B.A. LL.B. – SEM.

VI
CONSTITUTIONAL LAW – II

NIMESH DAS GURU

ASSISTANT PROFESSOR, LLOYD LAW COLLEGE, GREATER NOIDA

In case of doubt send your queries to NDGURU@LLOYDLAWCOLLEGE.EDU.IN

CONSTITUTION & CONSTITUTIONAL LAW

• Constitution: “the body of doctrines and practices that form the fundamental organizing
principle of a political state” (Britannica encyclopedia)
• A Specific written document: e.g. “US Constitution, Indian Constitution
• Unwritten (no one specific documents; documents, statutes, and traditional practices
that are generally accepted as governing political matter) UK

Constitutional laws = constitution + doctrines + Judicial precedents + constitutional

practices
(having a) CONSTITUTION AND (having a culture of)
CONSTITUTIONALISM

The ‘idea’ that government can and should be ‘legally limited’ in its powers, and that its
authority or legitimacy depends on its observing these limitations
(Stanford Encyclopedia of Philosophy)

Is it possible that a country may have a constitution but

not constitutionalism???
 MECHANISM OF LIMITATION

Rights: “entitlements to (or not to) perform certain actions, or to be (or not to be) in certain states; or entitlements that others (don’t)
perform certain actions or (don’t) be in certain states”

Separation of Powers: ‘…every man invested with power is apt to abuse it…’ separation of the executive, legislative, and judicial powers
of government;

If different persons or bodies exercise these powers, then each can check the others if they try to abuse their powers

Federalism: dividing governmental powers between member units (States) and Center; typically in the constitution itself, with an
independent Supreme Court to adjudicate in case of dispute)
 CONSTITUTIONAL LAW OF INDIA - II
STRUCTURE AND WORKING OF THE INDIAN CONSTITUTION)

• Union Parliament : Organization, Procedure regarding Enactment of Legislation, Parliamentary Privileges.

• Union Executive : The President, his Powers and Position including Ordinance Making Power.
• Prime Minister and the Cabinet. Is the Prime Minister Real Head?
• Distribution of Legislative Powers between Union and the States. Territorial and Topical Distribution of
Powers. Power of Parliament to Legislate on State Matters. Doctrine of Territorial Nexus. Doctrine of Pith and
Substance, Doctrine of Colourable Legislation.
• Emergency Provisions with Special References to Proclamation of Emergency and President's Rule.
• Union Judiciary : Supreme Court of India. Composition and Jurisdiction.
• Amendment of the Constitution. Power and Procedure; Basic Structure of the Constitution.
 THE UNION EXECUTIVE

• What is executive power

• Definition of executive power

• What is the contour (or extent) of executive power

• Limitations on the exercise of executive power

• Who has the power

• Who are office holders

• How is it to be exercised
• Constitutional guidelines for exercise of this power
Constitution nowhere defines executive power

• Chapter Part V chapter I and Part VI chapter 1 provides for union and state executive
• Article 73 and 162 provides for the extent of executive power of Union and states
• Union executive power extend to all matters wrt which Parliament can make laws (and
also to give effect to any treaty or agreement) and Does NOT extend in any state to the
matters wrt which state also has power to make laws except if Constitution expressly
provide that power (e.g. Article 298) or if parliament provide that power by a ‘law’
• Ordinarily Union has executive power wrt to matters enumerated in list 1 and state has
executive power wrt to matters enumerated in list 2&3
 Is executive power meant only for the execution of
‘laws’
Whether executive can act even when there is no legislative mandate to back their action …
Ram Jawaya Kapoor case AIR1955SC 549
Context: Government changed the existing policy wrt text book publication by passing a resolution in this regard
which was later notified by Department of Education. The old policy, known as alternative system, was in vogue
since 1905; under old policy, several text books on particular subject were approved by DoE and it was left to the
discretion of the Head Masters of the different schools, to select any one of the alternative books on particular
subject out of the approved list; under the new policy, government practically monopolized the publication and
printing of the text books which were compulsory prescribed to all schools having or seeking government affiliation.
Issue: whether executive (side of the) Government of a State is wholly incompetent, (to act) without any legislative
sanction, particularly if government wants to enter into trade in competition with private citizens….
 Petitioner's argument

• Our Constitution clearly recognizes a division of governmental functions into three categories, viz., the legislative, the
judicial and the executive, the function of the executive cannot but be to execute the laws passed by the legislature or to
supervise the enforcement of the same. The legislature must first enact a measure which the executive can then carry out.
• Government has no power in law to carry on the business of printing or selling text books for the use of school students in
competition with private agencies without the sanction of the legislature, that the acts of the Government in carrying out
their policy of establishing monopoly in the business of printing and publishing text books for school students is wholly
without jurisdiction and illegal.
• assuming that the State could create a monopoly in its favour in respect of a particular trade or business, that could be
done not by any executive act but by means of a proper legislation which should conform to the requirements of article
19(6) of the Constitution. Lastly, it is argued that it was not open to the Government to deprive the petitioners of their
‘business’
 Ram jawaya kapoor case

• Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The
Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity (Para 14 Ram Jawaya)
• Our Constitution, though federal in its structure, is modelled on the British Parliamentary system where the executive function comprises both the
determination of the policy as well as carrying it into execution. There is no need of a specific legislation to carry out any activities including trade.
• ‘They do not mean(.... ) that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their
respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. The language of article 162 clearly
indicates that the powers of the State executive do extend to matters upon which the state Legislature is competent to legislate and are not confined to
matters over which legislation has been passed already…’ [Para 7]
• Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order to
carry on the particular trade or business. Thus when it is necessary to encroach upon private rights in order to enable the Government to carry on their
business, a specific legislation sanctioning such course would have to be passed. [Para 19 Ram Jawaya)
 Outcome of Ram jawaya kapoor case

• Motilal Case (AIR1951All257) has already decided the matter in this regard that executive power include all powers that may be needed to
carry into effect the aims and objects of the Constitution. It must mean more than merely executing the laws. The State has a right to
hold and manage its own property and carry on such trade or business as a citizen has the right to carry on, so long as such activity
does not encroach upon the rights of others or is not contrary to law.
• In Ram Jawaya Kapoor case the court observed that nobody is taking away the publishers' right to print and publish any books they
like and to offer them for sale but if they have no right that their books should be approved as text books by the Government, it is
immaterial so far as they are concerned whether the Government approves of text books submitted by other persons who are willing
to sell their copyrights in the books to them, or choose to engage authors for the purpose of preparing the text books which they take
up on themselves to print and publish. Since no fundamental rights of the petitioners is being invaded there is no need for a specific
legislation.

7th Amendment to the Constitution made the matter clear by specifically inserting the power to carry on trade etc. in article 298.
 (mere) Executive instructions and ‘LAW’

Therefore, executive government in India can lay down policies, implement programs or act otherwise even when there is no legislative mandate
to act provided those action doesn’t infringe anyone’s rights…

• M. P. v Bharat Singh (1967) 2 SCR 454

“Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative
authority.”

• Aadhar was introduced under an executive fiat issued after a Cabinet resolution but later it was given legislative backing. See Law Minister
speech while introducing Aadhar Bill (https://www.youtube.com/watch?v=sg37pozoLEk) at 40

• Petitioners strongly contended that where rights of the citizens are prejudicially affected, executive actions could be justified only if it is
supported by the authority of law and this proposition had been settled even prior to the pronouncement in Justice K.S. Puttaswamy's case
(supra). Declaration of the above principle could be seen in an early decision in State of Madhya Pradesh and another v. Thakur Bharat Singh)
(K.Karunanidhi v. State Of Kerala on 10 February, 2020)

• Naveen Jindal Case, 2004(2) SCC 510 ; whether flag code is law (Para 28-33)

Statutory Service Rules and Administrative Orders — Distinguishing Features and Related Aspects (1983) 1 SCC J-1
Who has executive powers and how is it to be exercised

Provisions under the Constitution wrt Union (Part V) and state executive (Part VI) are mutatis mutandis..

Four subheads of Part V and VI

• Offices of the Chief Executive (Art. 52-73)

• Council of Ministers (Article 74-75)
• Attorney General for India (Article 76)
• Conduct of Government Business (Article 77-78)
 How is it to be exercised

• The executive power of the Union shall be vested in the President and shall be exercised by him either
directly or through officers subordinate to him in accordance with this Constitution. (art 53)
• There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the
President [who shall, in the exercise of his functions, act in accordance with such advice.] (art 74)
[*italicized phrase was introduced in 1976 by 42nd amendment ]
• All executive action of the Government of India shall be expressed to be taken in the name of the
President [art 77(1)]
• The President shall make rules for the more convenient transaction of the business of the Government
of India, and for the allocation among Ministers of the said business. [art 77(3)]
Bare reading of the provisions of the constitution related to executive power doesn’t make it clear if president is bound by the advice
given to him by council of ministers headed by prime minister

Who is the read head Prime Minister or President!!

• One of the oldest debate in Indian Constitutional Law discourse
• Constituent Assembly Discussion between Dr. Rajendra Prasad and Dr. Ambedkar
• The President Under the Indian Constitution (Mr. K. M. Munshi) 1963
• Controlled semi-presidentialism: the case for semi-presidentialism under the indian
constitution (Available at: http://works.bepress.com/khagesh_gautam/6/) July 4 2015
 Understanding the controversy

• Ram Jawaya Kapoor, SC has clearly observed that our constitution has adopted
parliamentary form of government and the president under our constitution is made a
formal or constitutional head of the executive and the real executive powers are vested in
the Ministers or the Cabinet. [ See Para 16]…

• But the controversy came back to life when an observation made in Jayatilal Case AIR1964 SC
648 were applied in subsequent cases…
 Understanding Jayantilal case

Administrative relation between Union and States

Article 258
258. Power of the Union to confer powers, etc., on States in certain cases.—(1) Notwithstanding anything in this
Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally
to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.

(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which
the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of
powers and the imposition of duties, upon the State or officers and authorities thereof.
 Controversy in Jayantilal

Context: In exercise of the powers conferred by Art. 258 of the Constitution, the President of India on July 24, 1959, issued a notification
thereby entrusting to the Commissioners of Divisions in the State of Bombay the functions of the Central Government under the Land
Acquisition 1894, in relation to acquisition of land for the purpose of the Union within the limits of the territorial jurisdiction of the said
Commissioners…..
Subsequently the state of Bombay was restructured and two new states (Maharashtra and Gujrat) were formed. S 87 of the Bombay
Reorganization Act continued the operation of existing ‘law in force’ in the new territories as well.
Issue: Whether that government notification (entrusting the function) under Article 258 had “force of law”.
The appellant contended that the power exercisable by the President being executive in character, the functions which may be entrusted to a
State Government or to an officer of that State under Art. 258(1) are executive, and entrustment of such executive authority not being "law"
within the meaning of s. 87 of the Bombay Reorganization Act, the Commissioners of the new State of Gujarat after May 1, 1960, were
incompetent, by virtue of the Presidential notification, to exercise the functions of the Union Government under the Land Acquisition Act.
No absolute or rigid division of functions between the three agencies of the
state

• "It may not be possible to frame an exhaustive definition of what executive function
means and implies. Ordinarily the executive power connotes the residue of governmental
functions that remain after legislative and judicial functions are taken away”.
• It cannot, however, be assumed that the legislative functions are exclusively performed
by the Legislature, executive functions by the executive and judicial functions by the
judiciary alone.
 Notification has the force of law

• The Court observed that Edward Mills’ case (1955 AIR SC 25 ) strongly supports the conclusion that the notification issued by the
President conferring authority upon the Commissioner to exercise the powers of the appropriate Government in the matter of
land acquisition under the Land Acquisition Act has the force of law because even though issued by an executive authority,
the Courts are, if challenged, bound to recognize and give effect to the authority conferred by the notification.
• No distinction in principle between the notification which was issued by the Governor-General in Edward Mills' case and the
notification with which we are dealing in this case.
• This is not to say that every order issued by an executive authority is the force of law. If the order is purely
administrative, or is not issued in exercise of any statutory authority it may not have the force of law. But where a general
order is issued even by an executive authority which confers power exercisable under a statute, and which thereby in
substance modifies or adds to the statute, such conferment of powers must be regarded as having the force of law.
 but that observation…

That clause (Article 358) enables the President to entrust to the State the functions which are vested in the
Union, and which are exercisable by the President on behalf of the Union: it does not authorize the President
to entrust to any other person or body the powers and functions with which he is by the express provisions of
the Constitution as President invested.
e.g. power of president U/A 124 (appointment of SC Judges), 256 (power to declare state emergency), 360
(Financial Emergency), or declaration that in the interest of the security of the State it is not expedient to give
to a public servant sought to be dismissed an opportunity contemplated by Art. 311(2) - these are executive
powers of the President and may not be delegated or entrusted to another body or officer because they do not
fall within Art. 258…. [Para 16]
SARDARI LAL CASE AIR1971SC1547

311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the
Union or a State.—(1) No person who is a member of a civil service of the Union or an all-India
service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or
removed by an authority subordinate to that by which he was appointed.
………………
Provided further that this clause shall not apply—
…..
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security
of the State it is not expedient to hold such inquiry.
 DISMISSAL ORDER IN SARDARI LAAL

The appellant and 17 other members of the Delhi Police Force were dismissed from service…
“ORDER”
Whereas, you Shri Sardari Lal, Sub-Inspector, Delhi Police No. 331/D, Police Station Kamla Market, Delhi, hold your office during the pleasure of the
President, and Whereas the President is satisfied that you are unfit to be retained in the public service and ought to be dismissed from service, and
Whereas the President is further satisfied under sub-clause (c) of proviso to clause (2) of Article 311 of the Constitution that in the interest of the security
of the State it is not expedient to hold an inquiry.
Now, therefore, the President is pleased to dismiss you from service with immediate effect.
By order and in the name
of the President of India
Sd/-
(B. Venkataraman)
Joint Secretary to the Government of India in the Ministry of Home Affairs.”
 ARTICLE 77

Conduct of Government Business

77. Conduct of business of the Government of India.—(1) All executive action of the Government of India shall be expressed to be
taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be
specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in
question on the ground that it is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the
allocation among Ministers of the said business.

The argument of the government side was that joint secretary was competent to make the order by virtue of the authority which he
derived under the Government of India (Allocation of Business) Rules, 1961 made under Article 77(3) of the Constitution.
 Decision in Sardari Lal

Article 53(1) vests the Executive power of the Union in the President but Article 77 deals only with executive
action of the Government of India. The function or the power exercisable under Clause (c) of the proviso [art
311] under consideration could not be delegated or allocated to any one else by the President..

The Court held in the light of the observation made in Jayantilal case that where the President or the Governor,
as the case may be, if satisfied, makes an order under Article 311(2) proviso (c) that in the interest of the
security of the State it is not expedient to hold an enquiry for dismissal or removal or reduction in rank of an
officer, the satisfaction of the President or the Governor is his personal satisfaction.
Shamsher Singh case AIR1974 SC 2192

• a larger Bench was constituted to consider whether the decision in Sardari Lal's
case correctly lays down the law that where the President or the Governor is to be
satisfied it is his personal satisfaction.
• If there are functions where Governor is expected to use his discretion (and not
necessarily to go by aid and advice of council of Minister
• And if there are such functions, function under article 311 (1) (c) is example of one such
function
 ARTICLE 163

Council of Ministers
• 163. Council of Ministers to aid and advise Governor.—(1) There shall be a Council of Ministers with the Chief Minister at
the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution
required to exercise his functions or any of them in his discretion.
• (2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution
required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by
the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
• (3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any
court
 Observations in Shamsher Singh case

Para 29.
All powers and functions of the President …are executive powers of the Union vested in the President under Article
53(1) in one case and are executive powers of the State vested in the Governor under Article 154(1) in the other case.
Clause (2) or clause (3) of Article 77 is not limited in its operation to the executive action of the Government of India
under clause (1) of Article 77.
Similarly, clause (2) or clause (3) of Article 166 is not limited in its operation to the executive action of the
Government of the State under clause (1) of Article 166.
The expression “Business of the Government of India” in clause (3) of Article 77, and the expression “Business of the
Government of the State” in clause (3) of Article 166 includes all executive business.
 Satisfaction of the president in the constitutional sense

Para 30.
In all cases in which the President or the Governor exercises his functions conferred on him by or under the Constitution
with the aid and advice of his Council of Ministers he does so by making rules for convenient transaction of the business
of the Government of India or the Government of the State respectively or by allocation among his Ministers of the said
business, in accordance with Articles 77(3) and 166(3) respectively.

Wherever the Constitution requires the satisfaction of the President or the Governor for the exercise of any power or
function by the President or the Governor, as the case may be, as for example in Articles 123, 213, 311(2) proviso (c),
317, 352(1), 356 and 360 the satisfaction required by the Constitution is not the personal satisfaction of the President or
of the Governor but is the satisfaction of the President or of the Governor in the constitutional sense under the Cabinet
system of Government.
 Officers in cabinet forms are limbs of the government
and not its delegate
• Where functions entrusted to a Minister are performed by an official employed in the Minister's department there is in law
no delegation because constitutionally the act or decision of the official is that of the Minister.
• The official is merely the machinery for the discharge of the functions entrusted to a Minister.
• The essence of Cabinet System of Government responsible to the Legislature is that an individual Minister is responsible
for every action taken or omitted to be taken in his Ministry. In every administration, decisions are taken by the civil
servants.
• The Minister lays down the policies. The Council of Ministers settle the major policies. When a civil servant takes a
decision, he does not do it as a delegate of his Minister. He does it on behalf of the Government.
• The officers are the limbs of the Government and not its delegates. Where functions are entrusted to a Minister and these
are performed by an official employed in the Minister's department, there is in law no delegation because constitutionally
the act or decision of the official is that of the Minister.
 Correct reading of Jayantilal case

• The ratio in Jayantilal Amritlal Shodhan case is confined to the powers of the President which can be
conferred on States under Article 258.
• The distinction made by this Court between the executive functions of the Union and the executive functions
of the President does not lead to any conclusion that the President is not the constitutional head of
Government.
• Article 74(1) provides for the Council of Ministers to aid and advise the President in the exercise of his
functions. Article 163(1) makes similar provision for a Council of Ministers to aid and advise the Governor.
• Therefore, whether the functions exercised by the President are functions of the Union or the functions of the
President they have equally to be exercised with the aid and advice of the Council of Ministers, and the same
is true of the functions of the Governor except those which he has to exercise in his discretion.
 Provisions for governor using his discretion is not an exception to
parliamentary form of government

Occasions to use discretion

In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of
his Council of Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct of the
Council of Ministers…. In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final
and the validity shall not be called in question.

Similarly Article 200 (reserving assent to Bills for the consideration of president) indicates another instance where the Governor
may act irrespective of any advice from the Council of Ministers. In such matters where the Governor is to exercise his discretion
he must discharge his duties to the best of his judgment. The Governor is required to pursue such courses which are not
detrimental to the State.
 THE CONCLUSION

• President and Governor (except in some cases) has to go by the aid and advice of the
council of Minister
• Therefore, Prime Minister is the real head.

But
• is this understanding final?
 D. C. WADHWA CASE AIR 1987S C 579

• Challenging the validity of the practice of the State of Bihar in promulgating and
repromulgating ordinances on a massive scale
• Governor of Bihar promulgated 256 ordinances between 1967 and 1981 and all these
ordinances were kept alive for periods ranging between one to 14 years by re-
promulgation from time to time. Out of these 256 ordinances 69 were re-promulgated
several times and kept alive….
 “Fraud on constitution”

• When the constitutional provision stipulates that an ordinance promulgated by the Governor to meet an emergent situation shall cease to be in
operation at the expiration of six weeks from the reassembly of the legislature and the government if it wishes the provisions of the ordinance
to be continued in force beyond the period of six weeks has to go before the legislature which is the constitutional authority entrusted with the
law-making function,

• it would most certainly be a colourable exercise of power for the government to ignore the legislature and to re-promulgate the ordinance and
thus to continue to regulate the life and liberty of the citizens through ordinance made by the executive.

• Such a stratagem would be repugnant to the constitutional scheme, as it would enable the executive to transgress its constitutional limitation in
the matter of law-making in an emergent situation and to covertly and indirectly arrogate to itself the law-making function of the legislature.
 IS PRIME MINISTER REAL HEAD…

• What if a central government start re-promulgation of ordinance … ( it has not happened till now)
• Article 78. Duties of Prime Minister as respects the furnishing of information to the President, etc.— Rajiv
Gandhi & Giani Jail Singh Controversy (See Page 2057 of Seervai Vol 2)
• M. P. Special Police Establishment v. State of M.P., (2004) 8 S.C.C. 788
• Recurring Controversies regarding Governor’s power to call to prove majority in the house in cases of fractured
mandate
• Article 60: Oath of President….
“will to the best of my ability preserve, protect and defend the Constitution and the law”
Controlled semi-presidentialism: the case for semi-presidentialism under the Indian constitution (Available at:
http://works.bepress.com/khagesh_gautam/6/) July 4 2015
 ARTICLE 75
Other provisions as to Ministers
75 (3) The Council of Ministers shall be collectively responsible to the House of the People
U.N.A. Rao Vs. Indira Gandhi AIR1971SC 1002
If under the Constitution, as soon as the House of the People is dissolved under Article
85(2) of the Constitution, the Council of Ministers, i.e., the Prime Minister and other
Ministers, cease to hold office.
How can the Council of Ministers be responsible to the House of the People when it has
been dissolved under Article 85(2) !!
 U.N.A. RAO VS. INDIRA GANDHI

• Article 52 is mandatory In other words there shall be a President of India'. So is Article 74(1) (there shall be a council of minister…. )
• The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be
changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the
exercise of his functions. As there would be no 'Council of Ministers' nobody would be responsible to the House of the People. With the aid of advisers he
would be able to rule the country at least till he is impeached under Article 61.
• We must then harmonies the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually called
"Responsible Government". In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not
dissolved under Article 85(2) (b), Article 75(3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence
of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the
context, therefore, this clause must be read as meaning that Article 75(3) only applies when the House of People does not stand dissolved or prorogued.
 Can a person who is not a member of either house of parliament be sworn in as the
prime minister of India?

75 (5) A Minister who for any period of six consecutive months is not a member of either
House of Parliament shall at the expiration of that period cease to be a Minister.
S. P. Anand vs H.D. Devegoda AIR 1997 SC 272

On a plain reading of Article 75(5) it is obvious that the Constitution makers desired to
permit a person who was not a member of either House of Parliament to be appointed a
Minister for a period of six consecutive months and if during the said period he was not
elected to either House of Parliament, he would cease to be a Minister.
DISTRIBUTION OF LEGISLATIVE POWER

Part XI
Relations between Union and State
Chapter 1
Legislative Relations
Territorial (Art. 245) and Topical (Art. 246) distributions
 TERRITORIAL (ART. 245)

245. Extent of laws made by Parliament and by the Legislatures of States.—

(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of
India, and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.

Union can make extraterritorial laws but state laws cannot have extraterritorial operation
However, simply because a state law operates on persons and things outside the state, it would not make that law extra-
territorial, provided the law has sufficient ‘territorial nexus’….
Many state laws have been challenged on the ground of
having extra-territorial operation
Doctrine of Territorial Nexus
• Art 245 & 246 have come from Sec 99 and 100 of GI Act 1935, so the decision given by
Federal Court in cases involving Sec 99 has been a guiding light for Supreme Court in
shaping doctrine of territorial nexus in India.
• Doctrine of territorial nexus first emerged in taxation matters and then it was applied in
other types of laws as well.
 LEADING CASES

Cases under GI Act 1935

Gov. Gen v Raleigh Investment Co. (1944) F.C.R. 229 (Income Tax)
Wallace Brothers C.I.T. Bombay (1948) FCR 1 (Income Tax)
Under Constitution of India
Tata Iron and Steel Co. Ltd. V Bihar (1958) SCR 1355
R. M.D. Chamarbaugwaala Case (1957) SCR 874
State of Bihar Vs. Charusila Dasi AIR 1959 1002
State (NCT of Delhi) vs. Brijesh Singh and Ors.  (2017) 10 SCC779
 GOVT. OF INDIA ACT 1935

99.-(1) Subject to the provisions of this Act, the Federal Legislature may make laws for the whole or any part of British India or for any
Federated State, and a Provincial Legislature may make laws for the Province or for any part thereof.
(2) Without prejudice to the generality of the powers conferred by the preceding subsection, no Federal law shall, on the ground that it
would have extra territorial operation, be deemed to be invalid in so far as it applies-
(a) to British subjects and servants of the Crown in any, part of India ; or
(b) to British subjects who are domiciled in any part of India wherever they may be; or 64 to, or
(c) to persons on, ships or aircraft registered A.D. 1035. in British India or any Federated State wherever they may be; or
(d) in the case of a law with respect to a matter accepted in the Instrument of Accession of a Federated State as a matter with
respect to which the Federal Legislature may make laws for that State, to subjects of that State wherever they may be; or
(e) in the case of a law for the regulation or discipline of any naval, military, or air force raised in British India, to members of, and
persons attached to, employed with or following, that force, wherever they may be
WALLACE BROTHERS AND CO. LTD. (1948) 50 BOMLR 482

• The result is that the validity of the legislation in question depends on the sufficiency; for the
purpose for which it is used, of the territorial connection set forth in the impugned portion of the
statutory test. ………

• In their view, the derivation from British India of the major part of its income for a year gives to
a company as respects that year a territorial connection sufficient to justify the company being
treated as at home in British India for all purposes relating to taxation on its income for that year
from whatever source that income may be derived. If it is so at home in British India it is a
person properly subject to the jurisdiction of the Central India Legislature.
 RALEIGH INVESTMENT CO. CASE AIR1944 FC 51,

Context: The Raleigh Investment Co. Ltd was a joint stock company incorporated under the English Companies Act, having its
registered office at Surrey, England. It had no business premises in India, but holds the bulk of the shares in eleven companies
which carry on the business of manufacturing and selling tobacco and cigarettes in India. Two of these companies, referred to in
the judgments of the High Court as "rupee companies," are incorporated in India under the Indian Companies Act and have their
registered office and business head-quarters at Calcutta. The nine remaining companies referred to as the "sterling companies," are
companies registered under the English Companies Act.
Dividends from the two "rupee companies" were paid to a representative of the plaintiff-company in Calcutta. The dividends of the
nine "sterling companies" were declared by them in England and paid by them in England to the plaintiff-company in England.
Issue : The dispute in this case relates to the claim of the Indian Government to levy Income Tax and super-tax on the dividends
paid to the plaintiff by the "sterling companies."
R. M.D. CHAMARBAUGWAALA CASE (1957) SCR 874

• The Bombay Lotteries and Prize Competitions Control and Tax (Amendment) Act deleted
"but does not include a prize competition contained in a newspaper printed and published
outside the Province of Bombay", which occurred in the definition of Prize Competition
in s. 2(1)(d) of the 1948 Act,
• The effect of this deletion was that the scope and the application of the 1948 Act so
amended became enlarged and extended so as to cover prize competitions contained in
newspapers printed and published outside the State of Bombay.
 R.M.D. CHAMARBAUGWALA

• The Court of Appeal has rightly pointed out that when the validity of an Act is called in question, the first thing for
the court to do is to examine whether the Act is a law with respect to a topic assigned to the particular Legislature
which enacted it.

• If it is, then the court is next to consider whether, in the case of an Act passed by the Legislature of a Province (now
a State), its operation extends beyond the boundaries of the Province or the State, for under the provisions
conferring legislative powers on it such Legislature can only make a law for its territories or any part thereof and its
laws cannot, in the absence of a territorial nexus, have any extra territorial operation. If the impugned law satisfies
both these tests, then finally the courts has to ascertain if there is anything in any other part of the Constitution
which places any fetter on the legislative powers of such Legislature. The impugned law has to pass all these three
tests.
 R.M.D. CHAMARBAUGWALA

• The doctrine of territorial nexus is well established and there is no dispute as to the principles. As enunciated by
learned counsel for the petitioners, if there is a territorial nexus between the person sought to be charged and the
State seeking to tax him the taxing statute may be upheld. Sufficiency of the territorial connection involves a
consideration of two elements, namely (a) the connection must be real and not illusory and (b) the liability sought to
be imposed must be pertinent to that connection.

• These advertisements reach a large number of people resident within the State. The gamblers, euphemistically called
the competitors, fill up the entry forms and either leave it along with the entry fees at the collection depots set up in
the State of Bombay or send the same by post from Bombay. All the activities that the gambler is ordinarily expected
to undertake take place, mostly if not entirely, in the State of Bombay and after sending the entry forms and the fees
the gamblers hold their soul in patience in great expectations that fortune may smile on them.
 CHARUSILA DASI CASE

• The question was if the doctrine of territorial connection or nexus that was applied in
income-tax legislation, sales tax legislation and also to legislation imposing a tax on
gambling. Could be extended to this case also…
• the same principles apply in the present case and the religious endowment itself being in
Bihar and the trustees functioning there, the Act applies and the provisions of the Act
cannot be struck down on the ground of extra-territoriality
 Principles to determine territorial nexus

• (a) the connection must be real and not illusory and

• (b) the liability sought to be imposed must be pertinent to that connection.
 COLORABLE EXERCISE OF POWER

• What one cannot do directly, one cannot attempt to do indirectly

• Fraud on Constitution
• D. C. Wadhwa Case
• Separation of Power under the Constitution
• Topical distribution of legislative power
 TOPICAL DISTRIBUTION

• 246. Subject-matter of laws made by Parliament and by the Legislatures of States.—(1) Notwithstanding anything
in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List
I in the Seventh Schedule (in this Constitution referred to as the “Union List”).
• (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State 1*** also,
have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this
Constitution referred to as the “Concurrent List”).
• (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any
part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred
to as the “State List”).
• (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2[in a
State] notwithstanding that such matter is a matter enumerated in the State List.
DOCTRINE OF COLORABLE LEGISLATION

• It may be made clear at the outset that the doctrine of colourable legislation does not involve
any question of bona fides or mala fides on the part of the legislature. The whole doctrine
revolves itself into the question of competency of a particular legislature to enact a particular
law. If the legislature is competent to pass a particular law, the motives which impelled it to act
are really irrelevant. On the other hand, if the legislature lacks competency, the question of
motive does not arise at all. Whether a statute is constitutional or not is thus always a question
of power.

Ashok Kumar vs. Union of India (UOI) and Ors. AIR 1991 SC 1792
 K.C. GAJAPATI NARAYAN DEO V. STATE OF ORISSA AIR 1953 SC 375

The appellants' main contention related to the validity of the Orissa Agricultural Income-tax (Amendment) Act of
1950. This Act, it was said, is not a bona fide taxation statute at all, but is a colourable piece of legislation, the real
object of which is to reduce, by artificial means, the net income of the intermediaries, so that the compensation
payable to them under the Act might be kept down to as low a figure as possible.
The Court observed
• Assuming that it is so, still it cannot be regarded as a colourable legislation in accordance with the principles
indicated above, unless the ulterior purpose which it is intended to serve is something which lies beyond the
powers of the legislature to legislate upon. The whole doctrine of colourable legislation is based upon the maxim
that you cannot do indirectly what you cannot do directly. If a legislature is competent to do a thing directly, then
the mere fact that it attempted to do it in an indirect or disguised manner, cannot make the Act invalid.
 DOCTRINE OF PITH AND SUBSTANCE

• It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list,
touches also on a subject in another list, and the different provisions of the enactment may be so closely
intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being
declared invalid because the legislature enacting them may appear to have legislated in a forbidden sphere.
• Hence the rule which has been evolved by the Judicial Committee (Privy Council) whereby the impugned statute
is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining
whether it is legislation with respect to matters in this list or in that.“
Prafulla Kumar Mukherjee v. Bank of Commerce
Act limited the amount recoverable by a moneylender on his loans for principal and interest and prohibited the
payment of sums larger than those permitted by the Act
PRAFULLA KUMAR MUKHERJEE V. BANK OF
COMMERCE
(1946-47)74 IA 23
• Not possible to make a clear cut distinction between the powers of the Union and State Legislatures .
They are bound to overlap, and where they do so, the question to be considered are: what is the pith and
substance of the impugned enactments, and in what List are its true nature and character to be found.
• The extent of invasion by the Provinces into subjects in the Federal List is an important matter, not
because the validity of Provincial Act can be determined by discriminating between degrees of invasion,
but for determining the pith and substance of impugned Act
• Where the three Lists come in conflict, List I has priority over List II and III and List III has priority over
List III
• # sec 100 GI Act 35 List 1 Entry 28 [now 46] (Cheques… Promissory notes..) and entry 27 [now 30] List II
(money lending)
 STATE OF RAJASTHAN VS G. CHAWLA AIR 1959 SC54

The issue in this case was if the state has the power to regulate use of amplifier in the sound system. It
was argued that state cannot make laws related to use of amplifier because the ‘amplifier’ would fall
under entry come under the entry 31 of Union List “Posts and telegraphs; telephones, wireless,
broadcasting and other like forms of communication” and not under entry 1 and 6 of state list Public
order and public health respectively.
The gist of the prohibition is the 'use' of an external sound amplifier not a component part of a wireless
apparatus, whether in a public place or otherwise, without the sanction in writing of the designated
authority and in disregard of the conditions imposed on the use thereof. It does not prohibit the use in a
place other than a public place of a sound amplifier which is a component part of a wireless apparatus.
 Pith and Substance EXPLAINED

• "A power to make laws 'with respect to' a subject-matter is a power to make laws which in reality and
substance are laws upon the subject-matter. It is not enough that a law should refer to the subject-matter or
apply to the subject-matter : for example, income-tax laws apply to clergymen and to hotel-keepers as
members of the public; but no one would describe an income-tax law as being, for that reason, a law with
respect to clergymen or hotel-keepers. Building regulations apply to buildings erected for or by banks; but
such regulations could not properly be described as laws with respect to banks or banking.“
• The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health
and also tranquility, and thus falls substantially (if not wholly) within the powers conferred to preserve,
regulate and promote them and does not so fall within the Entry in the Union List, even though the
amplifier, the use of which is regulated and controlled is an apparatus for broadcasting or communication.
DOCTRINE OF HARMONIOUS CONSTRUCTION

• Entries are bound to overlap

• It is the task of the court to reconcile the entries and bring about harmony between;

• Only when a reconciliation becomes impossible, then, and only then, should the
overriding power of Union legislature, the ‘non-obstante’ (Notwithstanding) clause,
operate and the Union power prevail
LEADING CASES

• Gujarat University v. Krishna Ranganath Mudholkar (AIR 1963 SC 703)

• D.A. V. College V State of Punjab (1971) 2 SCC 261
• Conflict between Entry 11 List II (Now Entry 25 list III) and Entry 66 List I (in the context of
state government making Guajarati as exclusive medium of instruction in the universities)
ITC LTD. V. AGRICULTURAL PRODUCE MARKET
COMMITTEE, (2002) 9 SCC 232 
The first question to be determined is, can State legislations and the Tobacco Board Act coexist in
respect of sale of tobacco in the market areas within the framework of the Agricultural Produce
Marketing Acts — the State legislations under consideration? If our answer to this question is that the
two legislations can coexist, in that event it may not be necessary to go into the aspect of legislative
competence. If, however, our answer is that the State legislations and the parliamentary legislation are
incapable of reconciliation and the two cannot coexist, in that case, the next question that would
require determination will be about the validity of the State legislations.

Entry 14, 28, 66 State List & Entry 52 List 1

DECISION

• The State legislations and the Tobacco Board Act, 1975 to the extent of sale of tobacco in market area cannot coexist.

• The State Legislatures are competent to enact legislations providing for sale of agricultural produce of tobacco in market area

and for levy and collection of market fee on that produce.

• Parliament is not competent to pass legislation in respect of goods enumerated in the aforesaid Conclusion 2 while legislating

in the field of legislation covered by Entry 52 of the Union List under which Parliament can legislate only in respect of

industries, namely, “the process of manufacture or production” as held in Tika Ramji case [AIR 1956 SC 676 : 1956 SCR 393]

. The activity regarding sale of raw tobacco as provided in the Tobacco Board Act cannot be regarded as “industry”.

• ITC case [1985 Supp SCC 476 : 1985 Supp (1) SCR 145] is not correctly decided.
EMERGENCY PROVISIONS WITH SPECIAL REFERENCES TO PROCLAMATION OF
EMERGENCY AND PRESIDENT'S RULE .

Part XVIII, Article 352-360

• Article 352-354 (At National Level)

• Article 355-357 (At State Level)
• Article 358-359 Suspension of fundamental rights under Part III
• Article 360 (Financial Emergency)

• Concentration of governmental powers in cases of ‘extreme’ emergencies

 GOVT. OF INDIA ACT 1935

• CHAPTER V and VI
• Power of Governor-General and Governor to issue Proclamations, (Section 45 and 93 respectively)
• The Title was “PROVISIONS IN CASE OF FAILURE OF CONSTITUTIONAL MACHINERY” and not
Emergency Provisions as it is in the Constitution
• Why was it introduced??
• “ [To secure responsible government] Gov. Gen. should have adequate power to intervene in the event of any
attempt being made, while acting within constitutional forms to subvert the principle of responsible government
and substitute for them some form of party dictatorship” (Marquis of Lothian in House of Lords)
 NATIONAL EMERGENCY

• Original Constitution

• Grounds: War or external aggression or internal disturbance

• Cease to operate at the expiration of two months unless approved (by simple majority) by resolutions of both Houses of Parliament
• Once proclaimed and approved it could have continued for unlimited time
• No Express Bar on judicial review
• Article 19 was to be specifically suspended [ Article 358]
• All or any fundamental rights including right to move Supreme Court for enforcement of these rights could be suspended by an order of
President [Article 359]
44TH AMENDMENT [UNDOING 42ND AMENDMENT]

‘Armed rebellion’ replacing ‘internal disturbances’

Written approval of cabinet
Parliamentary approval within one month; at least half of the total members and two thirds of present and voting [Why??]
Fresh approval after six moths [in the line of state emergency U/A 256]
President ‘shall’ revoke the proclamation if House of People pass a resolution [by simple majority] to that effect, at any time 1/10 th of
the members of House of People may initiate moving such resolution
Express bar on judicial review [introduced by 42nd amendment] was removed
Article 19 not to be [automatically] suspended in case emergency is declared on the ground of armed rebellion, Protection only to those
laws which specifically recite that they are made in relation to this proclamation of emergency or executive actions taken under such
laws [358]
Article 20 and 21 couldn’t be suspended in any case [359]
 STATE EMERGENCY

• Fear of abuse of this power in Constituent Assembly Debate

• Hari Nath Kunzru
• If it enable Centre to intervene for the sake of ‘good governance’ in the provinces!!
• Dr. Ambedkar
• No… No .. The Centre is not given that authority …. Expression ‘failure of constitutional machinery’ was in Govt of India
Act 1935 … and everybody must be quite familiar, therefore, with its de jure and de facto meaning…
• dead letter of the constitution
• First use in Punjab (1951), then in Kerala (1959), Arunachal Pradesh (2016), last used in J&K October 2019)
Taken from https://factly.in/how-many-times-presidents-
rule-imposed-so-far-india/#prettyPhoto
 RAJASTHAN CASE (1978) 1 SCR 1

• Fact: Chudhary Charan Singh (Union Home Minister) wrote letter ‘earnestly commending’ Chief Ministers of
nine Congress ruled states to advise governor to dissolve the legislative assembly of their states in the light of the
fact that in post emergency parliamentary election congress party was resoundingly rejected by people, therefore,
a fresh assembly election should be conducted in their states.
• Six states filed petition under Article 131 against UOI seeking permanent injunction against the ‘directive’ in the
said letter and/or dissolving state legislative assembly.
• Issues:

1. Whether the Suit is maintainable

2. Can President dissolve legislative assembly even before the Parliament has expressed its view on the
proclamation under Art. 356(3)
 BOMMAI CASE (1994)3 SCC 1

• Facts: The case started with the proclamation made U/A 356 dismissing Bommai’s
government in the state of Karnataka in the year 1989, subsequently government in state
of Meghalaya and Nagaland were also dismissed and the legislative assemble dissolved,
then, on December 15, 1992, (BJP) government of Rajasthan, MP and HP were also
dismissed under Proclamation issued U/A 356.

• Issue: Justiciability (basically scope of justiciability) of proclamation made under article

356
 FINDING (BOMMAI CASE )

On Justiciability or Scope of Judicial Review

• The validity of the Proclamation issued by the President under Article 356[1] is judicially
reviewable to the extent of examining whether it was issued on the basis of any material at all or
whether the material was relevant or whether the Proclamation was issued in the mala fide exercise
of the power.
• When a prima facie case is made out in the challenge to the Proclamation, the burden is on the
Union Government to prove that the relevant material did in fact exist.
• Article 74[2] is not a bar against the scrutiny of the material on the basis of which the President
had arrived at his satisfaction.
 FINDINGS (BOMMAI CASE)

On dissolution of the House

• It will not be permissible for the President to exercise powers under Sub-clauses [a], [b]
and [c] of the latter clause, to take irreversible actions till a least both the Houses of
Parliament have approved of the Proclamation. It is for this reason that the President will
not be justified in dissolving the Legislative Assembly by using the powers of the
Governor under Article 174[2][b] read with Article 356[1][a] till at least both the Houses
of Parliament approve of the Proclamation.
 FINDINGS (BOMMAI CASE)

On Reversibility or restoration of the Status Quo

• If the Proclamation issued is held invalid, then notwithstanding the fact that it is approved by
both Houses of the Parliament, it will be open to the Court to restore the status quo ante to the
issuance of the Proclamation and hence to restore the Legislative Assembly and the Ministry.
• the Court will have power by an interim injunction, to restrain the holding of fresh elections to
the Legislative Assembly pending the final disposal of the challenge to the validity of the
proclamation to avoid the fait accompli and the remedy of judicial review being rendered
fruitless.
 FINDINGS (BOMMAI CASE)

• Grounds for action (recommendation of Sarkaria Commission endorsed by Court)

When is it valid
• [a] Political crisis.
• [b] Internal subversion.
• [c] Physical break-down.
• [d] Non-compliance with constitutional directions of the Union Executive.
 FINDINGS (BOMMAI CASE)

• Grounds for action (recommendation of Sarkaria Commission endorsed by Court)

When is it NOT valid
• A situation of maladministration ( it is not meant for good governance)
• imposition of President's rule without exploring the possibility of installing an alternative government enjoying
such support or ordering fresh elections.
• without giving the Ministry an opportunity to demonstrate its majority support through the 'floor test'
• on the sole ground that, in the General Elections to the Lok Sabha, the ruling party in the State, has suffered a
massive defeat.
• of 'internal disturbance', not amounting to or verging on abdication of its governmental powers by the State
Government,
 POST BOMMAI DEVELOPMENT

• Rameshwar Prasad Vs UOI AIR 2006 SC 980

1. Court would enquire into the mala fide aspect of the proclamation
2. The drastic and extreme action under Article 356 cannot be justified on mere ipse dixit, suspicion, whims and fancies of the Governor.
This Court cannot remain a silent spectator watching the subversion of the Constitution.
3. the power under Tenth Schedule for defection lies with the Speaker of the House and not with the Governor. The power exercised by
the Speaker under the Tenth Schedule is of judicial nature. Dealing with the question whether power of disqualification of members of
the House vests exclusively with the House
Union of India vs Harish Chandra Rawat (2016) 16 SCC 744
Nabam Rebia & B. Felix vs Dy. Speaker Arunachal Pradesh (2016) 8 SCC 1
 WHY FIRST AMENDMENT TO CONSTITUTION
Statement of Object
During the last fifteen months of the working of the Constitution, certain difficulties have been brought to light by judicial
decisions and pronouncements specially in regard to the chapter on fundamental rights. The citizen's right to freedom of speech
and expression guaranteed by article 19(1)(a) has been held by some courts to be so comprehensive as not to render a person
culpable even if he advocates murder and other crimes of violence. In other countries with written constitutions, freedom of
speech and of the press is not regarded as debarring the State from punishing or preventing abuse of this freedom. The citizen's
right to practice any profession or to carry on any occupation, trade or business conferred by article 19(1)(g) is subject to
reasonable restrictions which the laws of the State may impose "in the interests of general public".
While the words cited are comprehensive enough to cover any scheme of nationalization which the State may undertake, it is
desirable to place the matter beyond doubt by a clarificatory addition to article 19(6). Another article in regard to which
unanticipated difficulties have arisen is article 31. The validity of agrarian reform measures passed by the State Legislatures in the
last three years has, in spite of the provisions of clauses (4) and (6) of article 31, formed the subject-matter of dilatory litigation, as
a result of which the implementation of these important measures, affecting large numbers of people, has been held up. ……..
 THOSE JUDGMENTS

Champakam Dorairajan case AIR 1951 SC 226

[unlike Article 16(4), Article 15 had provision for Reservations ]
Romesh Thappar case AIR 1950 SC 124 Article 19 1 (2)
Section 9(1-A) of the Madras Maintenance of Public Order, Act, 1949, grounds for restriction under article 19(1)a was very limited
Shyama Pd. Mukherji
annulment of partition movement especially because of the manner in which Hindus were being treated in East Pakistan
Saghir Ahmad case AIR 1954 SC 728
[Nationalisation of public transport] See first Para of the judgment
Kameshwar Singh case [Patna high court]
Declaring Bihar Land Reforms Act unconstitutional [Article 31]
 THE FIRST AMENDMENT

• Introduction of article 15(4)

• Introduction of new grounds in sub-clause 2 of 19(1)a, sub clause 6 in 19(1)g
• Introduction of 31 A and 31 B : Ninth schedule to protect laws relating acquisition of estate

Shankari Prasad Case [1952] SCR 89

Challenging Constitutional validity of first Amendment Act
 ARTICLE 31 A AND 31 B

31A. For ‘saving of laws providing for acquisition of estates, etc.-’

Now no law providing for the acquisition by the State of any estate or of any rights therein or for the extinguishment or modification of any such rights
shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this
Part.

Estate shall have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area, and
shall also include any jagir, inam or muafi or other similar grant;

31B. Validation of certain Acts and Regulations.- Introduced Ninth schedule;

Now none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have
become void, on the ground that such act, regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any
provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary
 Shankari prasad case
The first case on amending power
Issues:
• Whether the provisional Parliament (functioning U/A 379) has the power to amend the Constitution; because
Article 368 refers to either ‘House of Parliament’.
• Whether the Amendment Act passed U/A 368 are ‘laws’ in the context of article 13(2)
Decision
In the context of article 13 "law" must be taken to mean rules or regulations made in exercise of ordinary legislative
power and not amendments to the Constitution made in exercise of constituent power….
 ARTICLE 31
RIGHT TO PROPERTY
a lost right

Compulsory acquisition of property

31. (1) No person shall be deprived of his property save by authority of law.
(2) No property, movable or immovable, including any interest in, or in any company owning, any commercial or industrial undertaking,
shall be taken possession of or acquired for public purposes under any law authorising the taking of such possession or such acquisition,
unless the law provides for compensation for the property taken possession of or acquired and either fixes the amount of compensation,
or specifies the principles on which, and the manner in which, the compensation is to be determined and given.

P.S. CAD on ‘Just’ before Compensation

 4TH AMENDMENT 1955

• Mrs. Bela Banerjee case [1954] S.C.R.551 [validity of the West Bengal Land Development and Planning Act, 1948]
"compensation" meant a just equivalent or full indemnification of the expropriated owner, and the expression "deprived" had
the same connotation as taking possession of or acquisition.
Therefore, 4th Amendment : a new clause 2
• 31 A was expanded
• no such law shall be called in question in any court on the ground that the compensation provided by that law is not adequate.
• And 2A was added
• (2A) Where a law does not provide for the transfer of the ownership or right to possession of any property to the State or to a
corporation owned or controlled by the State, it shall not be deemed to provide for the compulsory acquisition or
requisitioning of property, notwithstanding that it deprives any person of his property.
 SAJJAN SINGH CASE
‘The opening of pandora box’
Issue:
Validity of 17th amendment was challenged …
Whether 17th amendment has (indirectly) made an amendment to article 226 of the Constitution; and, if so, then it must
receive necessary ratification of half of the states, and because ratification procedure was not followed, therefore, this
amendment was invalid.
17th Amendment
Among other things, it expanded the definition of "estate" in article 31A of the Constitution to include ‘lands held under
ryotwari settlement and also other lands in respect of which provisions are normally made in land reform enactments’.
Inclusion of more State enactments relating to land reform in Ninth Schedule
 CONCURRING BUT …… Hidayatullah, J. and Mudholkar, J.

‘expression of certain doubts’

• Majority opinion upheld the constitutional validity of the 17th amendment holding that pith and substance of the
amendment doesn't hit the power of High Courts under article 226
But…..
Why definition of “Law” under 13(2) doesn’t read "but shall not include an amendment of the Constitution“
“I would require stronger reasons that those given in Sankari Prasad’s case to make me accept the view that
Fundamental Rights were not really fundamental but were intended to be within the powers of amendment in
common with the other parts of the Constitution and without the concurrence of the States.” [Hidayatullah, J]
Whether power [U/A 368] can be exercised with respect to any of the basic features of the Constitution.
[Mudholkar, J
 I. G. GOLAKHNATH (1967) 2 SCR 762

Issue:
Reconsideration of all previous decisions that upheld the constitutional amendments validating the power of parliament to amend fundamental rights in
the light of the doubts expressed in Sajjan Kumar case
Subba Rao C.J.
• Article 368 provides for the procedure of amendment and not the power to amend Constitution, the power comes from residuary power of legislation
• No distinction between legislative and constituent power
• Legislative power is subject to the provision of the constitution including article 13(2), therefore any amendment that take away or abridges
fundamental rights would be hit by article 13(1)
Hidayatullah, J
Power is not residuary power but still this is legislative power which is sui generis in nature, and Amendment Acts are still law and therefore, they will
be hit by article 13(2)
Doctrine of prospective overruling
 AFTER GOLAKHNATH

• A private member bill was introduced by Mr. Nath Pai to amend article 368 to restore the power of parliament to
amend fundamental right.
• Gujrat vs Shantilal Mangaldas (1969) 3 SCR saved the day by upholding the constitutional validity of 4 th
amendment that has made the adequacy of compensation non-justiciable in cases of acquisition of property.

Then came the decision in Bank Nationalisation case (1970) 3 SCR 530 nullifying 4 th Amendment and, thereafter,
Privy purse case (1971) 3 SCR 9 invalidating abolition of privy purse.
 24TH Amendment
Undoing Golaknath

To amend article 368 suitably for the purpose and makes it clear that article 368 provides for amendment of the
Constitution as well as procedure thereof. The Bill further provides that when a Constitution Amendment Bill
passed by both Houses of Parliament is presented to the President for his assent, he should give his assent
thereto. The Bill amended article 13 of the Constitution to make it inapplicable to any amendment of the
Constitution under article 368.
• Introduced article 13(4)
• New marginal note of article 368 to insert “Power of Parliament to amend the Constitution”
 25TH AMENDMENT

• To surmount the difficulties placed in the way of giving effect to the Directive Principles of State Policy.
The word "compensation" was omitted from article 31(2) and replaced by the word "amount”
• Further clarified that the said amount may be given otherwise than in cash.
• Article 19(1)(f) shall not apply to any law relating to the acquisition or requisitioning of property for a
public purpose.
• 3 Introduced a new article 31C which provides that if any law is passed to give effect to the Directive
Principles contained in clauses (b) and (c) of article 39 and contains a declaration to that effect, such law
shall not be deemed to be void on the ground that it takes away or abridges any of the rights contained in
article 14, 19 or 31 and shall not be questioned on the ground that it does not give effect to those principles.
 Kesavananda Bharti case
The basic structure doctrine
The validity of 24th Amendment along with 25th and 29th amendments (affecting Article 31(2) and inserting two
Kerala Reforms Act in the Ninth Schedule respectively) was challenged in Kesavananda Bharati’s case

• A 13 bench judge to reconsider the decision of 11 judge bench of Golaknath case

• 9 judge majority overruled Golaknath case
• 11 judges expressed their opinion
• Due to an extraordinary lengthy judgment, for the first time a summary of the majority decision was given by the
majority judges themselves
• 4 out of the 9 judges refused to sign the summary because of its inaccuracy
 SUMMARY OF CONCLUSIONS

• Golaknath case is overruled.

• Article 368 does not enable parliament to alter basic structure or framework of the Constitution
• 24th Amendment is valid
• Section 2(a), 2(b) and first part of Section 3 of 25th amendment is valid
• The Second part regarding DPSP is invalid
• 29th Amendment is valid
• A constitution Bench to determine validity of 26th amendment (relating to abolition of privy purse) in accordance with the
law laid down here.
[Seervai Page 3113 Vol. 3]
 What are basic features/structure/framework

All judges gave some illustrations of basic features

Sikri CJ
• Supremacy of the Constitution, republican and democratic form of government, secular character of the constitution, separation of powers, federal
character…
Shelat and Grover JJ
• Mandate to built welfare state under part IV, the unity and integrity of the nation
Hegde and Mukherjea JJ
• Sovereignty of India, democratic character of our polity, the unity of our country, essential features of the individual freedom secured to the citizens,
mandate to built an egalitarian and welfare society
J. Reddy J
• Basic features as indicated in the preamble and translated in the various provisions, e.g. parliamentary democracy, three organs of the state, a constitution
without fundamental rights and directive principles of the state policy will not be the same constitution
 Post Kesavananda Bharti case

Election of Prime Minister has been declared illegal by Allahabad High Court on the ground electoral malpractices
on June 12, 1975
Validity of the Constitutional 39th amendment, Insertion of article 329 A
Indira Nehru Gandhi vs Raj Naraian (The Election Case)

Among other things clause 4 of the newly inserted article 329 A

 Election case

What is constituent Power

“In the hands of the constituent authority there is no demarcation of powers. But the
demarcation emerges only when it leaves the hands of the constituent authority through
well-defined channels into demarcated pools. The constituent power is independent of the
fetters or limitations imposed by separation of powers in the hands of the organs of the
Government, amongst whom the supreme authority of the State is allocated…”
 How to locate basic features

“The ratio of the majority decision is not that some named features of the Constitution are a part of its basic
structure but that the power of amendment cannot be exercised so as to damage or destroy the essential elements
or the basic structure of the Constitution, whatever these expressions may comprehend.”

“one has perforce to examine in each individual case the place of the particular feature in the scheme of our
Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a
fundamental instrument of country's governance.”
 Post emergency

Minerva Mills case

It challenged the constitutionality of the Constitution (39th Amendment) Act which inserted the impugned
Nationalisation Act as Entry 105 is the 9th Schedule to the Constitution, sections 4 and 55 of the Constitution (42nd
Amendment) Act, 1976, which barred the judicial review of constitutional amendment.
The case particularly challenged the constitutionality of The Sick Textile Undertakings (taking over of management)
Act, 1974 which created a provision for nationalizing sick textiles undertaking.

The court invalidated article 31(c) and clause 4 and 5 of article 368
 Observations in Minerva mills case

• …Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power

into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be

destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the

Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an

unlimited one.

• DPSP and FR are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves.

In other words, the Indian Constitution is founded on the bedrock of the balance between Parts III and IV. To give absolute primacy to one over the other is to

disturb the harmony of the Constitution. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic

structure of the Constitution.

 WAMON RAO CASE

• The constitutionality of Maharashtra Agricultural Lands (Ceiling on Holdings) Act 1962, which imposed a ceiling
on agricultural lands is challenged.
• Constitutional validity of 31B and ninth schedule was challenged on the basis of post Keshavanand and election
cases.
All amendments to the Constitution which were made before April 24, 1973 and by which the 9th Schedule to the
Constitution was amended from time to time by the inclusion of the various Acts and Regulations therein, are valid
and constitutional. Amendments to the Constitution made on or after April 24,1973 by which the 9th Schedule to the
Constitution was amended from time to time by the inclusion of various Acts and Regulations therein, are open to
challenge on the ground that they, or any one or more of them, are beyond the constituent power of the Parliament
since they damage the basic or essential features of the Constitution or its basic structure.
 I. R Coelho Case

• The power to amend cannot be equated with the power to frame the Constitution.
• The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it
destroys basic structure. The impact test would determine the validity of the challenge.
• Even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they
destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.
• Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall
be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be
Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by
application of the "rights test" and the "essence of the right" test taking the synoptic view of the Articles in Part III as held in Indira Gandhi's
case.
 UNION JUDICIARY
SUPREME COURT OF INDIA COMPOSITION AND JURISDICTION.

• There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law
prescribes a larger number, of not more than ‘seven’ [Now 34] other Judges.
• One unified judiciary, unlike US where there are separate judicial system for federal and state laws.
• Unlike US constitution where it is explicitly mentioned that Judicial power of the US shall be vested in one
Supreme Court and other courts to be established by Congress [See article 3 of US Const.], no provision of the
Indian Constitution as such vests judicial power exclusively in the courts.
• However, by conventions and judicial decisions judicial power vests in courts. [See Election Case]
• In the long history colonial era, courts were regarded as independent of the executive governments.
APPOINTMENT OF THE JUDGES
‘THE MAIN CONTROVERSY’
• Every Judge of the Supreme Court shall be appointed by President by warrant under his
hand and seal after consultation with such of the Judges of the Supreme Court and of the
High Courts in the States as the President may deem necessary for the purpose and shall
hold office until he attains the age of sixty-five years :
Provided that in the case of appointment of a Judge other than the Chief Justice,
the Chief Justice of India shall always be consulted.
[Article 124]
THE CONTROVERSY

If the president is bound by the opinion tendered by Chief Justice [and other judges] in the
process of ‘consultation’.
 THE JUDGES CASES

• Sankalchand Himatlal Sheth case (1977) 4 SCC 193 in 1977 [five-Judge Bench]
The Three Judges Cases
• S.P. Gupta v. Union of India, [The First Judges case] 1981 Supp SCC 87
• Advocates-on-Record Association v. Union of India [The Second Judges Case] (1993) 4 SCC 441
• In Re: Special Reference No. 1 of 1998 [Third Judges case] (1998) 7 SCC 739
The Fourth case
• NJAC judgment (2016 )5 SC C 1
 SANKALCHAND HIMATLAL SHETH CASE

Issue: A high court judge challenged his transfer, inter alia, on the ground, that his non-consensual transfer
was outside the purview of Article 222, as the same would adversely affect the "independence of the judiciary.
The Court held that the consent of the Judge being transferred, need not be obtained but
“in all conceivable cases, advice tendered by the Chief Justice of India (in the course of his "consultation"),
should principally be accepted by the Government of India, and that, if the Government departed from the
counsel given by the Chief Justice of India, the Courts would have an opportunity to examine, if any other
extraneous circumstances had entered into the verdict of the executive”.
The Theory of effective consultation, however consultation doesn’t mean concurrence
THE FIRST JUDGES CASE

Context
The then Law Minister of the Government of India sent a circular to Chief Ministers of various
States. Chief Ministers were requested to obtain from all the Additional Judges (working in the
concerned High Courts) consent to be appointed as permanent Judges in any other High Court in
the country. It also advised Chief Ministers to obtain similar consent letters from persons who have
already been or may in future be proposed for initial appointment as Judges of the High Court. The
said letter was challenged the ground it was a direct attack on the independence of the judiciary
which is a basic feature of the Constitution.
Issue: if the opinion of CJI be given primacy over the opinion of other constitutional functionaries
 FIRST JUDGE CASE
[SEVEN-JUDGE BENCH, BY A MAJORITY OF 4:3,]

• The Court generally agreed with decision given in the Sankalchand Himatlal case that the ultimate power of appointment
under the constitutional provisions "unquestionably" rested with the President.
• The contention that in the consultative process, primacy should be that of the Chief Justice of India, since he was the head
of the Indian judiciary and pater familias of the judicial fraternity, was rejected for the reason, that each of the
constitutional functionaries was entitled to equal weightage.
• However, the Central Government was to act, only after consulting the constitutional functionaries, and that, the
consultation had to be full and effective, the President must communicate to the Chief Justice all the material he has and
the course he proposes, that the Chief Justice of India was required to be consulted, but the Central Government was not
bound to act in accordance with the opinion of the Chief Justice of India, even though, his opinion was entitled to great
weight.
THE SECOND JUDGES CASE

Context: A larger 9 judges bench was constituted to reconsider the decision of First judge
case after the matter was so referred by Subhash Sharma case..
Issue: Whether the decision in the first judge case was right when it held that the ultimate
power to take decision with respect to appointment of judges is with the president.
• Decision [8:1] The Court overruled First judge case so far as it takes the contrary view
relating to primacy of the role of the Chief Justice of India in matters of appointments and
transfers, and the justiciability of these matters as well as in relation to Judge-strength,
does not commend itself to us as being the correct view.
Second judge case established the ‘primacy of the opinion of the judiciary
view expressed through CJI

Highlights
• No appointment of any Judge to the Supreme Court or any High Court can be made, unless it is in
conformity with the opinion of the Chief Justice of India.
• Appointment to the office of the Chief Justice of India should be of the senior most Judge of the
Supreme Court considered fit to hold the office.
• The opinion of the Chief Justice of India has not mere primacy, but is determinative in the matter of
transfers of High Court judges/Chief Justices.
• In making all appointments and transfers, the norms indicated must be followed. However, the same
do not confer any justiciable right in any one.
 THE THIRD JUDGES CASE

It was an unanimous advisory opinion delivered by a 9 judge bench when it was requested to clarify some doubts that
has arisen from the reading of the Second Judge case, particularly with respect to the cases when there was a conflict
in the opinion of CJI and o
• The expression "consultation with the Chief justice of India" in Articles 217(1) of the Constitution of India requires
consultation with a plurality of Judges in the formation of the opinion of the Chief Justice of India. The sole,
individual opinion of the Chief Justice of Indian does not constitute "consultation" within the meaning of the said
Articles. their judges…
• The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a
Chief Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the
Supreme Court. Insofar as an appointment to the High Court is concerned, the recommendation must be made in
consultation with two senior most puisne Judges of the Supreme Court.
 CONSTITUTION (NINETY-NINTH AMENDMENT)
ACT, 2014
This amendment introduced NJAC constituting a body consisting of CJI and two senior most
judges of SC, Union Law Minister, Leader of Opposition (in case no Leader of Opposition is
available then the leader of single largest opposition party) and two eminent person (selected by a
body consisting of CJI, PM and Leader of Opposition) who shall recommend names for the
appointment of Judges of Supreme Court and High courts and whose recommendation shall be
binding on the President.

The 99th amendment was challenged before the Supreme Court on the ground that it was violative
of basic structure of the Constitution.
 NJAC DECISION

• A five judge bench delivered the opinion with 4-1 majority declaring the NJAC unconstitutional on the
ground that it violates the basic structure of the constitution.
• The independence of judiciary was already declared basic structure of the constitution in election case,
the court held in this case that primacy of the opinion of the judiciary has also become the basic structure
of the constitution and because this amendment dilute the primacy of opinion of judiciary in the
appointment process, therefore, it is against the basic structure of the constitution.
• All five judges gave their own separate opinion.
• The only dissenting voice was Justice Jasti Chelameswar
DISSENTING OPINION

The basic feature of the Constitution is not primacy of the opinion of the CJI (Collegium)
but lies in non investiture of absolute power in the President (Executive) to choose and
appoint judges of CONSTITUTIONAL COURTS .That feature is not abrogated by the
AMENDMENT. The Executive may at best only make a proposal through its representative
in the NJAC, i.e. the Law Minister. Such proposal, if considered unworthy, can still be
rejected by the other members of the NJAC.
 JURISDICTION
The law declared by the supreme court shall be binding on all courts within the territory of india. [article 141]
• Original Jurisdiction: Article131
• Appellate Jurisdiction: Articles 132,133,134,136
• Powers of Federal Court: Article 135
• Special Leave to Appeal: article 136
• Review Jurisdiction: Article 137
• Power to withdraw and transfer cases Article 139-A
• Power to do Complete justice: Article 142
• Advisory Jurisdiction: Article 143
• Writ Jurisdiction: Article 32(2)
 ORIGINAL JURISDICTION
ART 131: DISPUTES (INVOLVING ANY QUESTIONS OF EXISTENCE OF EXTENT ANY LEGAL RIGHTS) BETWEEN
GOVERNMENT OF INDIA AND ‘STATES’ OR BETWEEN STATES

“States of Bihar vs Union of India : A dispute between state of Bihar and Hindustan Steel Limited will not fall
within this jurisdiction because Hindustan Steel limited is not ‘state’ for the purpose of article 131” [AIR1970 SC 1446]
Rajasthan vs UOI [ article 356 case] and State of Karnataka vs UOI [ Union government constituted a
commission of enquiry to investigate charges of corruption against sitting minister in Karnataka government]
[AIR 1977 SC 1361]

the court held that the distinction sought to made between ‘state’ and ‘state government’ is immaterial..
Parliament may by law create a separate tribunal to adjudicate special matter like inter state water dispute, or
can refer the matters to finance commission
Writ jurisdiction for 32 of enforcement of [only] fundamental rights PIL
 APPELLATE JURISDICTION
ARTICLES 132 [on constitutional matters]

In State of Jammu and Kashmir and Ors. vs. Ganga Singh and Ors., AIR 1960 SC 356 the problem was
that the relevant Motor Vehicle Rules said that ‘service license’ could only be issued to a
person or a company registered under the Partnership Act and not to a co-operative society
registered under Society Registration Act
The issue was if this Rule violates article 14 equality clause…
The Court said that this case does not involve any ‘interpretation of constitutional principles’
because laws under article 14 is well settled; this case involves application of those rules…
Substantial questions: the question regarding which there is a difference of opinions.
 APPELLATE JURISDICTION
ARTICLES 133,134,136

Civil Matters
• a substantial question of law of general importance;
• in the opinion of the High Court the said question needs to be decided by the Supreme Court
Criminal Cases
a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person
and sentenced him to death; or
c) [certifies under article 134A] that the case is a fit one for appeal to the Supreme Court.
When an how the certificate is to be issued [inserted after 44 th amendment]
d) may, if it deems fit so to do, on its own motion; and
e) shall, if an oral application is made,… immediately after the passing or making of such judgment, decree, final order or sentence, …
SPECIAL LEAVE TO APPEAL [SLP]
ARTICLE 136

• (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter passed or made by any court or tribunal in the territory of India.
• (2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.
 SLP

Proceeding takes place in two stages;

1. Granting special leave to appeal
2. Hearing the appeal
The appeal is not a matter of right; it’s the total discretion of the SC
Unlike provisions U/A 132, 133. 134 the appeal can be filed against the decision of any court against any
stages of the proceeding.
The Court follows the precedent set by Privy Council where the leave to appeal was granted only under
special and exception circumstances resulting in gross miscarriages of justice (e.g. total absence of PNJ in
the proceeding), it is to be used sparingly.
 REVIEW JURISDICTION [137]

Generally follows the principle of “interest reipublicae ut sit finis litium pronounce” , so generally Court wouldn’t
review its own decision, however, review may be filed on three grounds
• Discovery of new and important evidence
• Mistake or error apparent on the face of the record
• Any other sufficient reason
Sabarimala judgment, recent example where “Review application was admitted”
Generally the same Bench who passed the order hears the review
CURATIVE PETITION

This jurisdiction emerged after Rupa Ashok Hurra v Ashok Hurra [AIR 2002 SC 1771] case.
Whether an aggrieved person is entitled to any relief against a final judgment/order of this Court, after dismissal of
review petition, either under Article 32 of the Constitution or otherwise.
Can a writ be filed to stay the decision of a HC or SC on the ground that the order violates fundamental rights of
the petitioners…
"Very wide powers have been conferred on this Court for due and proper administration of justice. Apart from the
jurisdiction and powers conferred on this Court under Articles 32 and 136 of the Constitution, I am of the opinion
that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extraordinary
situation in the larger interests of administration of justice and for preventing manifest injustice being done. This
power must necessarily be sparingly used only in exceptional circumstances for furthering the ends of justice."
ADVISORY JURISDICTION

143. Power of President to consult Supreme Court.—(1) If at any time it appears to the
President that a question of law or fact has arisen, or is likely to arise, which is of such a
nature and of such public importance that it is expedient to obtain the opinion of the Supreme
Court upon it, he may refer the question to that Court for consideration and the Court may,
after s
(2) The President may, notwithstanding anything in 1*** the proviso to article 131, refer a
dispute of the kind mentioned in the 2[said proviso] to the Supreme Court for opinion and the
Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion
thereon. uch hearing as it thinks fit, report to the President its opinion thereon.
OTHER IMPORTANT POWERS OF SC

Article 142: The Supreme Court in the exercise of its jurisdiction may pass such decree or
make such order as is necessary for doing complete justice in any cause or matter pending
before it, and any decree so passed or order so made shall be enforceable throughout the
territory of India in such manner as may be prescribed by or under any law made by Parliament
and, until provision in that behalf is so made, in such manner as the President may by order3
prescribe.
144. Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil
and judicial, in the territory of India shall act in aid of the Supreme Court
 WRIT JURISDICTION U/A 32

32. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within
the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
 WHAT IS WRIT

• Writ, in common law, is basically an “order issued by a court in the name of a sovereign authority requiring the
performance of a specific act”.
• It developed as a mechanism to invoke royal justice in England post Norman conquest.
• If one was unsatisfied with the hearing in local courts and wanted his case to be heard in one of the King’s courts,
then he needed to ‘purchase’ this writ (written order) from the Chancery to summon the person before King’s court to
answer his plea.
• These Royal courts were also called High Court because being King’s court they were higher in stature in
comparison to the local courts of feudal lords that existed before these royal courts usurped their jurisdiction
• With subsequent development, writ petitions became an instrument through which one would call upon public
authorities to answer before the royal courts.
 INTRODUCTION OF WRIT IN INDIA

• The origin of writ in India can be traced to the Regulating Act 1773 under which a Supreme Court was
established in Calcutta in 1774. Subsequently two more supreme courts were established in India by the
Royal Charter, one in Madras and the other in Bombay. Later on, these supreme courts were replaced by High
Courts in 1862 under Indian High Court Act 1861. Except these three high courts no other high courts
established later in time had the power to issue writ.
• This anomaly was considered in Constituent Assembly and all High Courts were endowed with writ
jurisdiction.
WRIT JURISDICTION OF HIGH COURT U/A 226

• Notwithstanding anything in article 32, every High Court shall have power, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories
directions, orders or [writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of
the rights conferred by Part III and for any other purpose.]
DIFFERENCE BETWEEN 32 AND 226

• Under 32, one can approach Court only for the enforcement of the rights guaranteed
under part III [Fundamental rights’] but under 226 writs can be issued for enforcement of
rights other than fundamental rights also.
PIL/ SAL
The PIL jurisdiction emerged to solve the problem of locus standi. Traditionally, only the
person whose rights was infringed could have filed the petition for its enforcement, [ only
exception was habeas corpus] but introduction of public interest litigation allowed a ‘public
spirited person’ to espouse cause of others.
 THE LAST ADVICE

Reading constitutional law means reading land mark decisions giving by Higher Courts,
therefore, read all the cases in original (as far as practicable) referred in previous slides