3

CONSTITUTIONAL LAW—II
(PROVISIONS OTHER THAN FUNDAMENTAL RIGHTS)

Alice Jacob*

I INTRODUCTION
IN THIS survey the Supreme Court's role as the final interpreter and arbiter of
constitutional issues is increasingly reflected in varied matters as the impeachment
process for removal of judges of higher judiciary, appointment process of High
Court judges, adjudication of the validity of anti-defection amendment of the
Constitution, scope of the doctrine of immunity of instrumentalities, issues of
legislative competence of Parliament and state legislatures and different facets
of service jurisprudence.

II JUDICIARY

Impeachment process
The process of impeachment against V. Ramaswamy J of the Supreme Court
had given rise to a spate of litigation. The first in the series was Sub-Committee
on Judicial Accountability v. Union of India1 in which the Supreme Court upheld
the constitutionality of the Judges (Inquiry) Act, 1968 and interpreted the proper
scope of article 121 (bar on discussion on the conduct of judges in the legislatures)
and article 124 (procedure for removal of Supreme Court judges) of the
Constitution.
The second was Krishna Swami v. Union of India2 in which the petitioner,
a Member of Parliament (Lok Sabha) from Tamil Nadu and a close friend of V.
Ramaswamy J and Raj Kanwar, an advocate from Karnal, had filed public interest
petitions under article 32 praying for the quashing of the notice of motion for
impeachment issued by the Speaker of Ninth Lok Sabha and the charges framed
by the inquiry committee set up under the Judges Inquiry Act on the basis that
the procedure adopted by the committee was illegal. Virtually the petitions were
primarily aimed at obtaining a reconsideration of the Supreme Court's decision
in the Sub-Committee on Judicial Accountability case. In both petitions the judge
was not impleaded as a party though he was a party in the Judicial Accountability
case.
The court considered two preliminary issues namely, (/) tenability of the plea
for reconsideration of the Judicial Accountability decision; and (it) maintainability
* B. A., LL.M. (Delhi), LL.M., J.S.D. (Yale), Research Professor and former Director, Indian Law
Institute, New Delhi.
1 1991 (2) SCALE 844; see for an analysis, Alice Jacob, XXVII ASIL 204-06 (1991).
2 1992(2) SCALE 311.

www.ili.ac.in The Indian Law Institute

30 Annual Survey of Indian Law [1992

of the petitions for reliefs claimed therein without impleading the judge as a
party.
The majority opinion delivered by J.S. Verma J on behalf of N.M. Kasliwal,
K. Jayachandra Reddy, S.C. Agarwal JJ and himself, negatived the petitioners*
claim for reconsideration of the earlier decision. In the absence of the judge being
made a party to the petitions, the majority dismissed the petitions. The majority
refused to give an oral hearing to Raj Kan war and characterised him as a
"busybody who has filed the petition for no ostensible public purpose."
Encouragement of such a busybody would result in "wastage of courts' time and
abuse of its process", the judge observed.
The minority view delivered by K. Ramaswamy J was to the effect that the
inquiry committee had adopted certain procedures and considered certain evidence
which vitiated the decision-making process.
Among the defects in procedures, K. Ramaswamy J pointed out that the inquiry
committee framed charges against the judge without proper investigation. The
lawyer appointed to assist the committee acted as a prosecutor against the judge.
Further, it was not legal for the committee to have permitted some Members of
Parliament to tender evidence before it. The Members of Parliament had no locus
standi either to participate or adduce evidence against the judges. These features
of the inquiry procedure ran counter to the principle of fairplay in action, K.
Ramaswamy J added. Accordingly the petition was allowed in part.
Regarding the petition of Raj Kanwar, K. Ramaswamy J agreed with the
majority view.
The third in the series was Sarojini Ramaswami v. Union of India? The
petitioner, wife of V. Ramaswamy J filed a writ petition under article 32 raising
certain constitutional issues involving the interpretation of article 124 and Judges
(Inquiry) Rules, 1969 in the backdrop of the law declared in sub-committee on
Judicial Accountability. The Constitution Bench had held in the above case by
a majority of 4:1 that a motion under section 3(2) of the Judges (Inquiry) Act
did not lapse on the dissolution of the House. It was also held that the entire
proceedings of the inquiry committee set up under the Act were statutory in nature
and, consequently, subject to judicial review.
The main point for decision was whether the judge was entitled to obtain a
copy of the committee's report before its submission to the Speaker of Lok Sabha
in accordance with section 4(2) of the Act, in order to enable him to challenge
the adverse findings in courts. It was contended that the logical corollary of the
Constitution Bench's decision in Sub-Committee on Judicial Accountability was
that the right of judicial review entailed the necessity to supply a copy of the report
to the judge before the commencement of the parliamentary part of the
impeachment process. Any other view would deprive the judge of his constitutional
right to judicial review of the statutory part of the process. Once the order of
removal was made by the President, it would be immune from judicial review.
The Bench in the instant case was divided. The majority was represented by
J.S. Verma, N.M. Kasliwal, K. Jayachandra Reddy and S.C. Agarwal JJ. K.
Ramaswamy J dissented,

3 1992 (2) SCALE 257.

www.ili.ac.in The Indian Law Institute

Vol. XXVIII] Constitutional Law-11 31

The majority opinion of J.S. Verma J, on behalf of other judges and himself,
was of the view that under the constitutional and statutory schemes for removal
of a judge, Parliament should also have the benefit of the view of the judge on
the finding of 'guilty' against him. To facilitate the judge to give his views, it
is mandatory on the part of Speaker/Chairman to supply a copy of the committee
report to the judge "as soon as may be" under section 4(3) on its submission
under section 4(2).
Considering the further question of the nature of the opportunity to the judge
during the part of the parliamentary process, the majority view examined the
Australian practice with reference in particular to the opportunity afforded to
Vasta J of the Supreme Court of Queensland in Australia, where the process of
removal was wholly parliamentary. The majority approved the Australian practice
as being consistent with the constitutional scheme in India where the parliamentary
process begins only after the finding of 'guilty* is arrived at by the committee.
The majority observed:4

We arc.of the opinion that in the constitutional scheme in India envisaged

and reflected by the constitutional provisions and the law enacted
thereunder....it is implicit that such an opportunity be given to the concerned
Judge when the Parliament takes up the motion for his removal for
consideration along with the committee's report and other relevant
materials... The precise details of the manner in which such an opportunity
is to be given to the concerned Judge may be for the Speaker/Chairman
and the Parliament to decide, but it does appear to us to be the clear mandate
in our constitutional scheme that the procedure adopted...should be such
as would ensure availability to each House of Parliament of the concerned
Judge's point of view and comments, if any, on the finding of guilty made
in the committee's report when it takes up for consideration the motion
for removal of the Judge, such procedure ensuring fairness to the concerned
Judge and being in keeping with the dignity of the high office held by
the learned Judge.
On the issue of timing of judicial review, the majority held that as the final
decision is to be taken only by Parliament on the finding of 'guilty', and the
committee's finding remained incohate till its adoption by Parliament, the
appropriate stage of exercise of judicial review had to be only after the stage of
the judge's 'proved misbehaviour* on adoption of the motion by Parliament leading
to the order of removal by the President. Under the statutory scheme, the finding
of 'guilty'blossoms up to "proved misbehaviour" on its adoption by Parliament".
Therefore, to give the right to judicial review during the interregnum between
the conclusion of inquiry by the committee and the Presidential order of removal
would be premature and unwarranted in the constitutional scheme. Justifying the
interpretation adopted as consistent with the constitutional and statutory schemes,
the majority added:5

4 Id at 274.
5 Id. at 277.

www.ili.ac.in The Indian Law Institute

32 Annual Survey of Indian Law [1992

This construction while protecting the interest of the concerned Judge gives
full effect and due importance to the role of all the high dignitaries involved
in the process of removal there being no reason to doubt that each one
of them would be fully alive to the significance of his role and extent of
obligation under the constitutional scheme. If, however, any illegality occurs
ever then the provision for judicial review at the end of the process permits
its correction without interdicting the process in between.

The majority also negatived the argument that the inquiry committee was a
tribunal for the purpose of special leave appeal under article 136 of the Constitution.
N.M. Kasliwal J wrote a separate concurring opinion. K. Ramaswamy J entered
an elaborate dissent. The judge observed:6

As a corollary to the judgement of this court in SCJA's case [Sub-

Committee on Judicial Accountability] the report of the committee with
its finding must be furnished to the... Judge without which there can never
be any efficacious judicial review. This valuable right cannot be taken away
nor rendered nugatory by interpretative process which would violate the
principles of natural justice and unfair procedure offending Art. 21. The
Committee is a statutory Tribunal, even though perforce its report is not
operative. As a Tribunal it is enjoined to supply him a copy of its report
and if it fails to supply, the... Judge is entitled to maintain the writ petition
compelling the Committee to supply the copy of the report.

In the light of this view, the judge held that the committee be requested to
withhold submission of its report to the Speaker for a reasonable time.
The majority view on the timing of judicial review by the aggrieved judge
as after the presidential order of removal seems to be in consonance with the
constitutional and statutory schemes of impeachment process. The majority and
minority in ensuring to the judge the right to have a copy of the committee's report
to facilitate the presentation of his views to Parliament, have protected a valuable
right of the judge.

Appointment of Judges to High Courts

Shri Kumar Padma Prasad v. Union of India1 brought to light the sorry state
of affairs of appointment process of judges to higher judiciary. Revealing are the
following observations of Kuldip Singh J, on behalf of P.B. Sawant, N.M. Kasliwal
JJ and himself:*

It is for the first time in the post-independent era that the court is seized
of a situation where it has to perform the painful duty of determining the
eligibility of a person who has been appointed a Judge of High Court by
the President of India and who is awaiting to enter upon his office. We

6 Id. at 301-02.
7 1992 (2) SCC 428.
8 Id. at 450.

www.ili.ac.in The Indian Law Institute

Vol. XXVIII] Constitutional Law-^I 33

looked into the official records and permitted ... counsel for the parties
to examine the same. We are at a loss to understand as to how the bio-data
of Srivastava escaped the scrutiny of the authorities during the process
of consultation under Article 217(1) of the Constitution of India. A cursory
look at the bio-data would have disclosed that Srivastava was not qualified
for appointment as a Judge of the High Court on the admitted facts which
have been in the official files all the time. Needless to say that the
independence, efficiency and integrity of the judiciary can only be
maintained by selecting the best persons in accordance with the procedure
provided under the Constitution. These objectives enshrined under the
Constitution of India cannot be achieved unless the functionaries
accountable for making appointments act with meticulous care and utmost
responsibility.

Srivastava served as an officer in Assam and Mizoram in various administrative

capacities. He was invested under rule 9 of the 1937 Rules for the Regulation
of the Procedure of Officers appointed to Administer Justice in the Lushai Hills,
with the powers resembling the powers of a judicial magistrate of the first class
under the Code of Criminal Procedure, 1973. The Governors and Chief Ministers
of the North Eastern States recommended the name of Srivastava for appointment
as a judge of the Gauhati High Court. The Chief Justice of the Gauhati High Court
transmitted their recommendation and bio-data of Srivastava to the Union Minister
of Law and Justice. The other constitutional functionary, namely, the Chief Justice
of India on considering the recommendations of other functionaries and the bio-
data of Srivastava, cleared his name also saying that he was a judicial officer.
The President and the Prime Minister also approved the appointment and the
warrant of appointment signed by the President and the relevant notification
appointing him as judge was issued. Thereupon, an advocate of the Gauhati High
Court filed a public interest litigation writ challenging Srivastava's appointment.
The High Court passed an interim order directing that the warrant of appointment
should not be given effect to and restraining Srivastava from making and
subscribing oath of officer under article 219. Thereupon, Srivastava filed a special
leave appeal against the High Court's order, a transfer petition seeking transfer
of writ proceedings pending in the High Court and a writ petition under article 32.
The main issues before the Supreme Court were: (i) Whether Srivastava's
appointment violated article 217(2) because it did not satisfy the basic eligibility
requirements in that he had not been an advocate of a High court for at least ten
years under clause 2(b) as his bio-data showed that he never held ' 'judicial office' *
within the meaning of clause 2 (a); (ii) whether the various offices he held in
the North-Eastern States were * judicial offices" as envisaged under article
217 (2)(a); and (iii) whether there was full and effective consultation amongst
the constitutional authorities.
On the first and second issues, the Supreme Court relying on Chandra Mohan
v. State of U.P.9 rightly held that the concept of ''judicial officer" had to be
construed in conformity with the scheme of chapters V and VI of part VI of the

9 AIR 1966 SC 1987.

www.ili.ac.in The Indian Law Institute

34 Annual Survey of Indian Law [1992

Constitution relating to higher judiciary. So construed it has to belong to ' 'judicial

set vice" as defined under article 236(6). Judicial office must be part of the judicial
seivice of the state. In the words of Kuldip Singh J:10

We are of the view that holder of "judicial office" under Article 217 (2)
(a) means the person who exercises only judicial functions, determines
causes inter-partes and renders decisions in a judicial capacity. He must
belong to the judicial service which as a class is free from executive control
and is disciplined to uphold the dignity, integrity and independence of
judiciary.

Applying this norm to Srivastava's case, the court concluded that he never
served in a judicial office forming part of the judicial service of the state. The
court examined in detail the features of the various offices held by him and held
that none of them belonged to judicial service as envisaged under the Constitution.
All the offices were under the employment and control of the executive.
The third issue, namely whether there was "full and effective consultation"
on "full and identical facts" among the constitutional authorities under article
217 was left open by the court.
That a case of this kind should have reached the apex court in a public interest
litigation filed by an advocate speaks volumes about the process of judicial
appointments to higher judiciary currently in vogue in India. Time and again
suggestions have been made for reforming the process by Law Commission,
scholars, academics etc. but to no avail. Srivastava's case must serve as an eye
opener to reform the appointment process so that independence and integrity of
judiciary is preserved.

Disciplinary control of staff of courts of first instance

R.M. C-'rjari v. High Court of Gujarat11 involved the scope of disciplinary

control over the ministerial staff of civil courts under the alministrative control
of district judge. In the instant case two junior clerks faced disciplinary action
on the charge that they falsely identified three persons before a judicial magistrate.
During the enquiry, they admitted the charge and prayed for mercy. The district
judge imposed the penalty of withholding of future promotions with permanent
effect. The High Court in exercise of its powers under rule 23 of the Gujarat Civil
Service (Discipline and Appeal) Rules, 1971 enhanced the penalty to one of
removal from service.
The Supreme Court speaking through Kuldip Singh J, on behalf of
A.S. Anand J and himself, interpreted the scope of the Gujarat Civil Service Rules
and found that the High Court, as the appellate authority, was empowered to
exercise the power of review of the district judge's order. Relying on the leading
case of State of West Bengal v. Nripendra Nath Baghchi12 which expatiated on

10 Supra note 7 at 445-46 (Emphasis added).

11 1992 (2) SCALE 148.
12 (1966) 1 SCR 771.

www.ili.ac.in The Indian Law Institute

Vol. XXVIII] Constitutional Law—II 35

the nature and scope of High Court's control over the courts of first instance,
it was held that the High Court was indisputably the ' 'immediate superior authority
to the district judge" and the appeal against the district judge's order lie to die
High Court. Consequently the High Court was within its jurisdiction to enhance
the penalty on appeal.

Ill VALIDITY OF CONSTITUTIONAL AMENDMENT ON DEFECTIONS

Kihoto Hollohan v. Zachillhun raised questions of grave constitutional

import. It involved the challenge to the constitutionality of the tenth schedule
incorporated into the Constitution by the Constitution (Fifty-second Amendment)
Act, 1985. The instant case related to the disqualification of some members of
the Nagaland Legislative Assembly on die ground of defection. The case was heard
along with some other matters relating to other legislative assemblies including
those of Manipur, Meghalaya, Madhya Pradesh, Gujarat and Goa which raised
similar constitutional issues.
Due to the urgency of resolution of issues involved therein, the Supreme Court
(both majority and minority) pronounced its operative conclusions, followed by
detailed judgements later. The majority judgment was delivered by M.N.
Venkatachaliah J (as he then was), on behalf of Jayachandra Reddy, S.C. Agarwal
JJ and himself The minority judgment was rendered by J.S. Verma J, on behalf
of L.M. Sharma J (as he then was) and himself
The Fifty-second Amendment was the culmination of the unsuccessful Thirty-
second and Forty-eighth Constitutional Amendment Bills and the recommendations
of the Committee on Defections to combat die deadly virus of political defections
in the political process of the body politic lured by power and pelf. The remedy
put forth was disqualification of the members of either House of Parliament or
of the state legislature, who was found to have defected, from continuing as a
member of the legislative body.
The constitutional validity of tenth schedule was challenged on many grounds.
Firstly, it was contended that the Fifty-second Amendment was destructive of the
basic structure as it violated the fundamental rights of freedom of speech, right
of dissent and freedom of conscience, as para 2 of the tenth schedule penalised
and disqualified elected representatives in the exercise of these rights which were
vital to the nurture of parliamentary democracy. It was argued that the tenth
schedule and democracy could not coexist. In an erudite judgment marked by
scholarship and learning, M.N. Venkatachalia J, for the majority, put the problem
in a proper perspective saying that one has to take a balanced view of the
degradation of Indian democracy in the context of the political evil of defections
or floor crossings as popularly called. The judge pertinendy pointed out:14

The argument that the constitutional remedies against the immorality and
unprincipled chameleon like changes of political hues in pursuit of power
and pelf suffer from something violative of some basic features of the

13 1992 Supp (2) SCC 651.

14 Id. at 680.

www.ili.ac.in The Indian Law Institute

S6 Annual Survey of Indian Law [1992

Constitution, perhaps, ignores the essential organic and voluntary character

of a Constitution and its flexibility as a living entity to provide for the
demands and compulsions of the changing times and needs. The people
of the country were not beguiled into believing that the menace of unethical
and unprincipled changes of political affiliations is something which the
law is helpless against and is to be endured as a necessary concomitant
of freedom of conscience... This is pre-eminently an area where Judges
should defer to legislative perception of and reaction to the pervasive
dangers of unprincipled defections to protect the community.

The majority also negatived the challenge that para 2 impinged on the powers,
privileges and immunities of the members of legislative bodies. " T h e freedom
of speech of a Member is not an absolute freedom... It is difficult to conceive
how article 105(2) is a source of immunity from the consequences of unprincipled
floor crossing." 1 5
The majority also rejected the attack on the statutory distinction between
"defection" and " s p l i t " by saying that the courts had to defer to the legislative
wisdom and perception in experimental legislation to deal with certain crisis. The
Court has no practical criterion to go by except "what the crowd wanted" using
Justice Holmes' aphorism.
Next was the contention mat insofar as para 7 of the tenth schedule ousted
the jurisdiction of the Supreme Court and the High Courts under articles 136,
226 and 227 in adjudicating on the disqualification of defected members the
mandatory requirement of ratification by the state legislatures before presidential
assent had to be complied with under article 368(2). Reliance was placed on Sankari
Prasad15" and Sajjan Singhl5b involving the validity of Constitution Amendment
Acts vis-a-vis ratification requirement. But the majority distinguished both these
decisions, pointing out that the Amendment Acts had extinguished certain rights
(right to property) and had not taken away the power of judicial review of the
Supreme Court and the High Courts. The majority rightly held that para 7 "in
effect" changed the scope of articles 136,226 and 227 which attracted the necessity
of ratification requirement and consequently void.
The majority applied the doctrine of severability to uphold the validity of the
Amending Act minus para 7 which ousted judicial review. The principle of
severability enables the court to separate the valid part of a statute from the invalid
part. The test of severability mandates the court to ascertain whether legislature
would have enacted die law if the severed part did not form part of the law and
whether after severance what remains can stand independendy and is workable.
The doctrine of severability has been applied by the Supreme Court when the
validity of amendment has been challenged on the basis of substantive limitations
on the amending power, namely alteration of basic structure. Only the offending
part of the amendment was declared void while upholding the rest of the
amendment.

15 Id. at 681.
15a Shankari Prasad v. Union of India. AIR 1951 SC 458.
15b Sajjan Singh v. Stale of Rajas titan, AIR 1965 SC 845.

www.ili.ac.in The Indian Law Institute

Vol. XXVIII] Constitutional Law-^I 37

The majority opinion applied the doctrine of severability on the realm of

procedural limitations on the amending process imposed by article 368(2). The
majority explained that in a composite Bill seeking amendments of several
provisions of the Constitution, some of which may have to be ratified by the
majority, those provisions which are invalidated by the lack of prescribed
ratification could be severed from the rest validly enacted by the legislature.
Such an amendment is within the legislative competence of Parliament to the
extent that it deals with provisions other than those mentioned in the proviso to
article 368(2). The proviso was introduced with a view to safeguarding the federal
principle. Consequently its ambit should be confined to the prescribed limits and
not be interpreted in a manner as to take away the power of main part of article
368(2). Thus interpreted it was held that para 7 stood independent of the main
provisions of the tenth schedule which were aimed at containing unprincipled and
unethical defections. It could not be said that the amending body would not have
enacted the other provisions of the tenth schedule if it had known that para 7 was
not valid. Having regard to the mandatory language of article 368(2) that
"thereupon the Constitution shall stand amended," the operation of the proviso
should not be extended to constitutional amendments in a Bill which could stand
independently of such ratification.
The majority also did not hold the ratification procedure as a condition
precedent for the presentation of the Bill for Presidential assent. Consequently
assent of the President without such ratification did not make the amending Act
void in its entirety.
Minority view represented by Vcrma J, on behalf of L.M. Sharma J and himself,
would not apply the doctrine of severability in the instant case. In their opinion,
it was the entire Bill and not merely para 7 therein which required prior ratification.
The requirement of prior ratification by the state legislatures was not only a
condition precedent for the exercise of amending power and a constitutional
limitation thereon but also a requirement forming an exception to the general rule
of automatic amendment of the Constitution on presidential assent to the Bill.
The legislative history of the Amending Act clearly showed that para 7 had a pivotal
role for exclusion of judicial review of the Speaker's decision by all courts including
the Supreme Court, Consequently the question of applying the doctrine of
severability to invalidate para 7 alone retaining the rest of tenth schedule did not
arise on the assumption that me Constitution stood amended on the assent by the
President. It did not apply to a "still-born legislation". Thus the minority
invalidated the whole tenth schedule.
The majority further held that the Speaker, while exercising his powers under
the tenth schedule, functioned as a judicial tribunal exercising judicial power of
the state and thus amenable to judicial review. The finality clause in para 6(1)
did not oust judicial control under articles 136, 226 and 227. However, in
consonance with the well accepted principles of administrative law, the scope of
judicial review would be confined to jurisdictional errors only, namely, * 'infirmities
based on violation of constitutional mandate, mala fides, non-compliance with
rules of natural justice and perversity."16

16 Id. at 710.

www.ili.ac.in The Indian Law Institute

38 Annual Survey of Indian Law [1992

Para 6(2) incorporated a fiction that all proceedings under para 6(1) be deemed
to be * 'proceedings in Parliament'' or ' 'proceedings in the legislature of a state' *
attracting immunity from judicial scrutiny under article 122 or article 212 as the
case may be. Consistent with its view on the nature of power under para 6(1),
the majority held that the immunity under articles 122 and 212(1) was only for
"mere irregularities of procedures". Further the judge added:17

[E]ven after 1986 when the Tenth Schedule was introduced, the
Constitution did not evince any intention to invoke Article 122 or 212 in
the conduct of resolution of disputes as to the disqualification of members
under Articles 191(1) and 102(1). The very deeming provision implies that
the proceedings of disqualification are, in fact, not before the House, but
only before the Speaker as a specially designated authority. The decision
under paragraph 6(1) is not the decision of the House, nor is it subject
to the approval by the House. The decision operates independently of the
House. A deeming provision cannot by its creation transcend its own power.
There is, therefore, no immunity under Articles 122 and 212 from judicial
scrutiny of the decision of the Speaker or Chairman exercising power under
paragraph 6(1) of the Tenth Schedule.

The minority concurred with the view of the majority on this issue.
The majority pointed out that in the light of the constitutional scheme in the
tenth schedule, judicial review should not, however, cover any stage prior to the
adjudicatory process by the Speaker/Chairman. Conscquendy no quia timet actions
be allowed except in case of disqualifications or suspensions which may have
"grave, immediate and irreversible repercussions and consequence."
The majority upheld the conferment of power on Speaker/Chairman to
adjudicate on issues as to disqualification of a member against challenge on grounds
of political bias and violation of basic feature of the Constitution. In the
observations of the majority:18

It would indeed, be unfair to the high traditions of that great office

(Speaker/Chairman) to-say that the investiture on it of this jurisdiction
would be vitiated for violation of a basic feature of democracy... The
Speakers/Chairmen hold a pivotal position in the scheme of Parliamentary
democracy and are guardians of the rights and privileges of the House.
They are expected to and do take far-reaching decisions on the functioning
of Parliamentary democracy. Vestiture of power to adjudicate questions
under the Tenth Schedule in such Constitutional functionaries should not
be considered exceptionable.

The minority, however, felt that the entrustment of power on the Speaker
violated the basic structure of the Constitution and hence invalid. As observed
pertinently:19

17 Id. at 706.
18 Id. at 714.
19 Id. at 742.

www.ili.ac.in The Indian Law Institute

Vol. XXVIIII Constitutional Law—II 39

The Speaker being an authority within the House and his tenure being
dependent on the will of the majority therein, likelihood of suspicion of
bias could not be ruled out. The question as to disqualification of a Member
has adjudicatory disposition and, therefore, requires the decision to be
rendered in consonance with the scheme for adjudiciation of disputes. Rule
of Law has in it firmly entrenched, natural justice, of which, rule against
bias is a necessary concomitant... This appears to be the underlying principle
adopted by the framers of the Constitution in not designating the Speaker
as the authority to decide election disputes and questions as to
disqualification of members under Articles 103, 192 and 329 and opting
for an independent authority outside the House.

The Speaker being designated as the sole and final arbiter of disputes on
disqualification of members of Lok Sabha and legislative assemblies was held
by the minority to violate a basic feature of the Constitution. The minority
differentiated the role of the Chairman of the Rajya Sabha, who is the Vice
President of India from that of the Speaker. But this differentiation would not
save the tenth schedule as it became unworkable for the Lok Sabha and state
legislative assemblies.
The majority while reiterating judicial review as a basic feature of the
Constitution and declaring para 7 of tenth schedule as unconstitutional, yet saved
the rest of the tenth schedule by applying die doctrine of severability to the
constitutional amendment. This represents high watermark of judicial statesmanship
as the constitutional amendment was enacted to contain and eliminate the national
malaise of defections in the functioning of the political process which was eating
into the vitals of democracy. The apex court interpreting the Constitution establishes
community policies in the broader sense.

IV FEDERALISM

Immunity or instrumentalities
Union of India v. Puma Municipal Council?0 reaffirmed the doctrine of
immunity of instrumentalities incorporated in article 285 of the Constitution. In
a federal constitution, this doctrine protects one level of government against taxation
by the other level of government. It restricts to some extent the taxing powers
of the governments in a federation. This principle, a creation of judiciary in USA,
has been incorporated in the Indian Constitution.21
The facts were : The appellant, the central government, challenged in the
Bombay High Court, the notice of demand issued by the Purna Municipal Council
for tax of Rs. 28,400/- as service charges for a certain period. The central
government claimed immunity from taxation under article 285(1) read with section
135 of the Indian Railways Act, 1890. Negativing the claims, the High Court held
that sub-clause(2) of article 285 made the central government's properties liable

20 1992 (1) SCC 100.

21 McCulloch v. Maryland, 4 Wheat 316 (1819).

www.ili.ac.in The Indian Law Institute

40 Annual Survey of Indian Law [1992

to taxes until parliamentary law provided otherwise. The court found that the
Railways Act could not be held to be a law envisaged under sub-clause (2). It
was also held that section 135 of the Railways Act could have no overriding effect
as against the saving of laws under article 285(2).
On appeal the Supreme Court found the High Court judgment erroneous. In
fact the court held that section 135 was saved under article 285(1) which provides
that the property of the central government shall, save insofar as Parliament may
by law otherwise provide, be exempt from all taxes imposed by the state or by
any authority within a state. Section 135 makes the railway administration liable
to pay taxes of local authority only when the central government issues a
notification making it liable to pay the tax. It permits and regulates taxation of
railway by the local authority in the specified manner. The Railway Act, being
a central legislation, could not possibly come within the ambit of article 285(2)
because it deals with state legislation only. The court observed:22

The reasoning of the High Court to oust the applicability of Section 135...
on the test of sub-article 2 of Article 285 was totally misplaced, as also
in not venturing to create room for it in sub-article (1) of Article 285.

Accordingly the appeal was allowed and the municipal council was restrained
from taxing the railway administration. The court, however, pointed out that the
right of local autfiorities to tax the railways stood preserved on the issue of
notification by the central government.

Division of legislative powers

In Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. v. State of
Gujarat22* the constitutional validity of section 58-A of the Bombay Prohibition
Act, 1949 was challenged on the ground of lack of legislative competence of the
state legislature to enact the provision. The section empowered the government
to appoint prohibition and excise or police staff to supervise the processes of
manufacture, import, export, transport, storage, sale, purchase, use, collection or
cultivation of intoxicant, denatured spirituous preparations hemp, mhouva flowers
or molasses. The cost incurred on such staff is to be borne by those doing the
above processes.
The High Court had upheld the levy as per under entry 8 of the State List.
The Supreme Court speaking through R.M. Sahai J, on behalf of S. Mohan J and
himself, located the legislative power for the levy under entry 33 of the concurrent
list which reads:

Trade and commerce in, and the production, supply and distribution of,
(a) the products of any industry where the control of such industry by the
Union is declared by Parliament by law to be expedient in the public
interest, and imported goods of the same kind as such products...

22 Supra note 20 at 102.

23 1992 (2) SCC 42.

www.ili.ac.in The Indian Law Institute

Vol. XXVIII] Constitutional Law-^I 41

The court stated that section 58A could be traced to the regulatory power of
the state under the above entry. The court also referred to its earlier decision in
Synthetics and Chemicals Ltd. v. State ofU.P.^ wherein it was held that though
the power to levy tax or duty on industrial alcohol vested in the central government,
the states retained the power to lay down regulations to ensure that industrial (non-
potable) alcohol was not diverted and misused as substitution for potable alcohol.
In the concurrent legislative sphere, the doctrine of occupied field prevent the
states from encroaching on any power already covered by central legislation. The
existing central legislation in the instant situation is the Industries (Development
and Regulation) Act, 1951. But a perusal of its provisions reveals that it does
not contain any provisions concerning regulation of industrial alcohol or prevention
of its misuse. Consequently the court found the competence of the state legislature
under entry 33 of the concurrent list.
Panduronga Timblo Industries v. Union of India25 involved a challenge to
the constitutional validity of the Goa, Daman and Diu Barge Tax Act, 1973 which
levied a differential tax on barges ranging from less than 100 tonnes to 350 tonnes
and above. The ground of challenge was that the state legislature had no legislative
competence to enact the legislation as barges are mechanically propelled water
crafts and are beyond the legislative reach of the states.
The challenge was sought to be repelled on the basis that by virtue of the power
comerred by entry 58 of state list (taxes on animals and boats) the state legislature
had the power to enact the legislation. The whole issue hinged on the answer to
the question, namely, whether a barge is a boat.
The Judicial Commissioner of Goa had upheld the levy and the validity of
legislation as falling within the ambit of entry 58 of state list. On appeal to
the Supreme Court, the appellants contended that barges were not boats.
A.M. Ahmadi J, on behalf of K. Ramasway J and himself, considered the dictionary
meanings26 of the words "barge", "boat", "ship" and "vessel" from three
sources and held that barges belonged to the family of boats and ships. The judge
approved the conclusion of the judicial commissioner that barge is a flat-bottomed
freight boat used in rivers and canals and propelled by oars, sails or engines. Section
2(1) of the Act defined barge as a mechanically propelled water craft used or
capable of being used as a means of transport of minerals.
The court would not limit entry 58 dealing with tax on boats to boats propelled
exclusively by oars. The court rejected the view that entries 24,25 and 27 in the
union list and entries 31 and 32 in the concurrent list cut down the scope of entry
58 in the state list. Entries 24 and 25 of the union list deal with shipping and
navigation on inland waterways and with maritime shipping and navigation. Entry
32 of the concurrent list deals with shipping and navigation on inland waterways.
Entry 27 of the union list and entry 31 of the concurrent list cover ports. All these
entries operate in their own fields and do not deal with the subject matter in entry
58 of the state list.

24 1990 (1) SCC 109.

25 1992 (2) SCC 635.
26 Odham's Dictionary, Oxford English Dictionary and Black's Law Dictionary.

www.ili.ac.in The Indian Law Institute

42 Annual Survey of Indian Law [1992

Accordingly the court upheld the validity of Goa legislation and the levy. The
court adopted a reasonable and harmonious interpretation of the entries in the three
lists and gave full scope to the potential of taxing powers of the state. The
inarticulate premise of the decision both at die Judicial Commissioner and the
Supreme Court level is*to preserve and strengthen the financial powers of the
states under the Constitution.

V LEGISLATIVE PRIVILEGES AND PERSONAL LIBERTY

In S.K. Sunther v. Hon'ble the Speaker, Tamil Nadu Legislative Assembly27

the petitioner-journalist had challenged in a writ petition under article 32 die warrant
of arrest issued against him by the Speaker of die assembly for violation of the
privileges of the Houses. The Supreme Court Bench consisting of N.M. Kasliwal
and K. Ramaswamy JJ had directed the secretary of the assembly to appear in
person at the court hearing and supply the court with required information. On
this the assembly passed a resolution directing the secretary not to appear before
the court. The resolution, inter alia, read:

This House, therefore, resolves that the Secretary, Assembly, who

implements the orders of the House need not receive the notice from die
Supreme Court and appear before it on 5.5.92.

Likewise, the House also resolves that in respect of all the privilege cases
concerning this House which are before the Supreme Court neither any
member of this House nor the Assembly Secretary nor other officers of
the Secretariat need take cognizance of any notice, summons or otiier orders
or other directions.

Consequendy, the secretary wrote a letter to the counsel of Tamil Nadu in

Delhi giving the requisite information.
As the resolution raised issues of great importance for consideration by the
apex court, notices were issued to the respondents. In the interim, the court stayed
the order of the Speaker and suspended the execution of the warrant of arrest issued
against the petitioner until furtiier orders.
The court's great concern for the personal liberty of persons vis-a-vis the
privileges of legislatures is depicted in the decision by die stay of warrant of arrest.
The parameters of legislative privileges touching the personal liberty of individuals,
a guaranteed fundamental right under the Constitution awaits decision by the court.

VI CIVIL SERVICE

In Baikunthanath Das v. Chief Distt. Medical Officer2* die facts were: The
appellant, a pharmacist in Orrisa did not have a good service record. Successive

27 1992 (1) SCALE 1236-41.

28 1992 (2) SCC 299; this ruling was followed in P & TBoard v. C.S.N. Murthy, 1992 (1) SCALE
727 (compulsory retirement in public interest under rule 56(j); see also Orissa v. Nityananda
PatU 1992 (2) SCALE 810 (compulsory retirement of junior welfare extension officers under
rule 7 of Orissa Service Code upheld).

www.ili.ac.in The Indian Law Institute

Vol. XXVIII] Constitutional Law-^I 43

civil surgeons had made several adverse entries in his confidential records (CR)
which had not been communicated to him. After he had completed the requisite
period of qualifying service, a review committee, in the light of his adverse service
entries, came to a decision that he be compulsorily retired from service.
Accordingly, the state government passed an order of his compulsory retirement
in exercise of powers under the first proviso to rule 71(a) of the Orissa Service
Code. The appellant challenged die order in the High Court of Orissa. But the
court dismissed the writ.
On appeal, die Supreme Court speaking through B P . Jeevan Reddy J, on behalf
of L.M. Sharma, V. Ramaswami JJ and himself, had to decide whether it is lawful
to compulsorily retire a government servant on the basis of material which includes
uncommunicated adverse remarks. The court examined relevant decisional law
to the effect that compulsory retirement in public interest after/requisite period
of qualifying service did not attract principles of natural justice, /JV. Sinha's
case29 and that it was not necessary to communicate every adverse CR entry,
M.E. Reddy's case.30 The court also referred to two of its decisions, Brij Mohan
Chopra and Baidyanath Mahapatra31 which took a contrary line of reasoning
that, "it would be unjust and unfair and contrary to principles of natural justice
to retire prematurely a government employee on the basis of adverse entries which
are either not communicated to' him or if communicated representations made
against those entries are not considered and disposed of'. 32 These two decisions
held categorically that acting on undisclosed material to one's prejudice was
violative of principles of natural justice.
In die instant case the court was confronted with two opposing strands of
thought. Jeevan Reddy J preferred the /JV. Sinha approach excluding principles
of natural justice in compulsory retirement. The judge formulated the following
principles: (i) Compulsory retirement in public interest was not a punishment and
did not involve any stigma; (ii) the order is passed on the subjective satisfaction
of the government; (Hi) though principles of natural justice are excluded in the
context of compulsory retirement, there will still be judicial scrutiny of orders
of those which are actuated by mala fides, or based on no evidence or it is arbitrary
or perverse; (iv) the government/review committee will have to consider the entire
record of service attaching more importance to the record of later years. The record
will naturally consist of entries both favourable and adverse. If a government
servant is promoted despite adverse remarks, those will lose their sting particularly
in cases of promotion upon merit and not upon seniority; (v) order will not be
set aside merely on the basis that uncommunicated adverse remarks were also
taken into consideration.
The court affirmed the decision of the High Court which had examined the
relevant record and CR and opined that compulsory retirement was based
not merely on certain adverse remarks but other material as well. Furtfier, the

29 Sec Union of India v. yjv. Sinha, 1970 (2) SCC 458.

30 See Union of India v. ME. Reddy, 1980 (2) SCC 15.
31 See Brij Mohan Singh Chopra v. State of Punjaby 1987 (2) SCC 188; Baidyanath Mahapatra
v. State of Orissa, 1989 (4) SCC 664 Gudgments delivered by K.N. Singh J.)
32 Per K.N. Singh J in Brij Mohan Singh Chopra, id. at 196.

www.ili.ac.in The Indian Law Institute

44 Annual Survey of Indian Law [1992

High Court had also found that the material did not justify the conclusion that
the remarks were not recorded duly or properly. In the circumstances, the order
was not vitiated by mala fides or arbitrariness or lack of evidence.
Consequently the appeal was dismissed.
The court in preferring 7JV. Sinha ruling to compulsory retirement cases
has articulated the need for removal of dead wood in public services. At the
same time, exercise of power by the executive on subjective opinion is subjugated
to judicial control on grounds of mala fides, arbitrariness and absence of
evidence.
The facts in brief in L.P. Agarwal v. Union of India33 were: Dr. Agarwal was
appointed as the Director of the All India Institute of Medical Sciences (AIIMS)
for a period of five years or till he attained the age of 62 years, whichever was
earlier. But he was prematurely retired from service before the expiry of the term.
On the order being challenged in the Delhi High Court, the court upheld his
premature retirement.
On special leave appeal, the Supreme Court speaking through Kuldip Singh J,
on behalf of A.S. Anand J and himself, set aside the order of the High Court.
The Supreme Court held that die post of Director of AIIMS was a tenure post.
The judge observed:34

Once a person is appointed to a tenure post his appointment to the said

office begins when he joins and it comes to an end on the completion of
the tenure unless curtailed on justifiable grounds. Such a person does not
superannuate, he only goes out of the office on completion of his tenure.
The question of prematurely retiring him does not arise... Concept of
superannuation which is well understood in the service jurisprudence is
alien to tenure appointments which have a fixed life span.

As the appellant had completed 62 years, he could not be reinstated in service

but he was held entitied to salary for the remaining period of his tenure.
The court's decision is eminendy reasonable in that a tenurchoider who had
satisfactorily completed his probation could not be deprived of his tenure
appointment arbitrarily.
In Union of India v. Lt. Col. Komal Charan35, L.M. Sharma J (as he then
was), on behalf of A.S. Anand J and himself, held that in the absence of a rule
to the contrary, the central government was competent to fix die age of
superannuation of officers appointed on whole-time basis in the National Cad^t
Corps. Accordingly the respondent would retire on completion of 55 years as
presented by the central government. The fundamental rule applicable to civil
servants which prescribes 58 as the retirement age would have no application.
In Prafulla Chandra Mohapatra v. Orissa36 disciplinary proceedings were
initiated against the appellant for charges of misappropriation of cash and

33 1992 (2) SCALE 58.

34 Id. at 59.
35 1992 (1) SCALE 1308.
36 1992 (2) SCALE 649.

www.ili.ac.in The Indian Law Institute

Vol. XXVIII] Constitutional Law-JI 45

negligence in performance of duty. Simultaneously a criminal case under section

409 of the Indian Penal Code, 1860 was also filed which ended in the appellant's
conviction and dismissal from service. On appeal, the appellant was acquitted both
on merits and on the ground of want of proper sanction. Consequently he was
reinstated in service and the period during which he remained under suspension
and dismissal was treated as on duty. By efflux of time, he retired from service
on superannuation. Subsequently the government recommenced disciplinary
proceedings against him. The appellant filed a writ in the High Court challenging
the restarting of disciplinary proceedings. With the setting up of the state
administrative tribunal, the writ petition was transferred to the tribunal.
The tribunal took the view that disciplinary proceedings and criminal
proceedings could be continued on the facts of the same case though standard
of proof differed in both cases. As the appellant had retired from service,
disciplinary proceedings should be converted into proceedings under the relevant
pension rules. Accordingly, the tribunal did not quash the revival of disciplinary
proceedings.
On appeal to the Supreme Court, N.M. Kasliwal J on behalf of R.M. Sahai J
and himself, set aside the order of the tribunal and quashed die governmental order
of restarting of disciplinary proceedings. The judge observed that, "it would not
be proper in the interest of justice to restart the disciplinary proceedings for an
event of May, 1973 for which the appellant has already been acquitted in the
criminal case right upto the High Court/*
The instant case clearly provides another instance of wasteful litigation spurred
on by unreasonable and harassing governmental action. The waste of judicial time
and entailing of enormous litigational expenses by the government employee
constitute avoidable social costs. This also calls for strengthening of legal cells
in the government departments which would render correct and proper legal advice
to avoid unnecessary litigation.
In Managing Director, Electronic Corporation of India v. B. Karunakar31 the
Supreme Court Bench consisting of K. Jagannadia Shetty, V. Ramaswami and
Yogeshwar Dayal JJ granted special leave to appeal in a disciplinary case and
referred the issue of the right of delinquent employee to have a copy of inquiry
report submitted to disciplinary authority to a larger Bench for decision. This was
necessitated in view of the conflict of opinions of two Benches of the court in
Kailash Chander Asthana v. State ofU.P3% and Union of India v. Mohd. Ramzan
Khan39, The divergence of opinion arose after the amendment of article 311(2)
by the Forty-second Amendment of the Constitution dispensing witii the
requirement of hearing at the stage of penalty.
One point of view taken by the High Courts and the Supreme Court Bench
in consequence thereof was that the delinquent had lost his right to obtain a copy
of the enquiry report in disciplinary proceeding. The other view taken by a
subsequent Supreme Court Bench was that the Forty-second Amendment had not
brought about any change in the necessity of furnishing of enquiry report to the

37 1992 (1) SCC 709.

38 1988 (3) SCC 600.
39 1991 (1) SCC 588; for an analysis of the decision sec Alice Jacob, XXVIASIL 13 at 17-18 (1990),

www.ili.ac.in The Indian Law Institute

46 Annual Survey of Indian Law [1992

delinquent to make representation. This was a requirement within the principles

of natural justice.
With a view to ensuring justice to die respondent in view of the delay for
a final decision, me court directed his reinstatement in service within a montii
with the payment of one half of the back wages.
In P.K. Jaiswal v. Debi Mukherji^thc Supreme Court in special leave appeal
speaking through A.H. Ahmadi J, on behalf of S.C. Agrawal J and himself, held
that right to be considered for selection accrued only after a candidate is called
for interview after advertisement. In the instant case before the Union Public Service
Commission issued the advertisement, the government withdrew the selection in
order to amend the service rules so as to open avenues of promotion to the in-
house staff instead of resorting to direct recruitment. Despite the government's
withdrawal, the commission advertised the post and went ahead with the process
of selection; the candidate called for interview acquired no vested right to be
considered for selection.
In K.P.S.C. v. B.M. Vijaya Shankar*1 the question was whetiier it was
mandatory on die Karnataka Public Service Commission to give a hearing to the
candidates of competitive examinations for state civil services, who had disregarded
the commission's instruction, not to write the roll numbers on pages otfier than
the front page of the answerbooks. Karnataka Administrative Tribunal held that
the commission's action in not evaluating the answerbooks of candidates, who
were guilty of disregard of commission's instructions, without giving a fair hearing,
was arbitrary and violative of the principles of natural justice.
On special leave appeal, the Supreme Court speaking through R.M. Sahai J,
on behalf of S.R. Pandian, Kuldip Singh JJ and himself, set aside the tribunal's
order mandating the applicability of the principles of natural justice in the above
referred situation. Pertinent are die observations of die judge:42

Direction not to write roll number was clear and explicit...Once it was
violated the issue of bona fide and honest mistake did not arise...The tribunal
appears to have been swayed by principles applied by the Court where
an examinee is found copying or using unfair means in the examination.
But in so doing the tribunal ignored a vital distinction that there may be
cases where the right of hearing may be excluded by the very nature of
the power or absence of any expectation that the hearing shall be afforded.
Rule of hearing has been construed stricdy in academic disciplines. It should
be construed more strictly in such cases where an examinee is competing
for Civil Service post.

The reach of natural justice has appropriately been curbed by die court in the
instant situation.

40 1992 (2) SCC 148.

41 1992 (2) SCALE 451.
42 Id. at 453.

www.ili.ac.in The Indian Law Institute