J 21 JILI 1979 227 23llm56 Mnluaacin 20240226 194033 1 30

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.
Page 1 Monday, February 26, 2024

Printed For: SHATAKSHI PATHAK, Maharashtra National Law University
SCC Online Web Edition: http://www.scconline.com
© 2024 EBC Publishing Pvt. Ltd., Lucknow.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
21 JILI (1979) 227
The Federal Structurf of the Indian Republic its Nature and Extent
THE FEDERAL STRUCTURF OF THE INDIAN REPUBLIC ITS NATURE AND EXTENT
by
J.L. Kapur*
Introduction
THE SUBJECT of this article is the federal structure of the Indian Republic: its nature
and extent taking into consideration the fact whether in a country having a federal
structure, can a Commission of Inquiry, under the Commissions of Inquiry Act, 1952,
be appointed by the central government to inquire into the allegations of corruption
and maladministration of individual ministers of the state governments. And,
secondly, whether the central government can dismiss a ministry in a state and
dissolve its legislature.
A third question which arises in this connection is, whether the government of the
state concerned can, in the name and style of the state, bring a suit against the Union
of India in the Supreme Court in its original jurisdiction under article 131 of the
Constitution for a declaration and injunction. It is proposed to confine this paper
mainly to the competency of the central government to order an inquiry under the
provisions of the Commissions of Inquiry Act, 1952 which is based on the Tribunals of
Inquiry (Evidence) Act, 19211 , and to briefly deal with the union's power of dissolution
of the state legislative assemblies and dismissal of the state ministries.
Two recent cases decided by the Supreme Court in the exercise of its original
jurisdiction have delineated the nature and extent of the federal structure of the
Indian union. These cases arose out of the action taken by the central government or
action threatened to be taken in regard to certain matters concerning the states which
were objected to by the states. The decision of those cases was largely dependent
upon the nature of the federal structure of the Union of India. It may be helpful at this
stage to briefly set out the facts which led to the institution of these cases as original
suits under article 131 of the Constitution of India.
The first case is the State of Rajasthan v. Union of India2 and the second case is the
State of Karnataka v. Union of India.3
In the first case a particular party in power, being totally rejected in the
parliamentary elections in the majority of the bigger states of India, the central
government advised the state governments there to dissolve the
Page: 228
state assemblies and order fresh elections therefor, as the party in power there had
lost the confidence of the electorate, the electorate being common both for elections to
Parliament as well as to the state assemblies. Taking the ad vice to be a threat of
intended dissolution by the central government (in the name of the President) under
article 356 which provides that the central government can take over the functions of
the government of the States in the name of the President if there is a failure of the
constitutional machinery in the states i.e., where the government is not being run in
accordance with the provisions of the Constitution.4 The state governments concerned
brought suits for declaration and injunction as mentioned above. ‘The suits were
dismissed and the power of the union (the President) to take over the functions of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
state governments and to dissolve the state assemblies under article 356 was upheld.
After the suits were dismissed the central government ordered the dismissal of the
state governments and dissolution of the state assemblies and on election being held
the then ruling party in the states as anticipated was badly defeated and the party
which had won the parliamentary elections succeeded with a large majority in all the
state assemblies concerned. This seems to be a case more or less like the dismissal of
the Labour government in Australia, the dissolution of the Commonwealth Lower
House and the other party succeeding with a large majority. The difference lies in the
authority which ordered the dissolution of the assemblies and the dismissal of the
state governments.
In the second case, the State of Karnataka case certain allegations of Corruption,
nepotism and favouritism in relation to certain administrative acts of the Chief Minister
and some other ministers of the state were made by some members of the state
legislative assembly on the floor of the House and fortysix of them sent a
memorandum to the central government repeating the allegations. As serious
allegations had been made against the Chief Minister and other ministers the central
government appointed a high powered Commission of Inquiry under section 3 of the
Commissions of Inquiry Act, 1952(hereinafter referred to as the Act) and appointed a
retired judge of the Supreme Court of India to make the inquiry into “a matter of
public importance” viz, allegations against the ministers of corruption, favouritism and
nepotism in relation to the administration of their respective ministries.
The State of Karnataka thereafter brought a suit claiming reliefs of declaration and
injunction on the grounds that the central government had no power to constitute the
commission to inquire into the working of the state ministry and the administrative
actions taken by it; that the appointment of the commission by the central
government was destructive of federalism and, therefore, the basic structure of the
Constitution, and of the collective responsibility of the ministers and of the working of
the Cabinet government in the state because if the centre assumed the power
Page: 229
to investigate complaints against the ministers of the states the system of Cabinet
government in the states would collapse; that the centre could not inquire into
matters relating to the administrative actions of the ministers of the state
governments as Parliament had no power to legislate in the matter; that the
provisions of the Act5 giving power to the central government to appoint such an
inquiry commission were unconstitutional under the provisions of part XI of the
Constitution dealing with centre-state relations. These allegations were traversed by
the central government.
Apart from the question of maintainability of the suit and whether the provisions of
the Act were constitutional or not the question was raised whether the Act authorised
the centre to appoint a commission for making such an inquiry.
The basis of a suit under article 131 is that the disputemust in volve questions of
the existence or extent of a legal right as between the states inter se, or between the
state or states and the centre. The suit was held maintainable. The main question
which is the subject-matter of this paper and which was decided by the two Supreme
Court judgments centered round the constitutional power of the central government
qua the state governments. In other words, the nature and extent of the federal
structure in India was the main theme of the decision of the Supreme Court in the two
cases.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
The nature and structure of the Indian Republic-is it a federation?

At the very outset it is necessary to trace the history of the establishment of the
Union of India and discuss the powers which, under the ‘Distribution of Powers’ in the
three lists in the Seveth Schedule of the Constitution, have been given to the centre
and the states and their relations inter se. The nature of the federal structure of the
Indian union was raised in both the cases mentioned above and the powers of the
centre vis-a-vis those of the states were investigated, examined and adjudicated
upon. But before going into the federalism of the Indian union, its nature and
structure, it will be fruitful to go into the historical background as to how the Republic
of India came to be established. Ever since the time of Ashoka India or whatever was
India had been one country, called ‘Bharat’, ‘Hind’ ‘Hindustan’ or ‘India’. Whether
Ashoka held sway over the whole of what is today known as ‘India’ or there were any
portions over which his writ did not run or which have subsequently gone out of the
country, the fact remains that the structure of government was unitary and there was
a strong central government controlling different parts of India which were then only
provinces. After Ashoka, India disintegrated into several principalities. Although the
rulers were different, they and
Page: 230
the people inhabiting the various parts were all one with the same culture even though
of different ethnic groups, the same religion although different parts were under
different warring and mutually antagonistic rulers. The Afghans conquered parts of
India but then also the country had a unitary system of government though their sway
was not on the whole of India. Then came the Mughals who again brought India under
the strong central rule of Delhi with different portions of India called subas (provinces)
under the subedars or governors appointed by the emperor owing allegiance to him
and carrying out his firmans or orders and ruling in his name.
One of the Viceroys, Lord Reading, uttered a warning while addressing the opening
session of the old central legislative assembly in the summer of 1924 or 1925 at
Simla, that history showed that whenever centre became weak, India broke into
smaller portions with the governors declaring themselves as independent rulers. That
was proved when the Mughal Empire weakened and India again broke up into small
sultanates and petty rajs. This disintegration was conspicuous during the weak reign
of Mohammad Shah. India was again consolidated into one country by the British and
was ruled by a strong central government but the country was divided into several
provinces under the Governors or Lieutenant-Governors for administrative purposes ail
under the central rule under the British Crown and the government was carried on in
the name of the British sovereign who became the Emperor of India.
Constitutional history of India
There were portions of India which were feudatory states under the suzerainty of
the British Crown and although these states had semi-independent princes ruling over
them, they were utterly powerless and' the control was of the British Crown, which
also gave protection to the princes through its British Indian officers and through its
British Indian army. But the subjects of these princes were throughout considered
Indians and services in British India were open to them like any other British Indian
subject from whom they never felt themselves different.
British Crown assumed sovereignty of India from the East India Company in 1858
and the British Parliament enacted the first statute for the governance of India in the
same year6 . The Act provided material control without any popular participation in the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
administration of the country. Power was exercised from London by the Secretary of
State for India assisted by a Council of Advisors. Subsequently in 1861, 1892 and
1909 the Indian Councils Acts were passed and later the Government of India Acts of
19127 19158 and 19199 were passed by the British Parliament.
Page: 231
The Government of India Act, 1919 was the first step taken by the British
government for increasing the association of Indians in every branch of administration
and the gradual development of self governing institutions with a view to progressive
realisation of responsible government in British India. For the first time the
Government of India Act, 1919 introduced a limited amount of responsible
government by setting up a diarchical form of government in the provinces. The
central subjects were exclusively kept under the control of the central government.
The provincial subjects were divided into transferred and reserved subjects—the
former were administered by the Governor with the aid of the elected ministers while
the latter were administered by the Governor and his executive council without being
responsible to the legislative council. These ministers were individually responsible to
the council and the Governor. By the devolution rules under the Act of 1919 a
separation of the subjects of administration into central and provincial was made. To
some extent the control of the centre over the provinces was relaxed but the provinces
were delegates of the centre and the centre retained the power to legislate for the
whole of India on any subject.
Word ‘federation’ introduced
The word ‘federation’ was introduced for the first time into Indian polity by the
Government of India Act, 193510 , the object being to unite the British Indian provinces
and the Indian states into a federation under the British Crown. The unitary state was
broken into a number of provinces deriving their authority directly from the British
Crown instead of the central government and then building them up into a federal
structure in which both the federal and provincial governments would derive power
directly from the Crown. The basis of the change was the resumption, into the hands
of the British Crown, of all the rights, authority and jurisdiction in and over the
territories of British India and distribution of powers between the centre and the
provinces. But the federation never came into existence, as the Indian states governed
by the semi independent Indian princes did not join the federation although their
subjects all ardently desired it. It may further be added that with regard to the
provincial governments the power was exercised by the Governors with the advice of
the ministers responsible to the legislature but the advice was not binding on the
Governors. In the centre the executive authority was vested in the Governor-General.
Both these powers were exercised under the directions of the British Crown.
The powers that were distributed under the devolution rules were converted into
statutory powers with further additions and there were three lists in the Government
of India Act, 1935—the central list, the provincial list and the concurrent list (over
which both the centre as well
Page: 232
as the provinces had legislative competence, butthe central laws prevailed over the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
provincial laws). Under the scheme the legislative powers of both the central and
provincial legislatures were subject to various limitations. Another feature of the 1935
Act was that a Federal Court was set up mainly as a constitutional court and for
determining the disputes between the provinces inter se and between the provinces
and the centre. The division of legislative powers as central, provincial and concurrent
and separation of administrative powers between the centre and the provinces and
setting up of the Federal Court under the 1935 Act have all been adopted in and form
the basis of the Indian Constitution. 1 hough the various institutions have been given
different names yet they perform the same functions.
At this stage it will be necessary to emphasize that at the Round Table Conference
before the adoption of the Government of India Act, 1935 there was no demand for a
federation on the Australian or the American model nor was such a recommendation
made to Parliament and it may also be emphasised that no Indian delegate wanted a
weak centre with limited powers though there were differences on certain very vital
matters e.g., the-residuary powers. When the Act was passed by Parliament there was
no opposition to it on the ground of the centre-state relations.
It, is unnecessary to go into the Indian Independence Act, 194711 . Suffice it to say
that as an interim measure before the Constitution came into force the Constituent
Assembly constituted under the Act of 1947, also served as the Indian legislature. The
Constituent Assembly framed and adopted the written Constitution under which India
is now working and exercising its constitutional powers. Another fact, which was the
consequence of the Indian Independence Act, was that the suzerainty of the British
Crown over the Indian states lapsed and by a process of integration the then Indian
states merged into the Dominion of India either into the then provinces by merger or
became separate units of the Dominion of India. All this was accomplished prior to the
establishment of the Republic and the Indian union.
By the time the Constitution was finally framed and came into force all the Indian
princely rulers had ceased to exist as ruling princes and so did the Indian states as
such. They became parts of Indian provinces or separate units of India enumerated in
article 1 of the Constitution and were equated with the Indian provinces all being
termed “states”.
India not a federation
As a prefatory remark it may be mentioned that the Indian Constitution cannot be
described as a federal constitution in the true sense as the Indian union is not a result
of agreement of autonomous states like in the United States, Switzerland and Australia
where the states joined together to form
Page: 233
a federation. Howeverg India was really unitary in nature which for administrative
convenience was turned into a combination of units called the states. Federation, as it
is known in its true sense, was a thing unknown to India.
At this stage the well known judgment of Maurice Gwyer, C.J., in United Provinces
v. Governor-General,12 where the above constitutional history or a portion of it received
judicial acceptance can be quoted. It runs as follows:
Upto 1919 the Government of India was essentially a unitary Government, with a
concentration of authority at the centre. Every Provincial Government was under a
statutory obligation to obey the orders of the Governor-General in Council and was
under his superintendence, direction and control in all matters relating to the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Government of its Province; and the Central Legislature was supreme over all
persons and matters in British India. The Government of India Act, 1919, did not by
any specific enactment, alter those relationships; but it added a new section (S. 45
A) to the existing Code which provided that statutory rules might be made (a) for
the classification of subjects in relation to the functions of Government as central
and provincial subjects, for the purpose of distinguishing the functions of Local
Governments and Local Legislatures from the functions of the Governor-General in
Council and the Indian Legislature, (b) for the devolution of authority in respect of
Provincial subjects to Local Governments and (c) for the allocation of revenues or
other moneys to those Governments. These rules were to be made by the Governor-
General in Council, with the sanction of the Secretary of State in Council, and by S.
129-A (1) of the Act were not to be subject to repeal or alteration by the Indian
Legislature or by any Local Legislature.
It was thus that the Devolution Rules, 1920, came into existence; and they gave
to the Provinces for the first time a quasi independence of the Centre by allotting to
them sources of revenue of their own and assigning to the separate administrative
and legislative spheres.13
The Supreme Court has dealt with the nature and extent of federalism in India in
several cases. In the State of Karnataka v. Union of India14 Kailasam, J., pointed out15
that the Constitution makers did not adopt the unitary system which was advocated
by some members but adopted and modified the detailed provisions of the
Government of India Act regarding the distribution of powers and functions between
the centre and the states in all aspects of their legislative, administrative and other
Page: 234
activities. Inter-state relations, coordination and adjudication of disputes amongst the

states were also provided for.
The Indian Constitution, as stated above, cannot be described as a truly federal

constitution as the Indian federation is not a result of an agreement by various
autonomous states and even the territorial integrity of the states is not guaranteed.
Further the position of the states in the Constitution in several respects is subordinate
to the central government in that the formation of union is not as a result of any treaty
between the states and the centre, and that the states may be reorganised with
alteration of areas or altogether eliminated under article 3 of the Constitution. Further,
as was observed by Kailasam, J., in the Karnataka case:
It is a duty of the State to execute the Union law and the executive power of the
State must be exercised in such manner as not to interfere with the executive
power of the Union and the State shall be under the direction of the Union regarding
the Union laws. The failure of the State to carry out the directions of the Union
would empower the Union to supersede the State Government by assuming to itself
the powers of the State Government. These features make the Constitution strictly
not a federal Constitution, It has been variously called as quasi federal or federal in
structure or federal system with a strong central bias.16
Part XI of the Constitution deals with the relations between the centre and the
states. Chapter I of this part deals with legislative relations and distribution of
legislative powers and chapter II deals with administrative relations between the
union and the states. In the distribution of powers it is clear that there is a strong tilt
in favour of the centre. Under the provisions of the Constitution the centre can assume
powers of the state government by taking over the administration under certain
-----------------------------------------------------------------------------------------------------------------------------------------------------------
contingencies provided for in the Constitution17 , but the states are not the delegates of
the central government and the centre cannot claim any power over the states which
are not found in the Constitution.
The Indian Constitution is overlaid by strongly unitary features, particularly
exhibited by giving to Parliament the residuary legislative powers and the union's
power to give appropriate directions to the state governments even of displacing the
state legislatures and governments in exceptional circumstances. Beg, C.J., in the
Karnataka case observed:
One wonders whether such a system is entitled to be dubbed “fede ral” in a
sense denoting anything more than a merely convenient division of functions
operative in ordinary times. The function of “supervision” is certainly that of the
Central Government with all that it implies.18
Page: 235
The nature of the Republic may be described as pragmatic and overlaid with unitary
features.
Division of powers showing the nature of federal structure
Article 245 gives territorial operation of the laws made by Parliament and of those
made by the state legislatures. Article 246 provides that the matters in List I of
Schedule VII which delineates the division of legislative powers, fall exclusively within
the domain of Parliament and those in List II come exclusively within the legislative
power of the states, but those in List III are concurrent. These two articles (viz,
articles 245 and 246) correspond to sections 99 and 100 of the Government of India
Act, 1935. Article 248 vests Parliament with exclusive power to legislate with respect
to matters not enumerated either in the concurrent list (List III) or the state list (List
II) and this is called “residuary power.” In addition Parliament has every right or
power to legislate even on the matters of state list for limited duration if the Council of
States by a resolution supported by not less than two-third majority declares that it is
necessary in the national interest to do so or during the period of emergency.19
Inconsistency between the laws made by Parliament and a state legislature on any
matter in the concurrent list is to be resolved in favour of Parliament. Finally, part
XVIII enables the President to suspend the fundamental rights and to take over the
functions of the state governments, and the functions of the state legislatures can be
assumed by Parliament during the period of emergency. Therefore, as the Constitution
stands at present, by the exercise of emergency powers the centre can completely
remove even the semblance of federal structure during the emergency.
Administrative relations
Chapter II of part XI of the Constitution relates to administrative relations between
the centre and the states. Under the provisions of the Constitution directions can be
given to the state government even in normal times by the central government.20 The
extent of executive power of the centre is set out in article 73(1) of the Constitution
and those of the state in article 162 of the Constitution. It is unnecessary to quote
these articles here.
The wide scope of the executive power of the centre was considered by the
Supreme Court in the State of Rajasthan v. Union of India21 In this case reference was
made to articles 256 and 257 which set out a wide range of subjects on which the
government can give executive directions to the state governments. Next reference
was made to article 248 which vests exclusive residuary powers in the centre. Article
-----------------------------------------------------------------------------------------------------------------------------------------------------------
256 imposes an
Page: 236
obligation on the states to exercise executive powers so as to ensure compliance with

the laws made by Parliament and any existing laws which apply to the states and the
President can give such directions to the states as may appear to him to be necessary
for that purpose. Article 257 imposes a wider obligation on the states to exercise their
powers in such a way as not to impede or prejudice the exercise of executive power of
the centre which, as would appear from article 73 read with article 248, may cover
even a subject on which there is no existing law but on which some legislation by
Parliament is legally possible.
The union government

The Indian Constitution creates a central (union) government which is amphibian in
the sense that it can move either on the federal or the unitary plane, according to the
needs of the situation and circumstances. An assessment of the conditions in which
the central government should move either on the federal or unitary plane are matters
for the central government itself.
The provisions of the Constitution were described by B.R. Ambedkar, one of the
prime architects of the Constitution as a dual polity by which he meant a republic both
unitary as well as federal according to the needs of the time and circumstances. This
dual polity was a product of historical accidents or at any rate of circumstances other
than those which result in a genuine federation in which the desire for a separate
entity and governmental independence of the federating units is so strong that
nothing more than a union with a strictly demarcated and limited field of central
government's powers is possible. A genuine federation is a combination of political
units which adhere rather tenaciously to the exclusion of central authority from
demarcated spheres of state actions. In a truly federal constitution this demarcation is
carried out in a very careful, comprehensive and detailed manner. The limits are
clearly specified. It may be emphasised that duality or duplication of organs of
government on central and state levels did not reflect in truly federal demarcation of
powers based on any separatist sentiments which could threaten the sovereignty and
integrity of India to which the members of the Constituent Assembly seemed ardently
devoted. The unfortunate division of the country with its disastrous effects was still
fresh in the minds of the framers of the Constitution and the proceedings of the
Constituent Assembly which consisted of opinion of all shades and hues show that the
members were conscious of and alive to the danger of separation or disintegration.
Hence, the emphasis was to keep the control of the central government on the states.
The nature of the Indian Constitution has been discussed by the Supreme Court in
some of the earlier decisions also. In Atiabari Tea Co. Ltd. v. The State of Assam22 it
was said: “It is a federal Constitution which
Page: 237
we are interpreting, and so the impact of Art. 301 must be judged accordingly.”23
Article 301 deals with the freedom of trade, commerce and intercourse on the
Australian model.24 The matter was again dealt with in Automobile Transport
(Rajasthan) Ltd. v. The State of Rajasthan25 in which the Supreme Court stated:
-----------------------------------------------------------------------------------------------------------------------------------------------------------
The evolution of a federal structure or a quasi federal structure necessarily

involved, in the context of the conditions then prevailing, a distribution of powers
and a basic part of our Constitution relates to that distribution with the three
legislative lists in the Seventh Schedule.26
It is submitted that in neither of these cases the question of federal structure or its
nature and extent was raised or was necessary for decision. The word “federal” there
was used merely as opposed to unitary. But the observation of Sinha, C.J., in a later
case, State of West Bengal v. Union of India27 is significant and more relevant to our
discussion. It shows the dominance of the centre. He said:
Parliament is… by law invested with authority to alter the boundaries of any
State and to diminish its areas so as to even destory a State with all its powers and
authority. That being the extent of the power of the Parliament it would be difficult
to hold that the Parliament which is competent to destory a State is, on account of
some assumption as to absolute sovereignty of the State incompetent effectively to
acquire by legislation designed for that purpose the property owned by the State for
governmental purposes.28
He further stated: “the Constitution of India is not truly Federal in character…that
only those powers which are concerned with the regulation of local problems are
vested in the States.”
Untwalia, J., speaking about the Constitution has said in the State of Karnataka v.
Union of India thus:
Strictly speaking, our Constitution is not of a federal character where separate,
independent and sovereign States could be said to have joined to form a nation as
in the United States of America or
Page: 238
as may be the position in some other countries of the World. It is because of that
reason that sometimes it has been characterised as quasi-federal in nature….
The residuary power in accordance with Art. 248 and Entry 97 of List I, lies with
the Central Parliament. It has got a predominant hand in respect of the matters in
the Concurrent List as is apparent from Art. 254. Art. 249 confers powers on
Parliament to legislate with respect to a matter in the State List, in the national
interest. When a proclamation of emergency is in operation as provided for in Art.
250 the Parliament has got the power to legislate with respect to any matter in the
State List. Some inroad in the State legislative field by the Centre is permissible
under circumstances mentioned in Arts. 252 and 253. As provided for in Art. 254 in
some situations, the State is under an obligation to reserve a bill for the
consideration of the President and receive his assent before it is made into a law.29
According to article 355 it is the duty of the centre to protect every state against
externa! aggression and internal disturbance and to ensure that the government of
every state is carried on in accordance with the provisions of the Constitution. Article
365 provides that in case of the failure of the constitutional machinery in the states
the centre can assume the legislative and executive powers of the states but the
powers vested in or exercisable by a High Court of a state is not affected thereby.
Article 365 is more significant. It deals with the effect of failure to comply with or to
give effect to the directives given by the union to the states. It has the effect that the
government cannot be carried on in accordance with the provisions of the Constitution.
It may be stated that the effect of proclamation of an emergency under article 352 is
to enlarge the executive power of the union and extend it to the giving of directions to
-----------------------------------------------------------------------------------------------------------------------------------------------------------
any state as to the manner in which the executive power thereof is to be exercised.
Article 256 deals with the power of the centre to give directions to the states and
the states are required to ensure compliance with the laws made by Parliament.
The control of the centre over the states in certain cases has been provided in
articles 257 and 258A.
Some other characteristics and features of the Constitution demonstrate the weak
character of Indian federal structure and the controlling hand of the centre over states
in certain matters. Some of the other overriding features by the centre are the
following:
(1) the Governor of a state is appointed by the President and holds office at his
pleasure. He has got a discretionary power only in certain matters although in all
other matters he has to act with the aid and advice
Page: 239
of the Council of Ministers. But the Governor as the head of the executive has to report
to the central government about the administration of the state. In the case of
breakdown of the constitutional machinery he has to report to the President and take
over the administration of the state on behalf of the President if action is taken under
article 356 of the Constitution.
(2) The Constitution has made a departure in the matter of inquiries and provided
in item 45 of List III for inquiries by the central government on all matters
specified in Lists II and III. And there is a provision for inquiries in matters
specified in List I under item 94 of that list.30
(3) Article 2 empowers the centre by law to admit into the union new states on
such terms and conditions as it thinks fit.
(4) And as already stated Parliament can, under article 3, make laws for new states
and for alteration of areas, boundaries and names of the states.
Sinha, C.J., in State of West Bengal v. Union of India has described the position of
centre qua the state as follows showing the dominance of the centre:
The exercise of powers legislative and executive in the allotted fields is hedged in
by numerous restrictions, so that the powers of the States are not co-ordinate with
the Union and are not in any respect independent….
…… The political sovereignty is distributed between, as we will presently
demonstrate, the Union of India and the States with greater weightage in favour of
the Union.31
One of the arguments raised by the State of Karnataka against the centre's power
to order an inquiry against the ministers of the states was based on its inability to hold
an inquiry against the judiciary as was held in State of West Bengal v. Nripendra Nath
Bagchi32 and Shamsher Singh v. State of Punjab33 But it is submitted that the
principle in the two cases is different. In the case of the subordinate judiciary the
inquiry is prohibited except by the judiciary itself, i.e., by the High Court concerned
under article 235 and in the case of superior judiciary like the judges of the High
Courts and the Supreme Court the Constitution itself provides for a different procedure
i.e., impeachment by the two Houses of Parliament.
As to the matter of federal structure, Beg, C.J., in the State of Rajasthan v. Union of
India34 made a reference to the two conditions postulated by Dicey for the existence of
a federation and to put it in Dicey's words, these are:
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Page: 240
[F]irstly a body of countries such as the Cantons of Switzerland, the Colonies of

America, or the Provinces of Canada, so closely connected by locality, by history, by
race, or the like as to be capable of bearing, in the eyes of their inhabitants, an
impress of common nationality; and secondly, absolutely essential to the founding
of a federal system is the existence of a very peculiar state of sentiment among the
inhabitants of the countries.35
Dicey also pointed out that without the desire to unite there could be no basis for
federalism. But if the desire to unite goes to the extent of forming an integrated whole
in all substantial matters of government, it produces a unitary rather than a federal
constitution. Hence he said a federal state “is a political contrivance intended to
reconcile national unity with the maintenance of State rights.”36
Dealing with the Indian Constitution, Beg, C.J., observed:
In a sense, therefore, the Indian Union is federal. But, the extent of federalism in
it is largely watered down by the needs of progress and development of a country
which has to be nationally integrated; politically and economically co-ordinated, and
socially, intellectually, and spiritually uplifted. In such a system, the States cannot
stand in the way of legitimate and comprehensively planned development of the
country in the manner directed by the Central Government.37
It is submitted that national integration had been achieved by the non-cooperation
movement of the pre-independence days which only revived pre-existing sentiments
which lay dormant.
Referring to Granville Austin38 Beg, C.J., stated:
India had unique problems which had not ‘confronted other federations in
history.’ Terms such as ‘quasi federal’ and ‘statutory decentralisation’ were not
found by the learned author to be illuminating. The concepts and aspiration of our
Constitution makers were different from those in America or Australia. Our
Constitution could not certainly be said to embody Dr. K.C. Wheare's notion of
“Federalism” where “The general and regional governments of a country shall be
independent each of the other within its sphere.” Mr. Austin thought that our
system, if it could be called federal, could be described as “cooperative
federalism.”39
Page: 241
According to B.R. Ambedkar the Constitution is federal “inasmuch as it establishes

what may be called a Dual Polity.” He said in the Constituent Assembly that the
Constitution-makers had avoided the tight mould of federalism in which the American
Constitution was forged. He considered the Indian Constitution to be both unitary as
well as federal according to the requirements of the time and circumstances.40
Chief Justice Beg in State of Rajasthan v. Union of India has correctly summed up
the elements of Indian federalism as follows:
A conspectus of the provisions of our Constitution will indicate that, whatever
appearances of a federal structure our Constitution may have, its operations are
certainly judged both by the contents of power which a number of its provisions
-----------------------------------------------------------------------------------------------------------------------------------------------------------
carry with them and the use that has been made of them, more unitary than
federal.41
Rajasthan case
The question raised in the Rajasthan case42 was the extent of power of the central
government to dismiss the state Cabinet which had a majority in the legislative
assembly and then to dissolve the assembly. To determine this point reference has to
be made to the provisions of the Constitution in chapter XVIII which confers certain
powers on the President who acts on the advice of the union Council of Ministers under
article 74 (1).
In order to decide this matter it will be helpful to quote the relevant portion of the
article 356 which runs:
356 (1) If the President on receipt of a report from the Governor of a State or
otherwise, is satisfied that a situation has arisen in which the Government of
the State cannot be carried on in accordance with the provisions of this
Constitution, the President may by Proclamation—
(a) assume to himself all or any of the functions of the Government of the
State and all or any of the powers vested in or exercisable by the Governor
or any body or authority in the State other than the Legislature of the
State;
(b) declare that the powers of the Legislature of the State shall be exercisable
by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the
President to be necessary or desirable for giving effect to the objects of the
Proclamation, including provisions for suspending in whole or
Page: 242
in part the operation of any provisions of this Constitution relating to any body or
authority in the State.
Provided that nothing in this clause shall authorise the President to assume
to himself any of the powers vested in or exercisable by a High Court, or to
suspend in whole or in part the operation of any provision of this Constitution
relating to High Courts.
Although the amended Constitution made the satisfaction of the President
unjusticiable and final, the Supreme Court held in the Rajasthan case that the power
of interference by the court is not taken away in the case of mala fides, irrelevance,
perverseness or the like of the action of the executive. Under the provisions of the
Constitution on the failure of constitutional machinery in the state and on the Governor
making a report to the President to that effect, the President has the power to take
action under article 356 and assume the executive power of the state government and
declare that the legislative power of the state assembly shall be exercised by or under
the authority of Parliament. This shows that there is a complete take over by the
centre of all functions of the state government and the state legislature. The main
requirement of the action is the satisfaction of the President that the government of
the state cannot be carried on in accordance with the provisions of the Constitution;
such satisfaction being sine qua non of the exercise of power by the President. The
satisfaction is based on receipt of a report from the Governor of a state or “otherwise”.
This word “otherwise” is undefined and has a wide amplitude. The President can make
such incidental or consequential provisions as are necessary or desirable for giving
effect to the object of proclamation under article 356.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
The satisfaction of the President that there is a failure of the constitutional

machinery is a question of fact and it is not possible to describe in advance the
circumstances in which it can be said that the government of a state cannot be carried
on in accordance with the provisions of the Constitution.43
The President can delegate his powers to the Governor or other authority44 . In A.K.
Gopalan v. Government of India the detention order on Gopalan under the Defence of
India Rules was made by the order of the Governor of Kerala when he was acting for
and on behalf of the President.
Page: 243
This was cancelled by the President and fresh detention order was passed by him on
the same day which was held to be valid on the ground that the Governor isued the
detention order as an agent of the President and hence, the President could pass the
subsequent order of cancellation and of detention.
A proclamation by the President under article 356 is screened from judicial review
because of article 361 (1), as the President is not answerable to any court for the
exercise and performance of powers and duties of his office. The review of his actions
has specifically been vested by the Constitution in Parliament. The consequences
which flow from the proclamation under article 356 are drastic. The question whether
there is any limitation on these powers may require the examination of the scheme
and language of the different clauses of article 356. There is no doubt that the exercise
of these powers plainly and unmistakably strikes at the root of the federal principles.
It vests the executive power of the state, which in the federal structure is exercisable
by the Governor with the aid and advice of his ministers, in the President and takes
away the power of the legislature of the state which are then exercisable by
Parliament. The administration of the state is for all purposes taken over by the
President who assumes all the powers of the Governor.
In the Rajasthan case it was argued that the Governor alone had the power to
dissolve the state assembly and that under article 356 the President had no such
power. Reliance was placed on the maxim expressio unius est exclusio alterius but
that principle is not of universal application and depends upon the intention of the
party as discoverable upon the face of the instrument45 . Moreover, article 356 itself
expressly provides for the exercise of the power by the President including the power
to dissolve the legislative assembly. The Constitution-makers vested this power in the
President under article 356(1)(a) particularly when he has to act upon the advice of
the union Council of Ministers which is responsible to Parliament.
It will thus be seen that article 356 authorises serious inroads into the principle of
federation and that is permitted because in the subjective satisfaction of the President
a situation has arisen in which the government of the state cannot be carried on in
accordance with the provisions of the Constitution and the President is required to
ensure that the government of a state is carried on in accordance with the Constitution
under article 355. In this connection, the speech of B.R. Ambedkar, one of the prime
architects of the Constitution in the Constituent Assembly can be quoted:
I may say that I do not altogether deny that there is a possibility of these
articles being abused or employed for political purposes. But the objection applies
to every part of the Constitution which gives power to the Centre to override the
Provinces. In fact I share the sentiments expressed by my honourable friend Mr.
Gupta
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Page: 244
yesterday that the proper thing we ought to expect is that such Articles will never be
called into operation and that they would remain a dead letter. If at all they are
brought into operation, I hope the President who is endowed with these powers will
take proper precautions before actually suspending the administration of the
provinces.46
But this hope expressed by Ambedkar has been belied by subsequent events and
the provisions of article 356 have been frequently resorted to as the breaches of the
constitutional machinery by the state have been frequent.
It may also be mentioned that the serious consequences flowing from the exercise
of power under article 356 is sought to be minimised by hedging its exercise by the
condition of satisfaction of the President.47 The same was the view of Chandrachud,
J.,48 and it may be added that it requires the appproval of both the Houses of
Parliament one of which is elected on a universal franchise and the other by the state
legislatures. It may also be added that the presidential proclamation does not require
the prior approval of Parliament and it is in full force and effect for a minimum period
of two months. Any action taken during those two months is irrevocable and remains
unremedied. Chandrachud, J., has emphasised that the President is expected and
ought to judge fairly and courts cannot sit in judgment over his statisfaction for
determining whether any other view is not reasonably possible.
Four points concerning states powers
Against the centre's power to appoint a Commission of Inquiry into the
administrative acts of the ministers in the states, the State of Karnataka raised four
objections—
(i) it is an assault on the basic structure of the Constitution in that it interferes with
the federal structure;
(ii) it interferes with the principle of collective responsibility of the ministers under
article 164 (2) of the Constitution;
(iii) the doctorine of implied prohibition bars such an inquiry as there is no express
power to appoint such an inquiry;
(iv) it violates the privileges and immunities applicable in cases of state legislatures
by article 194 (2).
Objections Nos. 1, 2 and 4 are relatable to the federal structure under the
Constitution, and No. 3 is a matter of construction of the constitutional provisions
referable to the federal structure.
Page: 245
Nature of inquiry under s. 3 of the Act

In order to decide these matters we may first consider the nature of inquiry
contemplated under the Act. In such an inquiry there is no prosecution, no framing of
a formal charge, no accused before the commission, no exercise of any supervisory or
disciplinary jurisdiction by the central government over the state government nor is
there any usurpation of any executive function of a state.49
The inquiry contemplated by the Act under sections 2 and 3 can only be ordered
into on any “matter of public importance” and the matters mentioned in the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
notification appointing the inquiry commission by the central government in the

Karnataka case50 were matters of public importance as they dealt with acts of gross
maladministration, corruption and nepotism in the discharge of their functions by the
state ministers. A commission, it has been held, is only a fact finding body and can
give no judgment. There are substantive matters of public importance which cannot be
left to the ordinary investigating agencies which may give rise to controversies and
raise suspicions and, therefore, a regular high powered commission is contemplated.
Chandrachud, J. in the Karnataka case quoted the following from Sir Cyril Salmon's
address in the Lionel Cohen Lectures on the Tribunals of Inquiry (Evidence) Act, 1921:
In all countries, certainly in those which enjoy freedom of speech and free Press,
moments occur when allegations and rumours circulate causing a nation-wide crisis
of confidence in the integrity of public life or about other matters of vital public
importance. No doubt this rarely happens, but when it does it is essential that
public confidence should be restored, for without it no democracy can long survive.
This confidence can be effectively resorted only by thoroughly investigating and
probing the rumours and allegations so as to search out and establish the truth. The
truth may show that the evil exists, thus enabling it to be noted? (rooted?) out, or
that there is no foundation in the rumours and allegations by which the public has
been disturbed. In either case confidence is restored.51
Page: 246
We may here give a short synopsis of the provisions of the Act. Section 3(1) read
with Section 2(a)52 of the Act empowers the central government to appoint a
Commission of Inquiry for the purpose of making an inquiry into any definite matter of
public importance. The commission has, thereupon, to make the inquiry and perform
its functions one of which is to submit areport to the appropriate government. Section
3(4) requires that the central government shall cause to be laid before the House of
the People thereport of the Commission of Inquiry within a period of six months of the
submission of the report. Section 4 confers on the commission some of the powers of a
civil court trying a suit. Under section 5(1) the appropriate government can direct that
all or any of the provisions contained in sub-sections 2, 3, 4 and 5 of section 5 shall
apply to the commission. They empower the commission to require any person to
furnish information to it. Section 5(a) authorises the commission to utilise the services
in the case of a commission appointed by the central government of any officer or
investigating agency of the central government.
It is clear from the provisions and the general scheme of the Act that a Commission
of Inquiry under the Act is a purely fact finding body and
Page: 247
has no power to pronounce a binding judgment. It has to collect facts through

evidence led before it and is required to submit its report to the appointing authority.53
Validity of s. 3 of the Act

In Ram Krishna Dalmia v. Justice S.R. Tendolkar54 the Supreme Court upheld the
validity of section 3 of the Act and the notification issued thereunder except that part
of the notification requiring the recommendation of measures to prevent similar future
-----------------------------------------------------------------------------------------------------------------------------------------------------------
cases which was held to be ultra vires as that part went beyond the purely
investigatory character of the inquiry authorised by the Act, It was held that the Act
was made by Parliament acting in the field covered by items 94 of List I and 45 of List
III of the Seventh Schedule, so that inquiries could be ordered for the purposes of any
of the matters in the three lists of the Seventh Schedule; that incompetence of
Parliament to legislate on matters under List II could not vitiate the power to order
inquiries relating to sub jects in that list in view of the express terms of item 45 in List
III and that the commission had no power of adjudicating and passing an order which
is operative proprio vigore. These lists, it has been held in United Provinces v. Atiqa
Begum,55 must receive not a narrow or pedantic but a wide and liberal construction
and considered from that point of view the word ‘inquiries’ which occurs in the two
entries must be held to cover the power to pass an Act providing for the appointment
of the Commissions of Inquiry. It is in the exercise of that power that Parliament has
passed the Act.
Purposes for which the Commission of Inquiry could be set up under the Act were
considered as already said by the Nagpur High Court in M.V. Rajwade v. M.S. Hassan56
and approved by the Supreme Court in Srajnandan Sinha v. Jyoti Narain57 The gist of
these judgments is that a commission is appointed by the government for the
information of its own mind so that it may not act in exercise of its executive power
otherwise than in accordance with the dictates of justice. It is, therefore, a fact finding
body only to instruct the mind of the government without producing any operative
order of a judicial nature.
In A. Sanjeevi Naidu v. State of Madras58 the Supreme Court examined the position
of an individual minister who determines the matters of policy and programmes of his
ministry within the framework of major policies of the government vis-a-vis the
officials in the department who act on behalf
Page: 248
of the government subject to the direction of the ministry. Individual liability may
have serious consequences for the minister concerned, more serious than the
collective responsibility which carries only political implications.
In the State of Jammu & Kashmir v. Bakhshi Gulam Mohammad,59 the Supreme
Court pointed out that the past actions of a Chief Minister who had ceased to be one
would not cease to be the matters of public importance and a Commission of Inquiry
could hold an inquiry. The local High Court had held differently. The Supreme Court
evidently applied Ram Krishna Dalmia's case60 where it was held that the conduct of
an individual may “so prejudicially affect or threaten the well being of the public as to
make such conduct a definite matter of public importance urgently calling for a full
inquiry”. These cases show that if a minister in the exercise of his official power does
acts which amount to maladministration, inquiry into those acts may be made as this
would be a matter of public importance. And what can be done while he is out of office
can a fortiori be done while he is in office.
In Jagannath Rao v. State of Orissa61 it was held that a Commission of Inquiry
under section 3 of the Act with the object of helping the government to frame
appropriate legislative or administrative measures to maintain the purity and integrity
of the political administration in the state was valid. A similar view was taken in
Krishna Ballabh Sahay v. Commission of Inquiry62 The Supreme Court in this case
observed:
It cannot be stated sufficiently strongly that the public life of persons in
-----------------------------------------------------------------------------------------------------------------------------------------------------------
authority must never admit of such charges being even framed against them. If
they can be made then an inquiry whether to establish them or clear the name of
the person charged is called for……A perusal of the grounds assures us that the
charges are specific, and that records rather than oral testimony will be used to
establish them.63
A similar view was taken by the Madras High Court in M. Karttnanidhi v. Union of
India.64
Commission of inquiry—utility of
According to the view taken in the United Kingdom, and that is applicable to India
also, these commissions supply a much needed requirement of independent tribunals
because investigations by political tribunals of matters of great public disquiet had
been discredited and it is keeping these
Page: 249
facts in view that in India provision has been made for setting up an investigating
machinery to be available for use when required. According to the view expressed by
Beg, C.J., in the State of Karnataka v. Union of India:
[T]he obvious intention behind the Act is to enable the machinery of democratic
government to function more efficiently and effectively. It could hardly be
construed as an Act meant to thwart democratic methods of government.65
Implied prohibition
In the Karnataka case the question of ‘implied prohibition’ was raised thus: As item
94 in List I and item 45 in List III deal only with matters mentioned in those lists and
matters affecting relations between the centre and the states are not specifically
mentioned therein, the word ‘inquiries’ in those entries cannot embrace the conduct of
ministers in the states exercising governmental powers. Besides such an inquiry would
set up a kind of unwarranted disciplinary authority and control over the conduct of
ministers in the states in the performance of their governmental functions.
Further, it was argued that section 3 of the Commissions of Inquiry Act does not fall
within item 94 or item 97 of List I which is a residuary item nor within the items in the
concurrent list. Section 3, it was, therefore, submitted, could not be enacted by
Parliament. If this argument is accepted, then the only control over the ministers
would be political. Mere holding of ministerial office would give them absolute
immunity. The answer to that objection is that the term ‘inquiries’ as used in item 94
of List I and in item 45 of List III, is without any limitation upon the nature or
specification and is wide enough to embrace any kind of inquiry—whether an offence
or maladministration is disclosed or not. The words “for the purpose of any of the
matters specified in List III” are broad enough to cover anything reasonably related to
any of the enumerated items even by holders of ministerial offices and if item 94 of
List I or 45 of List III do not apply, then item 97 of List I read with article 248 must
necessarily cover an inquiry into the conduct of ministers. These items or entries in the
three lists have not to be read in a narrow and restricted senss and each general word
should be held to extend to all ancillary or subsidiary matters which can fairly and
reasonably be said to be comprehended in it.66 The Supreme Court held in the
Karnataka case that the powers conferred by section 3 of the Act are covered by
express constitutional provisions mentioned above and no question of exclusion by
necessary intendment arises.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Page: 250
The doctrine of “implied prohibition” has been rejected by the courts in the
Commonwealth and also by the Supreme Court of India itself in the Karnataka case. It
was rejected by the Privy Council in Webb v. Outrim67 which was applied by the
Australian High Court in Amalgamated Society of Engineers v. The Adelaide Steamship
Co. Ltd.68 wherein it was observed:
The doctrine of “implied prohibition” against the exercise of a power once
ascertained in accordance with ordinary rules of construction, was definitely
rejected by the Privy Council in Webb v. Outrim, (1907) A.C. 81.69
Reference in this connection may also be made to the State of Victoria v. The
Commonwealth of Australia.70 These cases were considered by a majority in the
Supreme Court of India in Kesavananda Bharati v. State of Kerala.71 As a matter of
fact there is a clear and explicit power given to the centre in item 94 of List I and item
45 of List III, and if these were held to be inapplicable there will be the residuary
provision in item 97 of List I read with article 248 of the Constitution.
These items when quoted are as follows:
Item 94 of List I
Inquiries, surveys and statistics for the purpose of any of the matters in this List.
Item 97 of List I
Any other matter not enumerated in List II or List III including any tax not
mentioned in either of those lists.
Item 45 of List III
Inquiries and statistics for the purposes of any of the matters specified in ‘List II
or List III.
Article 248
248. (1) Parliament has exclusive power to make any law with respect to any
matter not enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not
mentioned in either of those lists.
Page: 251
Reference may also be made to Waynes Book on Australian Constitution, wherein he

stated:
The only way in which the Court could determine whether the prescribed limits of
legislative power had been exceeded or not was “by looking to the terms of the
instrument by which, affirmatively, the legislative powers were created, and by
which negatively, they are restricted”.
[T]hat the enumerated powers of the Commonwealth were to be read in their full
sense subject only to the prohibitions expressly or by implication set upon them in
the Constitution itself. And the express provision for supremacy of Commonwealth
over State Laws in the event of conflict completed the process; as Dixon C.J.
remarked in 1947, the Commonwealth is bound to be in the better position,
because it is a Government of enumerated powers.72
Another authority which requires mention in this connection is the Privy Council
-----------------------------------------------------------------------------------------------------------------------------------------------------------
decision in Liyanage v. The Queen73 where the Privy Council while interpreting the
Constitution of Ceylon (now Sri Lanka) held that although the Constitution did not
expressly vest the judicial power of the state exclusively in the judiciary yet that fact
was not decisive as the scheme of the Constitution, particularly the provisions relating
to the judiciary viewed in the light of the fact that the judicial power had always been
vested in the courts, indicated that the judicial power vested exclusively in the
judiciary. But this does not go counter to the previous decision of the Privy Council in
Webb v. Outrim74 and the Australian cases which have been referred to above. All that
the Privy Council in the Ceylon case held was that the judicial power of the state
vested in the judiciary and not in the executive because it had always vested in the
courts although it was not so specifically mentioned. This does not support the theory
of ‘implied prohibition’. In State of West Bengal v. Bagchi75 also there was no question
of implied prohibition. On the other hand there is an express provision in the
Constitution in article 235, which deals with the control, etc., over the subordinate
judiciary and vests that power in the High Courts.
As was said by Beg, C.J., in the Karnataka case it is immaterial whether item 97 of
List I singly or read with item 94 of the same list would be deemed to cover the field
of operation of a particular legislation, viz, inquiries. What is material and important is
that the three items viz, 94 and 97 of List I and 45 of List III between them cover
legislation authorising inquiries by a commission appointed by the central
government. If the subject of inquiry against ministers in the state governments is not
mentioned specifically
Page: 252
either in any of the articles of the Constitution or in the legislative lists, it cannot be
said that the legislation regarding “inquiries” is incompetent. On the contrary that
subject would prima facie be covered by the wide terms of article 248 for the very
reason that the Constitution contains no express or implied bar which could curtail the
plenary powers of legislation by Parliament.
It must be emphasised that this is not to doubt about the decisions of the Supreme
Court where these inquiries were held to fall within items 94 of List I and 45 of List
III. These cases have already been discussed above. Once the legislative power is
located in one of the articles of the Constitution read with the items in any list in the
Seventh Schedule indicating the field of operation of the legislative power of
Parliament, the doctrine of implied prohibition is excluded. This principle has been
stated by the Supreme Court of India and by the courts of the Commonwealth
countries and that principle logically follows from R. v. Burah76 which has been termed
the locus classicus on the subject. It was held in that case that what is conferred upon
a legislature is the legislative power; its plenary character must be presumed so that
unless the instrument conferring the power itself contains some express limitations on
the exercise of legislative power the ambit of that power cannot be indirectly cut down
by supposed implications. In Kesavananda Bharat's case77 where the majority held
that there could be no implied limitations where there were expressly conferred
legislative powers, the court referred to and adopted the principle laid down in R. v.
Burah78
The maxim ‘Expressio unius est exclusio ulterius’ cannot apply where an express
entry in legislative lists exists. Express enactment shuts the door to further
implication.79
Casus omissus
-----------------------------------------------------------------------------------------------------------------------------------------------------------
The argument that what is not expressly mentioned in the Constitution must be
deemed to be excluded from its purview cannot be applied in such circumstances as
the case of “inquiries”. It will amount to inventing casus omissus, where really none
exists and according to the rules of interpretation the court cannot interpret a statute
to produce a casus omissus.80 If the Indian Constitution itself provides for legislation
on a particular subject, then it cannot be held to be void because it performs its
intended functions by exercise of expressly conferred legislative power.
Page: 253
In this connection reference may be made to Union of India v. H.S. Dhillon.81 There
Sikri, C.J., after discussing the tests adopted in India and Canada for determining
whether a subject falls within the central or the state list observed:
It seems to us that the function of Article 246(1) read with Entries 1-96, List I, is
to give positive power to Parliament to legislate in respect of these entries. Object is
not to debar Parliament from legislating on a matter, even if other provisions of the
Constitution enable it to do so. Accordingly, we do not interpret the words “any
other matter” occurring in Entry 97, List I to mean a topic mentioned by way of
exclusion. These words really refer to the matters contained in each of the Entries 1
to 96. The words “any other matters” had to be used because Entry 97, List I
follows Entries 1-96, List I. It is true that the field of legislation is demarcated by
Entries 1-96, List I, but demarcation does not mean that if Entry 97, List I confers
additional powers, we should refuse to give effect to it. At any rate, whatever doubt
there may be on the interpretation of Entry 97, List I is removed by the wide terms
of Article 248. It is framed in the widest possible terms. On its terms the only
question to be asked is: Is the matter sought to be legislated included in List II or
in List III or is the tax sought to be levied mentioned in List II or in List III: No
question has to be asked about List I. If the answer is in the negative then it
follows that Parliament has power to make laws with respect to that matter of tax.82
It will be seen, therefore, that the test adopted in Dhillon's case was that if a
subject does not fall within the specifically demarcated field found in Lists II and III it
will fall in List I partly because of the amplitude of the residuary field indicated by
item No. 97. The legislative items only denote fields of operation of legislative powers
which are actually conferred by one of the articles of the Constitution.83
The argument that subjects specified in a particular list would exclude those which
are unspecified was rejected in Dhillon's case where it was held that a legislative item
only indicates the field of operation of power, but the sources of ordinary legislative
power are to be found in one of the articles in chapter I, part XI, i.e., articles 245 to
250, 252 or 253. So far as the field of operation of legislative powers is concerned both
item 94 of List I and item 45 of List III are so widely worded as to embrace inquiries
touching any of the fields indicated by any of the items in the lists. A minister
Page: 254
must necessarily exercise governmental powers in relation to one of these fields. The
field of power to legislate about inquiries is indicated in wide enough terms to make it
unnecessary to specify the field in the law to which the inquiry must relate. It is
enough if the inquiry set up relates to a matter of public importance. What is material
-----------------------------------------------------------------------------------------------------------------------------------------------------------
and important is that the three items Nos. 94 and 97 of List I and item 45 of List III
are bound to cover, between them, legislation authorising inquiries such as the one
entrusted to the commission appointed by the central government.
Three essential points regarding federalism in India

The three essential points relating to the structure of federalism in India raised in
the Karnataka case were that by the appointment of the Commission of Inquiry by the
central government there was an infringement of the basic structure of the
Constitution in that it was destructive of federalism because—
(a) it amounted to control by the centre over the day to day working of the state
govenment. At any rate, it was an interference by the centre in the state
administration and, therefore, interference with the powers exercisable by the
state government;
(b) that the appointment of the Commission of Inquiry was destructive of collective
responsibility of the ministry contemplated under article 164 (2) of the
Constitution;
(c) that it amounted to breach of privilege of the state Legislative Assembly and the
members thereof under article 194 (3) of the Constitution.
Collective responsibility
The collective responsibility of the Council of Ministers which is recognised by the
Constitution in article 75 (2) for Parliament and in article 164 (2) for the state
legislatures is irrelevant qua the power of the centre to appoint a Commission of
Inquiry to inquire into the administrative or maladministrative acts of individual
ministers of a state, because—
(i) The object of collective responsibility under article 75 (2) or article 164 (2) is to
make the whole body of persons holding ministerial office collectively or
vicariously responsible for acts of the Cabinet referable to their collective volition,
so that an individual minister although he may not be personally responsible, yet
he will be deemed to share the responsibility for the acts of the ministry.
(ii) The responsibility in this sense is to share the consequence of the policy
followed, namely, to be subject to the rule that no member of the government
may remain a member and dissociate himself from its policies with a duty to
submit the policy to and defend it before the legislature and to resign if defeated
on an issue of confidence. Just as it became recognised that a single minister
could not retain office against the will of Parliament, se later it became clear that
all ministers must stand or fall together in
Page: 255
Parliament, if the government was to be carried on as a unity rather than by a number

of advisers of the sovereign acting separately. This development of collective
responsibility was thus described by Lord Salisbury in 1878 thus:
For all that passes in Cabinet every member of it who does not resign is
absolutely and irretrievably responsible and has no right afterwards to say that
he agreed in one case to a compromise, while in another he was persuaded by
his colleagues…. It is only on the principle that absolute responsibility is
undertaken by every member of the Cabinet who after a decision is arrived at,
remains member of it, that the joint responsibility of Ministers to Parliament can
be upheld and one of the most essential principles of parliamentary responsibility
established.84 *
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Therefore, the whole question of collective responsibility is related to continuance of

a minister or a government in office. A minister's own acts or omissions or those of
others, officials in the department in his charge, for which he’ may feel morally
responsible or he may be held responsible may compel him to resign. By an extension
of this logic emerged the principle of collective responsibility which is enacted in
articles 75 (2) and 164 (2) of the Indian Constitution.
This collective responsibility has its scope and mode of operation which are quite
different from those of an inquiry under section 3 of the Commissions of Inquiry Act.
The object of collective responsibility is to make the whole body of persons holding
ministerial offices responsible. On the other hand the inquiry under section 3 of the
Act only determines the individual responsibility of the ministers for certain actions
and the motive behind them. The sphere of this inquiry is very different from that in
which collective responsibility functions which it has been held does not derogate from
the power of the centre, nor does it “abridge or truncate” its power. It is basically
political in origin and mode of operation. And matters investigated under section 3 of
the Act may have no bearing on the “collective responsibility”. According to Geoffrey
Marshall and Graeme C. Moodle:
The substance of the Government's collective responsibility could be defined as
its duty to submit its policy to and defend its policy before the House of Commons,
and to resign if defeated on an issue of confidence.85
S.A. de Smith86 has said that the principle operates in a nebulous moral-cum-
political sphere, sometimes forcing an individual minister to
Page: 256
resign, as in the case of Profumo and, on other occasions involving the fate of the
whole ministry, depending upon the extent to which the Cabinet as a whole could be,
in the circumstances of a particular case, deemed to be responsible.87 The principle
thus exists separately and independently from the legal liability of a minister holding
office in the union or a state government.
The object of a Commission of Inquiry is to facilitate and help the formation of

sound public opinion as in the case of the Commission of Inquiry by Lord Denning in
the profumo case. The fact that a minister was considered individually responsible to
the House for a wrong statement made to it did not prevent an inquiry by a
commission into the matters in which he had made that statement but individual
actions were his own responsibility and did not bring collective responsibility into
operation. The Commission of Inquiry is not thus barred by the principle of “Collective
Responsibility” because the mode and sphere of operation and the purpose, scope and
function of a Commission of Inquiry set up under section 3 of the Act are totally
different.
The Commission of Inquiry is not a mode of prosecution much less a persecution. It
cannot serve as a substitute for proceedings in a court of law, which has power of
investigation and adjudication as well as of awarding punishment or affording relief.
The contention that the appointment of an inquiry commission was an assault on
the doctrine of collective responsibility to the legislature was rejected by the Supreme
Court although in support the state had strongly relied upon article 164(2) which
provides that the Council of Ministers shall be collectively responsible to the Legislative
Assembly of the State. This contention of the state based on article 164 (2) was not
supported by the true import and the meaning of the doctrine of collective
responsibility. And Untwalia, J., in the Karnataka case88 has referred to two authors,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
A.M. Birch,89 *and T.C. Hartley & J.A.C. Griffih.90 The following was quoted with
approval by Untwalia, J., from the latter authors:
On a few important issuses, policy is determined by the Cabinet after discussion.
Collective responsibility means that Cabinet decisions bind all Cabinet Ministers,
even if they argued in the opposite directions in Cabinet. But this is to say no more
than a Cabinet Minister who finds himself in a minority must either accept the
majority view or resign. The team must not be weakened by some of its members
making clear in public that they disapprove of the Government's policy. And
obviously what is true for Cabinet
Page: 257
Ministers is even more true for other Ministers. If they do not like what the team is
doing, they must either keep quiet or leave.91
Dealing with the collective responsibility of the Council of Ministers to the

Legislative Assembly of the State Sarkar, C.J., speaking for the court said in the State
of Jammu & Kashmir v. Bakhshi Gulam Mohammad:
Section 37 talks of collective responsibility of Ministers to the Legislative
Assembly. That only means that the Council of Ministers will have to stand or fall
together, every member being responsible for the action of any other.92
Note: (section 37 corresponds to Art. 164(2) of the Indian Constitution).
Hegde, J., in A. Sanjeevi Naidu v. State of Madras93 laid down the essence of
collective responsibility thus:
The cabinet is responsible to the legislature for every action taken in any of the
ministries. That is the essence of joint responsibility. That does not mean that each
and every decision must be taken by the cabinet. The political responsibility of the
Council of Ministers does not and cannot predicate the personal responsibility of the
Ministers to discharge all or any of the governmental functions. Similarly an
individual Minister is responsible to the legislature for every action taken or omitted
to be taken in his ministry. This again is a political responsibility and not personal
responsibility.94
It is submitted that what collective responsibility implies is that all Cabinet
ministers assume responsibilty for the Cabinet decisions and action taken to
implement these decisions. Even if a minister disagrees with a decision and wishes to
express his dissent in public, he must cease to be a minister.95
From these judgments it is clear that doctrine of collective responsibility on which
the State of Karnataka relied does not grant immunity to the state ministers from
being subjected to an inquiry under the Commissions of Inquiry Act by the central
government. If the Act is constitutional as it has been held to be, it cannot be said
that Parliament has transgressed its limits in enacting such a law.
Interference with the privileges and immunities
We shall now take up the third point raised that the appointment of a Commission
of Inquiry was a violation of the privileges and immunities of the state legislatures
given under article 194(3).
Page: 258
-----------------------------------------------------------------------------------------------------------------------------------------------------------
The relevant part of article 194 is as follows:

(1)…there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings, in
any Court in respect of anything said or any vote given by him in the
Legislature….
(3)…the powers, privileges and immunities of a House or the Legislature of a State,
and of the members and committees of a House of such Legislature, shall be
such as may from time to time be defined by Legislature by law, and, unit] so
defined, shall be those of the House of Commons of the Parliament of the United
Kingdom, and of its members and committees, at the commencement of this
Constitution.
It may be remarked that the provisions in regard to privileges, etc., are subject to
the other provisions of the Constitution. Article 194 is, therefore, confined in scope to
such powers of each House as may be exercised separately functioning as a House. It
also covers immunities and privileges of the members of the House.
Powers set out in article 194 are not independent. They relate to and are necessary
for the conduct of business of each House. These powers are distinct from legislative
powers of either Parliament or the state legislatures. Indian Parliament or the state
legislatures have no judicial or quasi judicial powers except the power of punishment
for contempt but the question in the Karnataka case was whether the appointment of
a Commission of Inquiry by the central government under the Act was within the
legislative power of the centre. The members of a state legislature including the
ministers of the state are not governed by any separate laws which exempt them from
liabilities under the ordinary law of the land. The Indian Constitution leaves no scope
for such an argument. The object of conferring the privileges and immunities in article
194 is only for removal of obstructions to the due performance of its legislative
functions by the legislature and its members, but any question of jurisdiction arises as
to whether a matter falls within the jurisdiction of the legislature or not, it has to be
decided by ordinary courts, e.g., the jurisdiction to try a criminal offence committed
even within the precincts of a House vests in the ordinary criminal courts and not in
Parliament or any legislative assembly. In Smt. Indira Nehru Gandhi v. Shri Raj
Narain96 the Supreme Court held that the Parliament cannot exercise any of the
supposed powers under article 105 which applies to privileges of Parliament and
decide election disputes, for which special tribunals have been constituted under the
Representation of Peoples Act enacted under article 329. Similary, a
Page: 259
provision for the appointment of a suitable person with power to determine in

accordance with fair and just procedure for the ascertainment of facts relating to
matters of public importance is provided by the Act and if such provisions are covered
by specific articles relating to legislative competence of Parliament and one of such
provisions is item 94 in the union list i.e. List I and another is item 45 in the
concurrent list i.e., List III in the Seventh Schedule of the Constitution, it would be
irrelevant to go into other provisions. Besides, there is the residuary article 248 and
item 97 in List I.
The objection that the appointment of a Commission of Inquiry under section 3 of

the Act is affected by and interferes with privileges of the members of the Houses of
legislatures in the states is not supported by an analysis of the privileges and
immunities based on article 194 as the sphere of operation of the two are different.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Basic structure
The question whether the enactment of section 3 of the Commissions of Inquiry
Act, 1952 is a breach of the “basic structure” of the Constitution inasmuch as the
appointment of a commission is destructive of one of the essential features of the
Constitution, i.e., the federal structure was raised in the Karnataka case by the
plaintiff state. In order to determine this question it is necessary to investigate the
nature and scope of the “basic structure” of the Constitution. According to the majority
judgment in Kesavananda Bharati v. State of Kerala,97 federalism was held to be a part
of this doctrine, but in connection with the power to amend the Constitution Sikri, C.J.,
who accepted this doctrine held that it “forms an orbit of exercise of power which is
outside the purview of article 368” which sets out the power of Parliament to amend
the Constitution. He relied on certain observations and dicta in Melbourne
Corporation's case’98 and on Australian National Airways (Pvt.) Ltd. v. The
Commonwealth.99 He cited the observations of Stark, J., in Melbourne Corporation's
case which may be summarised as follows:
The ordinary principles of statutory construction do not preclude the making of
implications when these are necessary to give effect to the intention of the
legislature as revealed in the statute as a whole.
Based on this Sikri, C.J., observed:
In view of the above reasons, a necessary implication arises that there are
implied limitations on the power of Parliament that the expression ‘amendment of
this Constitution’ has consequently a
Page: 260
limited meaning in our Constitution and not on the meaning suggested by the
respondent.
Sikri, C.J., said that provided in the result the basic foundation and structure of the
Constitution remains the same, every provision of the Constitution can be amended.
And then certain features which form the basic structure of the Constitution were
enumerated by him and one of them was the federal character of the Constitution.100
Shelat and Grover, JJ. accepted the doctrine of basic structure.101 One of the
features of the basic structure of the Constitution given by these two judges was “the
unity and integrity of the nation”.
In the same case Hegde and Mukerji, JJ., after considering at length the principle of
interpretation and construction in India and in the Commonwealth countries said that
if the language employed is plain and unambiguous the same must be given effect to
irrespective of the consequences that may arise, but where the language is doubtful
and has more than one meaning it will have to take into consideration the
consequences which may flow from accepting one view or the other because no
legislative body is presumed to confer a power which is capable of misuse.102 They did
not enumerate the basic features of the Constitution, but they uttered the consequent
warning that the power to amend does not include the power to destroy or emasculate
the basic element or the fundamental features of the Constitution.
Jaganmohan Reddy, J., was of the view that if anyone of the mentioned basic
features is withdrawn the structure will not survive and it will not be the same
Constitution.
In the minority judgments also the basic structure of the Constitution was
recognised, but the difference between the two was only on the question of the scope
of power of amendment as evidenced by the express declaration and provisions of the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
Constitution.
Commenting upon the views expressed in Kesavananda Bharati's case Beg, C.J., in
the Karnataka case said that
the doctrine is nothing more than a way of advancing a well recognised mode of
constructing the Constitution. It should be used with due care and caution. No
exposition of it which could make it appear as a figment of judicial imagination or
as capable of such subjective interpretations that it may become impossible to
decipher or fix its meaning with reasonable certainty could be accepted by us
because that would amount to declaring its futility.103
In Smt. Indira Gandhi's case104 the basic structure of the Constitution
Page: 261
was again invoked to assail the provisions of the Representation of Peoples Act and it
was observed that the constitutional amendments may be tested on the anvil of basic
structure,105 but it does not logically follow that an ordinary legislation must also
answer the same test as a constitutional amendment. Oridinary laws have to answer
two tests for their validity—
(1) the law must be within the legislative competence of the legislature as specified
in chapter I of part XI of the Constitution and (2) it must not offend the
provisions of article 13(1) and (2) of the Constitution i.e., breach of fundamental
rights.
The theory of basic structure in the case of the Constitution is woven out of the
conspectus of the Constitution and the amending power is subject to it because it is a
constituent power. But it is wholly out of place in matters relating to the validity of
ordinary laws made under the Constitution.
It is submitted that the doctrine of the basic structure which arose out of and
relates to the Constitution only does not in that sense appertain to the sphere of the
ordinary statutes or arise for application to them in the same way. It is further
submitted that the majority view in Smt. Indira Gandhi's case seems to indicate that
this doctrine applies to constitutional amendments under article 368 of the
Constitution and is not available to test the validity of the provisions of other laws,
e.g., the Representation of Peoples Act. Where there is no ambiguity to resolve the
ordinary law making power of Parliament the question of implied limitations does not
arise.
Reference to Kesavananda Bharat's case and Smt. Indira Gandhi's case shows that
whenever the doctrine of basic structure has been expounded or applied it is as a
doctrine of interpretation of the Constitution. The correct view of the basic structure is
as a mode of interpreting the Constitution only.
India, no doubt is a union of states, but as has been shown above from the
historical and legislative point of view and from the different steps taken in legislative
amendments of the Constitution beginning from 1858, India has not been and is not a
truly constituted federation as the term is understood, but it is a union of states with
powers distributed between the centre and the states. If the scheme of distribution of
legislative powers is basic and express and as has been enumerated in Kesavananda
Bharat's case, then implied and unspecified limitations going beyond that scheme are
eliminated by the very force of express provisions.
Hence this doctrine is not a fetter on the power of the centre under the distribution
of powers under chapter I of part XI and the construction of legislative item 94 of List
I and item 45 of List III and if necessary read with item 97 of List I and article 248
-----------------------------------------------------------------------------------------------------------------------------------------------------------
giving residuary powers to the centre.

———
*
M.A., LL.B. (Cantab), Barrister, Retd. Judge, Supreme Court of India.
1 11 & 12 Geo. 5, c. 7.
2 A.I.R. 1977 S.C. 1361.
3 A.I.R. 1978 S.C. 68.
4 See art. 355 of the Constitution.

5 S. 3 of the Act.
6 See. 16 & 17 Vict., c. 95.
7 See 2 & 3 Geo. 5, c. 6.

8 5 & 6 Geo. 5, c. 61.
9 9 & 10 Geo. 5; c. 101.
10 26 Geo. 5 and 1 Edw. 8, c. 21

11 10 4 11 Geo. 6. c. 30.
12 A.I.R. 1939 F.C. 58.
13 Id. at 60-61.
14 Supra note 3.
15 Id. at 160.
16 Id. at 161
17 See art. 356 of the Constitution.
18
Supra note 3 at 111.
19 Under arts. 249 and 250.
20 Under arts. 256 and 257.
21 Supra note 2 at 1383-84.
22 A.I.R. 1961 S.C. 232.
23 ld. at 254 (per Gajendragadkar, J.,).
24 See s. 99 of the Australian Constitution.
25 A.I.R. 1962 S.C. 1406.

26 Id. at 1415-16.
27 A.I.R. 1963 S.C. 1241.
28 Id. at 1255.
29 Supra note 3 at 151.
30
See also item No. 97 of List I.
31 Supra note 27 at 1252-53.
32 A.I.R. 1966 S.C. 447.
33 A.I.R. 1974 S.C. 2192.
34 Supra note 2.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
35 Quoted by Beg, C.J., in id. at 1382.

36 Ibid.
37 Ibid.
38 Austin, The Indian Constitution: Cornorstone of a Nation 186(1966)
40 Quoted by Beg, C.J., in ibid.

41 Id. at 1382.
42 State of Rajasthan v. Union of India, supra note 2.
43H.M. Seervai, 1 Constitutional Law of India 97 (1975). See also K.K. Aboo v. Union af India, A.I.R. 1965 Ker.
229 at 231. Kerala High Court also held that what is necessary is the statisfaction of the President.
44 See A.K. Gopalan v. Government of India, A.I.R. 1966 S.C. 816.
45 See Lord Camobel in Saunders v. Evans, 8 H.L.C. 721, 729.
46 Quoted by Bhagwati, J., in supra note 2 at 1407.

47 Per Bhagwati, J., ibid.
48 Id. at 1397.
49 See M.V. Rajwade v. S.M. Hassan, A.I.R. 1954 Nag. 71 (where the nature of inquiry was set out); Brajnandan
Sinha v. Jyoti Narain A.I.R., 1956 S.C. 66 (approving the Rajwade case); Ram Krishna Dalmia v. Justice S.R.
Tendolkar, A.I.R. 1958 S.C. 538 at 566 (where it was held that a commission appointed under the Commission of
Inquiry Act had no power to adjudicate in the sense of passing an order which could be enforced proprio vigore
and the inquiry was held to be purely investigatory); State of Jammu & Kashmir v. Bakshi Gulam Mohammad,
A.I.R. 1967 S.C. 122; P.V. Jagannath Rao v. State of Orissa, A.I.R. 1969 S.C. 215; Krishna Ballabh Sahay v.
Commissioner of Inquiry, A.I.R. 1969 S.C. 258.
51 Ibid.
52 S. 2 “Definition”—In this Act, unless the context otherwise requires:
(a) “appropriate Government” means:
(i) the Central Government, in relation to a Commission appointed by it to make an inquiry into any matter
relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the
Constitution; and
(ii) the State Government, in relation to a Commission appointed by it to make an inquiry into any matter
relatable to any of the entries enumerated in List II, or List III in the Seventh Schedule to the
Constitution.
(b) ******
(c) *****
S. 3 Appointment of Commission: (I) The appropriate Government may, if it is of opinion that it is

necessary so to do, and shall, if a resolution in this be half is passed by the House of the People or, as the
case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a
Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and
performing such functions and within such time as may be specified in the notification, and the Commission
so appointed shall make the inquiry and perform the functions accordingly:
Provided that where any such Commission has been appointed to inquire into any matter:
(a) by the Central Government, no State Government shall, except with the approval of the Central
Government, appoint another Commission to inquire into the same matter for so long as the
Commission appointed by the Central Government is functioning;
-----------------------------------------------------------------------------------------------------------------------------------------------------------
(b) by a State Government, the Central Government shall not appoint another Commission to inquire
into the same matter for so long as the Commission appointed by the State Government is
functioning, unless the Central Government is of opinion (hat the scope of inquiry should be
extended to two or more States.
(2) The Commission may consist of one or more members appointed by the appropriate
Government and where the Commission consists of more than one member, one of them may be
appointed as the Chairman thereof.
53 See M.V. Rajwade v. S.M. Hassan, supra note 49; Brajnandan Sinha v. Jyoti Narain, supra note 49.
54
Supra note 49.
55 A.I.R. 1941 F.C. 16.
56 Supra note 49.
57
Supra note 49.
58 A.I.R. 1970 S.C. 1102 at 1106.
59 Supra note 49.
60
Ram Krishna Dalmia v. Justice J.R. Tendolkar, supra note 49.
61 Supra note 49.
62 Supra note 49.
63
Id. at 262.
64 A.I.R. 1977 Mad. 192.
65 Supra note 3 at 92
66
United provinces v. Atiqa Begum, supra note 55.
67 [1907] A.C. 81.
68 28 Com. L.R. 129 (1920).
69
Id. at 150 quoted by Untwalia, J., in supra note 3 at 156.
70 122 Com. W.L.R. 353; 45 Australian L.J. 251
71 A.I.R. 1973 S.C. 1461
72
Waynes, Australian Constitution: Legislative, Executive and Judicial Powers in Australia, 12-13(Fourth ed.).
73
[1967] A.C. 259.
74 Supra note 67.
75
Supra note 32.
76 [1878] 3A.C. 889.
77 Supra note 71.
78
Supra note 76. See also Smt. Indira Nehru Gandhi v. Raj Narain., A.I.R. 1975 S.C. 2299; the Karnataka case,
supra note 3.
79 Whiteman v. Sadler, [1910] A.C. 514; see also Blackburn v. Flavelle, [1881] 6A.C. 628 at 634.
80 See Mersey Docks and Harbour Board v. Henderson Brothers, [1888] 13 A.C. 595 at 600.
81
A.I.R. 1972, S.C. 1061.
82 Id. at 1069.
83 Governor General in Council v. Releigh Investment Co., A.I.R. 1944 F.C. 51; Harakchand Rattanchand v. Union
of India, A.I.R. 1970 S.C. 1453.
-----------------------------------------------------------------------------------------------------------------------------------------------------------
84
Quoted by Beg C.J., in supra note 3 at 97-98.
85 Marshall and Moodle, Some Problems of the Constitution 71, quoted by Beg, C.J., in supra note 3 at 97.
86 S.A. de Smith, Constitutional and Administrative Law 170-179(1971).
87
See also Sir Ivor Jennings, Cabinet Government 277 (1959).
89 Birch, Representative and Responsible Government.
90
T.C. Hartley and J.A.C. Griffith, Government and the Law.
91 Id. at 60.
92 Supra note 49 at 125-26.
93 Supra note 58.
94 Id. at 1106. See also the Karnataka case, supra note 3 at 135.
95 See S.A. de Smith, supra note 86 at 175.
96 Supra note 78.
97 Supra note 71.

98 Melbourne Corporation v. Commonwealth, 74 C.L.R. 31(1947).
99 71 C.L.R. 29 (1945).
100
101 Id. at 1603.
102 Id. at 1619.
103
104 Supra note 78.
105
Id at 2472.
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/
notification is being circulated on the condition and understanding that the publisher would not be liable in any manner by reason of any mistake
or omission or for any action taken or omitted to be taken or advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/
rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.

J 21 JILI 1979 227 23llm56 Mnluaacin 20240226 194033 1 30

Uploaded by

Copyright:

Available Formats

You might also like

J 21 JILI 1979 227 23llm56 Mnluaacin 20240226 194033 1 30

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

J 21 JILI 1979 227 23llm56 Mnluaacin 20240226 194033 1 30

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, © 2024 EBC Publishing Pvt. Ltd.

Page 1 Monday, February 26, 2024

21 JILI (1979) 227

The nature and structure of the Indian Republic-is it a federation?

activities. Inter-state relations, coordination and adjudication of disputes amongst the

The Indian Constitution, as stated above, cannot be described as a truly federal

obligation on the states to exercise executive powers so as to ensure compliance with

The union government

The evolution of a federal structure or a quasi federal structure necessarily

[F]irstly a body of countries such as the Cantons of Switzerland, the Colonies of

According to B.R. Ambedkar the Constitution is federal “inasmuch as it establishes

The satisfaction of the President that there is a failure of the constitutional

Nature of inquiry under s. 3 of the Act

notification appointing the inquiry commission by the central government in the

has no power to pronounce a binding judgment. It has to collect facts through

Validity of s. 3 of the Act

Reference may also be made to Waynes Book on Australian Constitution, wherein he

Three essential points regarding federalism in India

Parliament, if the government was to be carried on as a unity rather than by a number

Therefore, the whole question of collective responsibility is related to continuance of

The object of a Commission of Inquiry is to facilitate and help the formation of

Dealing with the collective responsibility of the Council of Ministers to the

The relevant part of article 194 is as follows:

provision for the appointment of a suitable person with power to determine in

The objection that the appointment of a Commission of Inquiry under section 3 of

giving residuary powers to the centre.

4 See art. 355 of the Constitution.

7 See 2 & 3 Geo. 5, c. 6.

10 26 Geo. 5 and 1 Edw. 8, c. 21

25 A.I.R. 1962 S.C. 1406.

35 Quoted by Beg, C.J., in id. at 1382.

40 Quoted by Beg, C.J., in ibid.

46 Quoted by Bhagwati, J., in supra note 2 at 1407.

(a) “appropriate Government” means:

S. 3 Appointment of Commission: (I) The appropriate Government may, if it is of opinion that it is

97 Supra note 71.

You might also like