· the case were.as follows, The Federalists had lost the election of 1800, but before icaving
- me office they had succeeded in (reating several new judicial posts. Among these were 42
justices of
iJ_eace, to which the retiring Federalists President John Adams appoin_ted forty-
two.Federa-h sts. The appomtment of commissions were confirmed by the Senate and they
were signed and sealed, but Adam's Secretary of State, John Marslw/1, failed to.deliver
certain ofthem. When the new President, Tboma,.s Jefferson, assumed officc, he instructed
his Secretary of State, James Madison _n ot to deliver seventeen of these commissions
inciuding one for William lvlarbury. Marbury, filed a petition in the Supreme Court for .·
the jssue of a writ of mandamus ~o Secretary Madiso11 'ordering· him to deliver the ·
commissions. He relied on Section 31 of the Judiciary Act of 1789 which provided : \'The-
. Supreme Court shall have the power to issue............writs of.mandamus, in.
cases
warranted by the principles and usages oflaw, to .......-.persons holding office, undeqbe. .
. au thori ty of the United States". The Coo rt, spenking through Marshall, who had now~ g
become Chief,Justice, 1ela hat section 13 £he Judiciary'Acts
. . _l gj ±is)j&±, @ i i i;ii ; li " ;i;ii;ii, ii" iji;
4$/#ej±a
it ;iii,
t6'46f$$$%#$%$f%%#
i i "if?if
]i i ;<
%%°
e%II,section'6f "t!ie": Constitution in asm uch as the Constitution 1 tself limitedthe · . · · · ·. : .
Supreme Court's original jurisdiction to cases "affecting ambassadors, other pule
ministers and consuls. and those· to which .a State is party'._'_ Since Mai.bury fel! in,hone of ·
these categories the court had nci jurisdiction in his case. The observations of Marshall,
C.J.,in thatcase
are pertinent
to note:- ..eel%i f±ii#f "kif

"The Constitution ts either superior param.ount)aw titjchangeable by ordinary

means or it is on a level with ordinary legislative Acts,and like other Acts is
alterable when . the legislature shall please -to nlter it...~ Cefqlrnly. all those·,who
frared written Constitutions cpntemplate them .as forming the fundamental and
· paramount law of the nation and,consequently, the .theory-of:every such Government
must.be that an Act of the legislature repugnant to the Constitution is void. And
n.µ-ther. ''It is emphatically the province and duty
what the law is..." · · · · ·
of
the Judicial departmeJ.1t to. say
· t · · '· ·

• 1£$--
i In fhe Indiarr·Constitution :there is an express provision for judicial review, and:in
this ·sense it75is: on a more solid footing than it is in America_ In The Sit;zte of Madras v.
V.G. Row, .Patanjali Sastri, C.J_·. observed. "Our Constitution contains express
provisions for judicial review of legislation as to its conformity with the Constitution,
unlike in America where-the Supr.cme Court-has .1J.Ssumed extensive powers of reviewing
legislative acts under cover af the widely interpreted 'due process' clause in the Fifth and
... Fourteenth Amendments. ff then, the courts in this country face up to such important and
none too easy task, it is no; out of .any desire to ·tilt ar l~gislative authority and a
crusader's spirit, but in discharge of_..duty plainly ]aid upon thei:n by the Constitution.
. Th
. :sp
·5 . e .c n u e as regals the
illy . 1 fun
- i
damentall rights
. . ·h; the
as to which h r,
Cur has'l . .,.ee
•
. . . assigned the rnle ofs.entine_I on the <1ui vive.''

But even in the absence of the provision for judicial review, the courts would have
. been 2ble to invalidate a law which contravened any constitutional provision, for, such
power of judicial review fol lows from,the very nature ofcohsti tution al fa w. Jn· A. K.
Gopalan 'V. Stare ofMadras, 16 lµnia, C.J., pointed out that it was oniy by way of
abundant caution that the framers of
our Constitution inserted the specific provisions in
Anicle 13. He observed : ..,;-In fodia, it is the Constitution that is supreme and that a·
statute law to be valid, must be in all conformity with the constitutional requirements and
it is for the judiciary to decide whether any enactment is constitutional or
not." .

75. AIR 1952 SC 196.

76. Affi l-950SC 27.
 . I

lCHAP. 7
CONSTITUTIONAL LAW OF \NOIA
7D
But while the b:isis of judicial review of legislative acts is far more secure under our
Constitution its potentialities afe much more limited as compared te-that in U.S.A. This
is- due to the detai1ed provisions of the·lndfan Constitution and the easy method of its·
amendment in contradistinction tu the American Constitution's vr1gue ahd general
. phraseology and the rigi<l method of its amendment. This, under the power of judicial
review the highest Court of the Nation can test al1 pre-Constitution and post-Constitution
· or future faws, and declare them unconstitutional in case they contravene any of the
provisions of Part III. of
. the Constitution. .

In Kesavandnda Bharati's case · it has been held that Judicial Review is the 'basic ·
71
features' of the Indian Constitution and, therefore, it "cannot be damaged or destroyed by
· amending the Constitution under Article 368 of the Constitution". ' ·· · . · .
Agan, L
i Chandra Kumar v. Union ofmdia, (19977%the Supreme Court has
. held that the power of judicial review of legislative action as vested in the High Court
under Article 226 and in the Supreme Court under Article 32 is part of the,basicstrncuire
of the Constitution and can be ousted or ·excluded even by the constitutional amendment: · .
Pre-Constitution Laws.-According to clause (I) of Article 13 all pre-
Constitution or existing laws, i.e-, . laws which were in force immediately. before the I

commencement of the Constitution shall be void to the · extent to. which they are
inconsistent with fundamental rights from the date of the commencement of the
Constitution.. .- . . • I •

Article 13 not retrospective in effect.-

· Article 13 (1) is prospective in nature.·
All pre-Constitution laws inconsistent with Fundamental Rights ·will become void only
after the commencement of the Constitution. They . re not void. b. initio. Such.
inconsistent law is notwiped orfso far as the past Act{are concerned/ A declaration of
invalidity by the Courts wil), however,be necess to make 19the (aws invalid.
0 The
Supreme Court in Keshava (adhav Menon. v. State of Bombay, . served·: There·is
no fundamental-right that person shall not be pro ecuted and pti ·sh.ed for an offence
committed before the Co · titution came into force So far as the p st Acts are concerned
th. law exists notwithstanding that it does not exist with respectj the future exercise o'
the .Fund.µnerital
.
Ri gh c: •·
. . ln that.case,~- osecu.tion proceeding w s started a&ai st the petitioner .under the
' .

'Press (Emergency Pwers) Act, 1931 in respect of a pamphlet published in 1949. The
presentConst1tut:10 came into force dunng e pendency the proceeding in the Court.
The appeUant co ended that the Act w s inconsistent with the. fundamental rights
conferred by Art i de. 19 (]) (a) of the Con}".tution hence;mid, and. the proceeding against
him could not be/continued. The Supreme Cour held that Article [3 (1), could not apply·
to his case as th offence was committed before the pfesent Constitution came mto force
and therefore, th
e proceedings started against bim in9 49 were not affected. The Supreme_
Court held tha{: "As the Fundamentay Rights becadie operative only on and from the date
o,f the:'C.onstijution, the question of the inconsistency of the existing laws with those
rights must #rise from the date those rights cine into being.........The voidness of t'°
existing law /is limited to the futife exercise offundamental rights. Article 13 d) cannot
be read as qb1iter~ting t.heentirJoperation of,the inconsistent Jaws; or to wipe them out
altogether from the statute book, for to doso will be to give them retrospective effect
which, we have said, they do npt possess.
. . ! .

I
I
i
77. A1R 1973 SC 1461. /
78. A1R 199T SC 1125.
79. AIR 1951 SC 128: R e b in d r a N c t h v. U n i o n o f ndic, AIR 170 SC 470.
 '·») CHAP 7] ,
FUNDAMENTAL RIGHTS
59
soon· as the proclamation ceases and then. Article 19 is automatically revived and begins to"
operate. Articie 358, however, makes it clear that things done or omitted to be done
during the emergency cannot be challenged even after the emergency is over. Article 359
further empowers the President to suspend the right to move any court fo_r the i
enforcement of rights confen:cd by Part III of the Constitution (except Articles 20 and 21)
during the continuance of emergency. The suspension of the right to move the courts for
the enforcement of the fundamental rights can be done by an order of the President. He·
may mention in his order the rights whose enforcement is to be suspended. The order of
the President may extend to the whole or any part of the territory of India. It is to. be
noted that while under Article 358 of the rights conferred by Article 19 are automatically
suspended, the suspension under Article 359 can only be brought about by an order of .the . ,
President. ·· . -.

..-:.,,· Classification of· Fundamental Rights.-The fundamental rights as ·

incorporated
. . .. . .
' -. . · . . in the Indian
' . . Constitution
. can be" classified under the following six
groups :
(a) Right to equality (Articles 14-18).
(b) R)ght to freedom (Articles 19-22).
(c) Right against exploitation (Article 23-24).
. {d) Right to freedom of religion (Articles 25-28).
{e) Cultural and educational rights (Arti~Jes_ 29-30).
(t) Right to constitutiona~ remidies (Articles 32-35).
The 44th Amendment has abolished the right to_property as a fundamental right as
guaranteed by Article 19(l)(f) and Article 31 of the: Constitution, and hence Ar:ticle
19(l){f) and Article 31 has been omitted..
Fundamental rights available against State and not against· pfiva,te
individuals.-Individual needs constitutional protection against the Sta.te. The'/rights
which are given to the citizens by way of fundamental rights as included in Part ID of the
Constitution are a guarantee against State action as distinguished fonn violation of such
rights from private parties. Private action is sufficiently protected by the ordinary law of
land. In P.D. Shamdasani v. Central Bank of India, 0 the petitioner, in an application
under Article 32 of the Constitution, sought the protection of the Court on the ground
that his property right under Articles 19 (l)(f) and 31 were infringed by the action of
another private person-the Central Bank 'of India. The Supreme Court dismissed the
petition and held : "Neither Article 19(1) nor Article 31 (1) was intended to prevent
v1rongful individual's acts or to provide protection against merely private conduct.......
The language and structure of Article 19 and its setting in Part III of the Constitution
. . clearly' show that the Article was intended to protect those freedoms against the State
action other than in the legitimate exercise of its power to regulate private rights of
·' property by indi.:. ,idualsjs not within the purview of the Articles"
Definition. of State (Article 12). Article 12 defines the term 'State' as used in
different Articles of Par III f the Constitution. It says that unless the context otherwise
requires the term 'State' includes the following :-
l. The Government and Parliament of India, i.e., Executive and Legislat:ure of
the Union. ·
2. TE5e Government and the L.egis1ature
· Legislature of States. of each State, i.e. Executlive and
, -., is Yo .

20. AIR 1952 SC 59; See also Vida Verna v. Shivnarayan, AIR 1956 SC 1Og.
l
!
'i
 CON$TITUTIONAL LAW OF INDIA [CHAP.7
60

3.- All!gal or other authorities within territory of India. the

4. All local and other author.i_ti_es under the control of the Governnent of India.·
The term 'State' thus includes executive as well as the legislative organs of the
Unjon and States. It is, therefore, the actions of these bodies that can_ be challenged before
__ the courts as violating fundamentai rights. ·
· , . (a) Authorities.A ccording to Webster's Dictionary : ''Authority" means a person
. or body exercising power to command. In the context"of Article 12,. the word "authority" .
. means the power to make laws, orders, regulations, bye-laws, notification etc. which have
the force of law and power enforce those laws.
' . . ,
to ' ,

(b) Local Authorities.-c-"Loca.l a1,1thorities' as, ddihed in Section 3 (31) f the .

• General ClausesAet refers to authorities like Municipalities. District Boards, Panchayats,
Improvement Trust and Mining Settlement Boards'. In Mohammed Yasin v. Town Area
Co'mmittee, 21 the Supreme Court held that the bye-laws of a Municipcl-1 Committee
charging a prescribed fee on the wholesale deakr was an order by a State authority
- contravened Article 19 (1 )(g). These bye-J~ws iri ~ffect and in substance have brought
about.a total stoppage of the wholesale dealer's business in the commercial sense. In Sri
Ram v.. The Notified Area Coinmittee/.2 a fee levied under Section 294 of th.e U.P.
Municipalities Act, 1919, was held to be invalid.
(c) Other authorities.In Article 12 the expression 'other authorities' is used after
mentioning a few of them, such as, the Government, Parliament of· India, the
Government and Legislature of each of the States and all local authorities .. In University°
ofMadras v. Santa Bai. 2~ the M.adi:as High Cburt held that 'other authorities' could only· ·
indicate authorities of a like nature, i.e. ejusdem generis. So construed, it could only
mean authorities exercising governmental Of- sovcr,cign functions. It cannot include
persons, natural or juristic, such as,. a. Uni ver_sity unless it _is. •maintained bf me.State' ..
But iri Ujjamnibai v. State of U.P, 24 the Court rejected this restrictive interpretation of
the expression 'other authorities' gfven by the Madras High Court· and held that the
ejusdemgeneris rule could not be resorted in interpreting this expression. In Article 12 to
the bodies specifically named are the Government of the Union and the States. the
Legislature of the Union and the States and local authorities. There is no common genus
_running through these named bodies nor can these bodi_es so placed in one single category
on any rational basis. I

. In Electricity Board, Rajastlwn v. Mohan Lal,?° the Supreme Court held that the
expression ~other authorities' is wide enough to include al1 authorit1es created by the
Cons:it±ion cr :rut on whom rowers arecr ferdty? his not necessary that te
~ . • 1 .. ti 1 . - e n
statutory authority should be engaged in performing governmental or sovereign runc4on.
+ •

On this interpretation the expression 'other authorities' wi\1 include Rc"ijasthtJ.n E l e c t r i c i t y

B o GS Cochis
a r d, Board,' D e v a s which have power to make
o m x C o - o p e ra t i v e S o c i e t y , "

bye-laws under Co-operative Societies Act, i9i l. The Chief Just"ice of a High Court is

21. AIR J 952 SC l 15. See :ilso RnshiJ I.J1111ed _v. Municipal Board, Kairana, Al R l 950 SC l 63.
22. AIR J952SC ll8.
23. AIR 1954 Mad. 67.
24. AIR 1962 SC 16'.?,l.
25. AIR 1967 SC 1$57, followed in Unesh v. V.N. Singh, /dR 1968 P:it.'3.
26. Elecuicity Bdcrd. Rr.jrL.s:Ihc.1! v. Mohan Le!, A!R 1967 SC 1857.
27. P.B.M. Nam:boodrpad v. Cochin Devasom Board, AIR 1956TC !9. • D

28. Dukhoram v. Co-operc:ive Agricdtral Association, ."-.i R l 961 }-/JP 219.

 o.·
f e FUNDAMENTAL RIGHTS
61 ~
also included in the expression 'other authorities' as he has power to appoint officials of
29
· the Coun. The Presidem30 ,;vhen making order under Article 359 of the Constitution
comes within the ambit of·the.expression 'other authorities'. In effect, the Rajasthan
Electricity Board's decision?' has overruled the decision .of the Madras High Court in
Santa Bai's case; holding a University not to be "the State". And finally, the Patna High
Court, foBowing the decision of the Supreme Court. has held that the Patna University is
"a State".32 · · · -

» .
_ In Sukhdev Singh Bhagatram,°? the Supreme Court, following the test· la-id
v.
down in Electricity Board Rajasthan's case by4:l majority, (Alagiriswamy, J. dissenting)
held_ that Oil and Narural Gas Commission, Life Insurance Corporation.and Industrial
Finance Corporation, are authorities within the meaning of Article 12 of the Constitution
and therefore, they are 'State'. All three statutory Corporations have power to make
regulations under the
statute for regulating conditions of service of their employees. The,_,.
rules and regulations fried y 6ie 6dies14v id force'of1a6ire'th$i
contract with a particular employer is prescribed by the statute itself. These regulations
are binding on these bodies. The employees of these statutory bodies have a statutory
status and they are entitled to ·declaration of being in employment when their dismissal or
removal is in contravention of statutory provisions. The employees are entitled to claim
pro.tectfo-n of Articles I4 and 16 against- the Corporation. N(athew, J., in a separate but
concurring judgment, preferred a br.Jader test that if the functions the Corporation are of of
public importance and closely related to governmental functions it should be treated an
agency or instrumentality of government and.hence a 'State•· within the ambit of Article
12 of the Constitution. . . · · . · ·- · ·:>,: . · .
The effect of these· decisfons was that the 'authorities· not created by the
Constitution or by a statute could not be a 'State' within the meaning of Article 12 of the
_ Constitution. T.his was a very restrictive interpretation of tbe· expression t9Jher -
authorities' under Article 12 of the Constitution. · .,~:;::
But in subsequent decisions the Supreme Court has given - a broad and liberal
interpretation to the expression 'other authcr1ties' in
Article 12. With the changing role
of the State form merely being a police State to a welfare State it was necessary to widen
the scope of the expression "authorities" in Article 12 so as to include an _those bodies_
which are, though no created by the Constitution or by a statute, are acting as agencies
_ · or instrumentalities of the Government. In modern times a government has to perform
· manifold functions. For this purpose it has to employ various agencies to perform these
functiops. The Court has, therefore, rightly taken the view that such juridical persons
acting as the instrumentality or agency of the government must be subject to the same
restrictions as th State. .. . 'i

In Airport Allthority's ca:Se,34 Bhagw2.ti, J., preferred, and rightly, the broader test_
as suggested by Mathew, J., in Sukhdev v. Bhngatram case. In this case the Court has
• held that if a body is an-agency or instrumentality of government it may be an 'authority'
within the meaning of Article 12 whether it is a statutory corporation, a govemmer;t
company or even a registered society. Accordingly, it was held that the International

29. Par ma Saran v. ChiefJrcsrice, AJR i 964 Raj. 13.

-·
30. Harrooblai • Sate, AIR 1964 Guj. 229.
31. AJR 1%7 SC 1857:
32. Umesh v. V.N. Singh, AIR 1968 Pat. 3. -
33. AIR 1975 SC 1331.
34. Ramnna Dayara111 She try v. Th 1: !nrernational Ai'7<or1 Aurhority ofIndia, AIR 1979 SC 1628.
 . .
62 CONSTITUTIONAL; LAW OF INDIA [CHAP.7
·-- ---
Airport Authority which had been created by an Act of Par! iament _w as i\i;;; "State>' within
the meaning of rice !2. The Central Government had power to appoint the Chas;a
of
and other members the Airport Authority. i has power to terminate the appointment of
any member form, the Board. The capital needed by it was provided only by the Central
Government. But what is the test whether a body is an agency or instrumentality? The
Court laid down the foHowing tests for d_etermining whether a body is an agency or
instrumentality of the Govemrnent :- · ·
(1). financial resources of the State is the chief funding source, i.e., if ,the entire
share capital of the corporation is held by Government, (2) existence of deep and pervasive
. State control, (3) funct'ional character being governmental in essence, i.e., if the
. . . . . . f. .

functions of {he corporation are of public importance and close1y related to governmental
functions, a department
(%) if of Government is transferred to a corporation, (5) whether
thecorporation, enjoys
-· ..
rionopoly
. . .
status which
.. . . .
is State
'
or State protected. "- conferred
. However, the Court said that these tests are not conclusive but illustrative only a:nd
will have to be used with care and caution.
Applying this test in Som Prakash v. Union of India, the Court held that a
goyernment company (Bharat Petroleum Corporation) fell within the meaning of the
°
e x p r'the State' used
e s s i o n 12. The expression 'other authorities' will include
i n A r t i c l e

all constitutional or statutory authorities on whom powers arc conferred for the purpose of
carrying commercial activities or bodies created for the purpose of promoting economic
activities. The expression 'other authorities' is not confined only to statutory corporations
alone but may include a government company, a registered society, or bodies which have
some nexus with government. iSimilarly, in Star· EnterprJses v. C.T.D.C.: of
Maharashtra Ltd.,2° it has been held that a government company under Section 617 of the'
Companies Act constitute. as the bevelopment Authority under the Maharashtra State ·
Town Planning Act, .1966 is 'State' within the meaning a
Article 12 and therefore in .. of
its dealings with the citizens of Iridia it would be requited to act within the Rule· of law
be
and would not permitted to conduct its activities arbitrarily.
In U.P. Warehousing Corporation v. Vijai Narain, 37 it was held that the U.P..
Warehousing Co.rporat'ion which was constituted under statute and owned andcontr olled a
by the Government was an agency or.instrumentality of the Government andtherefore,
"the State" within the meaning of Article 12. Its employees have a statutory status and
therefore i.n case 'Of-wrongful dismissal of an employee a writ could be issued against such
body. Chinnappa Reddy~ J., agreetng with majority, in his separate judgment summed up·
the position as follow: "I find very hard indeed to discover any distinction on principle
between a person under the empioy;sent of sns age;y or irstun.tality of the
government or a corporation set up under statute or incorporated but wholly owned by the.
Government. The function of the St.ate. hs.s completely changed. It is a we1fare State
which has resulted in inter se governmental activity in manifold ways. Its activities have .
touched many aspects of a citizen's life. The Goyernment, directly or through the
corporations, now owns or manages a large number of industries and institutions. It is the
biggest trader in the country. The Government, its agencies ·and instrumental1t1es,
corporation set by it or owned by it have thus become the biggest employers in the
country. There is no reason why, if government is bound to· observe the equality
clauses of the Constitution in the matter of employment, should not be equally bound.

35. AI 1981 SC212.

36. (0990) 3 sec 280.
37. (1980)3SCC459.
~

Ve. FUNDAMENTAL RIGHTS 63

~ ,. It is therefore right and the independence an_d integrity of those ernploye4 in the .
"· public s~ctor should be secured as much as· the "independence and integrity of civil
• u 38 .
servants .

In Ajay Rasia v. Khalid Mujib;39 it has been held that

a Society registered under
the Societies Registration 'Act, 1898, is an agency or "instrumentality> of the State" and
hence a 'State' within the· meaning of Article 12. Its COfDposition is determined by the
representatives of the Government. The expenses of society are entirely provided by the
Central Government. The rules made by the society require prior: approval of the State and
Central Governments. The society is to.comply with all directions of the Government. It - ,
is completely controlled by the Government. The Gove.rnm¢nt has pqwer. to appoint and
remove the members of the ·society. _Thus, the State and the Central G_p vernm:etit have full ·
control of the .working of the society. In view of .these elements the society'is _an
instrumentality of the State or the Central Government and it is therefore an "authority"? -
within the meaning of Article 12. The test is not as 6 i6is the juristicperson iscreated
but why it has been brought into existence. A corporation may be statutory corporation
created by a_statute or a .government company formed under the
Companies Act, 1956, or
a Society registered under the Societies Registration.Act, 1860, or any other similar
statute. It would be an-
'authority' within the meaning of Article if-it is 12 an.
instrumentality or agency of the Government and that would have to be decided· on a
proper assessment of the case inthe light ofthe relevant factors. "
In B.S. Minhas v.
Indian Statistical Istituie," it has been held that the Indian.
Statistical Society, a society Registered under the Societies Registration Act, 1860 being
. under the complete control of the Government of India J.S an instrument.l}.i~y of::the.
· Central Government anci::therefore, an "authority"' within the meaning of Article i.2 the of
ConsJitution. Accordingly, a writ-petition under Article 32 against the Institute for
violation of fundamental rights is maintainable. Similarly, the Court held. that,:,.th-e:-
Indian Council of Agricultural- Resec,·rch a society registered under the ·So,cf~t)es ,
Registration Act, is an instrumentality. of Central Government, nnd an "authority"
. within the meaning of Article 12 and, therefore, amenable to writ-Jurisdiction.
under Article 32 of the Constitution.41 In Manmohan Singh Jaitla v. Commissioner,
. Union Territory ofChandigarh,42 the Court following Ajai Rasia's case held that an aided
a
• school which received Government grant of 90 per cent was an "authority" within the ·
meaning of Article 12. Similarly, it has been held that ti,e Food. Corporation oflndia43 _
the Steel Authority of India, 4"!- Biha,r State Electricity Board," Indian Oil Corporation,$6
are the 'State' within the meaning of 'other authorities' under Article 12 as they are
instrumentalities of. the State. In AiSSF Association _v .• Defence · Minister-cum-
Chair»a BOG.S. Society"T Rt±as bee held :ha! ain±k Schoo! Sciety is t!
· ''.Siate" and amenable to writ jurisdiction of the Court The ~ntire fund is given by the

38. AR 1980 SC 480 at p. 489.

39. AIR 1981 SC 487.
40. ( 1983) 4 SCC 582 following Ajay Hasta v. Khalid Mjib, AIR 191 SC 4&7.
41. PX Ramcluindra Aver :v<Union of lndi~, (1984) 2 sec 142..
42. ( 1984) Supp. SCC 54D.
43 .
. I Wo'.bnen, Food Corporation of india v. Mis. Food Corporation of ldia, AIR 1985 SC 670 : ( 1985) 2
sec n6. / i . -

44. Bihar Sate Harjan Kalyan Paris!ad v. Union of id ia, (1985) 2 $CC 6AA.
45. Surya Naro.in Yadav v. B.S.E Boord, AJR l985 SC 941.
45. Mahabir Aro S:ores v. indian Oil Corpora,ion, ( I 990) 3 SCC 752.
47. AlRI9g9SC88.
 .
. .
. .

CONSTITUTIONAL LAW OF INDIA [CHAP. 7

64-
State ·Government and th_e Central Government. 'The over!! control vests in the
Governmental authority. . .

· • "S
, In S.M. Jlya_s v. ICAR, it has been held that the Indian Council of Agricuitural
Research is a State within the.m~aning
-
of' Artide . 12 of 'the Constitution. -
.

_ In Central inland WaterTrampori Coi-poratioii v. Brojo Narh Ganguly,

49
the Court
,-:· applied the above test and held that the Central Inland Water.Transport Corporation, a
Government company which was
wholly owned by the Central Government and managed
by Chairman and Board of Directors appointed and removable by Central Government,
was _" the State" within the meaning of Article 12 nnd therefore an instrumentality or
agency of the State. Ir is 110.thirig hut the Government opernti-ng behind a corporate veil,
_ carrying 'out a Governmental activity and Governmental functions of vital public
importance through the instrumentality of a Government Company. If there is 'an
instrumentality or agency of
theState which has assumed the garb of a Government
Company as ,defined in Section, 617 of the Companies Act, it'does not follow that it- ·
thereby ceases to be an instrumentality or agency of the State.
_ In: Sheela Barse .v. Secreta"",,;, Cliildien 's Aid Society, 50 tlw Court held that the
Children's Aid Society, Bombay registered under the Societies Registration Act, I860
was an instrumentality o the State and fell withinthe expression 'the State' within the
meaning of Article 12. It is a Pubhc Trust under the Bombay Pubhc Trusts Act .o f 1950.
The Chief 1v.1inister o( the State is ifs ex-officio President. The Society receive~ grants i
from the State. . . . - - _ · . · . · · · \ . · :::~ ·
In M.C. Mehta. v. Union of India,'' the important question which was 1
raised before the Coi,lrt was whether a pr.ivate corporation fell within the ambit of .t
· Article 12. Although the question whether a private corporation foll within the ambit:.• :i. · ·
of Article, 12 .w.as not finally. decided by the Court, but it stressed the need to do so jn_;;:
. future.. . _ · .· - · . · · . . . _ ·,;,
1·
fo-Tekraj Vasandi v. Union of
fodia, it has been held that
52 the
''.lnstitu.te of'. '}: ·_
Constitutional and Parlicmientciry Studie_s". µ. society register:ed under the Societies f_:
:-•

.Registration Act, 186O, is not a State within the meaning of Article 12. The Institute of .
Constitutional and Parliamentary Studies is neither an agency nor an
_instrumentaiity of l'
tbe State. It is a voluntary organisation. The object of the society is not related. tD "
government bilsiness. In the functioning of the society, the Government does not have. &
deep and pervasive control. _Though the 1'1ini_ster exercises his authority as the controlling i:
department of Government" in the matter of making the grant but that itse_lf may not be a· l
condusive feature. In a welfare State go-vemr:nent's control is very pervasive and, in fact i}
touches all aspects of social existence. A society registered under the Societies. -
};Zegistraiion Act may _be treated, as "State' if e;ther-the government business is undertaken - h
by the society or the public obligation of 1.he State is undertaken by the society. Since . R
such a position is not present in the present case the Institute of Constitutional an:d '. }1· ~--_. ~
Par\iumentary Studies does not come within the purview of 'oth,er authorities,_ in53ArtiC}e ::i_:: _ -
12. In Sri Kana Seema Co-operative.Central Bank Ltd. v, N. Seetharama Jfoju, it has
been held that the Co-operativ_eBank registered 1.1.n<ler 1.he A.P. Co-operative Societies Act
is not 'State' \Vithin the meaning of Article 12 as the functions of the Bank were nol of
1 1, ·
I -------------0- . I . . . ·. lt-
48. _ ( i 993) I SCy l 82. - i§-
fl
49. (1986)3SCC 156. "~

5 ihi
s2. (1988) 1 sec 236. :ii i
53. AlR l 990 AP 17 l.
~- !
-~ _ i.
±
$.. -1+
!
 . I . .
'.•,. (Y'HAP. 7) , FU~DAMENTAL RIGHTS . 65

public importance and not closely related to governmental function. The. Bank's main
obje:::t was to raise funds to finance Its- member_s. Following Tekraj Vasanji y. Umon of
Jndia the Court in Chandra Mohan Khanna v. NCERT,?4 has h:~ld that Natiol'lal Council
.' ofEd1;catio~p/ Res~arch anp 'Training, is not a 'State' ..within thejmeaning of Article 12of
the Constitution. It is a society registered under the Societies Registration Act. The
object of the NCERT is to assist and advise the Ministry of Education. arid Social Welfare
in the implementati"on of the governmental policies a.nd major pr:ogramtnesjn the -_field of
education particularly school education. These activities are not wholly related to
- governmental functions. The governmental control is confined .only to proper utilization
. of the grant. It is an autonomous body. Article 12 should not be
stretched so as to bring
. in every autonomous body which has some nexus wit_h the government within the sweep _
of the expression, •state'. In the modern concept of welfare State, independent institution, • .
corporation and agency are generally subject to State control. ' ··

CSIR is State : 19April, 2002. 4...,- ,Ac

In an important case?° the Supreme Court by 7: 5 majority overruled its old
.judgment delivered in 1975, and held that the Council of Scientific and Industrial Research
(CSIR) is <l: ·•s.tate • within the ·-meaning of ArL 12 of the .Constitution. and. therefore. its
employees cari. .. approach the High Courts or the Supreme Court to enforce their
fundamental rights of equality. The majority held that even thotigh fr was forined'·under
the Registration of Societies Act, 1860, but it is. a 'state' because the government had
overriding control over the organisation. The object incorporated in Memorandum of
Association of CSIR "manifestly demonstrates that CSIR.. was set up in the national
· interest to further the economic welfare of the society by fostering planned developriient
.· __ in the country;'' The Govemm.ent of
India has a dominant role in the governing body of
the CSIR. All the members of the governing body, el'.(c.ept ex-officio members, are .
nominated by the President and their membership can aiso be terminated by- liim. The .
Prime Minister is the .ex-officio President. The govetnirig body also has. die po:i>:ersJOJ
make rules. amend or repeal the by-laws of CSIR but only with the sanct101,1}.~9f
Govemrnept of India. However. Ju~tice R.c: Lakotia and Justice Dorajswami Raju gave·
a dissenting judgment and held that CSJR is not a •state .. under Art. 12 of the·
Constitution. .
. . . . I . . .
ln_ Prq.d_~ep_ l(µnujr IJ¼was v. .Indian Institute of Chemfc,al Biology56 a seven.judge
a
Bench of the Supreme Court by majority of 5 ·: 2 has overruled the decision in ·sabbajit
Tewari's case and held that CSIR is an instrumentality of the·State within the meaning of
Art. 12of the Constitution.' . "
In
G. Bassi Reddy v. Iterational Crops Research Instt.57 it has been held that the
, .. 1ntel}lationa1 Crop Resear,:h },nstitute is an
ir;ternational organization and has been stt qp
as non profit research and trnining centre to help developing countries to alleviate rural
poverty and hunger in various ways is therefore, not a 'State' within the meaning of·
Article 12 of the C::onstitution. Consequently", no·writ petition can be_.allowed by- its
c;mployees challenging their removal from service as being violative of Articles 14 and.16
of the Constitution. It is not set up .by the Government and gives service to a large
number of col!ntri~ vqJuntarily. It is not ccintrolJed by noi- is· accountable to the
Government. Likev,ise, in
General Manager, Kisan Sahlcari Chini Mills Ltd., Sultanpur,.

54. AIR 1992SC7 6.

55. TheHin:dusran Times, April 19, 200?..
56. (2002) 5 SCC am)
57. AIR 2003 SC 1764 .

r.·z.egg7"mo r p ys .,
a " »srz z ·. --·-. .-. .... ..
 (CHAP. 7
·CONSTITUTIONAL LAW OF INOIA
66
U.-P. v. Satrughan Nishad,5'6 it has been held that the Co-operative Sugar Mill was
neither instrumentality nor agency of Govr.rnment and, therefore, not 'State' within the
meaning of Art. 12 of the Constitution. The Government of Uttar Pradesh held only 507
share inthe mill and the expenditure of rnill 1was not met by the State but it operated on
the basis of sclf generated finances. The nominees of State Government in the committee
of management of mill_ was only 1/3 and it was dominated by 2/3 non govemme·n t
·m embers. Undei its bye-laws State Gcvemffient could neither issue any direction to mill
nor determine its policy. Th_e State has no deep and pervasive control over mill. ·
59
_ . · In V.. K. Srivastava v. U.P. R,ajya Karmachari Kalyan Nigam, following the
decision in Pradeep Kumar v. Biswas it has been held that the U.P. Rajya Karmachari
· Kalyan Nigam, is an agency ar.d instrumentality of State and, therefore, is a State within
the meaningofA4rt- 12 of theConstitution. The control of sate on corporation Nigar)
. 1s not only regulatory but deep and pervasive. It is formed with the object of catering to
. needs of Government- employees as supplement to their salaries and perks. Top executives' '
of the Government department, are-ex-officio members and office bearers of Corporation-
The Corporation is fully supported financially and adinisnistratively by State and its·
authorities. Even in day to, clay functip.ning the Corporation is supervised and controHed_
by.
various
.
departmental
.
authorities
.
of
State particularly of Food and. Civil Supplies.
' ' .
•In Assam Small Scale Industries Development Corporation Ltd. • J.D. Pharma
Ceuticals,°O the Supreme Court has. held that tbe Assam Small Scale Industries
Development Corporation Ltd. is a statutory body and is State within the meaning of.
Ar-ti.cle 12.of the Constitution. The Assam Preferential Stores Purchase Act. 1989 was
enacted or enco,uraging growth 9f smail scale industries in th_e· State of Assam. The ··. Zl -·

Corporation has po:wer to place orders-for supplies to the Government and has power to
make 90% of _purchase price in advance. The petitioner small scale_ unit entered into
agreement with the Corporation wherein the S.S.I. unit was termed as ·a principal and
corp.oration as agent and supply was made by S.S.I. to Corporation and th" Corporatioil
W\IS bound to release the.payment upto 90%. The Corporation cannot with hold payment
on the ground that it had not received payment from the purchasing authority.. · · ·
· PunjaL Water Supply and Sewerage Board v. Ranjodh Singh' it has been held that
an autonomous body is a 'State' within _the meaning ofArt. 12 of the Constitution. The
statutory bodies are bound to app1y the rules of recruitment laid down under statutory .. _
rules. They are bound to the scheme of equality. The State Government cannot issue
directions.contrary to statutory rules gO\;eming such conditions. Even a. scheme under Art. · ;
362 would not _prevaii over statutory rules. Regularisation of service on contractual, basis
. p5a± Water Sol
in ?unjab
d Se .se ra ge
Yat er Supply and sci @g in-
· ..r ain aed
our...
.·...ca &inatCd- -·'iii ".
·•-.. -,·'· · '-- ·.,,.;.-._ .• _.··-·-~,·-:·-t '"

ordered by tl.el...Court. The order is, therefore, liable to be set aside. ±a u. Govero"
of De.lhi .v. K. SodhP the Supreme Court held that the State of Council of Educational
_ Research and Training (SCERT) is not a 'State' within the meaning of Art. 12 of the
Constitution. The Court discussed the Bench decision of Pradeep Kt1mar Biswas. (2002i
where it had held that each case would be decided in the light of cumulative facts to
determine if a b-udy is financially, functionally and administratively dominated by or under
the control of the Govemmen The Supreme Court observed that the .SCERT was fully
funded by ·the GovernrneMt and is an autonomous in its administration and had control

58. AIR 2003 sc'4531_

59. AIR 2005 SC 4 i l.
60. AiR 20\N SC 13 i.
61 A1R 2007 SC l 08?..
62. AIR 2C-07 SC 283.5-
 · ,
. -· CHN'- 11 ,. rwvrt n· tray13
VJ

over fin;inces and, ~herefor_e. held that it was not covered by An. I2of the Constitution. ·
Mandamus c a n n o1o t 'e t
i s s u e exrenci
d S Cemployees.
E R T c o m p e l t h e :rn r o t o t t s

. (d) Aurhoriries unci.er the conrrol of tlze Govemnienr of lndia.-By words · ·

'authorities under control of thy Government of India', it is meant to bring into the .
definition of State all areas outside Indian territory but which are under or may come under
the control ofthe Government of India, such as, mandatory or trustee territories. Such a
territory may come under India's control by intern:ational agreement. Thus even such aRaS
wi11 be the subject to Patt Ill and_ih-e inhabi~ants of such areas m_ay also cJaitn the benefit
of Fundamental Rights guaranteed in Par
III. ' •.•• '
In Sate of Assam v. ·Barak Uparyaka D. V. Karmchari Sansthan,S? the Supreme
Court has held that the financiaJ".ass_istance provided by the State Government in the form
of grant in aid to Assam Cooperadve Society continuously some years does not make for
t the society a State within the definition of State under Article 12 of the Constitution and
therefore, the State would not be responsible to bear and pay salaries and allowances pf its
employees by extending aid for ever.
--
·1 ·· ·. Is Judiciary included in the word "State"?I n America it is well-settled
· that the judiciary is within the pi:Qhibidon of the 14th Amendment."" The judiciary,
it is said, though not expressly mentioned in Article 12 it should be included within
the expression ·other· authorities' since courts ar~ .s_et up by statute and exercise power
conferred by law."° It is suggested that discrimination may be brought about....even (by)
judrtiary and. the inhibition of Article l4 extends to all actions of the State denying
. equal protect,ion of the laws whether it be the action of any one of the three limbs Qi; Ute
.I State. . ·

! The question whether the judiciary was included within the definition of 'the State'
· in Article 12 arose for consideration of the Supreme Court in Naresh v. $ta-t.e of
c.
Ma.ha.rashtr.a.'66 It was held that even if a·cout't is the State writ under Article 32 cannot a
· be issued to a High Court ·of competent jurisdiction against:its judicial or-ders, because
such orders cannot be
said to violate the fundamental rights. Mr. H.M. Seervai fa -of .·
opinion that the .judi<dary should be included in the deffnition of 'the State'. and a judge
· acting as a j:udge is subject to the writ-jurisdiction of the Supreme Court.67 T} courts, .
like any other organ of the State, are limited by the mandatory provisions of the
Constitution and they can hardly be allowed to override the ftmdariiental rights under the
shield that they havewithin their jurisdiction, the righ to make ± ere·us decia1+.6
8
yz, i: hs in held th: the ccurt can& t pass an order or issue a
f he
direction which would be violative of fundamental rights of citizens, it can be said
that the exp_ression
'also. · "State"
. as .defined in Article 12 of the Co6stitution
, . includes judidary

Laws inconsistent with Fundamental Rights (Article 13).-Article 13 (1)

declares that all laws in force in the territory of India immedia'tely befort · the
commencement of tl1is Constitution_ $hall be voiJ to the extent to which they are.

63. AIR 2009 SC 22il9.

64. Virina v. Rives. ( 1980) l 00 US 3 I 3. J l 8. 25 L Ed. 667. • j

65. Y. N. Shukla---Constitution of India. p. 20 (5u ed.) I

66. AIR 1967 SC l. .. . ·1
G7.
68.
H.M. Scrvai--Constitutional Law of India. p i55 (ls, ed.).
Basu---<::ommeotary-on the Constirurio□ ·of India.
p. J 45 (5th ~d.).
I
69. A1R 1988 SC 153 l. . .
 'I:
j

_A..NALYTICAL SCHOOL 15
. . .

was started by Auguste Comte to indicate a particular method of study. Though this · •
positivism, later on, prepared the way for the 19th century legal thought, it does: not
convey exactly the same sense atboth the places. There:fore,.the word 'positivism' alone
will not give a corp.plete idea o.f Austin's school. In the same way, 'analysis' also did not
--- ., - remain confined only to this school, therefore, it alone cannot give a separate identity to ·
the school. 'Analytical positivism' too may create confusion. The
'Vienna School' in its
'Pure Theory of Law' also applies
analytical positivism although in many respects they
vitally differ from Austin's s.chool. To avoid confusion and to give clarity which is the
as
aim of classification, Prof. Allen thinks it proper to call the Austin's school 'Imperative

- ,h2,i""is.
. School\ This name he gave on the basis of Austin's conception of law ('La is

2. · Mis method.·

(d) Austin's Conception of La

Austin's definition of law. Law, __ in the common use, means and includes things
which cannot be properly called 'law'. Austin defined law
as 'a rule laid down
· for the guidance of· an intelligent being by an intelligeni being having power over.
him.'
Law of 2 kinds: (1) Law. of God, and (2) Human Laws: This may be divided into
two parts: (1) Law of God - Law~_ s~t_by GQd for men. (2) Laws - Human
_· - Laws set by
men for men
-- . _Two kinds of Human Laws. Human Laws may be divided into two classes:
(1) Positive La. These ate the laws set by political superiors as such, or by men not
· acting as political· superiors but acting in pursuance of legal J;iglits conferred.
by political superiors. Only these laws are the proper subject-matter_ of ·
jurisprudence. . . .
(2) Other Laws. Those lawswhich are not set by politicalsuperiors (set by persons :y.ho
are not acting in _the capacity or character of political superiors) or by.,imen iii -
pursuance of.legal- rights.
Analogous to the laws of the latter class are a number of rules to which the name of
law is i.mpropedy given. They
are opinions or sentiments of an undeterminate body of _
. men, as laws of fashion or honour. Austin places International Law under th.is class. In
fue same way, there a.re certain og;ier rules ·which are called 1°£w metaphorically. 'f!ley
too n.re laws improperly so called.' A chart presenting. this division clearly is. given
below:

. _/
0

. Province._ofJmispmde-ncc Determined, p. l.

\
 .....

JURISPRUDENCE
..
Law
r I
Law properly so called
I. 1
I Law improperly so called
Law of Goo l·
HumanLaws
. .,
r· . •. .

7
Positive!:ly,,s,(or laws LawsJ!ot set by men,
as political superior,
..szpzs1ricily so clliled) .

inferior,or by private
Si
. persons in. . PUI'SUance
of a legalright.I .

I
.Lawsby analogy,
as laws ofnish.ion . Laws by metaphor,
i.e., laws of gra,yity

P.os1trve
-~~ morality
-1~ *
. .'· ·

· • Positive -,,,,,rolify consists ofL:rws not sit by men., a,,4 faws by analogy ..'.: ..
. . "'Laws proper, or properly so
called, are Commands; laws which not commands, are
are laws
so
improper or improperly so called. Laws properly so called, with laws improperly
called; may be aptly divided into the following four kinds:
.. · (l)
God The divine laws, or the laws of Goci; that · is to say,
to liis htµnan creatures. · set by
· · the laws which are
· (2) Positive laws; that is to say, laws which are simply and strictly. so called, and
which form the appropriate matter of general a±a Particularjurisprudence. • . · •
(3) positive morality, rules ofpositive, morality or positive moral ruleS,
(4) Laws metaphorical or figurative, or merely Dletaphorical or figunitive.
· The divine laws and positive 1a are laws properly so c;alled. Of-positive· moral
. rules, some aie_ Jaws pr~1fSo c3lled, but others are laws improper. .1;,be positive moral
rules hich are
laws improperly so caileci, may be styled laws or rules set or imposed by l
opfriion: for tliey are Iherely opinions _Qi sentiments held or felt by men in regard lo i

L
human conduct A law set by O]).in'.i"Cr, and a Jaw imperative and proper ·ar~ a.llie<l by
amrlogy merely; although the aiiaJogy by wlriCh they me .allied_ is strong or close.
Lavis metaphorical or figurative, or merely metapboricalo, figurative, are laws improperly
so called.. A law metap],orical or figuratfve and a laimp erative and proper are al!ied by
analogy mere]y; and_ tfi e anai'ogy· by wlrich they are allied .is slender or remote.

J
l
 ..'

ANALYTICAL. SCHOOL 17 ..

Consequently, positive laws (the appropriate subject-matter of jurisprudence) are

related in the way of resemblance, Of· by close or remote analogies, to the following
objects: 1. In the way of resemblance, :Qiey are related to the laws of God'. 2·. In the way
of resemblance, they are related to those rules of. positive morality w!:rich are laws
properly so called: And by a lose or strong analogy, they are related to those rules of .
Jositive morality which arc laws set by opinion.3. By a remote· or slender, analogy, they
are related to laws metaphorical, or laws merely metaphorical."
Law is CoID.Iilanci
Positive Law is the subject-matter of jurisprudence. Austin says that only the

E<EE . #EE%52£
superiors to political inferiors." Jurisprudence
%2%%% is the general science of positive law.
Toe characteristics of lawproperly so called are given by Austin as:- ·
is command of the Sovereign'; duty and sanction. 'Laws:
so
' L a w C o mm a n d imp li es

properly called are species of commands. But being a command every law properly so
called flows from a determinate source or emanates from a determinate author. In other
words, the autho.r trom whom it proceeds is a determinate rational being ora determinate
body or aggregate of rational beings. For whenever a command is expressed or intimated, '.
one party signifies· a wish that another shall do or forbeat; and tb.e l~tter is obnoxious to1

an evil which the former intends_ to inflict in case the wish be distegatde<t' Ji3ut every
signification of a wish made by a. single individual; or made by a body of individuals l;1S
I· a
body or collective·whole, supposes that the individual or. l>ody is certain or determinate.
. And every intention or purpose held by a. single individual, or held by a . body . of
individual.as a body or collective whole, involves the same supposition.2 .

The power and purpose to inflict penalty·for disobedience are the very essence of a
·. command. The person liable to the evil or penalty is under a duty to obey it. Toe evil or·
. penalty for disobedience is· called sancticfn. - _
Command,
duty and sanction are, therefore, inseparably connected terms: that each
embraces the same ideas as the others, though each denotes those ideas . in a peculiar
· order or series. · · -
"A wish·-conceived by one and. expressed or intimated to another, ,vith an evil to be
inflicted and incurred in case.the wish be disregar ded" are signified directly.and indirectly.·.
: by ench of the three expressions. Each is the name o-f the same complex notion."? So
'every law is a command, imposing a duty, enfo.rced by a sanction.
Only General commands are law. However all LJ?c corrimands are not law, it is
• only the general command, which obliges to a course of conduct, is law.
: . . . ·_ -------- . . . . . ~ . . .
• Exceptions to the above definition. These general commands, as defined above, are
· • the proper subject of study of jurisprudence. But according to Austin, there are three
' kinds of laws wh..ich, though not com..TJ1...ands, are stilf witbin ·r11e pro-vi.Dee of jurisprudence.·
· They are:-· / · · ·

l. Theprovincofjurisprudence determined,p.9 .
. 2. 1id.,p.133.
3. 1id.p.18.
F_ 2
 JURISPRUDENCE

(i). Declaratory of Explanatory Laws.-Austin does not regard them as commands,

because they are passed only to explain laws already in force. ·
command.
(ii) aLaws to repeal laws.-
. These too are not comnUlllds but are rather the revoCOtion of

(iii) Laws of iinpe.t:fect obligation. - These Jaws have .b.o sanction attachcd to them.
as
Now itis clear that i Austin's conct;ptiou of Jaw such notions .i=tice or .mcirality
have no place. The.. basis of Jaw is the power· of superioT: and not the ethics or the
principles of 'natural justice'. Aus tin slllnds with absolutists like Hobbes, etc. in regarding
law,; as the connnand of the sovereign. · · ·

- G) Austin's Method of jurisprudence· .i _

. .. . . .a..de..ii. . • , : , , . ··s$$.. . " . , . : , .. · ·.
·All>/J•(l\a.elho,!i'~iialyfis; l1lls method can be applied <inly iii civilized s.oCietlos.
Tue naine or tlris. S~ho()J~•anarytical' itself in<lfuates the method. Austin considert:ci
ilnalysis as the chief instrument of jurisprudence. Austin's definition of law as +A
of
command ofthe sovereign" suggests that only the legal systeis the rvlaas,
-can become the proper suliiect-tnllttei- of jurisprudenc
e Becauseit is possible on1, l\t such
zzi.frsis5jzsis5is.ssis;
: jiff5
inadequate' modern
theiem s1,0nld be found out. This melfuxt is proving in times because
jurisprudence is to sol:ve maijy legal problems whichhave ariiei, under changM,C.,D<litlPns
and it has to make constructive suggestions also, but, at the time, when Austin gave }
ffieo;y, it helped in remov:(og the confusion created by the alistr.ict theories abotit the
SCQpe aiid method Ofimisvrudence. · ' · · · •··

. Criticism against Austin's theory

. .

Austin's theory bas been •riticised, by ii mnnber ofjurists ad

by some of them very
bitterly. Btyce went to the extent. of saying that 'his contr;ibntions to iuristic science are
so sCanty and sO much entangled i error that his hook ought no longer. io find a place
among those prescribed ·for students.' However, this is. an extreme view. The main
points of criticism ~gainst Austin'~ theory are as follows: · •.
. ·. (1) Customs ignored.· 'Law is the command of sovereign', as Austin says, is not
·warranted by historical facts: In the early times, ni>t the command of any_ supe.rior, but
. ,oustoms regulated lf\e conduct of the peop1a. Even after co:ig of state into existee
$i5Ats cos±nu o regulate the conduct. Therefore, customs should also be inch3e3
in the study of jurisprudence, but Austin igriored them.

• The supporters of Austin's theory say that his theory tskes into consideration law as
it exists in a developed society. The rules which existed prior to !be exis)ence of state
might be the historical sources from which Jaw wa.s derived but when stste comes into :
existence they ,:ontinue only t.r tii(: sanction. of the sovereign and are given imperative
force by hirn and in this way'hey are also commands. ·· , ,
. {2) Law conffrring prhil<'g~s. The law which is.purely of a pennissive character
and confers only privileges, as tbe Wil!s Act, Which la'ys down the method of drawing a
testamentary ·aoqfoient so that it may have legal effect, is not covered by Austm s ·
definition oflaw.
 ,' '
ANALYTICAL SCHOOL 19
..
advocate of Austin, Buckland .has tried to defend Austin's theory by" ..
A ,modem
arguing that the statute as sucl:l and not a particular provision is a command. But, really_
speaking; such laws do not fit in Austin's theory and it is a serjous defect of it.
Procedural 1aw, in the same way, is not covered by Austin's defin ition. _ - '
. (3) Judge-made Law.In Austin's theory there is no place for judge-made law. In
the course bf their duty judges (in applyin g precedents and in interpreting_the law) make
law. Though an Austin.ian woul<l say that judges act under the powers delegated to them
_- by the sovereign, therefore, their acts are the commands of the sovereign, nobody, in __
.J;
modem: times, will deny that judges perform a creative function and Austill' s defurition · · -
of law does not include it. .-. · ·
4
(4) Conventions. Conventions of the constitution, which operate imperatively, though
•not enforceableby Court,shall not be called law, according to
Austin's definition,
although they are law
and are a subject-matter of a study in jurispru dence. .
(5) Rules set by private persons. Austin's view that 'positive law'_ -includes within
itself roles set by private persons in pursuance of legal rights is an undue extension
because
... · .
their
• . .
nature is, very vague
';+!& • f
and
·.-. :_
indefinite.
. •• . : .
. . . • . .

(6) International law. Austin put International Law under positive morality along
with the law of honour andthe
law of ~bion: «The so called law of nations consists of
opinions or sentiments current among
nations generally. It, therefore, is not law properly
· so called."' The main 1Iig,redi¢ri.t of law lacking in Jnteniational faw 1s sanction but this, · .·
alone will not deprive it from being called law. Now nobody will accept that International .
a
law is not law. Therefore, according to Austin's defini_tion, very important bran ch of
· law shall be excluded from
. .
study.
.
the . .
. _
. (7) Command theory untenable. A modem. theoris4 Prof. Olivecrona from Sweden
has denied the applicability of the idea ofcommand to law. He says .that a· command is.
.·
•. ,

not identical with a declaration of will. There.is a difference between a and command
the statement or declaration of
a will. A command is always an act through which one
person seeks to influence the will of another. Secondly, the idea of corn.tpand (fat law}in ·
the present systems of governments is completely untenable. Command pre_supposes
some deterrnmate.person who c.o rnmands and another to whom the command is addressed.
In modem times, the machii::tery of state r.emains always changing and it. is ru7. by· a
multitude of persons. Therefore·, the idea of command does not apply in. such sy'stems.
· .
.
(3) Zt is artificiai?e vi
. ·
!ai: 'cra d fl "t . ',
:' gges& "t 2s
if the sovereign is stans&in.g ;sr.r e nicart four the crinuii,y giving iis arbitrary

comma nds. This view treats law as artificial and ignores its character of spontaneous
growth. The sovereign is an integral part of the community or state and his corrunands
the
are commands of the organised community. Most of the theories regarding state, in
modemn times, say that the sovereignty does not remain in the shape in which it'was
conceived by the \\.Titcrs ))f past age_s_ They say that state _itself' is sovereign and law is
nothing but the general will of the people. Therefore; the law cannot be said to be a
command.
(9) Sanction is uot the only means to induce obedience. According to Austin's ·
view, it is the sanction alon:: which induces the man to obey law. It is submitted that it is

I. The Province of Jurisprudence Delem1ined, p. 142.

2% .20
JURISPRUDENCE.
not a correci vieW. Lord Bryce' has summed up the mOtives as indolence, deferOnce,
sj,mpaJhy, fear , and reason that induce a man to obey law. The power of the ·state .is
ratio ulima the force which is.the· last resort to secure obedience. ··
•.• . • • • • •• . ' I

(10)JR."1ation of law and morals overlooked. According to Austin, 'The science of

jurisprudence is c<inc':erned with positive law, or with laws strictly so called, as consldered
· without regard to iheir goodness or badness.' fu otb_er words, laW is not concerned with
morals.. But this is
not a correct· proposition. Law is not an :irbitrary colDman<I as
conceived by AUStin but it is a growth of an organic nature. Dr. J. Brown correctly says
that even the most' dOSJ)otic of legislators cannot think or act without availing himself of
the Spirit oflriS nice and_ time."? Moreover, law has not gro\vn as a result of blind forces
but it has been developed consciously and has been directed towards adefinite
Thus, itis notcompletely'devoid edeal ad no#ai ei#es. Tie
or 6rd 1a sd forend, ,
in Latin imd ill miuly Other continental languages support this view. The <mgjn Of I!,<, .
words 'right'., 'WlVng', and 'duty' etc. owe their origin to c"ertaJn ethicaJ:Mtici,,s. Austin
overlooked tbi$ .aspect of the Jaw. ·
Austin's contribution; Opening a ne era of approach. These are the weaknesses
· of Austin's theory pointed out by his crities. ll.v eiy theory ha;, its Jimitl!tions• Moreover,
· Austin laid down many
of propositions as hi s English1av as it was during
d e d u c ed from

his lime, The cre<Jilo goes to Austin foi: opening an era of new approach to law. Eventhe
defects of his theory have been a souree of further enlighteruilent on tiie subject a,, Hi!it
says: "But the. demonstration of precisely wheie and why h_e is wrollg bas p?Qvc,l.tci be .
constant source of illumination; for his errors are often the mis-statement of truths of
·. ·cenlral importance for the under.rtanding of law and society".' One of his great critics,
Olivecrona, also acknowledges him as the pioneer of the modem positivist approach 'to
law. Thus .Austin made great contributions.to jurisprudence.: . ·. , .·
His assotjatfon with. great ·men of his time; He gave a · clear-cut picture of law.
Austin Was intimate to great thinkei:s and plrilosopbers of bis time like Bentham ind
Mill"and he was greatly praised by Mill. Austinwiped out many false Dotions wbich,fuid
obscllre<j the true meaning of law and legal terms. His stand was to expel from the mind ·
all ethical ilotions wlriJC considering the nature of 'j>Qsitive iaw'. He gave a death blow ·
·_· · tci the theory of natural law. Austin's own view that bis work _helpod in 'im.tyi>lg·_1mo1s•
is perfectly correct. Sir H. Maine's remark that 'no conCeption'· cif 1a w .ai,d . Society has_
ever removed such a mass of undoubted delusions' and father ta; 'his works are .
- • Ind;yg-if.7.
•' ·•• e '•• • ' • } • •·,S it < • Eject
•. ••••
S,' s,-! ,, ' fr
• • .• the ; g
• A.- .!- • ggg
• C < " •• •.f le-.. ~• $:·• .'_' .•• {g
' ;\ -..,.__ _._,,.,,•-Z.:,- s out
a d also tpoint .
the merit of Austin's work. Austin's classification and analysis of the concepts of
. Eni;Iish law hits served as a guide" for better English analytical jurists.
Austin's method Characteristic of English Jurisprudence; Austin's if uene.
Tne inilllence of.Austin's theory was great due to its simplicity, consistency an_d clarity
of exposition. That is why Gray remar ked: 'If Austin went foo in considering the law_ . far
as alWays proceeding·
.
fro111 · th_
~- e>s;i;ie, he conferred a great
.
benefit on jurisprudence by .

l. Studies in History andJurisprudence.

2. The Austini_an Th~ery ofl,..2w.
. 3. See Introduction.re Provi~ce ofJurisprudPTice Determined, P.XXIII
I
-~ :
$

I
·I . !
 ! .
·.. .

f" .: ANALYTICAL SCHOOL

. . . . . I
21
l
'
· bringing out clearly that the law is at the mercy of the state. ,i Austin's method is
described as characteristic of English jurisprudence. Prof. Allen says: 'For a systematic
. ·: exposition of the inethods·of English jurisprudence we will have to turn to Austin.•~ The
sru,:rte is trµe abqut America also because Austin's .method was greatly· adopted there.
Austin,s theory had little intJuence m: the Continent for the. time being, and especially -
Germans, who always mixed metaphysical notions with jurisprudence; were least
appreciative of it. But of late years. Austin received has
j;ncreasing attention and a
__ respect from the jurists of the Continent also. Germans also ,have. come round the
Austin's view and tjiany·◊ftlieri:i are abjuring all 'micn.tpositivisches Rechet.'
. The later analytical theories have unproved upon Austin's theory and have given a._
· more practical and logical basis. Holland, though accepted the 'command' theory, made

·
·eimiI"...
" 'Alaw,in the proper the sense of
e
terms is, therefore, a general rule of human acti-0n,
o

talcing cogn:u::arice only of external acts, enforced by d,t!terin,inate authority~ '3

• . • • · • • I'. • .· .

Lat-er Jurists improved upon his theory. Salmond and Gray further impr.oved upon·
i,t .and considerably modified the analytical positivistapproach. They differ from· Austin·
in his emphasis on as
sovereign law giver. According to Salmond,' the law consists of
. the rules recognized and acted on by the· courts. of justice. Gray defines law what has..
·~cen iald down, a rule ofas conduct
by the persons· a,cting as judiciai ·organs of the state.
THis emphasis on the personal.factor.in law, later on, caused the emergence of the
'Realist' school of law. ·
. .

Tlie -Vienna, Schbol' of law which is known as 'pure Theory of Law? (:which we
shall discuss later on)6 also owes to Austin's theory. . .

·-

1. · Nature a., d Sources ofLm;t.·· ·

2. Law in the making.
3. Elements ofJurisprudence.
4-. Jurisprudence. ./
5. Nature and ~urc:.:s ofLaw. ·
6. S-eeChapk_,Vll.
 LAW AS THE DICTATE OF REASON: NATURAL
3-5 LAw
3

possibility of criticising law on other than purely:moral grounds.

For faw must, be evaluated by reference to its efficacy, general ..·
convenience, simplicity a.ticl mnany other factors, as woll as by
reference to the demands of j.ustice and morality-: Finally, to use
natural Jaw terminology to
secure. a conviction '._of ,those whose
actions at the time of the performance contravened no .rules of
positive_ law, b.y finding them guilty of violating the natural law,
runs counter to the highly important mo_r.a-1 principle that no one·
should be held criminally -liable for acts legally inrmceri·t at the . . _, .
time of their commission (i). Even in the trials o men like ,,,
. ' • .
Eichmann this. principle
. . . • . . • ... •.
shouldnot be.. lightly
. •. .· .·· :,.,:,.;-., .·, l-·- .. ,.. ,•· _;:\,_,__ ... ,:. :,;:- . ,._. :
abandoned, and if#.£i55we;ii- %?
;

it is abandoned then we should be quite cleat what· we are . . ..

surrendering and why we are doing so rather than ignore the fact ·.
. . of surrender ..

•< Law as the command of the sovereign: imperative lay

Diametrically opposed to the theory of natural law is the
positivist, or
imperative, theory of · law (j) .. This theory · dis- ..
tinguishes. th~ question whe:ther· s rule is a legal rule from the
question whether it is a just rule .(k), and seeks to define law, not ·
by reference to its content but according to the formal criteria
which differentiate legal rules from other rules such as those of
morals, etiquette, and so on. Though this apprdach is often
pritiois~d a$•: ~terile and inadequate because it fails to take moral
considerations into accot,mt, it was never ititended by such
exponents as Austin to exclude the problem of evaluating law: on
the contrary,. analysis was regarded as -~ necessary prelim.in~ry
to the task of critical assessment, which in Austin's view should
be made accprding to the principle of util_ity, a principle that.
serves as an index to such divine laws as are unrevealed (l) .
. .......,...,. According to Austin, whose version of ·the theory ill be con-
siclered here, :positive h.,v has three characteristic features. It is
(i) On, the principle nulla poena sine lege see infra, p. 1:37 .
., 3) The ides tha la is
ihe command of the sovere_ign ":as advanced by

.T sucb .writers as Bodin, Hobbes ·a.nd Bent.ham, but foun.d 1 t.s chief expression in
, Austin, whose theory of las is
contained jn The Province of Jurisprudence•
. Determ:ned, :nrst published 1D 183~. References here are to tbe 195.c!

I
edition by 1L L. A. Rah. Sec also Dias, op. cit., Chap. 14; Lloyd, The Ide;
of Law, Chaps 5, 8; Friedmann, op. cit., Chaps. 19-20; RarL, op_ cit..
· Chaps. '2-4. The tenn "p-Jsitivjsm " covers a varietv of posit.ions· see Hart.
op. cit. 253 (note lOp_ 181). -" · '
(k) Seep. :?3. -n·.· (g),
j: (/)Austin.op. cit._ Lecture II.

25
•

L.
. J! i"'!'! f,!i~~--_,, , --;_
. . .
,-ci
 4 THE NATURE OF ·LA·,y

a type of command, it; is Ia.id dowo by a political sovereign a.nd it

is enforceahie by a sanction. A typical example would be the Road
Traffic Act, 1960, which could be described as a co1 aid laid
down. by the sovereign under the Inglish legal system, i.e., the
Queen in Parliament, and
enforceable by- penalties for yiolation .
Now frst we must clarify the term " command '. How do
commands differ from requests, wishes and so on? To Austin .
all these are expressions of desire, while commands are e:x·p ressions
_·_ of desire given by superiors to inferiors. This agrees with· ordinary.
gt usage whichallows us, for instance, to speak ofofficers command-
ing their subordinates but not of subordinates commanding their
officers. This relationship of superior to inferior consists for Austin
in the power which the former enjoys over the latter; i.e., his ability
to punish him for disobedience. Conversely, the subjection of the
. inferior to the superior consists in his liability to suffer a penalty
for disobedience. In a sense, then, the idea of a s,anctfon is built
into the Austinian notion of
command; logically it might be more
correct to say that law.hes two rather than three. distinguishing
features.
We must now distinguish commands. whfoh a.re laws from·
commands which are not. Imagine a state ·governed by-an
.absoiute ruler R. 'Here the law is what R commands. But is the
converse true? .Alre-all R's commands law? Suppose he orders ., : ..

his servants to make -preparations. for a banquet;· would t}lis

qualify as law? Would we really wish to designate as law his
every instructforil c-g., to close the window, to turn up the hest-
ing ·and so on, ev,en though R being an
absolute ruler c_ould have
.h.is · servants executed for disobed.ience (m)?· Now Austin d,is-
tinguishes laws from other commands by their generality, laws
be1na0 0aeneral commands·
· . >
and indeed
.
laws seem
.
much less. like
±ha 'a ns; cnmonds barked out on
parade grounds and obeyed
±e ssa y let#,a?cul see%f vh things s
the standing orders of a military station which remf1in in force
generally and continuously for all persons on the station. But
there are, howeyer, exceptions, for there can exist laws, suc.b as
(m) Unless wr:::ie distinction could be qnwn, R wou1d be in an analogous
position to. that -of Ring Midas, whose touch fomed eve0 tbing wi.tbout :;.:cep- ·
tion into gold. In fact there are ,2.rious ways of ensuring tbat. the 1aws o.i. such
a. ruler can be; diEiting-;,isbed from bis non-legal uttersnces; to be law! t1?-ey
ma, have to be uttered i some solemn form, in wipe spec1s.l place, sccordrng
t.o ;oroe sp-ecinl · procedure, etc._
26
 LA w AS COMMAND OF THE SOVEREIGN: lMPE_R_'\TIV.E LAW 4

acts of attainder, which lack this type of generality. Generality

alone, then, is neither neyessary nor sufficient to serve as the;
<listinguishing feature of law.
Now if pai·tjcufar commands can qualify as laws, how can we
distinguish laws from commands which are not law? Everyday.
life is sprinkled. with examples pf peopie · giving commands to
others: masters'give orders to servants, teachers to pupils, parents
so
. to chilclr£.:n Rnrl forth .. SomP.times commands arc unlawful, as
. would be that of a bank robber who f6ints his gun at the· bank
clerk nnd ortlers i,im to hand over the contents of the till. Indeed · ..
some have criticised he positivisttheoryas a 60eory 6i'@64.U or-
law", on the ground that it makes no real distinction between 4 . . ...
law and the command of ~ bank robber (n).
Such criticisms overlool the importance of Austin's second
requirement: for to qualify as law a command must have been
given by ,a political. supe_rior, or sovereign. To Aus.tin a -s overeign
is any person, or body of persons, whom the bulk _of· a politic.al
society habitunJiy obeys,· ancl \.-Vho does _ not himself habitually
obey some other person· or persolls. · The latter proviso serves .
to exclide viceroys, colonial governors, .satraps and so ·forth, who
are obeyeci by _those whom they rule, but who are riot their own
masters but are subordinate to a high.er ruler. Accordi~gly, one:. ·
difference between the order of a gunman and the decree of a ,.
dictator (both of \.-v hich depend on brute force and may be contrary
to morality).is th~t·the fatter enjoys a general measure of obedience
while the former se:cures a much more limited compliance'.
One great. virtue of; this definition ·of sover~ignty is to stress
the fact 'that law is Oilly la\Vif it is effec"\ive, a/Id th.is it can bnly
be by being generaliy obeyed. Obviously perfect obedience is
unnecessary, for many ~ometimes; and sorrik continually, contra-
i .:,:.
vere ±El,,E: •le:rig i i .less. On the other
-I .«. i.vu gee, al obedience the law-maker's commands are as

empty as.a language no longer spoken or as a monetary curren.cy

... no longer in use: they have th~ appearance but Do longer the
rerdit_y of law. Now the causes of this general o 1bec1ience, whether
fear, habit or love of-order, are questions for tbe socjaJ ·scientist;
l ' how the sovereign came to enj6y this obedience, whether through
conquest, usurpa_tion or election, is a question! for th; historian.
(n) See Goodhart, Law and the },1 oral Law; 20.
27

iJ
11
 . TRE NATURE OF LAW
4

· For the legal theodst it is enough that such obedience exists: the

In or
fact of obedience is his starting point. ·
present world, givet1 human nature, a sovereign, without
... ·. the means of enforcing. obedience. to his commands would have
little hope of continuing to rule. Law stands in need of sanctions
-Austin's third distinguishing mark of law. Nor for ·the positivist
is this a mere practical need; law to him is something for the
..citizen to obey, not as he pleases but whether he likes it or not;
_ cannot
and this it bee without some method. ofcoercion. Sanctions
she are logical part of the conceptof law; theyconsist of the
· penalties inflicted on the orders of the sovereign for the violation
·of the law-in other words of institutionalised punishments.
Now against this theory several attacks can be. mounted. First
- there. are' the natural lawyer's objections which have been dis-·
cussed above (o). Secondly there is the objection that the theory
. conflictswith ordinary usage by denying- the name .. law ., . to
rules -~vhfoh are· ge;erally cla.ss1_fi.·ed as legal, · e:g., rules of
custo:tn:;n-y law , international law and much of constitutional ]9,W •'
None of. these rules originate from a sovereign . comroa.ud: ·
customary -law springs from habitual behaviour rather than from
precept, international 1aw is a system of customary rules originst-
ix;tg from state practice, and: constitutional law consists in part of
conventions whicb p.ave evolved without legislation or judicial
decision: Indeed many of the rules· of common 1-aw originate frorri
custom, though for tbe positivist these beccr:o.e law only by
transformation into law by legislative or - judicial acceptance.
Clearly then the positivist theory proceeds by :first defining
"law " in a_ special way and then using the definition to refuse
application of the term to -various pbeno]JleD& generally included
within the category 'a(1a.w. But would i-t not be more correct
first to identify the phenomena termed las sd th..otte $o
frame a definition uccordi.ngly, ·fitt_ing the definition to the facts
1
s'
3
rather tban the facts to the definition? The positivist is som·e- , ' ,'$).

!• -
:;.
times defended on the gr ound that he is defining 1aw for his own ·re.
purposes and that, i'n jurisprudenc~ jus-b as in other discip1ines,
precision justi£i.2s 2.rbitn,ry definitions (p). This defence, however,
1
1-'i-;.
2
<c
'~1
o"; Si;.· . . .
pra., § 3.to·,Austin international . . \ 1 1 d '}I
((p) According law is no la prop y so cc;, e ; op.
cit. 14S, '201. Gl:i.n,i1le "\"'Vifor-.ms in "Inte,na_tJOnal Law and the Controversy ~ :tl .-<
Concerning the Word 'Law'' (1945) '2'2 B.Y.I.L. 14.6 would argue that
there is such thing ss tbe proper sense of the word; and in this be seems 1
%
Lo be foHo"ed by Dias, op. ·0 l. &SC-351( · - -~
28
 LAW AS COMMAND OF THE SOVEREIGN: l .MPERAJ'1VE LAW
4
, will not suffice. In the first place, any arbitrary definition of law
24t
.. 3~- »
still leaves us with such problems as that of, deciding whether
--$l international law is law, not just in Austin's' anyone else's or
sense; but in the ordinnry sense of the word (g). More important .
.• it is questionable how far any arbitrary defip.ition wl).ich . fa.:ils _
lo take into account borderline, and untypical'" e;xamples of law
can achieve the positivist's aim of providing an understanding
. of legal phenomena. Moreover, a. theory defining law in terms
tJ ··- • ..• . . . ,
of "comr.n_and '',''sovereignty'' and:" sanction'' alone, cannot
provide an adequate analysis of the ordinary standard typeof
legalsystem. ±hi%fifth ' g

.'J'o define law as a command can .mislead us in several ways.

· · First,, thoUgh this may be a notina:ppropril\te Way of describing .
certain portions of law such as the criminal law, the greater part
of as legal system consists of laws which neither command ·
nor
forbid things to
be dox;ie, but which empower people by certain
means to achieve certain results: e.g., lsws giving citizens the
. right to vote, laws conferring on 1ease~holders the right to buy the. •
reversion, laws concerning the sale of prope:rty and the me.~ g, of....
wills: indeed .t he puik of the. law of contract. and. of~operty · 1

consists of such power-conferring rules. At this poitit the. theory•

. · co.uld be ssved by arguing that s rule conferring . a' right on one .. ::'
person. is really an indirect qoiw:n:and addressed to another: a law
empowering the citizen to vote is really an order to the returning
officer to re!µsteir_the vote. But this saves the ·theory .at too high a
price. To regard a:law conferring power on one person as in fact·
an indirect order to another is to distort its nature. It would be·
analogous to arguing that the rule in chess which allows a player
to take a. pawn en passant is really. a rule ·enjoining his opponent
to recognise this type of move. Of course in both cases a res_tric-

feature oi the rule is not this so much as the increase in the atilbit
of the enabled party's· activities. This distin_guishes such rules
from simple commands or prohibitions such as " do ngt steal ",.
a.nd nothing is gained by a de.fini tion of law that blurs this
· distinction.

Secondly, the term " command '' suggests the exist_ence of a,

the (q)
use See \Visdom,
of the op.
cit.".ai
word "round 96 et sea.
- for an. analogous problem _concerning

· 29

•·1.-·.
·-•-
 e~."
. Ji

4 THE NATURE OF LAW

. .

personal commander. In modern legal systems the· procedures for·

· 11 ·
j legislation may 1-vcll be so complex us to make it imposs1b1e to
identify any commander in this personal sense. This is espe.cially
1 ·-~
-: .

. -----·· . : :· so where sovereignty is divided, as in federal states. . .

'Thirdly, ''cqand'' conjures up the picture of an order given .•
by one particular commander on one particular occasion to .one
. particular recipient. Laws differ in that they can and do continue
,·
in existence long after the extinction of ·t he actual law-giver {r).
Here againan to
attempt save the definition can be made by
gut»g it6at iaivs lid awby e former sovereignrerai law only
in so far as the present sovereign is content that they should, and
that since the latte.r ean always repeal theril, his allowing tbem to
1
.
remain
. . '.
in
.,.,.
force
.,
is
.
tantamount
' ....., ..
to adopting. them as his . own
. ·. .... ' ..
laws:
·,
I' .
. . ·. . ~.' . .
· what the· sovereign permits, he impliedly or .tacitly commands (s).
· .

.But it is not always.true that the present sovereign can repeal any
law: in.certain states the law-making powers of the sovereign are
I.
limited by the constitution, which prevents the repeal by ordinary
legiilatiQn _or ·•entrenched" clauses; in such cases no question
_-arises of the present sovereign's aUdwing or adopting such clau.ses.
At this stage the only argument left to the positivist is to contend
.th~t ·such. limited sovereigns are· not really. sovereigns at an,· 9.
contention which will be considered later. Quite apart from this,
tbe notion of an implied or tacit command is suspect; an implied
command seems not to be a command at all (t). · 1t would ·be
better to accept the possibility of laws wbich are not CQIDIIlanded
by the present sovereign, to jettison the notion of '' command''
and to adopt some clifferent analogy, e.g., the rule of a religious
order, which can continue in force long after the.· death of its
founder.
But whether we define law as a. command or a rule, we must
still <list1nguish commnnds (or rules) which are law from those
which are not. For Austin, as we sa~v.
a. command can on1y be law·
if it emanates from the so·•;,ere:ign .. This raises tbe question how
far there can exist laws other than those made by the sovereign.
Obviously in a !ccmple:x modern state it would be impossible for tbe i

(r) \Vhat Hart refers to as the ".persistence " of bw, op. cit. 60 et seq.
(s) See L~stir:ii's use cf the nolion of a ta.cit command to explain bow _cus-
tomary .and ·.judg:e,mao.e law is in reality tbe c.orrn;nand of the sovereign:
Austin. op. cit: 30-32.
(t) See Hart. np. cit. 43-46,fr~-64.
30
 -"#4#
.
. ·.3A
;, .

v AS COMMAND OF IMPERATIVE
L A W T H E S O V E R E I G N : L A W

· sovereign legislature to enact every legal rule: much law-ma.king

will -tin fact be done. by subordinates to whom legislative powers
..l have been delegated. A good deal of English law consists of
·-.1 such delega-ted legislation, e.g., regulations. made by 11inisters
under Acts of Pariiament. Here Austin finds no problem, since he.
sees no difficplty. ·in the notion of a sovereign conferring law-
making powers on others (u).
The bulk of English law, however, has been created neither
. by ordinary nor by delegated legislation, but by the decisions
. of the courts. Aus tin 'would argue that this too is; really the
:·• ;
creation of he sovereign, since the judges too re delegate3
_of .Parliament which has conferred upon them law-making
powers. (v). It-is of course true that in England the judiciary are
appointed by a government answerable to. Parliament and that ..
there are parliamentary procedures for their removal. But to
describe the judges as delegates is wholly misleading, for this
obscures the fact that their law-making powers co-exist with
i . those of Parliament and are neither based on nor derived from
any parliamentary enactment. The fact that Parliament can
always overrule any judicial decision of the courts does not entail
• that j.udicial law-mak_ing is
_of a delegated nature; This would be
to confuse subordinate with derivative powers () .
There is yet another area of. law which again owes nothing to
sovereign legis1ation and· whose existence is of cru¢ial difficulty for ·
the positivist theory. Let us take the case of a co,'tlntry ruled by a
he;eciitary ·monarch·v.:ith absolute power._ Now when this present
monarch dies, we do not need to wait and see who next will enjoy
obedience from the population in order to ascertain the .identity
oi the next sovereign. Since the rules of succession prescribe who
shall inherit the throne, we already know his identity ho5ore he.
, . issues any commands and before any question o:;: -hbe<lie.tj(;e arises.
. \Vha.t we have here then is a. rule laying who shall be the down
sovereign, so that the extinction of the present sovereign is DO bar
to the continuance·of legislation (x). In wodern complex states,
• the rules denning so-vereigbty will obviously be more intricate than
this: the relevant English :rule involves, in fact, a number of
. (u) Aus·in, op. cit_ 225-232.
(v) Op. cit. 31--32.
( w) See Cross; Precedent in Enq/i.sh Law; 162-163.
(x) See Ha.rt on the "continuity" ~f law, op. cit. 50 et seq_
31

,''
i
. I
I
$
£
 4 THE NATURE OF LAW

separat'e rules abou_t-the monarchy, about both Houses of Parlia-

ment and about parliamentary procedures of legislation, I many
modern states such rles are contained in written constitutions,
but whether
.
writ-teri,
'· ..
as. in·the United
~
States > or unwritten
. . ,
as
•
in
•

England, they clearly cannot be the commands or the sovereign

himself ..A special parliamentary statute to. the effect_ that all
enactments ofParliament are law will not render such enactr:b.ents
law unless the statute is already law itself, 1:ii other words, unless
Parliament is already sovereign; but if Parliament is already
..overeig, then therealready exists a rule tothe effect and this
rule is independent of the special statute. The rules that define
sovereignty then ·are· basic rules of any legal system (y), but are
not themselves the creation of the sovereign: To refuse to call
them law would run completely C()Unter both toordiriary language ' _·
and to legal terminology: no English lawyer or court would regard
the rule thst parliamentary statutes are the supreme law of
_ England as a:oytpmg other than a rule of English law. .
on
No this throws doubt Austin's definition of sovereignty
itself. We hive seen that Austiµ defines the sovereign in: terms
of obedience. 'But the identification, of the_ sovereign as
a person
who is obeyed by the bulk of the population but who himself obeys
no other person claims at
one·. and the same ·time too little .and
too much. It is not enough to say that sovereignty consists merely
in being obeyed, yet it is too :much to state that the sovereign
· cannot himself be in the habit of obedience to some outside body ..
In fact this iclentification confuses the two questions '' where is
. sovereignty?·»: arid " where is supreme power? " (z). The latter
is a question of fact, the answer to which is to be found by
obs~rviug who. it is in. reality whose orders are executed; the
:former is a question not merely of fact but also of law, to he
ansyvered by reference to the constitutional rules which lay down
what body it is whose decrees are to count as law. In the lest
years of the Roman republic; while Caesar was in G au1, it could
be said tlrnt the real ruler of Rome was to all intents and purposes

5alro d ±era.- ±.± basic rules ultire is legal principles; ir e ls..s

i z..g y h ey constitute grrdroras . Se in5j7a, SS and l7.
(z) Bryce in Studies -in Hi.story e,n.d ~11-Tispn.ul.ence_ distinguis~e~ between
" lega.l sovereigr:ty "- and ''practical sovereignty'', the former consisting_of the
ultimate a.utbont.y to m21:e la.w and the latter consisting cf the ability to
enforce: obedience: Bryce, cp. cit_ 51-G-.!; Lloyd, op. cit. 14 7-148.
32

i
14
----- ·--- - -·-·-- --···--·· ···-······.
 LAW AS CmdMAND OF. THE SOVEREIGN: lrv1P.ERATIVE LAW
4
• 1,.
could get enacted any/law he wished, his' own commands would
t ..
, ±Ai
not have qualified a.s
laws. Sovereignty c,o nsists, riot in having
es ij' power, but'in having authority.
This colifu.sion landed 1\ustin in particular difficulty \vhe:ri try-.
iug to idenhify th~ sovereign in England (a). At :first sight the ·
sovereign is a composite body comprising the Crown, the House of
Lords and the House of Commons. But since the latter house is
: . . . ,· .
elected -and, must the_refore ultimately obey the electorate, the
House of Commons cannot on Austin's 'theory qualify as part of

the
gt±;zz2fl:
Commons themselves.- -In fact, however, this large/ body.
s
never issues any orders or decrees, nor, .if it did, would they
. quaiify as law under our present constitution. The real sovereign I-
is, infact, the Cron, the House of Lords and te Huse 6F
Goto.mans, whose enactments, whether made at -the bidding; of
the electorate, the city, the trade unions or what you will, continue
· to cou·n:t as· law.· · ·
Sice' this is what !:!Overeignty really means, it he.comes.<·
unnecessary to add a rider to the effect that the sovereign must
not himself be in the habit of obeying some other body.· This is·
. merely a confused attempt to distinguish supreme from subordin-: ·
a·te law-makers. A subordinate iegislator, whether- enjoying.
delegated authority, as _is the case with colonial legislatures, ·or
original jurisdiction, as is the case with ·the courts, can be over-
ruled by ·the supreme legislator. The real distinction is that when
enactments of the two conflict, the. enactments of the sup_reme
law-maker prevail over those of the subordinate. The ha-11-mark of
the sovereign is that his enactments qualify as law and that no.
other enactments overrule them .. This shows that there is no·
$
logical or legal necessity for the sovereign's authority to be
.• • .
unlimited. No paradox arises if a written. constitution places
limitations on .the ..legislature; if a constitution limits the legis-
. lative powers of tbe sovereign by providing that certain funda-
mental laws cannot be altered by legislation (b), we need net
(a) A ustin, op. cit. '228 et SC(!.

(} Some constitutions such as that of the German Feaera.] Republtc (}') .;

provide that certain fundamental rules are completely unalternble: Art. 79 (gJ
01 the Basic Law of tbe·Repubhc.pro,1des that P,..rts. l-20can:oot be amende<l ..
Others such as the Constitution of the United State.s provide that such rules
can only be ~mended by_special procedures. · ·
33

--···•·--··
 4 'THE NATURE OF LAw

con cl u<le that the_ real sovereign must be some other body, such as
the. people, which could. if. necessary, alter the constitution. For
ordinary laws not contravening these fundamental provisions can
still be enacted by tbe existing legislntur~, which 'is accordirigly
the sovereign, albeit a limited one.
In trying to ·define positive law Austin was looking for a
-·. criterion to determine whether a given rule. is a. rule of a legal
system (c). Now· sipce eyery advanced legal system provides
methods of enacting new law and since the most obvious method is
$#6@6rerets@e ±ti#@ti±,o#ii$ o 4 1eeistire, ± ton6vs et a
.. great number 'of la:~vs will result from legislation . .-One criterjon
fat identifying ~ ruJe as one of a legal systeni, therefore, will be its
having be.en· e:µa.ct~d. by such a legislative body. This, however,
need not be the only criterion. In England, for example, there are
additional criteria: a. rule' will qualify as a rule of English law if it
. has been laid down by the courts_" Accordingly, . to ask on-ly
whether. the_ rule emanates from the sovereign is too crude and
. unsophi~t,foa.ted an ~-p proa~h to the problem. .
There. remains the question of
sanctions. It was amongst other
things the lack, of sanctions that led Austin to describe inter-
national law as positive morality rather than law (d). International
lawyers, however, contend that while sanctions render a legal
I .. system . stronger' they are not l~gicaJly n~cessa.ry and that the
idea of a legal system without sanctions is not self-contradictory.
Of course orie essential foature of law. is that its subjects are
bound by law ,vhether they like it or not and cannot opt out of
their legal obligations. Yet we know that on occasions the _subject.
my refuse to obey the law and decide not to. carry oi.it bis
obligations. '\Vere tbe majority of citizens of a society to follow
this patb, the legal system would break down, become ineffective
and cease to be law; for it is only by being accepted and obeyed
that law remains effective and conti:oues to be law. The question
tbe:n is whether -the absence of sanctions ,vou1cl result in a legal
system censing to bs effective. The various reasons ?why people
(c} See =48, •±. •{:.
{- , : •.• . :. .e --- - -- ----., · : - - :1on in -inte·::, ·..· i:s tbe n:~->
±o, i ce? state ±gist e ta-breski =tee , e tis i o
~e:3t)ce th~ notion of " srnction"'" from tb:a.t oi an institutionalised penalty to
that of sclf-beJp. In nny ca.se, tbe present state of int~ro2-llooa.l 1_aw ma.ke:5 it
far from dear whether such use of force v.ould be legal ;rnder tbe Urnled
Natioos Chsrt_er.
34
 ··.·I
#

'±4
..
,..

AS COMMAND OF THE SOVEREIGN: IMPERATIVE LAw 4

obey the law a.re outside our present scope, arnl form the subject
rather of so~iological resecrrch. It would .seem reasonable, how-
ev-er, · to estimate that the Jess civilised a society; tbe greater the.
need for sanctions to ensure obedience to law; and the more
advanced the society, the greater the likelihood. that law will be
. obeyed from a cony1ction tbat a law-abiding society is preferable.
to lawlessness· and anarchy. In most societies, however, there is at·
least.~ se.lfi~h ·minority prepared to enjoy all the benefits of an
ordered society without accepting the burden of adherence to the
rules; and here sanctions are needed, not to coerce the law.
@bi@iiig' majority, butrather to preven t the rotoritRoni gi416£
an unfair advantage. Given human D.E:.ture [is ifi exists, it seems
fair to: assum.e that law without sanctions would fail to be com:-
. pletely effective. In international.law there exists nothing by way
of institutionalised sanctions and yet the rules of international
law, though often flouted, are far · from. tof;ally ineffective.
Suppose, however; that we found·· a cori:ununity/ where the rules
were: always obeyed despite the absence of anything in the nature
of sanctions: would such a system of :rules diffe:t- so greatly from
any system we know that we should hesitate to dall it law? Com,..
rt .
pletely effective law without sanctions may nqt exist, but the ·
notion that there could exist such a system of law is not logically
inconceivable. We conclude .then that · the id'e·a, of sanctions,
though central to that of law, is not logically essential. ..
, .
5. Law as the practice of the court : legal reali Ii1

Positivism regards law as the expression of ie will of the state

_ through the medium of T eories of legal real-
e }egislature.
ism (e) too, like positivi ,look on law the expression of the
will of the state, but s this as made t ough the mediu±h!"t the
courts: Like Austin, e realist looks n law as
the command of
the sovereign, but 1· sovereign is no Parliament but the judges;
for the realist the· s Yei-eign is the· c rt.
(e) The term " · erican Realists· .. ·sei: es to describe s number oi American
.' though in no wa.y :constituting a form s] school of juris-
legal theorists, wh~
prudenpe, share. th view that tbe law consists of the pronouncement of tbe
courts. On thik th ry of"l ~w se~ Rolfues, " The Path of th~ Law " (1897) 10
H.L.R. 457-478, reprinted iP Collected Legal Papers; Llewellyn, The
Brcmble Bush (2na ed.); Frank, Law nrid the Modern. Mired and Courts
on Trial; ~raj, The Nciiure and Sources of Law (2nd ed.). See also Fried-
mann,
cit.. Legal
Chap. 7.· The.ory, (4th ed.), · Chap.
I 23;· Dias. op. cit. Chap. 19; Rart, 01J.
.

35
.( '«
68 CONSTITUTIONAL LAW OF. INDIA . ?. (i'
i> . [CHAP.. 7 ¢

.I t -. direction which would be violative of fundamental rights of citizens. i1 can be said

that the expression "Stale'; as defined in Article 12 of the Constitution includes judiciary
also. ·
Laws inconsistent with Fundamental Rights (Article 13).-Artlcle 130)
declares that all laws in force in the territory of India imrim;iiately before the
commencement of this Con_stitution shall be _v oid to the extent to which they are
inconsistent with the provisions ofPart 1Il ofthe Constitution. Clause (2) of this article
provides !.hat Lhe State shall not make any law which takes away or abridges the
fundamental rights conferred by_ Part Ill of the Constitution; and any law made. in · · 0
\!
€
contravention of fundamental rights shall, ro the extent of contravention. be void. Clause
· (3) of this article. gives the term 'law' a very broad. connotation which includes _any . b
ordinance, order, by-law, rule, regulation. noiification, custom of usage having the force ii
tl =
of law. Thus not only the legislative enactment, but anything mentioned heni can·be
as
challenged infringing afundamental righL C
s
. Powerof Judicial Review.Article 13 in fact provides for the 'judicial review' \\
a
hiss,481.2$$%27£.25#
·" law
ii ' if
.£2#.%£%2£72¢
the
unconstitutional it is inconsistent with any of provisions of Part Ill of the
.b
n
·· Cons tit mi on.· · s
n
Meaning and basis of Judicial Review.-'Judicinl Review' is the powet of . . . . LI

:±e
courts to pronounce upon the constitutionality e>f legislative ~cts_ which fall, within their
nomal jurisdiction to enforce and the power to refuse to enforce such as they find to be
c
unconstitutional artd hence voiµ.70 "'Judicial Review" said Khanna. J., in the Fundamental
Righls case,11 "has thus become an 1ntegral part of our Constitutional System and a
power has been vested in the High Courts and the Supreme Court to decide about the
constitutional .val}di1y ·o f the provisions of statutes. If the provisions 'of the statutes are
found to be ·viol*tive of.any of the articles of theConstitution which is the touchstone
for the validity of all laws the Supreme Court and the High Courts are empowered to ,
strike down the said provisions".
That poweri~o.rrupts a man and absolute power corrupts absolutely which ultimately
leads to tyranny, anarchy and chaos has been sufficiently established in course of r. th
evolution of human history, and all round altempts have been· made to erect institutional· V
limitations on its exercise. When Montesquieu gave his doctrine of separation of powers, pl
. he was obvio-usly:moved by his desire to put a curb on absolute and unc6ntroilable power Ul
in any one organ of the Government. A legislature. an executive and a judicial power le
comprehend the, whole of what is meant and understood by Government. It is by i F
balancing.each of theie two powers against the other two that the effons in human nature I! n
c:
toward:; tyranny can alone be checked and restrained and any freedom preserved in the i
Constiunion.72 •
T
a
· Judicial Review is thus the interposition of judicial restraint on the legislative as
well as
the executive organs of the Goven1ment. The
concept has the origin in the theory
of limited Govemment and in the theory of two laws-an ordinary and supreme (i.e., the t
Const1tutio1:)- From the very assumption that there is, a supreme Jaw which -constitutes f
the foundation and source of 01.her legisla1ive authorities in the body polity, it proceeds ' C
that any act of he ordinary law-making bodies which contravenes the provisions of the !
supreme !aw mt!st be void and here must be some organ which is to possess the power ;
·9

or authority to pronounce such legislative cts void?> · . $

70. ES. Crown.fssay on the !diial Review in Eycicpaedia oi Social Sciences. Vo! I. p. 457
71. Kesavanar!a B!araui Saxe of Kera.a, JR 19735SC 1461.
72 Levers vy Jones A4d:ms tc Rivierd Henry.
73: Sssu's Commentaries on Conti:ion cf indi. Vol. {
 CHAP. 7J
if can be sa# . . FUNDAMENTAL RIGHTS
· • :!ud'es jndiciaty 69
The doctrine o( judicial review was for the first time propounded by the Supceme
Court of America. Originally, the Uniied Scaies Conscicucion did ooc comain an express
-Aricle 13 (+ revision for judicial review. The power of judicial review was, however. assumed by the
:Jy before the $ne ciii of America i the historic case of Marbury w. Madhon." The faces_ of
'hich they are the case were as follows : The Federalists had lost the_ele_cr_,on of l.80O, but before leaving
of his aricle !he office they had succeeded m creating several ncwjudicial posts. Among these were 4j
•. abridges the juslices of p_eace, to which the retiring Federalists President John Adams appomted forty-
law made in two Federahscs. The appomtmenc of comm,sswns were confmncd by the Senate and they
e void. Clause were signed and sealed, but 'Adam's Secretary of State,.fohn. Marshall, failed to deliver
' includes any
• • • vjng the for.ce certain of them. When the new Pcesident, T!,omas i:rrerson; assumed ofiu:o, he "''lnt<ted
his Secretary of State, James Madison not to deliver seventeen of these commissions
·1here can be includiog en, for William Marbury. M:ubury, filed a petition in tlce Supreme Court for
the isSue of a_writ of mandamus to Secretary Madi3, _ ordering . him co detive, the
• '· jicial review' commissions.· He relied on Section 3 J of the JudiciaryAct of 1709 which provided : "The
ferred on the . ve
Supceme Court shalf ha the power to issue...••... ·... wcits of mandamus, in cases. __ .,
· can declare 4
_ art JI! of <he · I warranted by the pririciples a,jd usages of law, to·.......persons holding office, under the..a..i±±:e
authority_ oftheUnitedSates/Tie count,speakiig through Marshal, 46 1d 4,
· • bec"offie ChiiflUStii:e;"hdcJ· that Secrfoo 13 of the Judiciary Aci was iepugnaot to Article
HJ, · Section 2 of the COilst iti.ition inasmuch. as the Constitution itself limited the
-
he power or [ Supreme Court's acigina] jurisdiction to cam "afle¢ting ambassadors, other public
·. · ivithin their
. i.
ministe,s and consuls. and those to which a Seate is pa,cy". Since Marburyfell "I none of
~y find to be · / ·these categories the cou,-r had no jurisdiction in his case. The observations of Marshan],
-=-undamenrat
CJ.,
·... in
,-- ..that
, case ... pertinent
:_;--- are
·. •. ·... to-.- nte:"
. . '7""-
. ,r4 ass.a.. ..

. J1 .
stem and a
le about the 'The Constitution is eithec supe,ior ]1aramo,nc law unchangeable by ordinary
statutes are
means or it is on a Ievel with ordinary legislative- Acts, and like other Acrs is
al ternble when the legislncure shall pkase to altee it... Certainly, all those who
· touchstone framed written Consricutions conteffiplate ihem·as fanning the fundamental and
poweredto paramount law of the nation and, consequ.ently, th.e theory of every such Government
must be rhnt an Act qf the legislature repugnant to the Constitution is. void. And
l Ultimately further,
what the"ht emphatically
lawis is•.. " . he pcovinc:,, ac,d duty of
· the Judicial
. deP&nnientto '"'Y
. course of
· · nstitutional . · · ln tl,e lndian Constitution chece is an express provision fo,-judicial review, and in ••
ofpowers. thrs sense it15is on a more solid footing than it is in Ameriea. In The S1ore ofMadras v.. ·
able power V.G. Row. Patanjali Sastri, CJ:, ohsened, "Ou, Constitution contains express
· cial power provisions foe judicial reView of legislation as 10 its confonnity with the Constitution,
t: It is by unlike in Amecico where the Supreme Court has assume extensive powers of revitwfog
legislotiye acts•Under cover of the widely intecpceced 'due prncess' clause in the Fifth and
nan nature
ved in. the Fourteenth Amendtn,ncs. Jf then. the coons in !l,is country face up co such imponant and
oone too easy task. it is not ouc of any desire to tilt at legislative authority and a
crusadec·s Spirit, but in dischacge of duty plainly laid Upon them bv the Constitution.
islative as This is specially
assigned trnesentinel
the role of as regards
on thethequifundameocaJ
vive." eights as co which he Cont has been
'.he theory
} (i.e., 1he ·
-~ onstitutes But even in the absence of the provision for judicial review, the muns would have
proceeds - been able lo invalidate a law which contravened any consticucional pcovisioo, foe, such
ns of the powe, of judicial review follow, trnm the very nacun: of cOoscicutional law. Jo A. K.
.- he power Gopalan v. Sate of Madras,7 Kai4 C.J.. poioted our thar it as only by way of·
abundaot caution that che framecs of ou, Coostitutioo insened ch soecific pm,•isions in
Anicte 13.. He ohsecved : "lb Info, ic is the Constitution ha: is supreme and th a
"""" I aw •o. be valid. mus c he in a !I conformity wi ch the constitutional requiremeh es and
•457 it 'S for the judiciary to decide whether any enaunent is constitutional or , "

74. 2L Ed. 60.

75. AIR 1952 Sc 1
76. AIR 19S0 SC 27.
 []r?ir- COMSTTUTONAL LAW OI#I A
CH/1.P.

. -'.f;i
l :70 ...
· ·,' But while the bnsis o(judicial review of legisiatiye ac~s is far more secure under our . Act is
,onsiitution its potentialiri~s are _much more limited as compared to thiit in ,U'.S.A. This staitet
1 is due 10 1'hc detailed prov.jsions of the Indian Constitution and the easy method of its · and li :
amendment in contradistinction to the American Constihllion's vague ind general . no.to
i,~-
1 phraseology and the rigid method .of its amendment: Thus1_ under the power oi judicial wet
·. review. tll~ highest Court of the.Nation_can.test all pre-Constitution and post-Constitution
or future laws, and declare· them unconstitutional in case they contravene any of the un COl -...
·' . provisions of Part 111 of the C0nstitut1on. _ voi<l
: In kesavananda Bbdm 1i's c3seTT it has been held that Judicial Review is the 'basic i1 · this lco •
feaJllTes' of the Indian Constitution and. therefore. il "cannot be damaged or destroyed by 1 This· :.-
amending the Constitution under Article '.¼8 of the Constitution". . 1· ·. const
78
. Again, in L Chandra Kumar v. Union of India, (1997) the Supreme Court has entir•
tield that'the power of judicial review of legislative action as vested in the High Court inco
under Article 226 and ir, the Supreme Court under Article 32 is part of the basic structure unco
· of the Constitution and can be ousted or excluded· even by the constitutional amendment. by c

Assis.pi #Pre-Constitution Laws.-According toclause (0) ofArticle 13 all pre-

.. ·... " •.· ....· Constitution or exisdrig 1a\.VS, i.e., Jaws which were in force immediately before the 14 0
commencement. of the Constitution shall be void to the extent to \.vhich they are mim
inconsistent with fundamental riglils from the date of the commencement .of the .· natu
Sect
Constitution. · Stat
Article 13 not retrospective in effect.Article 13 0) is prospective in nature.
Ail pr~-Constitution laws inconsistent witliFundamenta\ Rights will become void only
obs
stat
after the commencement. of. the. Constitution. They are not void ab· /nitio. Such
· inconsistent law is not wiped out so. far as the past Acts are concerned.. A declaration of .
invalidity by" the Courts will. however" be necessary to make the laws invalid. The up'
19
Supreme Court in Keihava 1\l!adhcn• Menon v. State of Bo,iibay, observed_: "There is od
no fundarrie11tal right that a. person shall not be prosecuted and punished for an offence is v
committed before the Constitution came into force. So far as the past Acts are.concerned ren
the law exists notwithstanding that it does not exist with respect to the future exercise of v.
the Fundamental Rights." res
. · · · In that c;ase, a prosecution proceeding was started against the petitioner under the it
.,st{
Press (Emergency Powers)-Act, 1931 in respect of a pamphiet pub1ished in 1949. The
present Constitution came into force during the pendency of the proceeding'in the Court. bei
The !1ppellant conten_de.d that the Aci was inconsistent_ with the fundamental fights mi
conferred by Article 19 ( l)(a) of the Constitution hen.c e void, and the procce·ding against
him ct,uld not be continued. The Supreme Court held that Article 13 ( 1),could not apply 1i-t1
[O his case as the offence was committed before the presenl Constitution came into force to
and therefore, the proceedings started against him in 1949 were not affected. The Supreme .'JJ(
Cour held that: "As the Fundamenta1 Rights became operative only on and from the date st
of the Constitution, the -question of the inconsistency of the existing laws with those in
rights must arise from the" date those rights came into being..... .i. .. The voidness of the c-
see:
altogether from the statute book, for ti so wi!l be to give them retrospective affect
cc

.
which we he szid.
,»iv
the ; d,=; neg <ge<"
di..s oy ±'ii!ii,r3>>s >. I a

7-7. f..!:Z i0i3 SC 1:.0L

7v. AIRl 99i'SCl i 2.5.
79. AIR 39SI SC 12: Rebids ch v. Ui oj!sea, AR 1970SC 470.
 Th:; es not mean tbat a discrimniatry procedure iad down by a pre-Constitution
.A, This c Is to e followed in respec1 of pending proceedings c in respect of new proceedings
d
i ·.·
of
its
..
started in respect of pre-Conititution rights or liabilities. Though the substantive rights
. .· general and liabilities acquired or accrued before the date of the Constitution remain enforceable,
; judicial no body can <;:laim his rights and liabilities to be enforced under a particular procedure
stfrution which becomes inconsistent with fundamental rights.O
. I . .
-j of the Doctrine of Sevenbility.-When a part of the statute is declared
unconstitutional then a question arises whether the whole of the st:itute is to be declared
e 'bruic void ur only that part which is unconstitutional should be declared as such. To 'resolve
.: oyed,liy this problem, the S~f.neme Court liaS devised th·e doctrin'e of severability or separability.
• . This poctrine me~·::s th,n jf an offending provision can be separated from that which is .
.ourt has )' constitutional th~h only that part \i.ihlch is offending is to be declared as void and riot the ·
h Conn entire statute, Article 13 of the Constitution uses 1he words "to ihe extent of such •.
• tructure
! inconsistency be void" which means that when some provision of the lay,r is held to be .
unconstitutional then only the repugnant provisions of the
law irii question sh<:1l1 be. treated .
.Jinent.
. by co:»ts as void
and not the wholestatute.I . . . • . · · ! .. . .·. . ·. · ·
all pre-
fore
hey are
tlie ·.. 1A.Kl c6ta# w. sac
ofaaras,the supreme court while declaring
14 of the Preventive Detention Act, 1950, as ultra ·vires, observ,~d : ''The impugned Act
Section.
·
.as# e

of the: minus this section can remain unaffected. The omission of the section will not change the
nature or the structure of
the subject of the legislation. Therefore, the decision that
. nature Sect\on 14 is ultra vires does not affect the validity of the rest of the Act; SfrnilarJy,.in
id only .. State of Bombq.. V,,· Ba/sarq, a cas.e under Bombay Prohibition Act, 1949, it was
observed that the provisions which have been declared as void do not affect the entire
•. Sch
ationof statute, no
therefore, there is necessity for declaring the statute as invalid."
id. TAe This is, however, subject to one exception. If the valid portion is so closely mi.xed
TTiereis up with invalid portion that it cannot be separated without leaving an incomplete or 'iriore
offence or less mingled remainder, then the courts will hold the entire Act, void, The primary test·
ncemcd is whether what remains is so inextricably mixed with the part declared invalid that what .
•rcise of remains cannot survive independently. The Supreme Court observed in Romesh Thappar ·
v. State of Madras&~ that : "Where a Jaw purports· to authorise the imposition of.
lderthe restric;tions on a Fundam'=ntal Righi in language. wide enough to cover restrictions, both
49. The within nn.d without the limits pr:ovideq by the Constitution anc;I where it is not possible lo · ',
! Comt:. ·.
to
separate the two, the whole !aw is be struck down. So fong as the· possibility of its. -
r.rigJm being applied for. purposes not sanctioned by the Constitution cannot be ruled out,,it
against must be held to be wholly vo\d." · · · ·
. . . .
1 apply
The; doctrine of severability was elaborately ccnsi<lerd in RJv1.D. C. v. Union oj
.to force
India, 84 In that case, Section 2 (d) of the Prize Competition Act, which was broad enough
uprerne to iriclude competitions of a gambling nature as well as competitions involving skill,
thed2te was involved. The Supreme Court held that the provisions of the Act .w ere severable and
h those struck down those provisions which related to competition not involving ski IL The Court
;
.• of the in R.M.D.C. case held that ~vhete after removing the invalid provision wat remains
. 2%..24
"0:i9gs :;le de ±her is no necessity to declare the whole Act invalid. In such
[::':!!) Ot;l
cases, whether the vaiid parts cf g statute are separable rcar the ii,, ts intention i
"e effe;

&0. Lchoned as • S ass of o bay, AIR 1952 5SC 235.

!
3 . c:or Genera! Traders • Sa re of.P, ( U 9 8 4 ) 1 S C C 2 2 2 .

82. A!Rl950SC2,:1950SUl:4.
83. AJR 1950 SC 124; See also Chinaman Rao v. State of M. P., AIR 195 1 SC1 J 8.
84. AJR !957 SC 628: S~,: :1\so Mwor General Traders v. Stat,: njA P., ( l 984) l StC 2.E
 \
4 ·,
IL. CONSTITUTIONAL LAW OF !NOIA
fCHAP.7

the Legislature is the determining factor. The test to be applied is whether the Legislature · -
would have enacted the valid part if it had known that rhe rest of the statute was invalid.
But if what remains on the statute book cannot be enforced without making alteration the
whole Act should be declared as void. Severability is the .question of substance and not of ~t. rn.
7 is
form, aJ)d in determining the intention of the Legislature it is legitimate to take into ._:_~
·:r
--~ . st
account !he history of the legislation and the object as well as the_ title and Preamble. in
t. w
taxation Jaws wher~ taxes are imposed on subjects which are divisible in nature and some
-., . o.,°
o( the subjects are exempt from taxation the tnxution statute wi!l1 not be wholly void. I(_ '
;
h
-can be declared void only with regard to those subjects to which a constitutional·
- exemption is attracted. _- _ _ u

r In Kihota Hollohan v. Zachith," it has been held hat Section 10 of the Tenth
Schedule minus para 7.remains valid and constitutional. Para 7 which has been declared
uncoils'titutional - is severable from 'the main proviscions of the Tenth Schedule. The v
remaining provisions of the TenthSchedule stand independent of 7 are Para and complete _I
inthemselves and workable:Para7 oftheTenth Schedule provided that the Speaker's s-
decision
validity.
regarding
.
the- disqualification
. .
shall be final and no court could examine its
- c
1
Doctrine of Eclipse.The doctrine of eclipse is based on the principle that a law .t
which violates Fundamt=ntal Rights is not nullity or void ab initio btitbecomes only z
·. unenforceable, i.e., remains in a moribund condition. ''It is over-shadowed by the
. -, fundamental rights and remains dormant; but it is not dead."87 Such laws are not wiped -
out entirely from tlie statute book. They exist for all pa.st ·transactions, and for the
enforcement of righis acquired and liabilities 'incurred before the present Constitution came I

inio force and for determination of right of persons who have not been given fundamental I
rights by the Constitution, e.g., ~on-citizens.as· It is_ only as against the citizens that
they remain in a dormant or moribund condition but they remain in operation as against
non-citizens who are not entitled to fundamental rights.89
Can such a law which becomes unenforceable after the Constitution came into force
be again revived and rriade effective by an amendment in the Constitution? -
- o
It was to solve this problem that the Supreme Court formul:ated the doctrine of
·eclipse in Bhikaji v. State of M.PI that case provision of C.P. and Berar Motor
Vehicles (Amendment) Act, 1947 ·authorized the State Government to make up the entire
motor transport business in the Province to the exclusion of motor transport operators. 1

This provision, thoug~ valid when enacted, became void on the coming into force of the
- Constitution in 1950 is
they violated_ Article 19 (J)(g)91 of the Constitutfoii: However,
. in 195 I, Clause (6) of Article 19 was amended by the Constitution ( 1st Amendment) Act,
so as to authorise the Government to monopolise any business. The Sup,eme Court held
that 'the effect of the Amendment was to remove the shadow and to make the impugned
Act free from all blemlsh.or infirmity'. It became enforceable against citizens as well as
non-citizens after the:cons£ill.lticrnal impediment wi1s removed. This law w;.:s rne,':'.l:,'
eclipsed for the- tirne b\:ing by he fundamental rights. As soori as .the eclipse i_s ,,:rno1, :d 0

· the law begins to opera,te from the date of such remov,1!. ·

· 5. Grate ofBonbay • hiedlo:ors, (I954)4 SCR !09.

86. A1Rl993SC4l2.
87. Bhikaji Narc.n v.ScofM.P, AIR 1955 SC 7Sl.
88. ieshay fadhava o n v. State of cay, AI 195 l SC 12821 pp. 599-600.
S9. Sae ofGjar v. Sri#bica ills, AIR 1974 SC 130J.
90. AiR-1955SC7SJ.
91. Right to pracisc ay professioa. or to cry on any c cup2ion, tuadc or business.
. ,. subject ·ro judicial review, Pardoning power cannot be exercised on the bas' of caste or.
,·
political reasons. In the instant case a Congress worker 'was convicted f r murder of a
worker of the Telgu Desham. He was awarded 'death sentence by th 'Court. He was·
granted pardon by the then Governor Mr. Shinde,. who was Minister _o Power under the
U.P.A. Government. The murdered person's son had challenged the c 1stitution~J Vijlidfty
· of the Governer's pardoning power in the High Cou.rt o(Andhra· Pra esh. The High-Court
had quashed the order of pardonin.g of the Governor on .the ground ··• at it was exercised on
'the political ground. The Government of Andhra Pr_ad~sh file.. an appeal against the
judgm,ent of the High Court in the Supreme Court. The Supry ae Court, upholding the
judgment ofthe High Court, held that if. the pardoning pow has been exercised. on the
ground .of political
. . .¢ 3 3$ p f : reasons,
C h .i; : ... - caste
.. . . ·. .. religious
. and . . . considerations
. . it would . . amount .

viola6or'6f ~- the Constitution and the Court will examine iy validity.

. .
Emergency Powers.-Par XVIU (i.e., Articles, 552 to 360)33 of the Constitutions
arms the President with enormous emergency powers The emergencies envisaged under .
the Constitution are of three kinds : (l) emergency ayising out of
war, external aggression
and (3)fiancial emergency. . .
o r

. · ·
to
armed.rebellion, (2) emergency due failure of/constitutional machinery
. . ·
i n th e S t a t e,

If thePresident is satisfied that the security of India is lhreatened by foreign att:ick,

armed rebe.Ufon or war [Art. 3_52 (1)] or if eit er on the receipt of report of the Governor·
of the State- or otherwise he is satisfied that a situation has arisen in which the
Government of State. cannot be
earned n in accordance with the provisions of the
Constitution. [Art. 356 (2)] or Jt ,sltµ~ti;O has rt.risen whereby the financial stability of
India is threatened [Art. 360 (1)] be y proclaim an emergency. A proclamation of
emergency may be revoked by a sups uent proclamation. Such a proclamation must be ·
laid before each House ofParliament . d ceases to operate at
the expiration oforie month·
unless approved by the two Houses. he Presidcnt may, during the period of emergency
suspend the right to move the cou I fur the enforcement.of fundamental rights [Ar. 359
(except Arts . 21 and 22]. He may· ive directions to any State as to the manner in which
the State.should exercise its exec ive powers. ·

. In the case of emergency ising out of failure of constitutional machinery in the

State thcPresident may assum! any of
the powers vested in the Governor. The Poser f
St e Lg±!zsre shah! e o z5el 5y
i n7i s.a c s;s to c«gee; t o ; re ;

a.±i5a. 4 @..i4.£
-'Eu.. it;i ..in. Such a
·f ±g re •.

±.ii r.
+,
4"%
deems fit. The President may direct the reduction of salaries of any ti ass of State officials,
the Judges of the Supreme Court and the High Courts. He may rc'quire all Stare money
Bills to be reserved for consideration of the President. i
±.·.·

POSITION OF THE PRESIDENT

. '
i'rior to the. 42nd Amendment Act of 1976.-Article 53 (1) s2ys that thi;
executive power of the Union shall be vested in the President and shall be exercised By
him either directly or thrqugh officers subordinate to him in accordance with the
Constitution_ Originally, Article 74 provided that. there shall be.a Council of Ministers
With the
Prime Minister at the head. O aid and advise the President in the exercise of-his
functions. Article 74 (2) says that the question whet.her any, arid if so, what advice was
tendered by the.Ministers to the Prcsid~9t shall nor be inquired into in ariy coun. Article
75 says that the Prime Minister sha(i. be appointed by the President and the other
33. For details : see Ch2per on "The Emergency Provisions"
 -~~1
450 CONSTITUTIONAL AW OF INDIA (CHAP. 20 lI
t
i
: - : Ministers shall be appointed by the President on the advice of the Prime Min'ister. The
Ministers shall hold office during/the
;
pleasure·
•
of the President Ar. 75
.
(2)). . I

In the Judges Transfer case, the Supreme Court has held that though the advice
given by the _Council of Ministers to the President cannot be inqui_red into by the Courts
but the materials on the basis of which such advice is given· are no: secret and can be ,-
scrutinised by the Courts.
. A purely literal and legalistic interpretation of these Article conveys the impression
that the President, if he so desire, could become a dictator. ADJ:icle 53 (l) .leaves a clear
scope for the President, if he chooses, to become a real ruler and not to remain mere
nominal head of the Union. It is true that there shall .be a Council of Muusters w1th. a
• ·1 •. ·. • • . • . • . '

Prime Minister as head _to aid and

advice him in the exercise of his executive powers. But
prior to the Constitution (42nd Amendment) Act, 1975 there was nc clear provision in
,· the Constitution that the President was bound by the ministerial advice. Conseqµently,
Allen Gladhill??was ofthe view that the Constitution could under certain circumstances
make the President a <;lictator. fie can easily manage to seize all executive powers by
dissolving·the Parliament and .declaring state of emergency thereby suspending
fundamental rights. As a Supreme Commander of the Armed Forces, he can use military
to suppress the civil forces. Even without violating the Constitution, an ambitious
President can
become real ruler of India.36 the
This literal interpretation.is, however, not in tune with the spirit of the
Constitution. No sane President would like to be sq ambitious as depicted by Gladhill-.
None candispute the fact that the form of Government adopted by the Constitution is a
Parliamentary one. It is the essence of the Parliamentary Government that the real
_ yxecutive powers should be exercised by the.Council of Ministers responsible:to the Lok
Sabha. The President cannot exercise his powers without the aid and advice of a Council
pf Ministers, I.e., -the existence of a Council of Ministers is obligatory. Even .when the
Lok Sabha is dissolved the Council of Ministers remain-in office to aid and advice the
President. Explaining the position of the_ President in the Constituent 'Assembly Dr.
Ambedkar said.: -

"Under the Draft Constitution the President occupies the same position as the
King under the English Constitution. He is· the Head of the State but not.of the
Executive. He represents the natio"n but does not ruie the nation. He is the symbol
· of the nation. His place in the administrat[on is that of a ceremonial device· on a seal · <
1
- by which the nation's decisions are made kr.own. He will be generally bound-by the I
. advice of the Ministers. He can do nothing contrary to their advice nor can do
- anything without their advice."

The President of the Constituent Asserhbly,-Dr. Rajei1dra Prasad, expre~sed a

similar view in these words : "Although there is no specific provision of the Constitution
itself making itbinding on the. President to accept the advice of his Ministers, it is hoped
that the convention under which in England the King always acted on the advice of his
Ministers, would be established in this country also and the President would become
cons_titutional President in all~ matt~rs."
.
·

The Supreme-Court of India has consistently taken the view that the position of the
President and the Governors under theJndian Constitution is similar to the position of the
Crown under .the British Parliamentary system.
. ,

34. S.P.Gupta and others v. Presiden: of India aid others, AIR 1932 SC 149.
35. Alen Glaodhilt: The Republic of india, 197.
36. Constituent Assembly Debates, Vol. Yl!, 33.

I
 ·~

CHAP.20] ·- . ,i

THE UNION EXECUTIVE ETC.

451
..
In Ram Jawaya v. State of Punjab;37 the Court observed "Under Article 53 (l) of
our Constitution the eX:ecutive powr.r ofthe Union is vested or· the President but under
Article 74 there is to be a Council of Ministers with the Prim¢ Minister as the Head to
aid and,advise the President in the exercise of his functions. The Prcsidtnt has thus been
made a formalor constitutional head of the executive and the rcal executive powers are
vested in the Ministers or the Cabinet. fn the Indian Constitution, therefore, we
have the same system of Parliamentary Executive as in England, and the Council of
Ministers consisting as· does,
it of.the members, of the Legislature is, like the British
Cabinet "a hyphen which joins, a buckle which fastens the legislative part of the State.to
the executive part. The Cabinet enjoying, as
it does, a majority. in the Legislature,
concentrates in itself the virtual control of both legislative and executive functions ....."
IUN. Rao v.
Indira Gandhi,3% ueSuen Cort held ihat even after he #sit
dissolution of the Lok Sabha the Council of Ministers does not cease to ho1d office.
Article 74 (l) is mandatory and, therefore, the President cannot exercise the executive
power without the aid and advice of the Council of Ministers. -Any exercise of executive
power withoitsuch aid and advice will be unconstitutional in view of Article 75 (1). The
facts ofthe case were as follows :-After the dissolution of the Lok Sabha :he Prime
Minister-Snit. Indira Gandhi, and her Council of Ministers continued to hold office. The
appellant by writ ofquo warranto prayed for declaration that Prime Minister had no
constitutional authority to hold office and to function as Prime Minister. He contended
that as. soon as the House of the People was dissolved under Article 83 (2} of the
Consthution the Council of Ministers, i. e., the Prime Minister and other Ministers
ceased to hold office. According to the.appellant this follows from the wmdings· or Article
75 (3) which provides, the Council of Ministers shall be collectively responsible to the
House of the People. Howcan the Council of Ministers be· responsible to the House of;
the People when itis not in existence i.e., if dissolved under Article 83 (2) ..The Supreme}.
Court held that provisfons of Article 75 (3) which envisage the ¢octrine of r.ninisteria( ·
of
responsibility has to be harmoniously construed with the provisions Articles 74(i) and
75 (2). Thus construed, Article 75 (3) applies only when the House of the People does
not stand dissolved or prorogued. It cannot, therefore, be said that on
the dissolution of
the House of People, the Prime Minister and, other Ministers must resign
by rhe President.
or
be dismissed

.In Shamsher Singh v. State of Pimjab, 39 the. Supreme Court held that the President
and the Governors are only "constitutional or formal heads." They exercise their powers
::i~d frmcticms under the Constitution only 'N1th the aid and on the advice of the Council of
Ministers, "save in spheres where the Governor is required to exercise his functions in his
discretion." Wherever the Constitution requires the satisfaction of the President oi- the
Governor the satisfaction is not the personal satisfact:on of the President or the Governor
but the satisfaction is the satisfaction of the Council of Ministers. The Court said, "Our
Constitution embodies generally the Parliamentary or Cabiriet system of Government on
the British model, both for the Union and the States. It is a fundamental principle· of
English Constitutional Law that Ministers must accept responsibility for every executive
Act. In England the sovereignnever acts on his own responsibility, the power of the
sovereign is constituted by the practical rule that the Crown must find advisors tc, bear
responsibility for his action. Those advisors must have the confidence of the House of
Commons. Tris rule of English Constitutional Law is incorporated in O?Jr Constitution.

37. AIR 1955 SC 549 at p. 556. See also A. Sanjeeva Naidu v. Sate o Madras, ARR 1970 SC 1102 at ·p .
106; T. K. N. Rajgoal v. T. M. Karwwnidlzi, .AIR 1970 SC 1351.
38. AIR 1971 SC I 002.
39. AIR 1974 SC 2192.
 ..
- [CHAP. 20
· 452 CONSTITUTIONAL LAW OF INDIA
. .

The Court also overruled the judgment delivered in the case of Sardari Lal v. Union of
Jndia; 4o in which .it had held .that : "\Vhere the President or Qovernor as rhe case may be.
if satisfied makes an order. under Article 311 (2) proviso (c) the satisfaction f the
President or Governor is his personal satisfaction." -
- The framers of the Indian Constitution rdie<l moi·e 011 constitutional conventions
which had developed in England and therefore they <lid no! mak any spec:ifi; provision
. that the President was to bund to accept the. advice of the Council of Ministers.
However, certain important safeguards have also been incorporated in the Constitution
which support the view that the President was never intended to be either a dictator or an
autocrat. They are : . . .. . ' . · · . · .
- (0),The Council of Ministers is responsible to the Lok Sabha. If the President
rs±%8± ±di·ignores the adviceof Minister enjoying the confidence ofa Parliament it may
resign and create a constitutional crisis. It is obligatory on the President to
a
have always Council of Ministers- If the same person again gains majority
and forms a Ministry it would be difficult for the. President to work with the
. · ministry. . I .

2) I he
dismisses any ministry having solid support of Lok Sabha, they may
bring impeachment proceeding· against the President. This power of
I impeachment of Parliament serves as a deterrent against the President ·
assuming real power." · ·
{3) The · power of taxation, legislation arid appropriation -of funds from
Consolidated Funds can be made only by Parliament's authorisation.
. . . ._ . . I.

(4) The working of the Constitution since 1950 has established that Presid~nt is
• • • a n o m i n a l Head of the r ea l executive p o w e r v es ts i n the Council of Ministers.
After the 42nd AmendmentAct, 1976.This amendment removes all doubts
about the· position· of the President under the Indian Constitution .. It has
amended Article 74 of the Constitution which makes it cleat that the President shall be
bound by the advice of the Council of Ministers. 1t says, "there shall be a Council of
Ministers with the Prime Minister at the head to aid and advice the President who shall,
in exercise of his functions act in accordance h such advice." In view of the }?
/
Constitution 42nd Amendment the President could not lay even the role of an advisor or ';.
a guide. .
' .. ~
. 44_th Amendment_ Act ✓ .1978.-This am
7 drnent _has inserted die following
proV1&0 m clause (1) of Article 74 : · ·
•
"Provided that .the President may require the Council of the Ministers to
reconsider such advice, eit.her gene.rally oi/ otherwise, and the Preside;nt shall act in
- accordance with the advice 1tendered aft.er s.6ch reconsideration."
. . - I
This amendment is intended to prevent the recurrence of the situation which arose in
1975 when the Presrae.J't had to sign me Emergency Proclam?,:1cn only on the advice. of
the then Prime Minister, Indira Gandhi, wi;host consulting her Cabinet Colleagues.
It is submitted that it would haye never been intention of the framers of the
Const1tut1on LO marCe the President a pµppet. Though tney were clear that the President
. would be a constitutional head, but they.never intended that he would be a passive
spectator. In view of the oath which he takes under the Constitution "rn preserve, proteci

40. AIR 1971 SC 1547.

41. Gladhill-Republic of India. Commonwe2\th Services, 100.
 THE UNION EXECUTIVE ETC ..
453
. ·- and defend the Constitution mid ihe law and that I will devote myself to the service and
well-being of the people of lnd;a,. he is duty _bound to a_dvise, to guide and exert his· ·
influence of the decisions taken by the Prime Minister. Ind.eed, this is the real spirit of
e'
the it.
by .
Constitution . holders of that highest office would always abide
and it is hoped that the

The 44th Amendment recognises this limited but essential role of !lie Pt:e&ident·
unde;- the Indian Constiiutiop. But the weak position of the PreSident does not mean that
his office is superfluous. He is the symbol of Indian National Unity. He plays a vital role
in the working of the Government. B·eing imparti;,J and above party politics, he exerts or
is likely to exert his influence on the decisions of the Prime MiniSter. The influence· of - ·.
'the President, however, will dependo, his sterling character, magnetic personality and
9lflcss devotion to thenation. In the ultimateanalysis, M. P.Jainotsrv,ii;
Council ofMinisters which'will prevail aid hot he President. The President' 14i, ;•: .. •
'.·.
may be advisory, he may act 'Os the g!1ide, philosopher and friend 'to the Ministers. But·
Minister.2._ "
cannot assUITie to himself the role of their master- a rolewhjch-is asSigned to.the Prime

for reconsideration.--...
U·.R-Episode : Presidentreturns Cabinets Advice imposing President R,4

The· proviso·
- •
to Article
•
74 (1) was added to the.. Coristitution
I •
in 1976 by
•
the
Jan_ata Party Government. It was intended to prevent the recurrence of the situation,
Which arose in 1975 when the Prsident had to sign the proclamation of emergency 4{
on the advice
COileagues, · of th,,
· · Prime ¾ilii~ter Indira Gandhi withotit· consulting her Cabinet

.
The President
.
Mr.
R.' K. Narayanan. exercised
. .
his powers ' under
the .said prov p .
the first time on October 20, 1997 in case of Uttar Pradesh. Ori October 20, 1997 one of
the constituents of the Kalyan Singh Ministry, the BSP, withdrew its support to the
iovernment. In the meantime here was split in
the Congress.and 22 MLA; f,} a
separate group in the name of Lok Tantrik Congress and 21 MLAs fr om BSP also
defected from the BSP and formed a separate group and they extended their support to the
Kalyan Singh Government, Mr. Kalyan Singh claimed that he still enjoyed major5y ~,
the-Assembly and shalJ prove it on the floor· of the HoUse./ Presumably, under the
preSs ure from the Home Minister, the GoVern or, Romesh Bhandari had to ·give Ka lya n
Singh 3' days· time to prove his majority in the Assembly. The Assembly met .on. Oct.
22, 1997 to take up the vote of confidence in favour of the Kalyan Singh Ministry. Even
before the motion was to be taken of the opposition and treasury benches turned the flOOr
of the House into a battle ffeld. The 25 minutes pitched battle left several legislators
seriously.injured.. The Speaker did not adjourn the proceedings of the House. The police
. was called inside the House to control the situation.

Thereafter, the proceedings were held in a peaceful manner and the confidence
motion was moved and was carried through by 222 votes to nil as the entire opposition
had walked out of the House. In spite of this, the Governor Romesh Bhandari sent a·
report to the Centre for imposing President's rule i} the State as according to him the law
and order situation had beencompletely broken down warr anting action under Arel 355
of the Constitution. The Un;ted Front Government recommended'fo the President to sign
'he proclamation under Aricl 356 for imposing the President's Rule i the State F Uk4,
Pradesh. The, President returned the proclam ati or, for the reconsideration by the Ca bmet
wi1h his suggestfons. The President pointed out Several flaws in the Governor's report
42. M P. Jain-foctian Constitutional Law, p. 94 (3rd ed. 197g1
 454 GAST!TUTIONAL LAW OF INDIA [CHAP.-20

which acco_rding to him was not sufficient to take action under Article 356 of the
Constitution. He did not agree with the_ Gov_ernor that there was a complete failure of law
and order in the State amounting to failure of constitutional machinery under Article 356
of the Constitution, He pointed out that Mr. Kalyan Singh had proved his majority in
the floor of the. House· which could not be undone on such flimsy grounds. The United
Front Government accepted the President's suggestions and decided not take further action.·__ -
Thus one of the greatest constitutional cri.ses was averted on the bold initiative-of
the President. It also makes clear that the President can play the role of an adviser and
guide the Government to take decisions in right direction. He is not simply a puppet. The
President saved the republic from dishonour an~ its_ Constin.rtion from disgrace. The
President has rightly exercised his constitutional prerogative to save Indian democracy.
• • • : : + " • _. ~. • • •. ~ ,: • • . -. . • . . • • .• - . • • • . . .

•• PresidentPrimeMinister controversy, 1987

· - The controversy regarding the President's position under the Constitution and his
relationship with. the Prime Minister was again raised during the tenure of the President
Giani Zail Singh and the Prime Minister Mr. Rajiv Gandhi. The controversy..
mainly arose due to the mistrust created by the Prime Minister's not meeting the
- President frequently and keeping him informed about the affairs of the government,
- particularly about the "Bofors gun deal'. Secondly, it assumed great dimension due to the
. misinterpretation of the constitutional provisions that the President has more-powers
than he actually has. The controversy mainly centred round the Articles 78 and 74.
Article 78 obliges the Prime Minister to furnish information regarding the-affairs of"his·
government, Article 7 4 provides that the Prime Minister is appointed- by the President,
and he can be dismissed by the )?resident. On this basis it was argued that since the Prime
Minister had failed to supply necessary information on Bofors gun deal as required by th_e
President he could dismiss the Prime Minister, dissolve the Lok Sabha and fresh hold
elections. _ _ . - i - ·

Unfortunately the controversy was further aggravated because of the statement of the
Prime Minister in the Parliament that he had furnished al] necessary information to the
President and the President's letter to the Prime Minister which later 1-eaked to· the Pres_s
· denying that he had been supplied with full information regarding the Bofors gun deal.'.
The President claimed that" he has a right to know everything pertaining to the above·
defence deal. In fact, this was the culmination of the situation which started righ_t from the
time when the Prime Minister S_ri Raj iv Gandhi assumed office. He deliberately started
ignoring the President and not meeting with him and keeping him informed about the
affairs of the Government.

The situation was also exploited by the opposition and the provisions- of the
Constitutio_n were misinterpreted to the effect that the President had the absolute power to
dissolve the Parliament and dismiss the Government. The Press also played a great role: in-_
this drarna. The Government became shaky.

The position of the President under the Indian Constitution 1s clear from the
i;rngu_age of the following Articles :

Article 74 (1) says that 'there shall be a Council of Ministers with the Prime
Minister at the head to aid and advise the President, who shall, in the. exercise of his
functions, act in accordance with such advice'. Article 74 (2) says that 'the question
whether any advice was given by the Minister to the President cannot be inquired by any
court'. Article 75 (3) says that 'the Council of Ministers sn nil be coilectively responsible
to the House of People.'
 CHAP. 20]
THE UNION EXECUTIVE ETC. 455

The second part of Article 74 (1) was added by the42nt Amendment which makes it
clear thai the President cannot act "in his discretion." Thu_s it is .clear that the power to
dissolve the Lok Sabha has to be exercised by the President according to the advice of the
Council of Ministers. He cannot exercise his pleasure to dismiss the Prime Minister so
long as the Prime Minister enjoys the confidence of the House because the Council of ·
_ Minister is only responsible to the House.

In fact, both the constitutional position and the actual working of the President's
office can best be described in Dr. B. R. Ambedkar's words ·

"The President's place in the administration is that of a ceremonial device, on

a seal by which the nation's decisions are made known. The President of the Indian

"pp2pi %a?sf?
the United States can dismiss any Secretary at· any time. The President of the Indian·
Union, has no power to_ do so, so long as his· Ministers command a majority
Parliament.".
in
·. The differences between the Prime Minister and the President have always existed.
There were di fferences bet ween Rajenda Babu and Jawahar Lal Nehru regarding the
-Pre.sident's position but these were largely academic and Rajendra Babu _never pushed:the
matter too far. Mr. Rajiv Gandhi's rare meetings with Giani
too far. ·
Zail
Singh pushed the matter
. .

Fortunately, both the President and the Prime Minister understood the spirit of the
constitutional provisions. and-reconciled with each other. Sri Rajiv Gandhi started meeting
with the President and the President declaring through the press that the reports about the
dismissal of the Prime Minister had no basis -and. that he was committed to uphold the.
democratic set up as enshrined in the Constitution. .

In view of the constitutional position of the President and· the Constitution the
controversy regarding the scope of Article 78 is automatically resolved. The Prime
Minister must keep the Head of the State informed about the affairs of his government.
The President has the right to know what his government is doing or proposes to do; But
the question 'h ow much information is to be furnished by the Prime Minister to the
President is his prerogative. This should be. a matter to be resolved by mutual confidence
and co-operation between the two constitutional functionaries. This cannot be· made an
issue for subverting the spirit of the Constitution. The position of the _Prime Minister is -
unassailable but it does not mean that he should disregard the Head of the Nation. Thanks·
to God, a major constitutional crisis was averted. ••

·The new President Mr. R. V. Venkataraman, who was sworn in as the eighth
} President of India speaking, on the occasion declared that he would neitherfail to exercise
the duties andfimcrions attached to his high office, nor sray beyond the powers enshrined
1. in the Cpnstitution by the founding fathers." . ·· •- · .- · · · ...
I·
-__ /This is, in fact, the real $-piti't of the Indian Coostitutior:. ·• _ · · · ·

\/ Idian President and American President.The American President is the real

executiie head and is di;ectly responsible to the people of his country. While Indian
Presideht is the nominal head. the real Executive is the Council of l\1inisters. The
members of the Cabinet are appointed by the President in America and are responsible to
him. In India, the President ha: no choice but to appoint the leader of the majority party
in the Iok Sabha as the Prime Minister. Dr. Ambedkar, the Chairman of the Drafting
Committee, has summed up the true position of the Indian President in the following
words :i
!
 456 CONSTITUTIONAL LA OF INDIA [CHAP. ?.0
. I

-· "In _the Draft Constitution there is placed at the head of the Indian Union a
. functionary who is called the Presiden_t of the Union. The title of the functionary
reminds one o_f the Presidents of the United S.tates. But beyond identity of names
· there is nothing in common between the form of Government prevalent in American
. and the form_ of Oovcrm11cnt proposed under.tht: Draft Constitution. The American
form of Government called the Presidentfal system. qf,G6venimenr what the Draft
Constitution proposes is the Parliamentary System."
Under the Presidential system of America, the President is the Chief head of the
Executive. Administration is vested in him. Under the Indian Constitution the President
occupies the same position as the King under the English Constitution. He is head of the
State but not the Executive. -He,represeiits the nation .but does not rule· the nation. His
place in the administration is that of a ceremonial device on a seal by which the nation's
•.· d.ecisions are made known.43 Thus his position is more comparable to the King or Queen
•5s:
to Presidentof
in England than the
·sci;a#gs@i±;3gp$#±38$% ii±?± @±l s·:; :..
America. •
·..o.. ·.
. ' .._, • ee THE COUNCIL OF MINISTERS
Originally, Article 74 (1) provided that "there shall be a Council of Ministers with
the Prime Minister as its head to aid and advise the Presjdent in the exercise of his ·
functions." After the 42nd Amendment, 1976, the language of Article 74 (1)
follows "There shall be a Council of Ministers with the Prime Minister as its head to
asis
aid and advise the President who shall, in exercise of his functions act in accordance with
such advice." According to Article 75 (1), the Prime Minister shall be appointed by the ·
President and other Ministers shall be appointed by. the President on the advice of the
Prime Minister. · · · · ·
· 91st Amendment Act; 2003 : Size· of Ministries.
Maximum Number of Ministers.This amendment added two has new clauses
Clauses (1A) and (QB) of Art. 75 of the Constitution. The new Clause (1A) provides that
in
the total number of ministers, including the Prime Minister, the Council of Ministers
shall not exceed 15 per cent or the total number of members of the House of People.
Disqualification on defection on ground of split in political party.-The
new clause (1 B) of Art. 75 provides that a member of either House. of Parliament
belonging to any political party who is disqualified for being a· member of that House on
the ground of defection under Paragraph 2 ofthe Tenth Schedule shall also be disqualified
to be appointed as a Minister under Clause (1) of Art. 75, till he is again elected. This
means that if 1 /3 member~ defect from the original party their membership. of the
legislature will automatically come .to an end: Also such a defector cannot be appointed as
a minister, Chairman of corporations or hold any remunerative political post until his _
reelection (New Art. 361A). The expression "remunerative political post" means any
. office under the Central or State Government where the salary or remuneration for such
office is paid out of the public revenue of the Government of India or the Government of
· · any State. Consequently, Paragraph 3 of the Tenth Schedule under which exemption from·
disqualification was provided in case of split has been omitted by this amendmen!..
Both these amendments are \vel_corne steps. From time to time demands were made
for these amendments in the anti-defection law. The Committee on Electoral Reforms, the
Law Commission and the Nation~d Commission for Review of the Working of the
Constiiuticn have recommended for implementing these reforms. This has led r-;
fall of
many governments at the Centre as well as in various States The amendment putting

<3. Constituent Asse:nbly Debates, Vo! V11, 33-34

 i.
-I
CONSTITUTIONAL LAW OF INDIA
(CHAP. 20
· Non-member cannot be re-appointed without being elected.In S. R.
Chauhan v. Stale of Punjab, the Supreme Court has held that a non-member who fails
10 get elected during the period of six consecutive months after he is appointed as a
Minister cannot be reappointed as Minister. The case is based on Art. 164(4) which in is
similar terms as An. 75(5). In that case Mr. Tej Prakash Singh who was not a member of
Legislature was appointed as a Minister for six months. He failed lo get himself elected to
the Legislature and resigned. In the mea_ntime another person. was appointed Chief
i .
Minister. Mr. Tej Prakash was again appointed as a- Minister. The Supreme Court held .
· that the respondent's appointment for a second term without beirig elected was violative .
s
of Art. 164(4) of the Constitution and invalid. AfticleJ64(4)is an exccmion to the
normal rule and restricted to a short period of six consecutive months. The clear mandate
of Art. I64(4) cannot be allowed to be frustrated by giving a gap of few days and
reappoint bim as Ministerwitho ,securing the,confidence of
a ut theelectorate, the
in re]
meantime.Democratic process core of our
which lies in the constitutional scheme cannot
· be permitted to be flouted in this manner, their Lordships declared;
Convicted person cannot be appointed Chief Minister

In the landmark judgment in B. R. Kapoor v.Sate of Tamil Nadu & others, 4.? a.
five Judge Constitution Bench of the Supreme Court has held that a person convicted of
· criminal" offence and sentenced to more than two years of imprisonment cannot be
appointed as Chief Minister. In 2001 Assembly Election, AIADMK headed by Smt.
Jayalalitha won the election and ob fained absolute· majority. Prior to election, she was
convicted for yarious Offences committed under the Prevention of Corruption Act during
her tenure as the Chief Minister and sentenced to imprisonment for more than two years
As. a result of this she was disqualified to contest the election under the Peoples
Representation Act by the Election Commission. In spite of this, her party elected her its
leader and the Governor of Pamil Nadu Smt. Fatima Bibee appointed her as the Chief
Minister. This was challenged by certain persons through public interest litigation. The
Court held that the appointment of Smt. Jayalalitha as a Chief Minister was violative of
Art. 164(4) and, therefore, unconstitutional and invalid. A non-member who does not
possess the qualifications prescribed by Art. 173 or has been disqualified under Art. 191 of
the Constitution cannot be appoin_te<l as a Chief Minister or Minister. The Court also
rejected the argument of her· counsel that th~ "mandate" is supreme and the will of the
people must be respected. The Court held that it can be respected. only if it i_s in·
accordance
the with the provisions of· the Constitution. The Constitution· shall prevail over
'hhihdate'.

. The appointment of Prime Minister

The Prime Minister is head of the Council of Ministers [Article 74 (l)J. Article 75
. ( l) says that "the Prime Minister shall be appointed by he President [Article 75 (l )] and '
the other Ministers shall be appointed by the President.on the advice of the Prime
Minister." Clause (3) of Article 7 S says that "Council of Ministers shall be collectively
responsible to the House of the People." But in appointing the Prime Minister the
Presider: can hardly z ischj discretion since we have adopted the English Cabin
::::ystem ,vhich works on conventions. One of the well-established conventions in English
is that the leader of the majority party of the Lower House is appointed Prime Minister:
Hence the provisions_.relating tc:i the Council of Ministers should be interpreted in the
light of British experience, so the President's choice to select Prime Minister is restricted

46. AIR 2001 SC 2707.

47. 200,1 (6) SCALE 309.
 THE UNION EXECUTIVE ETC. 459
CHAP. 20]

to the leader of the party in majority in Lok Sabha or, a person who is in a position to
· win the confidence of the majority in that House. The President's discretion in such a
situation is limited. Thus when a single political party gains an absolute majority in the
Lok Sabha and has an accepted leader, the President's choice of selecting a Prime Minister
is a mere formality. Similarly, if on death or resignation of a Prime Minister the ruling
party elects a new leader, the President has no choice but to appoint him as Prime
Minister. Thus the paramount consideration for the President in appointment of the Prime
Minister is to see that the person choosen by him commands the support of the majority
in the House. This is the only condition that the Constitution prescribes in this behalf.
is
This dear from the language of c_lause (3) of Article 75 which says that the Council of
48
Ministers shall be collectively responsible to the Ho_use of the People.

.
..Bit incaseof multiple pry system as it prevails i ldia, it none is ia a position
to gainrequired majority and a coalition Government is to be formed, the President can
exercise a little discretion and select the leader of any party who, in his opinion, can form
a stable ministry. However, it has been suggested that even in such a situation the
President's action should be
guided by certain conventions. First, a convention in England .
. is that in case of the defeat of me Government in the Housethe President should invite
the leader of the opposition to
explore the possibility of forming a stable ministry.
Secondly, he should invite the largest single party in the Lok Sabha to form a
Government. Thirdly, if two or more parties form a coalition before the election and
secure the majority in the Lok Sabha he should invite the leader of the coalition to form
the Government. ' ·
The last two precedents have been followed in the States. But they had not been
practised uniformly in all the
States by the Governors. In some States the Governors had
invited the leader of the largest single party to form the Government and rejected the claim
ofthe leader of the coalition (for example, in Rajasthan in 1967 and Madras in 1951). On -
the other hand, the Governors in some States had invited the leader of the coalition to
form the Government and rejected the claim of the largest single party, (Punjab in 1967,
Bihar in 1968, West Bengal in 1970, Maharashtra in 1978). , ·
In 1951, the Governor of Madras invited Mr. Rajagopalachari of Congress party,
the .leader of the largest single party, to form the Government and rejected the claim of
Mr. T. Prakasam who had formed a new party having the support of 167 rnembersin the
House of 375 members. The Congress had. a strength of 155 only. The Governor said,
''The Head of the State is perfectly within his rights in fact it is his duty- to call in
these circumstances, the leader of the 1argest group to form the Government. 1f all the
other parties join together and defeat the Government, then and then only, can the Head of.
the State cali the person whom these parties together may choose as their leader to take
charge of the Governrrierit. I do not think a Governor can take into cognizance any new
party that may be said.to have been formed after the elections and before the legislature
meets. He can only accept the nomenclature of parties as they were given before the
elections. It was quite clear in my opinion that the Congress, having the larges
e n. , ±,-,1 ' i±afar4 g r- ·c : '.Rajasthan the Ceron
.c.et.,o=i ce,-a
the Government though it had a strength of 91 in a House of 184, because it was the .
largest sing,1e party. He rejected the claim of the leader of the coaiition formed after'
election. In 1967 in Punjab after the fall of rr:e United Front Government led by Curnam
Singh the Governor invited Lachman Singh Gill of the Janata Party (a break away groP

48. fl. S. Verma v. T. N. Singh, AIR I 971S C 1331: Sc.sher Singh v. Staie of Pnjcb, AIR 1974 SC 2192
at p. 2230.
 :J:().vt? CONSTiTUTIONAL LAW OF !NOIA i
/CHAP. 20 !
I
from U. F.) which had a strength of Only 17 in the Assembly (out of 10_4)-to forrn the -
-l
I

Government. In Bihar, in 1968 after the fall of the Urtited Front Ministry the Governor l
1.
: " in Vited Mr. B. P. Manda] of Soshit Dal, who had 31 members in a House of JI 8, to form
• a Ministry. In Maharashtra after the 1978 elections the Janata Party was the largest single_
party in the' Assembly having secured! 133 seats in House of 288, but the Governor I
igllOred the claim of the Janata Party and invi_ted the leader of.the CongresS-Cbngress (I)
coalition to form the Government. Again, in July 1978, in Maharashtra, after the,faH of
the CongressC ongress (I) Ministry the- Governor invited Mr. Sharad Pawar- to form
the Ministry who defected frq~
Congress and formed a coalition. - - : - · -
Until 1979 such a situation had not arisen at the Centre. The Congress pany
remained in power and there was no dispute for leadership in the party.
- - - - - - ' . . . .

- Mr. Morarji Desai.-In 1979 for the, first time such a situation arose at the Centre
after the_ fall of the Janata
_, _._ , , y».Government b. by
y. . j 44.lead Mr.
__; Morarji.
j'; i ii?e i Desai.
l l In 1»i
977 several
. . parties
:
joined to.form a united"party,namely, the Janata Party to contest Parliamentary
. ' Elei,tiOOS. Th<danata Pafty had a laiidslide :victory and toe Congress was totally routed.
But the differences between the various Political parties which constituted the Janata _-
Government Widened and finally the followers of Mr_. Charan Singh lefi the party and
formed a new party, t_h e Janata (S). A no-confidence motion was moved in the Lok Sabha
b.y the leader of the opposition against the Janata Government headeA by Mr. Morarji
Desai . While the no-confidence motion was being.discussed ; the Lok Sabha, the Prime
Minister. Mr. Morarji Desai having lost Ms inajoriiy due to defection tendered his
resignation to- the President. - - - -·

_ The situation created by Mr. Desai's resignation had no constitutional_ precedent to_
guide the President as to the formation of a new Government. Legal experts had expressed
divergent
the opinions as to the PTocedure the President should_ adopt in selecting :the leader
successorGovemme«. " of_ ·
,-. - .

.. .. Mr. Charan Singh.Following a British precedent, the President invited the l~a.d er --#', · . I
of the opposition Mr.Y. B. Chavan,-wh,o.had movl'(l the no confidence motion lo form _
the Government. After four days of hectic activities, Mr. Y. B. Chavan infonned the
President that he was not able to fonn a Governnient. Uptil now the President action" was
not subjectto any criticism. Thereafter the President adopted an unusual course and asked
both Mr. Charan Singh, the J eader of the alliance and Mr. Desai the leader of the I argest
. single · party to submit the !is t of their sup parters. The Ii st submitted · by Mr. Charan
Singh showed lhat he had the support of 262 members while Mr. Desai's list contained
only 236 members. From this it was clear that even Mr. Charan Singh did not ha Ve an
_.,,,~iute majority in the House (Which should be 270). On the ground that Mr. Charan_-
Singh had the support of larger number bf memhers than that of Mr. Desai's the President
itlvited him to fonn an alternative Government. But since the President knew that Mr.
Charanwithin
:House Singh three
had no time.majority he asked him to seek a vote of Confidence in the·
absolute
weeks

49
The Delh.i High Court, held thatthe apintn.er: ?4 3; Singh as the
•• -,

9 ..s i ob5tined
··- '·. • •.__. ·,.-,_ ;Ge,
,, ..•,,__,e o;
'----•---s .i
_,, '(,iJ ,_,._,., .,, ·- was
Sabha
:
"
cun,c_ilot,0nai, Ilic orde,· ill which the clituse of Article 75 arc arranged show that the
appointment of Counctl of Ministeri precedes. in order of
time the Vote of confidence or
no confidence in the Council of Ministers by the Legislature. There has to be a Council
of MiniSters before it can be responsible to the House of People.' Therefore, it is not

49..Dinesh Chandra v. Chaudhry Charan Singh, ARR 19O DeI} 114.

 THE UNION EXECUTIVE ETC. 461-
CHA.P. 20}

correct to say that the Prime Minister must first .seek the vote of confidence in the Lok
Sabha before his appointment ior simt1ltaneously with it. .
In Sital Prasad Saxena
v. Union of India," it was held that the continuance of Sri
Charan Singh as a caretaker Prime Minister even after had failed to seek a mandate of he .
the Lok Sabha within three weeks after assuming the office of the Prime Minister as
directed by the President was· not vnconstitutional. The a-ppointinent of the Council of ,. --·
Ministers headed by Prime Minister is not conditional upon his seeking a fresh mandate
of the Lok Sabha. 1t was not necessary. for Sri Charan Singh and his ministers to take, a
fresh. oath after being asked by the President to continue in office as a caretaker
Government. · · · · · · · ·
was still the largest single party in th House consisting of 205
The Janata Party
members.Thepartyheaded byMr, Charan Singh was a pany of defectors andwas
_ n recogrnsed as a party
o t the Sabha. It submitted that the President was not
m L o k i s

justified in ignoring the claim of the _leader of the largest single party and inviting the .
leader of the: coalition formed after elections to the Government. In no f o rm s e n s e M r .

Charan Singh's Ministry could be a "cohessive" and 'stable' Ministry as desired by the
President. A leader of party of 205 members was a like ly form a stable more to
Government the t of party
h a n members. Consequently, Mr. Charan Singh's
l e a d e r a o f 7 7

Ministry did not last long. Before facing the Lok Sabha Mr. Charan Singh tendered his
. resignation to the President becau~e one his coalition partner (Congress D) withdrew its of
support to his Government but he advised the President to dissolve the Lok Sabha and
. order a mid-term poll. At the time of dissolution the position of different parties irt the
Lok Sabha was as follows: lanata 205, Congress.(O) 83, fanaia(S) 77, Congress (I) 64,
CPM 22, AIADMK 17, Akali (J) 8, CPI 7,PWP 6, UPP 4·, RSP 4, Forward Block 3,
Muslim Lea~n~ 2, N. Conference 2, Independent and others 31, Vacant 8, Speaker l.
Total Seat 544. . • · • · · · · . · , ..
The President carried on. discussion for a number of days presumably exploring the
possibility of making an alternative atrangeme_n t. The Janata Party was still the largest
single party and its leader Jagjivan Ram claimed that he was in a position to form a ·
minis tty. He was also the
leader of the opposition at that time when Mr. Charan Singh
had tendered resignation of hi_s Ministry. In both the c:apacity, Mr. Jagjivan Ram was
entitled to be invited to" form a Government. The President did not follow the convention
of calling the leader of the. oppositfon wbich he had himself laid down earlier. The
· President had said that he did .not want to encourage defections by calling upon Mr.
Jagjivan Ram as the leader of the parry of 205 members. This appears to be fantastic
because he made a green cf ·i aigh =Prine Minister
1
"I is submitted. that' the Presidenfs a~tion was not only improper and
· discriminatory but led to a situation in which he shou1d never have placed the country. He · •
set up a Government which never commanded the confidence of the House of the People·
at all, lhat Government wus to remain in power for a period of over 4 months. The
President of India has thus presented to the world the humiliating spectacle of a great >
democratic cos;sy ins ru!sh by aCrm! which newer:conmandd the confidence
I of the House of the Feople.51 . .
Thus it is clear that though in the above circumstances the President can exercise
his _d iscretion- in appointing the Prime Minister but it will certainly be better to lay down
ce.narn coi~ventions in this matter so as to avoid the s1tuation created by the

so.
$1.
(1985) 1 sec 162.
HM.Ser a , Constitutional Law of lndia, p. 12 6(VI. II, 2d ed, 1979)
 I ... CONSTITUTiONAL LAW OF IND!A
(CHAP. 20
unconstitutional action of- President. It is, therefore, suggested that in the matter of the
appointment ofthe Prime :vlinister the President should follow thie following principles :.
· I. He should invite the leader of the opposition if the g6vernment is defeMed in . ·
the House o'n a rio-confid~nce motion. _· . . . . .

7.. He should caJI the leader of the coalition formed before the elections.
3. He.should invite the leader of the largest single party in the House.
4. He should invite the leader of the coalition. or alliance formed after the
election. -

.2
· Thus the leader of the coalition cir ailiance formed after the elections should be
given chance in the last, because such. a coalition is not formed on any common

#z / .%ff±.fizz.
parties join it simply to topple the Government. The President, instead of following the
pr:ecedent setby himself earlier and calling tipon the leader of opposition Mr. Jagjivan ·
Ram. decided to dissolve the Lok Sabha ordering a mid-term poll with Mr. Charan Singh
as. caretaker
. . . , , .. •, Prime
- ;·... . . Minister.
· l' It,. is
. submitted
. .. .. . that
. . by doing
.. ,_,. .. so
•·· the
. . . President
' . , acted against.
. . .·

all known constitutional conventions and accorded honour and recognition to a person
who had usurped the Prime Ministership by defection. The Lok Sabha has never
· recognised him as the leader of the House.
. .

. In 1984, after the assassination of Mrs. Indira 0:andhi, the Co.pgress P~rliai.nentary:: - ·
Board nominated :M;r. RaJiv Gandhi .a-s the leader of t.he Party and recommended the: .
. President to appoint l)im Prime Minister. The President accepted the advice of seniormost.
Congress Party leaders and appointed Mr. Rajiv Gandhi the Prime Minister as. he was
· satisfied that he enjoyed the full confidence of the majority party in the Parliament. Later .'.
.·. on, the Congress Parliamentary Party unanimo_u sly endorsed the decision. of the party
leaders. The President discretion in such matter is limited. He was not bound to .follow
past precedents whic,h he pad followed on two occasions i.e., on the death of Mr. Jawahar '
Lai Nehru and Mr. Lal Bahadur Shastri when the leadership was contested and the ·
President had to make temporary arrangements by appointing the seniormost miriister:'as
the Prime Minister until the formal election of the leader by the party. In the present case·
the entire Cabinet which consisted of the members of the Parliamentary Board
recommended to the President to appomt Mr. Rajiv Gandhi as Prime Minister. The
.. Constitution does not forbid him from adopting such·a cours.e nor he is bound to follow
precedents in a situation where the Prime Minister was assassinated. It was perfectly
I1 I
I
cons±it±fora! - ±H: Preside to soi. Mr. Re;iv Gand±i Gs ±± Eis Minister as Ee
i
was i& .i ii it&.:ti.fay;: Ga&ti was likeiy to command the confidence of I.
Parliament JS the leader. of the majority party. On the death of Mrs. Gandhi, the Council
of Ministers did not automatically cease to exist and therefore the members of the Cabinet
I
were fully competent to advise the President on the matter of the_ leadership of the
Parliamentary Party.

.
Mr. V. P. Singh.I n 1989 Parliamentary elections the Congress-I Government
1eaded by Mr. Rajiv Gandhi was defeated and the National Front consisting of several
ocal and national partie§ supported b)'B .J.P. and the two leftists parties (CPIM & CPM) .
sot the requisite majority in the Lok Sabha. The party position was ns follows :-Total
-.I
;eats 526, Congress-I 192, AIADMK 11. National Front co·nsisting of Janata Dal,·
:=ongress S, Telugu Desam, Assam Gana Parishad and DMK 141 BJP 6 two leftists
,arties 52 and Independent and others 59. Thus, no party was in a position to form "',1j
tl
,]
 If]
3%
,;; BASIC CONSTITUTIONAL PRINCIPLES 27
· deprive a per.son of his life or liberty without the auchority of law.
This is the essential postulate aid basic assumption of the rule of
law and not of men in' all civilised nations. Without such sanctity of.
Jife a
arid liberty, the distinction between lawless. soci~ly art~ Ont:
governed by laws would cease to have any meaning.... As observed
by Friedmann, in a purely fonl'!-al sense, any system of porm based
on a heirarchy of orders, even the organised
mass murders of Nazi
,regime qualify as law.. This argument, cannot, however, disguise
.reality of the matter that hundreds ofinnocent lives have been taken
.· .. becaus.e of the absence of rule of law. A State of negaion of nule

.rez..z.±z±%.%
statute. Absence of rule of law would nevertheless be absence of rule
. af law even though it fr brought about by a:· law ii> fepealatl laws.' '>4
(emphasis supplied)
· It is submitted that the majority judgment in the Habeas Corpus case
is dearly erroneous, unjust and_contnuy to the doctrine of Rule of Law.
- It .is further submitted that the majority failed to tonsider in. its proper
perspective the most important fact th at Article 2l (i.e. the written Con-
stitution) does not confer a right.to life or personal liberty. The said nght
inheres in the body of every living ,person and Article 21 o:r for 'that
purpose any written Constitution i-s not the· sole repository of the right
to life and personal liberty and in these circumstances, the said, right can
never be taken away by the executive."

.1
·'
\2. SEPARATION OF POWERS

(A)General
According to Jain and Jain: 'IR the 'rule cif law' hampered the
recognition of -adrrij.ni.strative law in. England. it was
the doctrine of
!separation of powers' which had an intimate impact on the tlunk:ing op
admini strative process and administrative law in the United States.''
Davis" also stated : ."Probably, the principal doctrinal barri'er the to
deveJopment of the 11dmlnistratlve process has been the theory of separa-
tion of po,;.,er:s." · ' ·
34. A.D.M., Jabalpu/ v. Shivak.anr Shukla, (1976) 2 SCC 521, paras 525-36, 575, 593.
35. For deto.ik.<l di.stussion. of the Habw~ Corpus case, see C.K. Thakker :
Admir.isirarivetnw, 1992, pp .. 406-14. · '
36, Principles of Ad:i.~fcj,;1lciive Law, 1986, p. Ti.
37. }..drr.inis,ra1£v._e.;u;{, Treatise, 1958, Vol. I, p. 68.

I
 LECTURES ON ADMJNISTRATIVE LAW
[II
{B) Meaning .. IIJ
. It 1s
generally accepted that there are three Jnain categories of

be Jwsi1._At he same firs.here th»re

are
,til~11ti!l:a ·St~tf: -".,- (i) the . glSlature,. (i,/ we xeou1tve, an
ms ores oe @om
governmental.functions-· (i) the Legislative, (ii) ~be Executive, ~md (iii)

m, t e · . ;
~
pl
Judiciary. According to the theory of separation of powers, these three · -
powers and functions Of the Government .ffinst, ill a free democracy, !;
;ilWllys be kept separate an4 be e;,ce,cise<) by .separate organs of the . . oi
exercise
Government. Thus,' the legislature cannot executive or.ju<jici;,l
th
Power; the executive cannot exercise legislative or judicial power and g ,

the judiciary cannot exercise legislative orexecutive power,ofthe..fie {

· Gov'emment .. · · ·.. :· · · · ·· · · · • :'
(C) Historical background , tu
m
The doctrine of separation of powers has emerged in several forms
at different periods. Its origin is.- traceable to Plato and Aristotle. In the
· 10th and 17th centuries, French philosopher Jot and Br6s# Bodin th
p¢litician Locke respectively had expressed their views
about the theory
of separation of powers. But it was Montesquien who for the first time
. formuiated this doctrine systematically, scientificaiiy clearly in· his · and
: book "&priides Lois' (!'he Spirit of the LaWs), Pliblish,;d in. the year
1748.- · · · ·

. (D) Montesq'11~11.-'s doetrine

Writing in 1748> Montesqu'ieuj8 said:·,
I . . • .

''Whcm. the· Jegisiative and executive powers are united in the. t

same person, or in the same body of magistrates, there can be no

liberty, because apprehensions may arise, lest the
same monarch or (1

"t
'.
senate should enact tyrannicai laws, to execute. them in a tyrannical
manner. Again, there.is no liberty.if the judiciaf power be not hi
separated from the legislative and ± =cs;e. Ee?id with R
· tho le&ls!ative, the,life aitd iiDCrty of the subject would be expOsed i

for 11!

I
to arbitrary control'; the judge wouJd then be the legislator. Where L
. it joined· with. the executive power, the judgy might
behave with . . tf
vio1e·n ce and oppression. · · . . . i . .
.. There would. be
.

an
.

end of everything, Were the

.

man the ·
. .

same
:

or
iI
•I

. scime body, whether of the nobles or of the peopk, to ·exercise those :..j
.:,. tf
SI
38. Th& Sir of de las res,No@gen), • 15152
o:

f
. / .
...,.

.... -------------. - --
 \ .
. .\

II] . BASIC CONSTITUTiONAL PRINCIPLES 29

three powers, that of enacting. laws, that_ of executing the public
resolutions and ·of trying·the causes of individuals." ·
Lord Acton rightly said : 'every power tends to corrupt and absolute
------ power tends to c;orrupt abs_o1utely.'. In the 18-th century; there was com-
plete and full-fledged monarchy in France. Louis Xl V was well kn6wri
M

. -
.•
: for. his absolute and
autocratic powers. The King arid his. administrators
were acting arbitrarily. Toe ·subjects had no right or liberty:at all. On the
other band, :Monte.squieu was very much impressed by. tlie liberal·
thoughts of Locke and he also based his doctrine· on arialysis of the
• BritishConstitution ofthe first part of the 18th century as he understood
_ - h. According to hiin, the secret of an En·glishmc1n' s liberty was the' separa- ·-
tion and
functional independence of the three departments of the Govern- -
rnent from one another. . · . · . · · · · . · ·
_ According to Wade and Phillips, separation of poviers may mean
three
.
different
. • .··
things
·_... . .·... . . I . • . . . .·
(i) that the· same persons should not fonn part of more than one of.
· the three organs of Goyemrnent, ~.g. the Ministers should not
sit in Parliament; . .
(il) that one organ of the Government should not control or interfere
. Wlth the exercise of its function. by another organ, e.g. the
. Judiciary should be independent of the. Executive or that Mini-
sters should not be ·responsible tQ Parliament; and
(iii) that one organ of the Government should not exercise the func-
· · tipns of another, e.g. the .Ministers_ should_ not have legislative
powers. · · · ·

E) Erect
The doctrine of separation of powers as propounded 'by Montesquieu
had tremendous impact on development of administrative law and
functioning of Governments. it was appreciated by English and American·
jurists and aceeipt~d by politicians. In
his book 'Commentaries on the
unvs of fngiaiid', published in -1°16_5, Blackstone had observed that-if
the legislative, the eXecutive and the }udicial functions were given to one
man, there was an end of personal liberty. Madison also proclaimed '
''The accumulation of all powers, legislative, executive and judicial, in
I
~
the same hands, whether of one; a few or many and whether hereditary,
· self-appointed or. elective may justly be pronounced the very definition
of .tyranny.'' The Cohshtuent Assembly of France had declared "in· 1789

i ·• • • .

·/
~ • •

39. Constin:(Gnal Lal-:, 1960, pp. 22-34. ·

• • . · · C · . • • •
 . · · J.
LECTIJRES ON ADMINISTRATIVE LAW 1 II
. [II
.

hat there would·be nothing like a Constjtution in th~ ~6untry where the ":: ..
· f()Ctrine. of separation of ·powers was not accepted.. 1

F) Criticism
Though, theoretically, the··doctrine of separation of powers was very
ound, many defects surfaced when itwas sought to. be applied in real
•.
. ife situations. Mainly, the following defects were found this doctrine: in ·
I (a) Historically speaking, the the~ry was incorrecl There_ was no .
separation of powers under the British Constitution. At no point
±.rec%±25%ze--
Donoughmore Committee, also observed: ""I the British Con-
s.titution the~ is-no such thing as the absolute separation of the'
legislative, executive and judicial powers.'' It is said :... '?ef.on.-
tesquieu looked across foggy England from his sunny vineyard ..
in Paris and completely misconstrued whaJ he.saw.'' _· . Sf 4

. . . . . . (emphasis supplied) Ct
.(b) Tht:; dr-.,f,:~ne is based-on the assumption that th;'.: thr,;,:,: functic..;-;s tl
of the Go veiment, viz. legislative, executive and judic_i al- are· ler
distinguishable. from one another. But in fact, it is not so. 1bere .'
I I

are no wate,rtight. compartme~ts. It is not easy

to draw a dem,ar- , a
cating line between one power and another'.•with ~thematieru Il
precision~ According _to Friedmann and Benjafeld : 'the truth is tl
that each of the three. functions of the Government contains. ele-
ments of the other two ana' that any rigid attempt to define and i
separate those functions must either fail or ·cause· s·erious :inef-
. :ficiency in Government'. · · · · li
e.
(c) It is impossible to take certain actions if $is doctrine is accepted»
. in its entirety. Thus, if the legislature can only legislate, then it {(
cannot punish anyone, committing a hreach t>f its. privilege; nor (1
can it delegate any legislative function even. though: it does not
. know the details of the subject-matter of.the .legislation and the
.a
. executive authority has expertise over it; .nor could the courts
0
frame rules of procedure to be adopted by tbem for the disposal
of-cases.
· ..
e
(d) Modem State is a-welfare State and it has to soive·many complex C
socio-:economic problems and in this State of
affairs also, it is , t]

not possible to stick to this doctrine. As Justice Frankfurter says:_ ) 0

''Enforcement of a rigid conception of separat;ion of powers

. would make modem G0v~rnme;Jt. hnpossib1e.', . ). 4
t
"'~
3
 . i

BASIC CONSTITUTiONAL PRINCIPLES 31 ; .. -

. ' (e) According to Basu", in modem practice, the theory of separation
' : of powers means an ·organic· separation and the distinction inust
11
i
· be
dravm between· <essential' and 'incidental' powers and that.
--~- .. _ · one organ of the Government cannot usurp or encroach upon
. l
the essential functions· belonging to another organ, but may· ex-
ercise SQ.me incidental functions thereof. . .
·(j) The fundamental object behind Montesquieu's doctrine was the
. liberty and· freedom of an individual; but that cannot be ac:hfoved
- by mechanical division of functions and powers! In 11nglal)d.,
theory of separation powers notof is accepted and yet it is
known for the protection of individual liberty. For freedom and
liberty, it is ·necessary there should be th 1aw
a t ru l e o f an d i m -

partial .and independent judiciary and eternal vfgilartce on the

part· of the subjects. .
·. . : . Thus, on the whole, the doctrine of separation of powers in the strict
· ·. sense is .undesirable and impractic;able and; th:erefore, it is not fully ac-
cepted in any country'. Nevertheless, its value lies in the emphasis on
thos~ ~becks and· balances which are neccssacy to prevent ,an
abuse of ·
enortnous powers of the executive.
• .• • .• '
The object of the doctrine is ·to have
• 1 • • • • • •
''a Obvernrnent of law rather than of-official wiU- or whim'' .. Agam;
almost all the jurists accept one feahlre of this
doctrine that the judiciary
must be independent of and separate from the remaining two organs of
. . - I. the Government viz. legislature and- executive.. · · . • . . .
. . The most important aspect of the doctrine of separation of poy.rers
is judicial independen,ce from . administrative discretion. ''There is no
Hberty, if the· Judicial power- be n_o t separated frpm the legislative and . ·.
executive?I
(G) Separation of Powers· in practice
() U.SA. _
..The doctrine of separation of powers has peen accepted and strictly ·
adopted by the Founding Fathers of the Constitution of ·the U11it~d_ States
of America. There the legislative powers··are veste_d in the Congress,_ the
. · executive powers in tbe President and the judicial powers in the Supreme
Court and the courts subord.in2te thereto. In the American Constitution,
there is a system of 'checks and balances' and the powers vested one in
organ
~ .
cf the Govemmct cannot be exercised y any other organ. In

4. 4dniinative La,5986. •- .-24.- -

-tU•
4L Ficdmann 7 -in
:->
.i.,....-

;Za 0
u>
HJ~h.>l, ,_ . _ _
..... ; _ • ~ _
a Changing Society, 1959, pp. 353-54.

/·
/
i

o1·
!
.
---------·-···--· --·-·-····•··-------·-- .
·--·----- -· ..
.,,...J. .,.. -_ ~- •••
 32
LECTURES ON ADMINJSTRATIVE LAW
(II l
J.
theory, no one organ of the Government can trench upon
upon the: power of the other.
or encroach

,I. Jefferson said: 'The concentration of legislative, executive and judi-

cial power- in the same hands is precisely. the definition of despotic
Government. It would be no alleviation that these powers wilJ be exer-
cised by a plurality of hands and. riot by a single person. One hundred
and seventy-three despots woulil surely be a$ oppressive as one."2
. · ·- (emphasis supplied)
Though, in. 1787, when the American Constitution was
drafted, the .

· . · · •
tap:.:.zgrszge@ifs<sf
President now exercises legislative functions by sending messages to the..
. . Congress and by exercise of the right of vetO. The Congress has jirrlicial
! ·_ power of impeachment and the Senate exercises e.icei,utive powers regard-
ing treaties and in the making of certain appointments. The Congress has
delegated legislative powers to various administrative authorities and
regulatory agencies and these bodies exercise· all types of functions. Thus,
a single agency acts 'successively as legislator, investigator; prosecutor,
jury, judge and appellate tribunal' and the Supreme Court has never
held
that combination
-· .
of all the powers
. .
in one agency.
'
is
.
tinconstirutioriaJ.
(ii) England . . . . . ; .
Although Montesquieu has based his doctrine ofseparation of powers
taking into account the British Constitu ti on, as a matter of fact at nO
point. of .tim.e .was· this doct;rine ac·cepted in__its. strict sense· in England.
On the contrary, in re'1lity, iheory of integiation Pr .poweis has been
adopted in England. Though the three powers.· are vested in three organs
and each has its own peculiar features, it cannotbe said that there is no
'sharing out' of the powers of the Government. 'Thus, the Lord Chancellor
is the Head of the.Judiciary, Chairman of the House of Lords (legisla,
pure),
" . a member of the Executive
. and often a member of the
.• . Cabinet.
The judges exercise executive functions under the Trust Act and in su-
pervision of wards of court arid also legislative fonc:ti_(}.2S in making niles
of COUrtS regulating their own procedure. Members of the Cabinet are
a)so members of the-Legfslature' and are resporisible to it and they play
a very important pant inlegislative activities. Powers are conferred ori
them to make subordinate Iegjsiat.ions and they also exercise judicial
PO\Vers in different formsof administrative tribunals. Tne House of Com-

42. Woks: 3, p. 223:cited i_Indra 3 err Gandhi • Re} Naret, 1975

SCC 1 (para 319): AIR l975_/4"C 2299. · . . .
Sn
l
. ij

I ..
I
 1

. :/ ·. I ,.

I BASIC CONSTITUTIONAL PRINCIPLES 33

moiis is not e:<clusively ~oncerned with. legislative act_ivities, as-ft'exer-
cises judicial powers also i_n cases of breach of its own .privileges.
{iii) India
On a casual glance at tjle provisions of the Constitution of India,·
one m_ay be' inclined to say that the_ doctrine of separation of powers is
accepted. in India. Under the Indian Constitution, the executive powers . ·
are with the President,? the legislative powers with Parliament44 and the
I.
judicial powers with the judiciary" (the Supreme Court, High 'Courts and
• subordinate courts). The President holds his of0ce"Jot a fixed period. . : ..

His functions and powers are.enumerated in the Constitution itself. Par-

liament is competent to make'any law subject to the provisions of the
O:mstitution and there is no·other limitation on its legislative power.
Similarly; the judiciary is independent in· its_ field and there can be no
interference with its judicial functions. either by the executive or by the ·
legislature. The Supreme Court and High Courts are given the power of
judicial review and they. can declare any law passed by Parliament or
, . . Legislature as ultra·vires or unconstitutional. Taking.into account these .
. factors> Chief Justice Kania. and some jurists are of the opinion· that the
doctrine of separation of powers has been accepted irt the Constitution
of India. In GolakNath v. State of Punjab46, Subba Ra:o~ C.J. observed:
· ''The Constitution bring·s into existence different constitutional
entities, namely, the Union, the States,' and _the Union Territorfos. If
...· creates three inajor insfuunen~ of po.J.rer,' rianiely, the Legislature, ·
the Executive and the Judiciary. It demarcates their jurisdiction
minutely and expects .them to ,exercise their res pee tive powers
without overstepping their limits. They should function within the
spheres allotted to them."47 · _ . _ ·

- But if we study.the constitutional provisions carefully, it is clear that .

the doctrine of 'separation of powers_has not been accepted in India in
its strict sense. Tiier.e 'is no provision in the Constitution itself regarding
the division of funiofis of the Govemrent and the· exercise thereof.
. .

Though, under Articles 53(1) and 1541), the executive power of the
Union and of the States is vested in Li-ie President and the Governors

respectively, there is no corresponding provi si on vesting the le gi sl a tive

and judicial pO\ver. ~n .any particnlar organ, The President has wide legis-
I ·'
43. Article 53(1), Consiitwtior. of fiulia. · · ·
44. Delhi La ws Act, 1912, in re, AIR 1951 SC 332 (346-47). - -
5. !d. st • 386 {4IR), s ala 7Gira eh. Gad±i v. Raj Nari, 1975 0p2
sec l : ALR. 1975 J;.C-:z:299 (2435).
46. .A.JR 1967 SC_J.£,:8 : (1967) 2 SCR 76'.2.
47. 1. st p. 1555 (AIR).
 34 LECTURES ON ADMINISTRA TJVE LAW .[1I
.. ·.· .......
lative powers." He can issue ordinances, make laws for a State after the_
Stat.e Legislature is dissolved, adopt the laws or make neces&ary
.modifications and the exercise of this legislative power is immune frorri
judicial review. He perlorms judicial. functions also. He decides disputes
about the age of a ju{lge of a High Court-or the Supreme Court for the
purpose of retiring hit" and cases of disqualification of members of any
. I
House of :f'.>arliament 5? - : . · ·_ · . . ·
-· · _ - · i •.

Though, Parliament exercises legislative functions and is competept ·

to make any law not inconsistent with the' pr<:>:visions of the Constitution,
many legislative functions are delegated the executive. In certaJn mat- to
±.#EEE±.E;±.±±E±±:
a prosecutor and the other J:lpuse in_vestig?-tes . the charges. and decides ,
whether they were proved or nO:t. The latter is purelyjudicial fuil.ction}:2 · a
Though judiciary exercises all judicial at the'same it- powers, time,
exercises certain executive or administrative functions also. The High
Court has supervisory powers over all-subbrclitiat~ courts:and .trlbunals53
and also power to transfer
cases._ High Courts the, Supreme Court _ ·. and
have legislative.powers also and. they frame rules . regulating their own - · ·
procedure for. the conduct·· and clisposal of- cases~~-·· '" · ·
· Thus; the .doctrine ·of·separation of powers is not accepted fully in
the Constitution of India. and we
agree with the observations of Justice,
Mukherjea in Ram Jawaya v.· StaJe of PU1'!]4.b"._: .. /.. · _· _ _ .,,/:
"The Indian Constitution has not indedrecognisedthe doctrine
of separation of powers in
its absolute rigidity. but the. functions of
the different pars or branches of he, 'sun- Goepmnent, have.,ej
ciently differentiated and consequently it caj very jell,be said that
· our Constitution does not contemplate assumption, by·.pne organ or -
.
pan of the .State,
. • -. . 1 .
offunctions that essentially belong to another.
.- : - . .; . -. ,.. ·. :- . . . - • ,
?'6.
.

. 48. Articles 123 ad 356, Constitu tion of Iridia ; see also Aricle 213, Constitution of India.
49. Articles 124(2), 217(3), .Constitution of India; also Uioof India v.Jyoti se
· Pra.kash Miuer,-(1971)1 SCC39$: AIR J971_SC 1093.· _ . · .. · ..
50. Artic1e ·i03, Cqnstitutlon _of India. See also Article 192, Constitlltion of India.
51. Article 105; Constihltion of India. · · · · · ·
52. Article 61, Constitution· of India. - _
53. Article 227, Constitution of. India; see also Lecture X {infra).
· :54. Articles 14.5, :2,25, Constiiutibn of India.·· · · . .· · _ · ·
55. A.IR 1955,SC 549: (1955i-2 SCR-225... . . - . - -
5g r ; r 556(
10 . C. i1~
_.\.J. ..,, _IP) g7,,,,1g
. . _,,1 .·-~-~ e.•..•.. •
,.(J):-··-,-- .... s e " «± - «-
z..,pg 9<4gag
n>a {I.:.-:,. ..... ::ll..i-r ._,1,-:-.~0,.
5 5.5 g .,·
..,.; ... ,J,J
C 1 _,.; lfJ., • ''•. ·, •n. ·.
na,J.Ura 1, o.. an \. . iGie 05 +.5.,l r is
, _._, , -~---~~..-, · (\" --, ---· .-- -.. --· •1
1 j i???S} ;fail;karj;ma
" · •.

v. Stcte·of A.P., (1990) 2 SCe '707 (714): A1R 1990 SC i2.5l. ..-__ ·

·/
'
 . '

$%% Jr. 13» FUNDAMENT AL RIGHTS 37

tsoid ab inicio for all purposes if they w e inconsistent with the fundamental
lights. Das, J. said: "Article 13 I) not be read as obliterating the entire
$6operation of the inconsistent laws;'or to wipe them out altogether from the
I ;~i::at~te-pook, for to do so will ·b to give tbem_ [fundamental nghts] retrospective
~-tffect which, we have .said, _ ey do not possess, Such laws exist for all past
·transactions and for enfore· g all rights arid liabilities accrued before th_e date of
.'rthe Constitution."77 · · · ·-

1
2. The rule of · everability,-Articlc 13 do not make the whole Act
inoperative, jt makes; nqperative _only such prov· ionsof it as are inconsistent with
or violative of the f~ndamental nghts. In Sta .ofBombay v. F.N. Balsar", ei ·
~sections of the Bombay Prohibition Act, '49, wereheld ultra vires on the g ·d
that they infringed the fundamental ri'ts of the dtizen-_s. But the Act, .· . u:s the
· invalid provis'ions; was allowed to s d. The Count said: "The decisj. declaring
_. some of the proy isions of the Act t . _ invalid does not affect the v; dity of
the Act
·as it remains." The rule that the·. validity is only to the extent f inconsistency is
. • - - not peculiar to Aiticle 13, but i _ a general principle of statutg. , interpretation.7 ? The
power of the court to strike o t invalid provisions bfai:i -cCmiis(no~b{exercised ·
I
t,eyond the necessity of t case. But a clarificatjo to this principle is notable.
Sometimes valid and inv id_ portions of the Act,( so ihterfyti'iied.that they cannot
t be separ.ated from o another. In such cases, 1e invalidity of the portion must ·
result in the invaH ty of the Act in its· en . . ty. The reason is iliat what remains.
-.
valid is so inex. cbly bound up wi.th · part declared invalid, -that the valid part ·
cannot surviv mdependently. In et¢ · . ing whether the valid parts of a statute are
,_ severable Sm the invalid parts, . intention of the Legislature is the determining
l .,• · factor.80 . _other Words, it should be asked whetherthe I,,egislature would have enacted.
·' at all th t which survives without enactihg the part found ultra vires.' The severable
invalid provision may: be struck down not only to restiict but also to enlarge the
,'
~
:.
Qf. _;
~ application of the law if such enlargement wil l save the law.
t.·
pn, : The rule of severability applies as much fu cl. (2) as to cl. (1) of Article 13.
a.
In
'·J 3. The doctrine of eclipse-An existing law inconsistent with a. fundamental
right, though becomes inoperative from the date of the commencement of the
ed Const,itution, is not dead alt0gether. "It is overshadowed by the fundamental right
and remains dormant, but is
not dead."83 It is a good law if a question arises for
determination of rights and obligations incurred before the commencement of the
we _ Constitution, and also for the determination of rights of persons who have not been
id .. given fundamental rights by the Constitution.84 This has led the
Supreme Court to .
lij
le
77. Ibid. at p. 130.
.
ri .•
. 78. Affi 1951 SC318.
79. Cooley: Constin:rional Umirario_n.-Vol. I, 246.
0. R.M.D.Chamarbanugc lla v. Union of India, AIR l 957 SC 628. Also State of Gujarar v. Raman
Lal Keshav Lal Soni, (] 983) 2 SCC 33: AIR 1934 SC 161; Mmor General Traders vi S1a 1e ofA.P.•
1: (0984) 1 SCC 222. B. Prebhksr Rao v. Sa:e ofA.P.. 1985 Supp SCC 432: AJR 1986 SC 210;
sec
Deepck Sif;r.l V. Punjab UniFersiry, (l 91i9) 2 145: AIR 1989 SC 903.
Y. 81. S:ate of Bie r • Kaneshar Singh, AIR I 952 SC 252.
52 fl
;#
82. D.S. ,\'c!:o. rc v. Un ion of India, (1983) I sec 305: AJR 1983 SC 130.
83. Ehikgji Narain Dhakres v. Sta:e ofM.P., AlR J 955 SC 78]. -
; 3
1 84. Keshavcn Madiava Mer:cn v. State of Be:ay, AJR 1951 SC 128; Behran Khurshid Pesi?aka v.

il S!cie of Bombcry, AIR 1955 SC i23 .

. ll
.

1
 38
CONSTITUTION OF lNDIA

apply to the existing laws, i.e., the pre-Constitution laws, what may be described a
the doctrine· of edipse, According to this doctrine, an existing law, i.e., a Jaw mad·
before ihe commencement of the Constitution, remains .eclipsed or dormant to '
extent it comes undfr the shadow of the fundamental right, i.e., is inconsistent wi ..
it, but the eclipsed or donnant parts become operative· and effective again if. :
. prohibition- brought about by the fundamental right is removed by an- amendment
the Constitution. The Supreme Court decision in Bhikaji Narain Dhakras v. Sta ;
M.P• is a good illustration of the application of rule. " the ""
.In that case an existing State law authorised the State Government to exclu a

. all private motor transport operators from the field of transport business. Pars
thi,s law~:becam.e vojd:·on tile commencement of the' Constitution as i.t infringed.• r

provisions'of Article 19@)g) of the Constitution:and could not be justified uh±

the provisions of clause (6) of Article'19. In 1951, clause (6) of Article 19 w
amended by the Constitution (First Amendment); Act, 1951, so as to permit
Gov.en;1ment to monopolise any business. The Supreme Court heJd that after i

amendment of clause (6) of Article 19, on Juhe 18, 1951, the: constitutio .
impediment was removed and the impugned Act ceased.to be unconstitutional
· became operative and enforceable. ' · · · · ·
The doctrine of eclipse which at ·one time was supposed to be applicable only ii5
pre-Constitution laws has, to the extent and· in the s.ense noted below, now q ·' .•· ·
e.xrended to pOst-Constitritfon laws also. 86 ' · · . · <1:

I 0 CLAUSE (2)
FuturelawS-:-,:Oause (2) of Article 13 telates to future laws, i.e., laws .
after the commencement of the Constitution. The State is prohibited from map4j

I any law which takes away or abridges any of .tlie rights conferred by Part III. "
law made in contravention of climse (2) shall, to the extent of the confraventi. · :
be void: The concept of 'voidness' has eventually come to be considered as ori
- . . . ,,1.,

of 'relatively
87
void' or partially invalid. In State of Gujarat v. Shri Ambica.Mil
Ltd. question was raised whether a law, which takes away or abridges the
• . I • • • •
fundamental right of citizens under Article 19(1)(/); would be void and, thereforet
non est as regards non-citizens. Speaking. for· the Court, Mathew, J., after
reviewing the earlier decisions88 , observed that just as a pre-Constitution law,
· t_aking away or abridging the· fundamental rights under Article 19 remained
operative after the Constitution came into force as regards. non-citizens because it
was not inconsistent with their fundamental rights, so also. a pcist-Constitutidn Jaw.,
offending Article 19 remained operative as
iigainst non-citizens because it was
not in contravention of any of their fundamental rights. A pre-Constitution la, :
whi.ch takes away or abridges the rights under Article 19, should remain operative:'. ..
even after the Constitution came into force not because it was valid when enacted ;sj 4
85. AIR 1955 SC 781.
86. Sia!e of Gujarat V. Shr. Ambica .M ills l.Jd.. ( 1974) 4 sec 656: AIR l 974 SC 1300.
!if-II
87. (1974).4 SCC656: Al? 1974 SC 1300. :' ·~
88. Kesh.avan Madhava Menon v. Staie ofBornbcy, A.IR 195] SC 128; Behram Khurshid Pesikaka v.
Srare of Bo»rbay, AIR i955 SC 123; Bkikaji Narain Dhckras : Sate of M.P.. AIR l_955'SC 781; ~
Deep Cl.crui ,_._ State of U.P., A.JR 1959 SC 648; Mchen.dra Lei Jnini v. Stare of U,P.. AIR 1963 SC;
10]9. .
 ART. 13] FUNDAMENTAL RIGHTS 41
f;;/~'
.
It may, however, be noted that all these tests are· workin$ fonnu,las.: for. the
guidance of the State and the courts:
they are not fixed legal propositions. The scope
,'
's
· and applicatic;.m of the fundamental rights cannot be made dependent on them for
· 98 · ·
ever and in all cases.: . . ,
Waiver of fundamental rights. Can a fundamental right guaranteed by
Part III of the Constitution be waived by a citizen ? The question directly arose in
Basheshar Nath v. CIT.99 In that case the petitioner, whose matter had been
referred to the Investigation· Commission under Section 5(1) of the Taxation of
Income (Investigation Commission) Act, 1947, was found to have cbncealed a
Iar_ge amount of his income. The petitioner, to escape heavier penalty, agreed as a
settlement under Section 8-Ato pay Rs 3 lakhs in monthly instalments, by way of
arrears of tax and penalty. In the meanwhile, the Supreme Court, in another
. caseHlq, held ·t hat Section, 5(1) of. the Taxation of Income (Investigation
Commhsion) Act was ultra vires the Constitution, as it was inconsistent with
Article 14. Th e assessee, in
vie.w of the ultra vires character of the settlement,
invited the Court to hold . that he was absolved" of his obligation under the
settlement. The respondent, on the other hand, conten.ded that e:v-en if Section 5(1)
was invalid, the assessee, by making a settlement of the case had waived his right
7-..
guaranteed under Article 14. While S.R. Das, C.J. and Kapur, J. confined their
+ decision to the fundamental right actually involved in the case. and held that the
;
right .under Article 14 could not
be waived, Bhagwari and Subba Rao, JJ. held
to
that it was not open a citizen to waive any of the fundamental rights conferred
by part III of the Constitution.S.K. Das, J., who dissented, held, on the analogy
of the· American Constitution, that where a right Qr privilege guaiariteed by the
Constitution inheres in the individual and is primariiy intended for his benefit. ii I
can be' waived, provided such waiver is not forbidden by law and does not
contravene public policy(· or. public morals:. The law is now settled that the:
fundamental rights canntjt be waive.d.101 In a non-fundamental right case the
Court has also held that a person cannot waive his right unless
: .
he knows. of it,
..
102. t. ·,

Presumption of constitutionality .-Laws made by competent legislatur e are

deemed to be constitutional. and, therefore, they are deemed to be not violative of
the fundamental rights. A. person who claims that a law violates a fundamental
right must prove and satisfy the Court that the 1aw is violative of fundame ntal
rights.
. . .
CLA USE (3)
Definition of law.Clause (3) defines the term s 'law' and 'laws in force'. The
definition is enumerative rather than substantive, ·i.e., it mentions some of the
normal forms· in which the law finds its expression. So understood, the definition
mentions the following as included in the expression 'law':

98. For some similar remarks: see K. Ramaswamy, J. in Peerless Co. l.Jtl. v. Rese;.,.,e Bank of India,
(1992) 2·SCC 343: AIR 1992 SC 1033.
99. P..IR 1959 SC 149.
100. SurajMall Mohrn v. Shas!ri, AIR 1954 SC 545.
I0I. Nar Singh Pal v. Urion of!r.dia, (2000) 3 sec 58S: A1R 2000 SC l40J.
102. ML.P. Sugar ills Co. Lid. v. Sate ofU.P.. (1S79)2 SCC 409: AIR 1979 SC 62 1, 628.
 '·
i%
:

.21 FUNDAMENT/,L RIGHTS

199
qt.published and when this right was exercised by a detenu its denial without
'uthority of law violated Article 21. This case also established that a pnsoner .I
'not cease to be a human beirig incapa\)le of having fundamental rights. More
·oos on that issue are discussed below: ·
Reviewing the foregoing and some other .decisions and agreeing with the
· ch of the minority in Kharak Singh case72, Bhagwati, J. in Maneka Gandhi
·.
j,pi . 1 d d·
. 1073 'concluded:
on ofIndia'
%$5,", "Te expression 'personal liberty' in Article 21 is of widest amplitude he
$ • ,and it covers a vanety of rights which go to
constitute the personal liberty of.
-:(. '.:- '. -man and some of them have been raised.. to the status of distinct fundamental
;nights and given additional protection under Aricle 19.°
. ~:µich1des", writ~ Tripaihi "all those innumerable aspects of personal liberty
- which it is impossibleexhaustively to enumerate".1074
·Upholding the right of the petitioner to have interviews with her family
- embers, friends.and lawyer
075
during her:preventive ·t:1etention, in Francis Coralie v.
fihion Territory of Del1 Bhagwati, J. quoting his above-mentioned statement in
Maneka Gandhi case helcl that ~rs<;mal-liberty includes right .to socialise with
to
finily members and friends as well as have interview with the lawyer.
.... . Procedure
established by law.-The expression "procedure established by
. • .·law" means procedure laid down l,y ·statute or procedure prescribed-by tb.e Iaw·_of
the a
State. Accordingly"78, first, there must be law justifying interfertnce V.:ith the
pc;son's life or personal liberty, and secondly, thelaw shouid. be. a valid law, .and
ttiiroly. the procedure laid pawn by the law should have bee,n strictly followed. In
the absence of any procedure prescribed by the Jaw sustaining the deprivation of
· personal liberty, the executive authorities shall violate Article 21 if they interfere
... wfth. the life or personal liberty of the individual. · ·
Subject to the _developmerii:s and clarifications mentioned below, the ambit of
p'n)tection given by the American Constitution in relation .to personal liberty is
wider than under the Indian lav,. Apart from the fact that the·'American Constitution
does not qualify "liberty"·by "personaJ" it proyides that a person cannot be deprived
. of his liberty' "without· due process of Im;,';. The American Supreme Court has.
. interpreted the gJJarantee to mean that the Court ·would e~amine a law to as.certain if
Jt is ·a just_law, both as to the prdcedure and to the substantive provisions contained
1077
tl;lerein. · · · -.,i~ · •· · . ·

1!)72. KharaJ:. Singh v. State of U.P.,

AJR 1963 SC 1295. • ·
·. 1073. (1978) l SC 248: AIR9 78 SC 597,622.
1074. P.K. Tripathi: Sporlighis on Consritutional Jn;erpretc.Jion, 166 (19.72).:He adqs: "The right io go to
bed wh_en one likes, to eat, dress or walk the way one likes, to speak the l~ngtiage one likes, in
. short, to do _or not to do anything the way one likes." Ibid.· · ·
1075. (198!) I SCC 688; A.lR 1981 SC 746. 754. .
1076. A.K. Gopalan v. State ofMadras, AI.R 1950 SC 27; Bi±hn Das v. Ste ofPrtnjab, AJR 1961 SC
· 1570; Kharak Singh v. Swte of U.P., AiR l 963 SC .1295. ,
1077. ILK. Copa/an v. Sn11e ofMadrns. .A.JR Jj'50 SC 27 (pr. 27)i Willis: Consrirutional Law, p. 662.
 :
.- .
-·

· .
_,

200 C O N S T IT UT
ION O F INDIA

In f.K. Gopalan v. State of Maclras1078, it was held that the

"procedure established by law" means procedure enacted by a law made ·
State. The Supreme Court, by a majority, rejected the argument that the "la
Article 21 is used in the sense of jus and lex, i.e. the just law and that it m
principles of natural Justice on the analogy of "due process of law" as interpm ·
the American Supreme Court. That in effect amounted to holding that Art
was a protection only against the executive and not against- the legislature;
interpretation was taken to its logical end iri· ADM. Jabalpur v. Shiv
Shukla 1079, where the Supreme Court held that Article 21 was the sole re .
of the right to life and personal 'liberty against illegal deprivation tr'. its
- executive andin case enforcement of Article _2 1 was suspended by a preside
order under Article 359, the Court could not enquire whether theexecutive 6

depriving a person
of his 1ife or personal liberty. was authorised law. by
after the emergency· and all that was done in its iame were rejected by
. electorates in early 1977,. the Supreme Court Maneka Gandhi v. Un' in
Idial0 changed this unfortunate position and gave a truly funda,
character to the right in _Article 21. This the. Court · did by establishi ·
rel'atlonship between Articles 14, 19 and 21 which had apparently been deni
Gopalan, particularly in respect of Articles 19 21,1081 and
The relationship between Articles 19 and 21, as noted .above, was'.
emphasised by the minority in Kharak Singh, though doubts oil,' expressing
majority view in Gopalan, the Court had already established such relatki
between the repealed Articles 19(1)(/) and 311) of which the latter was exp - ·
in similar language as Article 21,1082 The argument or exclusiveness of fun .
· rights as expounded in Gopalan was finally rejected in· J?ustom Cavasjee. Coo
Union of India108\ though in that case also the relationship between re - . ·
Articles 19(1 )(t) and 312) and not between Articles 19 and 21 was in . '
However, this decision wasthe main basis for establishing the relationship be
Articles 14, 19 and 21 in Maneka Gandhi. Bhagw.ati, J., who delivered the l
opinion in Maneka Gandhi, held that the Jaw must now be taken to be wells
that Article 21 does not exclude Article 19, and a law prescribing a procedure .
depriving a person of "personal liberty" will have to meet the requ-irement of ·
21 and also of Article 19 as wen as of Article 14. In his exposition of the concept
· "procedure" in Article 21 Bhagwati, J. was inspired by the great equalising princi
enunciated in Article 14, which we have .already discussed and extended.
application to the
nature arid requirement of the procedure under Article 21. 1%
explained that the principie of reasonableness, which is an essential element .
equality or non-arbitrariness pervading Article 14, · must also apply with eqtt~J)r,i.!· t
force tci the "procedure" contemplated by P..rtic1e 21, that is, the procedure m':3.f J~"';;t;l

'1078. AlR J950 SC 27.

1079. (1976)2 $CC 521:AIR 1976 SC 1207. .
C

1030. (1 ';78) I SCC 248: AlR I 978 SC 597.

l0Sl. Liiy Thomas V. Union of India, (2000) 5 sec
224: AIR 20C-O SC 1640, where th e Count sci
I the procedur_e established by Jaw, 2s
rne:nticn6c in Article 21 of_ th e Constitut_icn, meuns r.r
pre sc ribed by the legislature.
1 0 K.X. Fochn i v. S:a:es of Ma dras and ierala, AIR
8 2 . 1 9 6 0 S C 1 0 8 Fer a clear
0 , 1 0 9 3 . a p h i

. • r=n ± :.
that rcl:tionsnip, sec State of:2.:.wranojirao re,
± . :
#ii
±5R 1968 $C 1053
7 '

!083. (1970) I sec 248: ARR 1970 SC 564, :.93ff.

 »1 c

#kit. 21) 1
FUNDAMENTAL RJGHTS
201
·be "right, just and fair" and not "arbitrary, fanciful or oppressive". In order that
the "procedure" is "right, just and fair", it should conform to the principles of·
:: ;,!'natural justice",, that is,· "fair-play in action".. Hepce, it was held that any
i±procedure which permits impairment of the constit~tiorial right .to_ go· abroad
, ~-without g1vmg a reaso_nab1e opportunity to show cause cannot but be condemned
as unfair and unjust. In the impugned case it was held, however, that Section
· +10(3)e) of the Passports Act, 1967, did not violate Article 21 as it was implied in
s : ;die provisions· that the rules of natural Justice would be
applicable m the exercise
... i-.. · -6f the power of impounding a passport. . · . / · · · _ .
:: 1-·. .
From ''Procedure established by law" to "Due process of law".-'-While
.i .,,;i/ Bhagwati, J. in Maneka Gandhi ctise., established the requirement of reasonableness
· ·• :·Of procedure in Article 2I through Article 14, some of the judges in that case 8J)d in .
same other subsequent cases have read such requirement in Ai:ticle 11 itself and.
· · i '.fi :·particularly.in the \lford "law" the conversion· of Uptoeednre establiShe<j by l~\l/1! into
. "due prqcess of law" in the. Ame·rican sense whicp the Constitution-makers had
intended to avoid by replacing the latter expression by the formner. Thus in Maneka
Gandhi, Chandrachud, J. said that the procedure in Article 2i "has to be fair, just ·
and reasonable, not fanciful; oppressive or arbitrary"I084 and Krishna Iyer, J•. said
. that "law" in Article 21 "is: reasonable law, not any enacted piece".1085 Again in
Suni! Batra v. Delhi Adm."06, Krishna Iyer, J. said, "True our Constitution has no
'due process' clause... but ... after Cooper ..• and Maneka Gandh i ..., +He
1
consequence is the same" 087 44 added that Article 21 is the counterpart of the
procedural due process in th.e United States. 1088 L the same case speaking for. the
rest of the Court Desai; J. said: " - • ' .

"The word 'law' i the expression 'procedure establish.eel by law~ in

Article 21 has been intetpreted to mean in. M-aneka Gandhi case ... that the law
be
must right, just and fair, and not arbitrary, f:mciful or oppressive.»1oa9 · '
-r In Jolly George Varghese v. Bank of CQchin1rna. the Court; through Krishna:
lyer, J., surmised that some day the question of the validity of Section 51 and
Order 21 and Rule 37_ of the Civil Procedure Code, which authorise arrest and
detention of judgment-debtor on
the· application of th.e decreeholder, · could be -
. questioned und_er Article 21 although in the instant .case the Court referred back
the matter to the lower court with the clarification that arrest and detention would·
·. I violate Article 21 if the judgment-debtor had no means to pay the decretal amount
andsaid
He did10.
not evade its payment by .- any mala fide or dishonest means
i "
or intentions.

1084. ManelcA Gandhi v. Union ofIndia, (1978) 1-SCC 248: AIR 1978 st: 97.
1085. lbfd. at p. 338. .
,)086. (1978) 4 SC<;: 494: AlR_ l978SC 1675.
1087. Sunil Barra v_ Delhi Admn., (1978) 4 sec 494 at p. 518.
1088_ Ibid. at P- 54 J.
1089. Ibid. at P- 574-75. Emphasis 1tdded.. .

2
. 1090. (1980) SCC 360: AIR l 980 SC 4 70. A! so Stt Rom NMoyoc, Ago nee{ v. Sa:e cf UP.,(1983) 4
sec 276: AIR 1984 SC 1213. . . . ·
1091. loll/George Varghese v. Bank of Cochin, (1980) 2 SCC 360: AJR 1980 SC 470. l.J:,o '"c.c Renr
Narayan Agarwal v. Swte of U.P., (1983) 4 SCC 276:
st.,pplied. · AJR 1984 SC 1213, at o.
· 3i;,J. Er,1ph2sis

J
 . \

202 CONSTITVf!ON OF INDIA [PART(I

"The high value of human dignity and the worth of the human person3.
· enshnned in An1cle 21, read with Articles 14 and 19, obligates the State not +a
incar~erate ex<;:~pt under law \Vhich is 'fair, just and. r.easo.nable in its proced "
j.
essence..... · ·
Bachan Singh State of Punja"0?
I n v . Count, by valid; t h e 4 t o I , u p h e l d th e

of death penalty under Section 302 of the Indian Penal Code read with Section 3'
of the Criminal Procedure Code against the challenge based on Articles 14, 19
21. For the majority, in -the light of Maneka Gandhi case, Sarkaria, J. rep
•. Article 21 in the following \:\'Onlsl093: · . · . .,.. '6:. _
$' • . . ·• .• • .· . • . . -~·;._,:

No _person shall be depnved of his life or personal hberty exce · ·.·,"~/;:

according to fair, just and reasonable procedure established by valid law." ·.., ...
' . . ' . . .. . I ·.
In his dissent, expressed after more than two years, Bhagwati, J. turned to the
of Articles 14, 19 and· 21 . each of which. according to him, contained
requirement of reasonableness and concluded"0%:.- 4ks,,
"It is plain and indisputable that under our Constitution. law cannot d.
arbitrary or irrational and
if it is, it would be clearly invalid, whether ~~:-.:
Article 14.or Article 1-9 orArticle.21.: whichever be app1icaple." .,,~
It is here that for the first tirfle Bhagwati, j_ clearly ~erit beyo1'd frticle 14 ~->. . ..·
thist$ -1
·

and
1

establish the requirement of reasonableness it is also here that he applied l s

requirement for the first time to a law. not JUSt procedural but substanuve, and .~t,·::. • .• · :
ti reached he conclusion hat
secuo 302 of the IndiaPenal code rad "!#} j%$£e
Secti on 354(3) of the Cnmmal Procedure Code was "'unconstltul:Jonal and vo1: - ''·'~ . . .·
being violative of Articles 14 and 2127109 "
In Mithu v. Siate of Punjab1096, a constitutional bench, for the first time and·
a
unanimously invalidated substantive law- Section 303 of the Indian Penal C . .!,3
--
.
which provided
. ..
for the mandatory
.. death
--
sentence
. . for
.
murder
. .
committed by
.
a .
ire},J:
,.,. . . ••
"
convict. Quot;ing from Maneka, Sunil Batra and Bachan Singh the Court~1• - i.-i
observed:1097 · · · · ' •;\
. . . . . . . . .. ' . - \ ...· . .
"These decisions 4_ave expanded the scope of Article 21 in a significant,
way and it is now too late in the day to contend that it is for the legislature"9%j4$¥
prescnbe the procedure and for the .. Courts to folloVi; Jt; that it 1s for the.:-•·!~,; · · \
legislature· to provide the punish111ent and for the Courts to. impose i~ ... th.e? . •
last word on the .question ofjustice . and fairness does not rest with the'.: ·
. legislature." , · . • ·f .\.
"After posing the question ot'reasonableness of Section 303 under Article 21 t1i.{ .
Court concluded 1098 that "it is difficult to hold that the prescription of the mandatory . J: : •
sentence of death answers the test of reasonableness" and added that "a provision of ::t ' . :,
l -i·
·=

1092. (1980) '2 SCC 684: AJR 1980 SC 898. Affirmed in J11mman Khan v. Srare of U.P., (1991) l SCy; .j
752: /.JR l 99 l SC 345.
1093. Ibid. .,r p. 730. . .
JQ9,t. Bachan Singh v. S1att: of Punjab, (1982; 3 SCC 24, al p. 56. Emphasis supplied for simil'7·l•
. conclusion on Ants. 14, 19 and 21 individually see el pp. 51 2..nd 54respectively.
· 1095. Ec.c/1.ar: Sii,gh v. S1are;ojPunjab, (1982) 3 SCC 24 2t p. 128.
1096. (]983) 2 sec 277: AiR 1983 SC 473.
!097. Ibid. a! p. 281. Emphasis supplied.
I • • •• . I .
1098. ,',-iir h:., v. SiC:c of Punjab, (! 933) 2 sec 277 2t p. 289, para l i: AJR I 983 SC 4 73.
 FUNDAMEl'-ffAL RIGHTS
203 ..
which deprives the Court of the use of it..s wise and beneficent discretion in a
'· er oflife and death, without regard to· the circurnstances in which th..! offence
committed and, therefore, without regard to the gravity of the offence, cannot
be
regarded as harsh, unjust and unfair". Relying exclusive_Iy on Anide 21
idy. J. concurred: "So final, so irrevocable and so irresuscitablc is the sentence of
-~"- ·that no law which provides for it without involvement of the judicial mind can
said to be fair, just and rensonabJc."l099 Thus not merely. the procedure but a .
. st..antive
- .·,•law was invalidated under ArticJe.21.
. . . .
ii This development was · picked up, though without any ·reference lo Mithu, by
- 'se, J. of the Bombay High Court in Basantibai v. State of Maharashtra!10 aa
led to a property legislation - the Maharashtra Housing Area Act, 1976. The·
.. invalidated as "unjust, unreasonable and unfair" those provisions of the Act
z. which for acquisition of land the owner got less compensation than provided
#d er the Land Acquisition Act, 1894. Pendse, J. Meld-no1 """. .
"The legislation must be just, fair ancj reasonable whether protection. of
. Articles 14 and 19 is available or oth.erwise, and ... the. legislation providing for
· .. '.' ··deprivation of property. must satisfy 'the requirements of being fair, just _and
. .- · :r¢asonable;» · · · · · ·· · ·
· ,
-;:: · o,,·, ; The decislon in [!asanlibai w!s reversed by tho sUpren,~ Court but ·without
. ; ¢ disturbing the conclusions of the High Court ·on the. question of reasonableness.11~
{%ff This indicates that the Supreme Court does not have any
g[
.
#%

e- ctn er eaie.'1
: :, $,fC35Pnab1eness.. . on the. scope
.
obvious disagreement wit#
and application . of the principle
. · cir . , ,;
]' in
Pursuing a similar line of approach T. Sareetha v. T. Venkata Sub±at11103,
}$ Chod@ry, J. for the High Court f Andhra
Pradesh extended the application 6F de
} and Mamage Act, 1955. He
5: principle of reasonableness to matrimonial matters invalidated Section 9
:.t i: pro.vision for .res~tution of conJugal nghts - of the Hmdu
.,
i
I

it
· .ji, round "the reinedy of restitution of conjugal rights provided for by that section ..• a I
•

'. :,.:; u.vage and barbarous remedy, violating the nght to pnvacy and human dignity j
j : guaranteed by Article 21 of our Constitution".1A "After Mithu cdse", he clarified,
3.1'Ris not easy to 'assert that Article 21 is confined· any. longer to · procedural
' protection om15521105. f .
·· Aithough subsequently in two different cases. the Delhi High Court 1106 and the I
Supreme Court!""7, disagreeing with Sareetha, have upheld theivaliciity of Section 9 .
I
1 of the Hindu Marriage Act, no. doubt was e.X:pressecf, at least by the Supreme Court,.,,,•.
on the application of the requirement of reasonableness or of Articles 14 and 21 to
matrimonial laws or non-penal laws. The Delhi High Court "applying the standard
I
!

I699. 1id. et p. 298 (AIR), para 25.

1100. AIR 1984 Born 366.
•. · 1 JOI. Ibid. at p. 38 I. E_r.iphisis supplied.
l l2. Sate ofMaharashtra v. Esaruib5, (1986) 2 sec 5 l 6.
· 1J03..AIR 1983 AP 355.
_:ll04. Ibid. 2t p. 373.· .·

l 105. T. Sareerha, v. T. Venkara Subbaiah, AIR 1983 AP 356. at p. 372.

. 1106. Harvinder Kaur v. Harmander Singh, AIR I 984 Dei 66.
. .1107. Saro) Ral!i v. Sudarslznn Kumar, (1984) 4_5CC 90.
 204 CONSTITUTION OF INDIA . [PARJ:lU/·

. thal the law has to be just, fair anq reasonable a~ e~unciated in_ fyianeka Gand-~}
found Section 9 constitutionally valid. So also the Supreme Court found: '7!~
Section 9 "strves a social purpose_ as an aid . to· tbe p_r evention ·. of break.:u;.J1
marriage" and therefore satisfied· Articles 14 and 21. - ·. i
,·
·, 'The courts have extended and applied the requirement of reasonableness {
Govemment Order issued under a University Act which prohibited contesin
election to any body includiiig the State Legislature ah.d Parliainent:1103 del'. to
execution' -of death sentence;'l@ to selection of students by the State Govemmen:
· admission to medi-cal colleges to promote national integration;'HO to a law assij ·
'powers and functions to the municipal authorities;1111 to qvi] service rules made.
Article 309 of the Constitution;'''? to service regulations;''"> to bank regulations
to job regulations of the pubJic corporations;1115 and to invalidate. the offen .
attempt to commit suicide-11;6 Validity of the offence of attempt to corr-units
under Section 309 of the Indian Penal Code has finally been upheld bythe
1117 · . . -
e Supr
C 0Uft .. • ,: I

· From -these decisions it is dear that the requirement of reasonableness, wbi

originally emerged from the inter-relation of Articles 14 and 21 and initially c;±
. ·the impression. of controlling only procedural laws relating to deprivation of lif~( :
· personal liberty, has developed into a general 'principle 1of reasonableness sii;nilar 1.
due_process of law in the U.S. Constitution ca pable of application to any branch r,-5,; ·
.Jaw.1118 . . . _·. . . ~ - .
Relationship of Articles 14, ·19 and 21.-It has been_ noted above that
impression of exclusiveness of different fundamental rights, particularly of Artl ,
19 and 21, which Gcipalan hacl left has been remoyed Maneka Gand_hi
R. C. Cooper. It has also been noted that by establishing a relationship ·
by tm,r
Articles 14, 19 and· 21. particularly between Articles 14 and 21. a requir~me ·.
reasonableness of law providing for deprivation of life or liberty has been . : ..
The creation of requirement of reasonableness is a different thing, but otherwise
· controversy apparently ever existed about the relationship between Artides 14 .'.
21. Starting with State of W.B. v. Anwar Ali S4rkar 1119, we have a whole chahf.'

1io&. K. Venkata RamanaReddiY. Govt. of A.P., AIR 1985 AP 73. .. _

l 109. Javed Ahned v. State of Maharashtra, (1985) 1 sec
275; T. V. Vatheeswaran v•. State of L,
,(1983) 2 SCC 68: AIR 1983 SC.361 (2); Sher Singh v. Srate of Punjab, (1983) 2 SCC344:
1983 SC 465; Triveniben v. Stale ofGujarat, (1988) 4 SCC 574: (1989) 1 SCC 678. · .
lllO. Suman Gupta :v. State fJx,(1983) 4 SCC 339: AIR 1983 SC q.35. .
t 111. Olga Tellis v. Bombay Municipal Corpn,, (1985) 3 SCC 545.
1112. State ofMaharashtra v. Char.drabhan, (1983) 3 sec 3137: A1R 1983 SC 803.
l l 13. W.B. Srau EleclriciJ)' Board v_ Desh Ban&u Ghosh, (19£5) 3 sec I 16.
1114. G. Vjaya Kumar v. SB!, AIR 1986 AP 353.
. 1115. Air'!rulia v.Nergesh Meerza,(! 981) 4 sec 335: AIR 1981 SC 1829. . .;·.•"·.-:'
1116. Dubhal v. Srare ofMaharos!.cra, (1986) S8 Born LR 5S9; p_ Ra1hinam v. Union ofJnaia, (lS'9f/ t
$CC 394: 1994 SC€ (Ci) 740: A1R 1994 SC 1S44. • • '; ,,.... -1_.'. •. ,:-.,.

1117, Gian Ka!.T V. S!c!e of Punjc.b, (1996) 2 sec 648: P.TR 1996 SC 946. See also M.P- Singh: ~S:)i:.~·
there be a funds: nenta! right to die? DLR Vo! XVI I, 134; P.D. Parde: "Human rights ".?
criminal iustice 4dmn. in India: Rhetoric and Reality" DLR VoL XV11, 145. ,
1118. For details see M.P. Sir.gh: The Cons;ifurional Principle of Reasonableness, (I 987). For a ii
appraisal of th is zpproach see P.K. THipath±: "The Fiasco of overruling A.K. Gopala", ATR ± :$
(J) p. l.
1119. AIR 1952 SC 75.
 . :· ..... . .

3.9
4coi'-JS>i'-ITUTIONAL LAW OF INDIA [CHAP. 7

"·the Legislature is the determining factor. The test to be applied.is whether the Legislature
-would have enacted the v_alid part if it had known that the rest of the statute was invalid.
. jut if what remains on the statute book cannot be enforced without making alterahon the.
· ~~~hole Act should be declared
. -
as void. Severability is. the question of substance and not
\
of
form, and in determining the intention of the Legislature it is legitimate to take' into
account the history of the legislation and the object as well the title and Pream"ble. In as
taxation laws where taxes are imposed on subjects which are divisible in nature and some
• of the subjects are exemp1 from taxation the taxation statute will not be wholly void-. It
can be declared void only with regard to those sµbj.ects to which a constitutional·
exemption is attracted. 85 ·

In Kilwta Hallahan Zachithu, 86 it has been held that Section. lo of the Tenth v.
Schedule minus para 7 remains valid and coristitutional_.· para 7 which has been declared
unconstitutional is severable from the main provisions of the Tenth Schedule. The.
remaining proyisions of the Tenth Schedule stand independent of Para 7 and are compl_ete
in t h e and m s e Para 7 of the
l v e s w o provided that the Speaker's
r k a b l e . T e n t h S c h e d u l e

decision regarding the disqualification· shall be final and. no court could examine its
validity. ·

. Doctrine of Eclipse.The doctrine of eclipse is based on the principle that a law

which violates Fundamental Rights is not nullity or void ab initio · but becomes only
unenforceable, i.e.; remains- in a moribund condition. "It is over-shadowed by the
fundamental rights and remains dormant; but it is not dead."87 Such laws are not wiped
out entirely from the statute book. They exist· fo:r an· past transactions, and for the
enforcen1ent of rights acquired and liabilities incurred before the present Constitutioncame
into force and for determination of right persons have not been given fundamental of who
rights by the Constitution, e.g., non-citizens.°" It is only as against the citizens that
they remain in a dormant or moribund condition but they remain in operation as against
non-citizens who are not entitled to fundamental rights,9' ,
Can such a law which becomes unenforceable after the Constitution came into force
be again revived and made effective by an amendment in the Constitution?
It was to solve this problem that the Supreme Court form ulated the doctrine of
eclipse in Bhikaji v. State of M.P. I that case provision of C.P.· and Berar Motor
Vehicles (Amendment) Act. 1947 authorized the State Government to make up the entire
motor transport bu_siness in the Province to the exclusion of motor transport operators. 't
it
. ·· This provision, though valid when enacted, became void on the coming into force cif the ·,.:

Constitution in 1950 as they violated Article 19 (1)(g)?' of the Constitution. However,

in 1951, Clause (6) of Article 19 was amended by the Constitution (1st Amendment) Act,
I
so as to authorise the Government to monopo_lise any business. The Supreme Court held 1
· that 'the effect of the Amendment was to remove the shadow and to make the impugned t
t Act free from aUbiemish or
infirmity'. It became enforceable against citizens. as well as
. non-citizens after the constitutional impediment Weis re.m oved. This law was merely ·1
• eclipsed for the time being by the fundamental rights. As soon as the eclipse is removed ¥s
the law begins to operate fTom the date of such removal. · ·

85. · SiiJieof Bombayv. UniredMotors. (i954)4SCR JC--69.

86. AIR 1993 SC 412.
87. Bhkaji Naraya n v. State of M.P.. AIR 1955 SC 781.
88. Keshav Madhaya Menon v. Sate ofBonbcy, AIR 1951 SC 12& a+ pp. 599--600.
89. Sa:e cfGujarat v. Sri Arbica Mils, AIR 1974 SC 1300.
90. AIR 1955 SC 781.
91. Right to practis.e 2:iy profess::in, or to carry oo·a.ny oc.cup~tion, trade or business.
 FUN DAM ENTAL RIGHTS 73
-AP.7)
Post-Constitution Laws.-· Clause (2) of Article 13· p~ohibits State to· make ariy
aw which takes away or abridges rights conferred by Part III of the Constitution. If Sate
niakes such a law then it will be ultra vires and void to
the extent of the contraventipn. lt
is still-born law and cannot be revived by removal of the constitutional prohibition by
subsequent amendment of the Constjtutiori. Though post-Constitution laws inconsistent.
with fundamental rights are void from their very inception yet a declaration by the Court
of their· invalidity will be necessary .92 As distjnguished from Clause (1) Clause (2) makes·
the iriconsisterit laws void ab initio and even conviction made under such
unconstitutional laws shall have ·to be set aside. "Anything done under such a la,
whether closed, completed or inchoate will be wholly illegal and person adversely affected
by it will be entitled to rclicf'>93 · · · ..
I ·
Does the_ doctrine ofeclipse apply to a post-constitutional law?.-In Deep ·Chand
v.. State of U.P.,94 the Supreme Court held that a post-constitutional law made under
Article 13 (2) which contravenes a "fundamental right is nullity from its ·inception and a
still-b.o rp Jaw: It is .void ab initio. The doctrine of eclipse does not apply to post- ·
constitutional laws and therefore, a subsequent constitutional amendment•oannot revi-ve:'it.
The minority, however expressed the view that the doctrine of •ecHpse is ~ppUoabie-even.
to post-Constitution law. In Mahendra 'Lal,Jin v. State of U.PP?° the Supreme Court
approved the majority view expressed in Deep·.C/wnd's ,ease· and:held:that the•docfr~ne of·
eclipse, applies only tb pre-Constitution _law under Article 13 (1) and· not to posl-
Constilution law under Article 13 (2}. There. is a clear distinction between a pre-
Constitution law and a post-Constitution law. The voidness of the pre-Constitution lav
is. not from its inception but only. from· the date of the. commencement of the
Constitutiori. On the other hand, the voidness of a post-Constitutional law is from its
very inception and
·such a law cannot therefore exist for any purpose. . . ·. .
But in State ofGujarat v. Ambica Mills,?°the Supreme Court modified its view
as expressed in Deep Chand and Mahendra Lal Jain's cases and held that ·a post-
. I Constitution law which is inconsistent with fundamental rights is -not nullity or .non-
existent in all cases ·and for all ·purposes .. The doctrine of absolute nullity is not a
universatnile and there are many ex.{:eplionsto it. A post-Constitution law which Jakes
away, or abridges the righH:orferred by Article 19 will be operative as regards to non-
citizens because fundamental rights ·a:re not available to non~dtizens. St!lch ,a law will
become void or non-existent only against citizens because fundamental rights are-conferred
on them .. The voidness in Aiticle-'f3 (2)can only mean ·void-as against persons whose
fundamental rights are taken away or abridged by law. Non-citizens cannot take advantage
of the voidness of the law. Accordingly.the Court held that the:Bombay Labour Welfare
Fund Act, 1953 was valid in respect to non-citizens. The respondent 'a .company, :had
challenged the validity of the Act on .the _ground that its provisions -violated the
fundamental rights of.citizens, employers. and empJoyees, and, therefore, they were void
under Artic1e 13 (2) of the Constitlltion. It was held that even assuming that under Article
19 a company was not a citizen it was er.titled to move the High Count and seek a remedy
..
. for infringement of it's ordinary right to propeny. The provi$iOris dfihe Borribay Labour
Welfare Fund Act, 1953 were not non-existent, but were valid 'laws enacted by ·a
competent legislature in respect-of non-citizens and the company could not take the.plea
that its right to property was being taken or abridged \vithout the,authority of,law.

92. Md. !shag Sate, AIR 196I AI! 532.

93. Deep Chard • Sate of UP., AIR 1959 SC64&.
94. AIR 1959 SC 648.
95. AIR 1963 SC 1019
%. A!R 1974 SC 1300.
 Q
)°
v\
CONSTITUTION,'\L l...AW OF INDIA [CHAP.7

In Dulare Lodh V. Illrd Additional District Judge, Kanpur,97 the Supreme Court
·- applied the doctrine of eclipse to post-constitutional law even against citizens. In that c'1se
• the respondent-landlord filed a suit for ejectment in 1971 and obtained a decree for
ejectment against the appellant-tenant. Ry virtue of the provisions of 1972 Act the case
was transferred to the court of the Judge Small Causes, who tried the case and passed a
1: · decree in· favour of the respondent ·in 1973. T1::e ter:::Int di"d-not object to the jurisdiction
nor did -h e prefer anappeal or revision against the judgment and the same became final.
i
The landlord fled execution petition but his attempt to get the decree executed was stalled
sometimes by objection filed by 'tenant and sometimes by amendments in law and with
the result that even after 13 years of litigation, the 1andfcfrd was n<;)t abie to get ·
possession. This_ was because· of the statutory amendment which made the ,decree_
- inexecutabk, and was therefore lying dorm.ant and ineffective. But by virtue of Arnendmem

I
Act of 1_976, Section 9 of the U,P. Civil Laws (Amendmert) Act of 1972 was made.·_
applicable with retrospective effect which was enacted to removethe injustice and to
to
remedy mischief caused the decree-holder. Its object was to revive the decrees which had
become inexecutable. It was held that by virtue of the Amendment Act, 1976 the degree
which was lying dormant and could not be executed became executable. Once the bar
placed by the. 1972 _A ct is .retnovcd by virtue of the doctrine of eclipse the decree will
revive andbecome operative and executable. .
_/Doctrine of Waiver.-Can a citizen waive hisfundamental right? The doctrine of
waiver has no application to the provision of law enshrined in Part III of the
Constitution. It is not open to
rights and get
convicted.98·
an
accused person to waive or give up his Constitutional
'

1 The question of waiver directly arose in Bashesher / Nath v. Income Ta.x-

C01nmissioner.99 The.petitioner whose case was referred to the Income-tax Investigation
Commissioner under Section 5. 0) of the Act was found to have concealed large..±
amount of income. He, thereupon,. agreed at a settlement in 1954/to pay Rs. 3 lakhs in.'
monthly instalments by way of arrears of tax and penalty. In 1955, the Supreme Court in-,
Muthiah · v. !. T. Commissioner,' held that Section 5 {1) of the Taxation of Income
· · (Investigation Commission) Act was ultra vi res of Article 14. The petitioner then
challenged.the settlement between him and the Jncome Tax Investigation Commission.
The respondent contended that even _i{Section 5 (1) was inva_lid, the petitioner by- entering
into an ngree_menl to pay the tax had waJved his· fundamental right guaranteed under
Article I4. - ' .
. . . . . . .

The majority expressed the view that the doctrine of waiver as formulated by some
American Judges interpreting the American Constitution cannot be applied interpreting in
the Indian Constitution. The Court held that, it is not open tc:i a citizen to waive any of
the fundamental rights conferred by Part III
of the Constitution. These rights have been
put in the Constitution not merely for the ,benefit of the individual but as a matter of
public policy for the benefit of the generalpublic. It is an obligation imposed L:pon t_he
State by the Constitution. No person can relieve the State of this obligation, because a
-.
large majority of our people are economically poor., educationally backward and politically
•
not yet conscious of their rights. In such circumstances, it is the duty of this Court to II
protect their rights against themselves. - · r

97. A!Rl984SC1260._
!
98. Behram v. Sate of Bombay, AIR l 955 sr::, !46. - I
I !
99, AIR 1959 SC 149; See also Olga Te!lis v. Bombay Afor:icipal Corporation. ;\ JR 1986 SC l 80.
~
l. AIR 1956 SC 269.

I
 I
, • CHAP.7) • FUNDAMENTAL RlqHTS 75
'Law' and 'Laws in force'.For the purposes of Article l3, "Law" is defined as
including an Ordinance, Order, bye-law, regulation, notification, custom or usage. having
the force of law. The definition of 'law' in this Article is wider than the o:c!.inary
connotation of law which refers to enacted law or legislation. It includes cven the . .
administrative order issued by an executive officer, but does not include administrative
directions or insfruct1ons issued by the Government for the guidanc-:: of its officers.3 It
does
• •
not I include departmental'
.
instructions.
.
Departmental
.
instructions are neither.
"la\V" within the meaning of Article· 13 (3)(a) nor are "procedµre established by law" "-s
within the meaning of Article 2 l. Though the term "law" includes all 'laws in force',
i.e., custom,' usage, etc. having the force of !aw, personal laws of Hindus. Muslims a:nd
Christians are excluded from the definition of "law" for the purpose of this Article. 5
The view that the strict rule enjoined by the Smiti writers as a result of whir:h
Sudras were considered to be incapable of entering the orders of Yati or Sanyasi, has
ceased to be valid because of the fundamental rights guaranteed under Part IIIis not
correct. Part
III does not
- . .
touch upon the
-
personal. laws of parties.°,
.
·' .
'Laws in force' denote all prior and existing laws passed by the Legislature or other
competent authority which have not been repealed notwithstanding the fact that are not in·
operation wholly or in part throughout India or part thereof. The. term 'existing law'
includes a wider range, such as, ordinance, orders, bye-laws, rules or regulations by.
-Legislature or other authorised hody or person. Thus an ordinance issued. by the President,
under Article 123 or by the Governors under Article 213, a Goyernn:ient notification7 .a
bye-law of a municipal body are' all laws in force.8 The term_ 'having the force of law' 1
means rule of conduct should be called a 1aw it must be established th.l.t it has a force of ·
law.
Is Constitutional amendment a 'law' under Article- 13 (2)- · · The question
whether the word. 'law' in clause (2) of Article 13 also includes a 'Constitutional.
amendment; was for the first: tirrie considered by the Supreme Court in Shankari Prasad
v. Union ofIndur~ The Court held that· the word 'law· in clause (2) did not include law
made by Parliament _under Article' 368, The word 'law' in Article 13 must be taken to
mean rules or regulations made in exercise of ordinary legislative power and not.
amendments to the Constitution made in exercise of Constitutional power and, therefore.
Article 13(2) did not affect amendments made unde_r Articie 368 This interpretation of
Shankari Prasad's case was followed by the majority in Sajjan Singh y_ State of
Rajasthan." But in Golak Nath v. Srate of Punjab, 11 the· Supreme Court overruled its
decision in the aforesaid cases, and held that the word 'law' in Article 13 (2) incJuded
every branch of law, statutory, Constitutional, etc,, and hence, if an amendment to the
Constitution took away or abridged fundaniental right of citizens, the amendment wouid
be declared void. .
..,

2. Jeshingbhai v. Emperor, AIR 950 Bom 363: D. Elayunni v Slate, AIR 196I Ker 52; Dwarka

- 3.
4.
Nath v. Sate of Bihar, AIR 1959 SC 249; asdeo • Sate ofMysore, A!R 1966 Mys 92.
State ofest Bengal v. Anwar Ali, AIR 1952 SC 75.
D.B.M. Pa:naik v. S:aJe v/A.P., A!R 1974 SC 2092..
·

5. Bhan Ram v. Baijnah, AIR 1962 SC 1476

6. Krishna Singh v. Mathur Ahir, AIR I980 SC 707.
7. Rankrisla Dalia v. Jsiice Tend0!kar, AIR 1958 SC 538.
8. Yasin _v. Town Aren Com1ninee, AIR 1952 SC l 15.
9. AIR I 95 I SC 458.
10. AIR 1965 SC 845.
11. AIR 1%7 SC 1 643.
 . CONSTITlJTIONAL LAW OF lNDIA
j·• .[Cl--i!AP.7 ,·
· In otde'i-:to difficulty created by the Supreme Court's decision in Gotak
remove the
., .
. Nmh's case the Constitution (24th Amendment) _Act, 1971 was enacted. By this
amendment a new clause (4) was added to Article 13 of
the Constitution which makes it·
clear that Constitutional
amendments passed under Article 368 shall not be considered as,
·- 'law' within the mening of Article 13 and; therefore, cannot be challenged as infringing
th-e pro-visions of Part rri of the Constitution. The validity of the Constrti,Ition (24th ,
Amel)tiillent}-Act; 1971 was considered by the Supreme Court in Kesavananda Bharat
case.'? The Court overruled the Golak Nath cse and upheld the validity of the sa1a
i

asriendrent. l
.I
1.

12. Kesavcin:andBlu.rrari v. Stare ofKaa!.a., AIR 1973 SC 1461.

75! -
'
_.r2 .z 37%7%- 5202G165 "w .1 it :. 3 /7---« « so - ...
 :.-, r.·
1/.
LECTURES _ON AD.lvllN1STRATIVE LAW
[II
• 16
1. RULE OF LAw .

. . i (A) General
One of the basic principles of the English Constitution is the Rule
of Law.This d(lctrine is accepted in the Constitution of U.S.A. and also
· ill the C<:institution of India. The entire basis of administrative law is the .-:-_ i
doctrine of the rule of law. Sir Edward Coke, the Chief Justice in James
I's reign was the originator of this concept. _In a battle agaiµ~ tbe ting,
he maintained successfully that t)ie• King should" be under God and the
J.,aw, and he established the supremacy of the
Law against the executive.
Dic_ey. developed this. theory of Coke iu his classic book. 'The Law arnl
· tJ,e.fl!M!itution' published in the year 18_8 5.
B) Meaning. '
. According to Dicey. the rule of law.is one of the fundamental prin-
· ciples or
the English Legal System. In the aforesaid·boQk he attributed
I '
the following three
meanings to the said doctrine'
.(i} Supremacy of law;
(ii) Equality before law; -and
.\
1
I . (iif} Predominance of legal spiriL
(i) Supremacy of. law
Explaining thdirst principle, Dicey states that .rule of law means
the absolute supremacy or predominaI!ce Of regular law as opposed to
· the influence of arbitrary power or wide discretionary power. It excludes
the existence of arbitrariness, of prerogative or even wide discretionary
authority on the part or- the.Govemllfent. Accordrng:to him the English-
men were ruled by the law and law l;ilone. A map. may be punished for
a breach of law, but can be punished for nothing else.' In his words,
\I
.
'
·:
is
'Wherever there is discretion, there room for arbitrariness and that in
a republic no less than under a monarchy dis2retionary authority' on the
I
-- part ol lhe Government must mean insecurity forlegal freedom the on
. pail 9f its subjects:'' Ai Wade says, "The rule ofliw requires that the
3

Govemment should be subject to the law, rather than the law subject to
the GovermTient.'' · · · · · · ·
In other words, acco_rding to this doctrine, no man can be arrested, I ~•
punished oi be ]awfully made to suffer in body or goods' except_by due
·---------
: 1.Th~ Law and the Consti:ur,i_or., 1915, • 202. 1 •
l. Id., p. 184. 1// ·

3. Adm±is:rd:ive_,.,,··La5i, 1988, p.. 3.

/
./
/
/
·
 5 II]
BASIC CONSTITUTIONAL PR1NCIPLES
17
process of law and for a breach of law estal::·lished ii1 the ordinary 1ega1 ·
. nrnnner before the ordinary courts of the land., .
"(ii) Equality before l<1w ;,'

Explaining the second principle of the rule of

law, Dicey states th_at
i there must be equality before the law or the equal subjection of all classes
to the ordinary law of the land administered by the ordinary law courts.
According to him, in England, aU persons y.,ete sµbject to one mid. the
sale and there were no extraordinary tribunals or special courts for
law, I

officers of the Government and other authorities. He criticised the French· -, ·

legal system of droit. adminisitatif in which; there were separatead-
ministrative tribunals for deciding cases betweeh the officials of the State
and the citizens. According to him, exemption of
the civil servants from
the jurisdiction of the ordinary courts of lay and
providing them with
the special tribunals was.the negation of equality."
According to Dicey,
any encroachment on the jurisdiction of the
courts and any restrictions on the subject's unimpeded access to them .
are bound to Jeopardi_ze his -rights. In the words of Lord Denning': ' 'Our.. ·.
a
English law does not allow public officer to shelter behind a droit
cµlministratif.. '
(iii) Predol!li!iance of 1egal spirit · .
. . . . t · . . . ' .. . . :· . ·:. . .
·,E4p]aining . the third principle, Dicey states that in · many countries_
rights- such as right to personal liberty; freedom from arrest, freedom to. ·.
hold public meetings are guaranteed by a written_ Coristiti.Itfoh. ; in
England, it fs_ not so: Th_ose rights are the result ofjudicial decisions in
concrete cases which have actually arisen between the parties. The Con-
stitution is not the ·source· but the consequence of the' rights of the in- ' I

dividuals. Thus, Dicey emphasised the role of the of law as coits

guarantors of liberty and suggested that the.rights would be s_ecured more
adequately if they were enforceable in the courts ofJaw than by mere
declaration of those rights in_ a document, as in the latter case, they can .
be ignored, curtailed or thi.i71p1ed-upon'.
. According to him, mere incorporation or inclusion of certain rights .·
in the written constitution is of little value, in, the absence of effective
remedies of pfctection and enforcement. He propounded : ''Habeas Cor-
pus Acts declare no principle anct define_ no
rights; i;>ut they are for prac- ,
4. Cited by V.G._...Rafii;;cl{~~dran : -A.dmini:sm1tivi Law, 1984, p. 6. · · · .
5. Ministry ofHusig v. Sharp, (1970) 2 QB 223 (226) : (1970) l A11 ER 10-09.

/
_/ _
/ .
 18 LECTURES ON ADMINISTRATIVE LAw [II
,.
tical purposes worth a hundred constitutional articles guaranteeing in-
dividual liberty.'
· (C) Application of doctrine,. ....
In England, the doctrine of the mle .of law was applied in concrete
.cases. According to W acie7, if a man IS wrongfully arrested by the police,
I . he can file a suit for c;ialµages against them as if the police were private
.·individuals.In Wilkes v. Wood 8, it was held that an action for 'dirtnages i

for trespass was maintainable even if the action complained of was taken
in pursuance of the order of the Minister. In the famous case of
Entick
•· V, Ca,rrington , a publisher's house and papers were ransacked by King' S
9

i:nessepgers senCby tbe:·-Secretary of State. · To atJ action . for. tte$pass, . ·.

damages to the tu:ne of£. 300 were awarded to. the· publisher. In the same
manner; if a man's land is compulsorily acquired under an illegal order,
. he can bring an actio'n for trespass againsfany person who tries to disturb
; J
. his possession. or attempt& to execute the said order.

(D) Comments
Dicey's thesis had its own
advantages and merits. The doctrine of
rule of law proved to be an effective instrument in confining the ad-
· ministrative _auth9rities within their limits. It served as a kind of
touchstone to judge· and· test administrative actions.
i
e
According to Wadel", the British Constitution is founded on this
doctrine.: Ya:r~eyi1 also.says that in broad principle the rule of Jaw -is
accepted by allas a necessary constitutional safeguard. Dicey's theory. I •

has thwarted the recognition and growth of administrative law in

Engl?J1d. Altha.ugh, ·in the 20th century, complete absence of discretion-
f : is
ary powers with the administr ation not possible, yet this doctrine puts.
an effective control over the increase of executive and administrative
powers and keeps. those authorities within their bounds. As the supreni',lcy
is
.of the or:dinary,.'courts of law accepted, they have power to control the
actions taken by the administrative authorities. They mist act according
to law ·and cannot take! any action as per their whims or caprice. It· is · ·
the dity of the courts to see that these authorities must -exercise their
powers within the limits of the law: I .. i

6J The Law and ,he Cons,itution, 1915, o. 195.

7. Adminisrrarive Law, )988, p. 23. · · ·
8. (1763) 19 St Tr 1153. ·
9. (1765) 19 St Tr 1030;:_...---- -- . . .
10. Adminisranive ls
1988, p. 23. , ·
11. A Sou,.ce Booh of English Administrc;ive Law, 1970, p. 3. i ·....

/
/
/.

J ..
 .. 1 j

I .
BASJC CONSTITUT IONAL PRINCIPLES
' 19
The doctrine of the rule of law expounded by Dicey was never fu11y· ·
accepted in England· even in his days. Wade" rightly says that ifhe had ·
! ·. 7.
chosen to examine the scope of administrative law in England, he- would
have to admit that even in 1885 there existed. 'a long list of statutes
a'
which permitted the exercise of discretionary powers which could not be
i called in question by courts• and the Crown epjoyed the immunity under·
the ~ maxim 'The. King can.do no wrong'.. · The shortcoming . -, of Dicey's
. .

thesis was .

that he not only excluded arbitrary powers but also insisted

that the administrative authorities sho_uld not be given. wide discretionary
powers, as according to him, 'wherever there is discretion, there is room
for arbitrarines·s •. Thus_, Dicey failed to distinguish arbitrarypower from
discretionarypower. Though arbitrary power is inconsistent with the con-·
is
cept ofrule of law, discretionary power not, if it is properly exercised.
The iii6em welfare State cannot work properly withoutexercising dis-
eretionary power. As Wade and Phillips 13 observed :. 'IF it is contrary .
to the rule of law that the discretionary authority should be givento.
Government departments or public officers then the rule oflaw is inap-
plicable to any modern constitution.'' As Mathew. J. stated: "IR it is
contrary. to the rule of law ·that discretionary authority should be given
to Government departments or public officers, then there is no rµle of
law in any modem State.'' 14 In fact, many administrative tribun_als have
come into existence-; which adjudicate upon the rights of the subjects not
according to commonlaw and the procedure of the ordinary courts but
according to special laws applied to special groups. John Dickinson'°
says : "Insofar as administrative adjudication is coming -in certain .fields
I to take the place of adjudication by the law courts, the supremacy of law
I, as. fonpulated_ by _Dicey' s first proposition is overridden.''
It is also stated that in fact, Dicey misunderstood the real nature of.
the French droit administratif.' The French system in many respects
to
proved be more effective in controlling the aqnllnistrative powers than ·
the comrp.on law system. Although, Conseil d'Eiat technically speaking
was a: part of administration, in practice and
reality, it was very much a
court. The actions of the administration were nbt immune from the judi-
« . ' .
cia.1 control of th.is institution.

12. Administrative Law, 1988, p. 26-27. . .

13. Constiwrional Law, 1960,_pp. 64-65. i .. .
14. Indira _Nehrn Gmul_b-i--v.- Raj Narain, 1975 .Supp pCC 1 (para 340): AIR 1975
SC 2299. . } .
15. Administrativ'e Jusrice and Supremacy of Law, 1~27, pp. 36-"37.

/
/
/ 0
 ;

20 LECTURES ON ADMlNISTRA TIVE LA w [II

One thing must be noted. In modern times, Dicey's rule of law has
i . . . . . '·
. ...
come to be identified with the concept of rights of citizens. As Wade · ·
· anci Phillips16 rightly siate, it is .accepted in alrriost all the countries out- ., .
side the Communist world with some_ variations: 1t is invoked in modem
democratic countries to
keep control over the oppressive,' capricious and .
arbitrary exercise of powers by the administrative authorities.' The Inter-
national. Commission cif ~ Jurfsts, in their 'Delhi Declaration' made in the

of nature.
.

year l959 accepted the idea of the rule of law

.- . .·-.
. .

as
a modern forni of law
. .

E)±:°±;·.°
±
Droit.' Admin
..
i stratif
' -:.° :' : +%,•

· (i) · Meaning ·
Under the French Legal ·system, known as droit administratif, there
·.'
I are two types of laws arid two sets of courts.inde pendent of
each other.
n - The ordinary courts _administer the ordinary civil law as between subjects
and subjects. The administrative co_urts administer the law as between
..t; . '
the _subject arid the State. An administrative authority or official is not . -
subject to the jurisdiction of the,,brdinary civii.courts exercising powers
. under the civil_ law fo,disputes between the private inclividuais: All claims
-J. '·
_;. and disputes in which these authorities or officials are parties .fall outside
. ,I
· ·.
the scope of the jurisdiction of ordinary courts and they must be dealt
/I
I~
. (. y,,,ith and decided by the. special tribunals. Though the system of droit
1
. il administratif is very old, it was regularly put into practice by Napoleon
·,
in the 18th century. ·
(ii) Comments
If the French system did not adequately protect the individuals as
against the State, it would be a serious criticism ; but it was not so. The
fact is that this system was able to
provide expeditious and inexpensive
relief and better protection to the citizens
against administrative acts or
omissions than the Common Iaj✓-- system. V.l ade17 says : "Once rid cir
- the illusion that administrative courts must inevitably be biased, one can
see thatthey hcild the· keys to
some problems which are inso1ub1e under
tbe separation of powers as practised in England." ·
(iiO Concrete cases_
Let us examine some concrete cases to illustrate this proposition:

16. ConsiilU!ional Law, 1%0-,'pp. 70-73.

1
17. Adminis1ra1ive~ar(,:J 988, pp. 33-34 ; see also Brown and Garner : F_rench
AdminisJrn1j.:;:-e 1...al';:, 1967, p. 133 ; Yardley : Principles of Administrative La,
1981, pp. 44-45.
 . ;-

1 .0;· II]
BAsrc CONSTITITTIONAL PRJNCJPLES-
21
• •
3
I

I (a) If an. employee in a Government factory is injured by an. ex-

plosion, according to the administrative courts in France, the risk
should fall on the Stntc, bnt lhe English. courts wiJl not hold the
of
State ·liable unless the jnjured proveslneg1igence some servant
of the Crown. Thus,. English courts lstili · apply thc conservative
and traditional approach that there should be
no liability without· .
i fault; on the other hand,· .French· adniinistrative courts adopt the'
theory that justice requires that the State .should be responsible
to the.work:inan for the risk which he mns by reason of his part
in the public service'. ·
(b) On the cne hand,
when a passer-by chased a thief and was ·
stabbed, the.Conseil d'E at held that he was entitled recover to
damages which would not have been done under English Law.
On the other hand, as the French administrative courts are recog- ·
· -nised as guardians- of public -servants, the latter also get better
protection from their employers. Thus, where a Rector of Siras-
bourg Academy was asked to take· up some other duties and
:relieved from _.his post without in fact new duties being assigned
· to .him. the administrative court held that he. was removed frorri ·
service and gave him redress. According to Denning", in
E:ngland, the ordinary courts of law could not have protected
him because as a rule, public setvants can be dismissed by the
Crown at pleasure.
(c)Under the A.ct of 1872, tbe Goy.emment-bad ·a rigbt to have.. ~,·.
· : monopoly of manu_factutjn.g matches and for that pUrpose it • ; i
. .. I
. could acquire. the factories run by private persons. A provision
to pay the compensation for compulsory acquisition was also
made in the Act. However, if a fac;tory .w as ordered to· be closed
.. \ . on the ground of improvement of health, no compensation was
I. required to be paid. In one case, an order to close th e factory
was passed by a minister on the
ground of improvement of
health, but fo_reality, the motive was to avoid payment of com-
pensation to the. owner .of the factory~ An ordinary° court· could·
not have given any redress to the owner in. thif·case, bur the
Conseil d'Etat held that the power was abused by the Minister
and awarded £20,000 to the victim factory owner.
a
(d) A, private gas company entered into an
agreement. with the
i '
I . Town Planning Council to supply gas at a particular rate for a
period of 30 years. The agreement was made on the basis of the
rates of coal
.
in ' tbe ~\'ear 1904. But after the
.
First World
.
War, .

18: I.LI: : Ca;.9-~~reria!s

....
011 Administrarive Law in India, 1966, Vol. I, p. 56.
 22 LECTURES ON ADMH ,ISTRATIVE LAW [II
the rates shot up. An application was filed by the gas company
before the Conseil d'Etat for revision of rates. An ordinary court
would have rejected this appli\;ation and would not have granted
the relief prayed for, but the Conseil accepted it and revised the ·
. rates. According· to the· Conseil, it was in the interest of the
public at large that the corripany should continue to work rather
than he wound up and if compelled to provide gas at: the fixed
rates, it amounted to compelling the works into liquidation .
(e) Barel case: The Minister concerned did not permit certain can-
didates to appear at the civil service examination. It was reported
in the newspaper that the Government had refused permission
. to· candidates who were_ ·Coriununists. The Minister, however,
denied It. The candidates approached the Conseil d'Etat,
I • • 0 • • • I
t
which
+ . + « '

· quashed the order, since no reasons were recorded by the Min-

ister for refusing such' permission.· The Conseil presumed that
there were no reasons which would justify such a refusal: Thus,
i · the Conseil d'Etat took the view in 1954 which was _taken by-, ·
English Courts in 1968.3%
..(f) Fortune case: A wanted to appear at a competitive examination. ·
Hie was not permitted to appear on the ground
that his confiden-
tial file contained cerlam adverse remarks. In an action by A,
. the Conseil d'Etat went through the records and called upon the
. Secretary t.o justify the order..The Secretary pleaded that it was
. an 'Act de Government' (Act of State) and that the court had no
·. ·' jurisdiction to deal with the matter. He did not produce any docu-
ment. The court passed an order to produce the entire file relating
to the matter, went through it and quashed the order. Ii England,
governed by therule of law one cannot conceive of such a situa-
tion, for the ordinary courts of law have no
right to interfere
with any 'Aci of State', or with ministerial discretion nor can
. they have access to the-secret documents; : ..
(g) Again, when the decision of Liver5ige v. Anderson?" was
brought to the notice of ·the French Administrative courts in ·
which the pri nciple of subjective satisfaction was upheld by the
· , court in ordinai-y/tourt of Jaw even in case of a preventive deten-
tion, the Conseil d'Eat was unable to agree with the same. Ac-
,
;
'
cording to the French officials, the decision· in Liversidge case

19. Padfield v. Minister of Agriculture, 1968 AC 997 : 0968) l AU ER 694

. i· (1968) 2 WLR 924. ! .- · .
20. 1942 AC 206 : (194!)-8'Aii ER 338.

. .
. ··-·--·--···- -- - ·-- ------··
 . ·.
· BASIC CONSTITlmONALPRINCIPLES 23
.- -
~annot be accepted in any civilised country and more particularly
¢ m a country which had evolved the concept of rule of !aw.
:1
;

(F) Mu<lern concept of Rule of T,aw

5
;

±
A_s state_d above, Dicey's concept of rule of Iaw was not accepted
fuHy even in 1885 when he formulated it, for even in that period, ad-
i ministrative law and administrative authorities were existent. Today,
Dicey' s theory of rule of law cannot be accepted in its totality. Davis21
gives seven principal meanings of the term 'Rule of Law' :-{l) Law and ·
·order; (2) Fixed rules; (3)Elimination of discretion; (4) Due process of.
law or-fairness; (5)_ Natural law or o_bservance· of the principles of natural
· justice; (6) Preference for judges' and ordinary courts oflaw to executive
' · · authorities and administrative tribunals; an<l· (7) Judicial review of ad- ·
.ministrative actions.· · · · · ·

(G) Rule of Law under Constitution of India

rule
Dicey's of law has been adopted incorporated the Con-
and
stitution of India. The preamble itself enunciates the ideals of justice,
in

lib;erty and equality. In ·epapter III of the Constitution these concepts are
enshrined ·as fundamental rights and are made enfcfrceable. Tiie Coristitu-
tion is supreme and all the tb:re¢ organs of the :Oo"'.ernm~nt: viz. legis-
lature, executive and judiciary are subordinate to and .. have to act in ·
accordance with it. The principle of judicial review is.embodied in the
Constiiutfort and the subjects can approach High Courts and the Supreme
Court for' the enforcement of fundamental rights guaranteed under the · .
l. Constitution. -If the executive or the· Government iabuses the power vested
in ii or ifthe ·action is malafide, the same can bequashedby the ,ordinary
courts of law. All rules, regulations, ordinances, bye-laws, notifications,
· customs and usages are. 'laws•· withfo the mean#ng of Article 13 of. the
Constitut:fon and. if they· are _inconsistent with or contrary to any of the
provisions thereof, they can be declared as ult~a Vires by the Supreme
• I
Court and .by High Courts. The President. is required to · take oath to_
preserve, protect and defend the Constitution. No\person shall be deprived
of his life _or·personal)iberty'except according to procedure established A

by law" or of bis propert y save by authority of law23. The executive and

the legislative powers. of the States and the Uruon have to be exerdsed ..
ir: accordance with the provisions of the Constitutiori. The Gm~emment
. and. the oub1ic offi~iaJs are not above the law. The\ maxim 'The King
. £ . . . . - •

21. AdministrativeLaw, 1959, pp. 24-27.

22. Aricle 21, Constitution of India.
23. Article 3~ Cons(itu_tion of India.
 : 24 LECTURES ON ADMINJSTRATIVE LAW . [II II]

cdn do no wrong' does not apply in India. There is equality before the
law and equal prqiection of laws? ihe Government and p_ublic · vii-
· . authorities are also subject to the jurisdiction of ordina{-y courts of law . pre,~ _
and for simifar wrongs are to be
tried and punished shnilarly. They _are stuc •.....
- not immune from ordinary _legal process nor is any provision_ made · Co "
0

-- ·. :regarding separate administrative courts and tribunals.25 In public service

Sur •
_also the doctrine of ·equality i$ accepted.26 Suits for breach.of contract
and torts committed by the puqlic authorities can be filed in ordinary ·"
31
-··
I ii
I law courts and damages can be/recovered from the StateGovernment or . -1~
.,\' 3
. the Union Gove1J1ment for_ tJ}e acts of their employees." Thus, it appears
that- the doctrine of rule of law iis embodied in the
Constitution of India, ).

as
atid is treated the basic structure
of the Constitution..
1i

. In ,spite of such apparently enviable position of subject$, in almost

- all the fields
of industry, commerce, education, transport, banking, in-
surance, etc. there is_ interfererice by the administrative _µ,uthoriti.es with
the the individuals, ico,rnpanies and other corporate and non-
actions of pre
: corporate bodies, observes Jµstice lliµn~swamy. From the_ con:stitutional
28
Sk
point of view there is large scale delegation of legislative and judicial
powers to these administrative authorities. These authorities have .peen
and political doma1ns..
I" thi
the
extending their teµtacles into social. economic
·Wide discretionary powers_· are conferred on these administrative .
i co:

authorities. For the purpose of national planning the executive is, armed _ . G
· with vast powers in respect of land ceiling, C911trol · of basic industries, · 35;
taxation and mobilisation o_f labour, etc. Further, it is also erroneous to . :I
·I 19,
believe that individual liberty can be protected only by the·"traditional Or-
doctrine of rule of-law.Experience shows that
not only the executive . i·
an
but even Parliamnenit elected by the people may, pass
some demonic
.';
I
pe
statutes like the Preventive Detenti on Act. or Maintenance. of InternaJ · 15
Security Act, 1971 _ (11ISA), N_ational ·security. Act, 1980 (NSA) and 1· th
brn;roach ,upon the;· -liberty·. of the supjec.ts.~ :U ltimately, as Prof. Harold
Laski says: "Eteria] vigilance is the price of liberty'' and not a particular 4£ ct
w
principle:pr doctrine. of law:_ ·
. . : .
'!+, G--:
24. Article 14, Constitution of
India. f; i
25.·It m_ay, however, be noted here that by the Constitution (42nd Amendment) I
t :
/~ct, 1976, Par1i~r1ent is empowered under Chapter XIV-A (Arts. 323-A and .t I

323-B) to set up various administretive tribunals for dealing witb subjects ii

i:
ra,1ging from disputes of Government servants fo foreign ex.change and
:1'
I,
e:
- . -~1.

production and disLribution of foodstuffs a..rid othc;r essential commodities. ·/

j
26'. Article 16, Constitution of India.. -- · · · · .]
27. See Lecture X (infra). ,,- __,,.-- $
28. (1958-59) i JILI pp. ;i-1<32.

L-.·.
/
/
 d 25
-IT] · BA_SlC CONSTITUTIONALPRINCII>LES

At this juncture, we may consider .t he position prevailing in India

vis-a-vis the· thfrd principle of Dicey's doctrine of rule of law, viz. l .·

predominance of the legal. spirit. Until recently this principle was being J .·

studied and examined.in the context of interpreting the provisions of the

Copstitutiort. In Chief-Settlement Cominr., Punjab v.. Om Prakash??, the
Supreme Court observed: ' f; .

'In our constitutional system, the central and mostcharacteristic .f.

feature is the co·rn;;ept of

the rule.of law which _meap.s, in the present
to
context, the authority of the law ·-courts test a_ll_ administrative ac-
tton by the standard of legality. 'The _administrative or executive ac-
tion that does
not meet standard
the will be aside if set 30
the aggrieved
person prjngs the appropriate action iri"the competent. court. " -
' . i I
(H) Habeas.Corpus case" . •. j{J fbJ .
.· the position is~ however, radically changed with tlie leading
. pronouncement" of. the Supreme' Court in case ofA. D-. M., Jabalpur v. . . .
Shivakant Shukla?', popularly known as the 'Habeas Corpus case'. In
this case, the Supreme· Cour:t was confronted. with the question whether
the third limb of Dlcey's doctrine was an integral part of the Indian'
,.'. ¢oncept of rule· of law.
On June 25, 1975 emergency was proclaimed by Mrs Gandhi's
Government on accountof 'internal disturbances''. By .virtue of Article
358 of the Constitution, the citizens' seven classic freedoms under Article
19 stood automatically suspended. On: June 27, the President issued an
order under Article 359- suspending the enforcement of
Articles 14, 21
and 22 also. On the· night of June 25 and thereafter a large. number. of :
- persons were detained under the Maintenance of Internal ·-security Act, .
1971 (MISA). Many of them - wety riot even
informed of.th-~ - gro1:1nds· for
t.
their detention. Some of them filed._writ petitions in different High Courts
challenging the detention orders as illegal and prayingfor the issue .of a
writ of Habeas Corpus. \Vhen those pytitions came
up for hearing, the
Govemment raised a. preliminary" objection regarding "i~aintainability of
the petitions on the ground that in_ askin_g for release by writ of Habeas
Corpus, the petitioners (detenus) were -in substance· claiming that they
had been deprived of the1r personal liberty in violation of the procedure
estab~ished -by" law put that was a plea availabk to_tbem only under

29. AIR 1969 SC 33 : (19_6.8-). 3_SC_R 655.

- 30. Jd.. at n. 36 (A1R). · · . .· . . . - ~
31. A.D.M. . Jabelur v. Shivakan, Shukia, (1976) 2 sec 521: A.TR 1976 SC 12-01.
. / .

.!) _
 ·rmsrenrt .. . . . . 3

36
LECTURES ON ADMINISTRATIVE LAW
/·
[II ·1
Article 21 o{ tbe Constihltion ·and sinCe enforcement of Article 21 was
suspended by the Presidential Order of June .27, 1975, the petitions Wife
liable to be dismissed at the threshold.

This preliminary objection was oYerruled for one reason or other by

various High Courts." The Governments of the Sfatcs concerned (e.g.
the Government of Madhya Pradesh through the Additional District
Magistrate, Jabalpur) and the Government of India filed apl)eaJs in the
SupremeCourt against the decisions of those High Courts. The case Was
heard by a Constitutionai Bench· of five judges consisting of Ray, C.1.,
klianna,Beg, Chandrachud and Bbagwati, JJ.
.
·
.

To simplify the point, it may be Stated that the narrow-issue before

. the Supreme Court was whether there was anj, 'Rule of Law• in lndia
apart frolll Article 21 of the Coilstitution of India_ ·

Tub majority of the Bench (Ray, C.J., Beg, Chandrachud and Bhag-
. Wati, JJ.} answered th.e issue in the negative and obsefYed: · •.
4
"The. Constitution. is the mandate.
. .
The Constitution isthe . . n •·
of law, There cannot be any.ruJe of law other than the constitutional ll
. rule of Ia'W. There cannot be any pre'Constitution or post..CODS,titu- I
. lion rule of law which can run counter to the rule of law embodied
.P
in the Constitution, . hor can there be any invocation to any jj)li, of
law to. nullify the constitutional provisions during the time of eme.
Article 21 fa our rule of law regarding life and liberty. Ne
gene:,,,
,,
$

other.r\lle of law can have separate existence as a distinct right. The Jl

rule of Jav,>. is not in<ireJ.)' a catchword or incantation. Tt is not a law il ti' "'
' ·of nature collSistent and invariable at all times and
in all circumstan- '·
Il
ces. There cannot be a brooding and omnipotent rule.of law drowning •
in its effervescence the emergency provisiongsof the Coris ti tution.'.'" · .
"ustice Khanna, however did not agree with he majority e, 1,, -,
Powerful dissent, His Lordship ob0sered.
. .

· ' "Rule of law is the ariti thesis of arbitrariness. [It is accepted]

fo all civilised sbcfaties. [It] bas come to be regarded• as the mark
. of a free society. It ccd,S to maintain a baJaiice between the Opposite ·
notions of individuiil liberty ;ind public 6rder.' Even iii. the absence
.of Artic/e 21 in the. Constitution, the Stare h.a.s got no po·;ve~ to
(\ .
. \' .
32. AII., A.P., Bem., Del·, !f,,l, M.P., Mad., Pun. ead R,j
33. Fo, de<ailed discussion & SCC paras (per Ray, cg 4J -52, 103, 136-39 ; Beg,
j
. 1. 165; 176-93, 242-44, 278-80 ; Chandmhud, J. 330, 347-50, 369- 75, 419 ;
bhagati, J. 435-39, 458-66, 472,4$5-8i Fr a scathing is6, <he
majoritySafeguards,
Funsre HM. Seery&: Habeas Corpus case: Energene, j
view see 1977.
.-
l

I
I
I
 4» II]
42%i
. BASIC CONSTITUT IONAL PR1NC1PLES 27
deprive a person of his life or liberty without the authority of law.
:~ . .
.. f
.;
"i 11tis is the essential postulate and basic assumption of the rule of . ·
·;
-; law and not of men in all civilised nations. Without such sanctity of
life and liberty, the distinction between a lawless society and one
governed by laws would cease to have any ineaning .... As observed
.a by Friedmann, in a purely formal sense, any system of norm based. · ·
on, a heirarchy of orders, even the organised mass murders of Nazi
regime qualify as, law. Thls argument. cannot. however, d,h:guise
reality of the matter that hundreds-of innocent lives· have been taken
because: of the. absence of rule of law. A State of negation of rule .. ·-
. would
of law. ..... ,. ,. . not
. cease
I . . to
. .... , .. , ···.•St
be. ·such a
ate
....· .. because
, .... ·.·• .. of the fact
. that
.....
such a State of negation of rule of Jaw .has: been brought about by
statute. Absence ofrule of law would nevertheless be absetzi;e ofrule..
of law, even though it is brought about by a law to repecil altl~s."~.
. · . I .· _ · .·. · . . . •. ·•• :; · (emphasis stippliecl)
• . • . •
·
It is submitted that the majority judgment in theHabeas Corpus case
is clearly erroneous. unjust and contrary to the doctrine of Rule of Law..
' It is further submitted that the majority failed consider its proper to in
· perspective the most itnportant fact that Article (i.e. the written Con- 21
stitution) does not confer a •right to ' life personai
I
liberty.
•
or
The. said right
inheres in the body ·of every Hving person and Article 21 or for that
purpose any written Constitution is not the sole repository of the right
to life and personal liberty and in these circumstances, the said right can
never be -taken. away by the executive." . .
. . . ~ . . . ·~- .. .

(A).Ge ml
ccordirig to ain and Jain36: " . law' h~. pered the
ministrative. law m_ England. i as the ~ tri e of
's -paration powers' which ha an intimate i p t·on tl thi · · g on
process and a@jjistrative ,y the 1nited
,...
' uve
a,iist fe ates.'' •
aviso/;t so stated : "Prob.JZ' the prµ ci .. · doc aJ b'a 1 r to the .
/deve~ '6J71ent of the adrrun st, pr7s as been. ,e·ili.e¥of separa-

·(
, ti
/1 3 .: fi f powers." ·. ·
A.'n.M.. lobc!pu, v.
7
·
s7:!an,
// . /
Shukl•. ,0976) ,s ec 521,yarns 5~-36, 57;: 593:
35. For dew led· d1scussi ri. or the. t aveas Co_rpus ca-si, see CK. Thekker .
A_dmµ-iistrarive La1/1992, pp. 49-6--14. ··
/.. . · .

1
, 36. Principl~s of AdJ72;p.i:Stro.five Law; 1986, p. 21.
37. Administia~i:.f;}Zaw 1're!:ztise, 1958, Vol. I, p. 68.
/ /
I
 9 I'
• ·-,: ....
-:, I
S7: . RR. • -· -· r ; •• ,• .,;!r.

\..

and personal liberty enacted under Article 21 of the Conslitlltion. l was held char Articles
I. j 9 and 2 l dealt with different subjects. Article 19 deals orly with certain (six freedoms)
important individual rights of personal liberty and the restriction that can be imposed on
them. Article 21, on the other hand, enables the State to deprive individual of his life and. .- ·'
personal liberty in accordance with procedure established by law. Thus the view taken by·
the majority in A.K. Gopalan's case was that so long as
a law of preventive detention
satisfies the requirements of Art. 22, it would riot be required to meet the challenges of l· -
Art. ,19.. ;_£
" •?
•
"
.-·
' Present view.-In Maneka Gandhi's case the Supreme Court has overruled lhe
view' express·ed by the-majority ih Gopalan's case and held that Article 21 is controlled
by Art. l9, that is, it must satisfy the requirement of Art. 19 also. The Court observed:
i,1~J·:
kg
t }
· "The law must therefore now be settled that Art. 21 does nor exclude Article 19 and ~
· that. even if there is a law prescribing a procedure for depriving a person of personal I
liberty, and there is
consequently no infringement of the fundamental right conferred by hf
· Art. 2I'sucha law in.so far as it abridges or take away any fundamental right under Art. hf
I9 would have to meet the challenges of that Article (Ant. I9). Thus a law depriving_a
person of 'per.sonalliberty' has not oniy to stand the test of Art. 21 but it must stand the ~
rest of Art. 19 and Art. 14 of the Constitution."" • $
·%
·2. Procedure established by law.-In A.K. Copa/an.· v. Stute of Madras, 12 the
petitioner A.K. Gopalan, a Communist leader, was -detained under _the Preventive ?

Detention Act, 1950. The petitioner challenged the validity of the Preventive Detcntion1 _· j;
Act and his detention thereunder bn the following grounds: ( 1) that it violated his right to f:
· move freely throughout the territory of India which is the very .essence of personal iiberty j'
guaranteed in Article 19. The detention under this Actwas not a reasonable detention a 1
under CL (5) of Art. 19 and hence the Act was void; (2)_ that the Act was in conflict with
. Art: 21 of the Constitution inasmuch as it provided for deprivation of the personal liberty
of a man not in accordance with a 'procedure established by law'-. It was argued that the
word 'law' in Article 21-should be understood not in the sense of an enactment but as
signifying the universal principles of natural justice and a law which did not incorporate
these principles could not be valid; (3) that the expression "procedure established by law"
meant the same thing as the phrase "due process of law" in the American Constitution.
The petitioner argued that the expression 'procedure established by law' was
synonymous with the expression 'due process of law' of the American Constitution. It-
\YaS contended that the Indian Constitution gives the same protection with the only
difference that while_ the due process clause has been interpreted in America to cover both
substantive and procedural law, only the protection of procedural law is guaranteed in
India: The contention was that the omission of the word 'due' made no difference to the
interpretation of Article _21; the word 'established' was not equivalent to 'prescribed', but
had a wider meaning; the word 'law' did not mean enacted· law, but it meant principles of
natural justice. ·

. But the Supreme Court rejected the aforesaid contention and held that the 'procedure
es-t-a:blished by law' did not mean 'due process of law' as understood in America. There
was no justification for adopting the meaning of the word 'law' as interpreted by the
Supreme Court of America in the expression 'due process of Jaw' merely because the
word 'law' is used in Arricle 21. This is clear from 'the report of the Drafting Committee

l l. fcneka Gandhi v. Union: of India, AIR 1978 SC594: RC. Cooper Urion of India, AIR 1970 SC
564.
12. A K. Gopalan v. State ofMadras, AIR 1953 SC 27.
 CHAP. 11]
. '· . PROTECTION OF LIFE AND PERSONAL LIBERT
245
of <he. Constitt'.'"'' Assembly in respect of Artie! e 2 l. The Report of the Drafting I

(
Committee shows that Constituent Assembly had formerly used the American express53
due process of law' but they deliberately dropped it in favour of thc expression 'procedR
estahhshed by Jaw • winch 1s mo,e specific. In Gopa/an's ·case rhe majority held that the
expression 'procedure established by law' must mean procedure prescribed by the (aw of
2 . the Slate. The interprera tion p u I on the due process clause by American Supreme Court
. has been. characterised by · the utmost vagueness and that it means jus I what the .five
Judges of that Court say. If the Constitution-makers wanted to preserve in India the same.
protection as given in Alnerica there was nothing to Prevent .the Constituent ,Assemt,Jy
from adopting that phrase. 13 . . . · .. · • · · · .

But in Maneka Gandhi's case'' the Supreme Court has overruled the A4. k,
Gopalan's case and has held that the mere prescription of some
kind of procedure is +3{
enough to compJyw(th the·mandat!' of Art. 21. The procedure prescribed by law has to be
fair, just and reasonable not fanciful, Oppressive or arbitrary; otlierwise, it should not be
on procedure at all and all the requirements' of ArL 21 would not be satisfied. What is fair
Or just"/ A procedvre to. be fair. or just must :.embody the pririciples of natural justice.
Natural justice is intended to inVest law with fajmesS itnd"t() secufejustice, the Court said;
"Law' should be reasonable law, and not enacted piece of1aw"°. ,·

.- By accepting the. concept of natural justice as one of the essential component of

law. it is submitted than he Court hai imported the American concept of 'due process of
law' into our Constitution. Like die process.o law natural ju Stice is al so not a rigid or
mechanical concept. The rules of natural justice are lo be applied in the context of the
situations in which it is to be applied. The Court itself qrioted the observations of
Magarry, J. who described natural justice "as distillate of <Jue process of law". And now
Sunil Batra v. Delhi Administraiion,' Justice Krishna Iyer has observed : "Truely our
in
. cQnSi/tutiQn has no 'due proc ess claus.;• as the VIII Amei:tclment (of the American
Constitution)isbut
consequence the in this branch of law, after Cooper and Maneka Gan(}hi's case the
same"
16
In Nand Lal v. State of Punjab, the validity of an order of detention made under
. Section 3of the Prevention OJ Blackmarketing and Maintenance ofSupplies of Essenrial
· Commodities Act; 1982. was challenged on the ground that procedure adopted by
Advisory· Board in allowing legal assistance to the State but denying such assiStaiJce to
the detenue, was both arbitrary and unreasonable and thus violative of Art.·21 read with
Art: 14 of the Constitution. The Court applying the Maneka Garulfii's principle, held that
· the procedure adopted by the Advisory Board was arbitrary and illegal and consequently,
· the detention order was liable to be quashed. Although under the above Act the detenue ·. --
" · · has no right to iegal assistance in the proceedings bi:fore the Advisory Board, but it does
r · •,:, not State.
the preclude the Board to al low such assistance lo the dctenue when ii allows the same to
6
I

3. Natural Justice. In Gopalan's case it was argued that the word 'law' in A}.
21 .d id no! merely mean an enacted piece of law but it incorporated the principles of
natural justice, and a law which deprived a person of his personal liberty without
complying with the rules of natural justice could not be held to
be valid under Art. 21.
Rejecting the argument the Court held that the 'law' in Art. 2! must mean a law enacted
13. AlR l 950 SC 27.
Uniu,; of India. A iR ! 978 SC 597: H.S Hosko: of Maharshra, AIR 1978

}7e
# 14. Maneka
SC l.54. Gandhi v. v. S1ate
·

. i
 +5.
·;, - 246 COST+UTiONAL LAWOF INDIA [CHAP. 11 l
by the Legislature and not the law in the abstract or general sense embodying the
U.S.
· _ principles of natural justice: as in_lerpreted by the Supreme Court. -.a. ..
":
4

-~-
.

~
In Maneka. Gandhi's case1:7 the Supreme Court has held that the word 'law' in Art. '· if

21 does not mean merely an enacted piece of law but must be just, fair and reasonable
law, i.e. which embodies the principles of natural justice.
It is true rhat Art. 21 is worded in .negative terms but it is now well settled Lhar .
Art. 2 I has both negative and affirmative dimensio,i. 'Positive rights· are very well
d
.. conferred underAr:t. 21 of the Constitution. The following rights are held to be covered
1
'"/ ) · under Art. 21 :- · ·
&
4
· Right to Jive with human dignity.-Thus in Man-eka Gaiidhi's18 case the
·<'','- Court gave a new dimensiqn to Article 21. It held thaf the right to "'live' is not :nerely
confined to physical existence but it includes within its ambit the right to live with
human dignity. Elaborating _the same view the. Court in Francis Coralie v. Union
'(erritory ofDelhi, 19 said that the right to live is not restricted to mere anima1 existence.
It means something more than just physical survival. The right to -'live' is not-confined
to the protection of any faculty or lim_b through which life is enjoyed or· the soul
communicates with the outside world but it also includes "the right to live with human · ..
dignity". and all that goes along with it, namely, the bare necess.i ties of life such as, _
adequate nutrition, clothing and shelter and facilities for reading, writing and expressing'
·pur_selves in diverse forms, freely moving about and mixing and commingling with
fellow human being.
Following Maneka Gandhi and Francis Coralie cases
the Supreme Court in Peoples
Union for Democratic Rights v. Union of India,?O held that non-payment of minimum
wages to the workers empic;,yed in various Asiad Projects· in Delhi was a denial to th em of ·
their right to live· with basic· human dign,ity and violative of Arti.cle 21 of the
Constitution. Bhagwati, J.• (as he then was) speaking for. the majority held that the rights
and benefits conferied on the workmen employed by a contractor under various labour
laws are "clearly intended to ensure basic human dignity to workmen-and if the workmen
are deprived· of any" of these tights and· benefits, that would clearly be a violation of Article
21. He held that the non-implementation by the private contractors and non-enforcement · ·
by the State Authorities cif the provisions of various labour laws violated the-fundamental
right of workers "to live with hurnqn dignity." . . s .•
This decision has he,:alded a new legal revolution. ft has clothed millions of workers .
in factories, fields, mines and pr:ojects sites with human dignity. They had fimdamerital
right to maximum wages, dl=-inking water, shelrer crec~es~ medical aid and safety in th:
respective occupations covered by the var.ious welfare legislation·s. · - __
t~. In Chandra Raja Kumari v. Police Commi..ssio;ier Hyderabad.2i It has been held that:
.,:;; . the right Lo live includes right to iive with human dignity or decency and, therefore,: .
holdipg of beauty contest is repugnant to dignity or decency of women and offends Art.
.L 21 of the Constitution. The gover_n ment is empowered to prohibit the contest as
. objectiona_ble performance under Section 3 of the Andhra Pradesh· Objectionable :~:
Performances ProhibitiorJ-Act, 1956. If it is grossly indecent scurrilous or obscene or·'·'"
intended for black.mailing. · :;!;• :
!7. AJR 1978 SC 594.
a
"?i!:

18.
19.
20.
AIR 198I SC 746.
AIR 1978 SC 597.
AIR 1982 SC 1473.
5
&
21. AIR 1998 AP 302

1
.?· -·
@
 -.
Cr·iAP. 20j
8
L49
. 3·_ • . .

.+ • subject to judicial review_. Pardoning power c_annm be exercised on the basis .of caste or
l,t :. politica.! reasons. In.the instant case.a Congress worker was convicted for. murder of a
~ · worker of the Telgu Desham. He was awarded death sentence by the, Court. He was
,;,, q_ gr.arited pardon by the then Governor Mr. Shinde, who was Minister or ii@#idr the
UP.A. Goveninent. The murdered person's son had challdnged tbe tonstifg\fe:iri~l valid_ity .
of the Governer's pardoning power in the High Court of Andhra Pradesh. The Bigh Court.
had quashed the order of parooning of tht=; Governor on the ground: that it-was exercised _on
the political grou_nc!, The :O overrm1ent of Andhr~ Pradesh file<i an
appeal against the
ju,dgment of tile H_igh Court in the Supreme Court. The Supreme Court, upholding the
e'
judgment of the H:igh Court, h.eld that if the. pardoning power has been exercised on the
ground of political reasons, caste a~d re_ligious consideratioQs; It would ainotint to
$
violation of the Constitution and the Cofrrt- will examine its validity.•

Emergency Powers.Part XVIII (Ge, Articles 352 t6 360)%3of the Constitutions

arms the President with enormous emergency powers. The emergencies envisaged under
. the Constitution are of three kinds : fl) emergency arising out. of war, extemal aggression
or armed rebelliqri~ (2) emergency due to failure of constit1.frional machinery in the State,
and (3)financfal emergency. . · . . · · .

If the President is satisfied that the security of India is threatened by foreign attack,
armed rebellion or war [Art. 352 (l)J or if either on the receipt of report of the Governor
of the State or otherwise he is• satisfied .that a situation has arisen in which the
Government of State cannot be carried on in accordance with the. provisions of the
Constitution [Art. 356 (2)) oi- a situation has arisen whereby the financial stability of
India is threatened TArt. 360 (l)] he may proclaim an emergency. A proclamation of
emergency may be revo_k ed by a subsequent proclamation. Such. a- proclamation must be
laid-before.each House of Parliament and ceasesto
operate at the expiration of one month
unless approved by the two Houses. The Pr~sifferit may, during the ,period of emergericy ..
. suspend the right to move the courts for theenforcement of fundamental rights [Art. 359
(except Arts. 21 and 22]. He may give directions to any State as. to the manlier in which
.the State should exercise its executive powers.
_-Jn the case of erne_rgency arising out .of failure of constitutional machinery in the I
State the President may assume any of the powers vested in the Governor. The Power of
··. State Legislature shall be exercised. by or under the authority
of PresM..en.t. Such a •·
proclamation ceases to operate at the expiry of two;mgii ths unless approved by both
Houses of State Legislature. [Arts. 35~, 357]. t.Jn:.~er;lhe·=proclamation of financial .
.<37971:.g.- ,
emergency the Union Government may give sucij,(finaq"cia:l direction to the State as 1t
· seems fit. The President mav direct the reduction of salaries of any
class of State officials,
the Judges of the Supreme Court and the High Courts. He may require all State money
B1lls to be reserved for consideration of the President. ·

6 POSITION OF THE PRESIDENT

Prior to the 42nd Amendment Act of 1976.-Article 53 (1) says that the
executive power of the Union shallb vested in the President and shall be exercised by
him either directlv or through officers subo,dinate to him in accordance with the·
Constitution. Origina1ly, AftiZle 74 provided .that there shall be a C¢yncil of Ministers
. with the Prime Minister at the head, to aid and advise the President in the exe,cise of his
·functions.Article 74 (2) says that the question whether any, and if so, :,;,,hat advice ·»as
tendered by the Ministers to the President sha11 not be inquired into in any court. Article
75 says that the Prime Minister shall be appointed by the President and :he other

33. For clct,aiJs; see Charter on "The Emergency Provisio:1s;•.