Prime Minister and President Role And their Relations

position of president: relation between president and council of ministers all executive functions are executed in the name of president, authenticated in such manner as may be prescribed by rules to be made by president (article 77). the president has wide administrative powers (to appoint and dismiss officers, ministers, etc.), military powers, diplomatic and legislative powers. the president, however, must exercise powers according to the constitution. art. 53(1) which vests the executive power of the union in the president provides that the power may be exercised by the president either directly or through officers subordinates to him. for this purpose, ministers are deemed to be officers subordinate to him. article 74(1) provides that there shall be a council of ministers with prime minister at the head, to aid and advise president in exercise of his functions. article 74(2) lays that question whether any, and if so, what advice was tendered by minister to the president shall not be inquired into in any court. thus, relation between president and council of ministers are confidential. prior to the 42nd amendment, there was no clear provision in the constitution that president was bound by ministerial advice. this amendment amended article 74 which makes it clear that president shall be bound by the advice of council of ministers. however, by 44th amendment, president has been given one chance to send back advice to the council of ministers for reconsideration. however, president shall act in accordance with advice tendered after such reconsideration.6 article 75(1) says that prime minister shall be appointed by president and other ministers shall be appointed by president on the advice of prime minister. article 75(2) lays that minister shall hold office during the pleasure of president. article 75(3) lays down that council of ministers shall be collectively

responsible to the lok sabha. clause (1a), added to article. 75(1) by the constitution 91st amendment (2003), provides that the size of the council of ministers including the prime minister shall not exceed 15 per cent of the total number of the members in the lok sabha. it may be noted that the ministers are nominees of the prime minister. the constitution does not contain any restriction on the prime minister's choice of his colleagues. in practice, his choice is governed by considerations like party standing, capacity, educational skill, willingness to carry out a common policy, regional representation, representation of backward or scheduled classes, minorities, etc. before a minister enters upon his office, the president shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the third schedule [article. 75(4)]. the salaries and allowances of ministers shall be such as parliament may from time to time by law determine and, until parliament so determines, shall be as specified in the second schedule [article. 75(6)]. the salaries and allowances of ministers act, 1952, has been passed for this purpose. prime minister he is the leader of the majority party in the lok sabha. according to article. 74(1), he is the head of the council of ministers. he is primes inter pares ('first among equals') in council of ministers. his main function is to aid and advise the president in the exercise of his functions. in this way, he is the real or chief executive.

the prime minister's office is his personal secretariat. under the allocation of business rules, 1961, it occupies the status of a department of the government of india. 'cabinet' is the core of the council of ministers. the prime minister is the chairman of the planning commission. recently, he has been made the chairperson of the 'tiger conservation authority'. deputy prime minister the post of deputy prime minister is not prescribed in the constitution. however, seven deputy prime ministers have been made so far (example sardar patel -first', l.k. advani - last). such appointment depends on the discretion of the prime minister and the communication is sent to the president of india. he occupies the position of prime minister in assisting him in his absence.

his office is meant to reduce the workload of the prime minister. he, however, lacks the powers of the prime minister. the supreme court has ruled that the deputy prime minister is just a minister and he takes the same oath as a minister does. president's discretion: a limited one (council of ministers to aid and advise president) alladi krishna ayyar, a member of the drafting committee of the constituent assembly, observed that the word "president" used in the constitution "merely stands for the fabric responsible to the legislature". what he means by the term 'president' is the union council of ministers which is declared to be collectively responsible to the house of people i.e. lok sabha. the role of the president as a figurehead is reflected in his indirect election. it may also be noted that the constitution nowhere uses the terms like "discretion" and "individual judgment" for the president which were used for the governor-general under the government of india act, 1935. according to dr. ambedkar, "under the draft constitution, the president occupies the same position as the king under the english constitution. he is the head of state but not of the executive. he represents nation but does not rule the nation. his place in the administration is that of a ceremonial device on a seal by which the nation's decisions are made known. he can do nothing contrary to the advice of council of ministers nor can do anything without their advice." it is the council of ministers which makes decisions relating to the administration of the affairs of the union and its decisions are binding on the president. except in certain marginal cases, president shall have no power to act in his discretion in any case:- (1) council of ministers is collectively responsible to lok sabha [article. 75(3)]. thus, for the policy decisions of the government, the council of ministers is answerable to parliament; the president is not responsible to parliament for the acts of government. it will be anomalous to hold that the ministers are answerable for the acts and policies of the government in the making of which they only give advice, while the final decisions are taken by the president. if the president ignores the advice of ministers enjoying the confidence in lok sabha, it may resign and thus create a constitutional crisis. the president must

then find another prime minister who, with his colleagues, can secure the support of the lok sabha. if the outgoing prime minister has the support of the lok sabha, it will not be possible for the president to have an alternative government. it is obligatory on the president to have always a council of ministers. (2) if he dismisses any ministry having support of lok sabha, they may bring impeachment proceedings against him... this serves as a deterrent against the president assuming real powers.

the president may not be able to incur any expenditure in case of any conflict between himself and the council of ministers. the latter has the support of lok sabha which in turn controls the executive primarily through its authority over the purse i.e. the power to levy and collect taxes. any amount incurred by the president without proper authorization by parliament would be unconstitutional. (4) appointment of prime minister - president's discretion is limited. thus when a single party gains an absolute majority and has an accepted leader, president's choice of selecting prime minister is a president's role: appointment of prime minister in hung parliament article. 75(1) casts the burden of appointing the prime minister (pm) and other ministers on the president. the prime minister has been described as "the keystone of the cabinet arch, who is central to its formation, central to its life, and central to its death". therefore, he must be a person who can secure colleagues and with his colleagues he must be sure of the support of the popular house of parliament, the lok sabha. the system of parliamentary government requires that the pm along with his colleagues, not only be responsible to the lower house, but that he shall be able to justify his policy in parliament (laski, parliamentary government in england, 228). article. 75(3) lays down that the council of ministers shall be collectively responsible to the lok sabha. appointment of prime minister is one act which the president performs in his discretion without the aid and advice of the council of ministers or the prime minister. however, under normal circumstances, when a political party has attained absolute majority in the lok sabha, the president has no choice or discretion but

to invite the recognised leader of that party and appoint him the prime minister. this is the principal limitation in practice on the president's choice of prime minister. however, if no single party gains absolute or workable majority and a "coalition government" is to be formed, the president can exercise a little discretion and select the leader of any party who, in his opinion, can command the support of the majority in the lok sabha and form a stable government. "in accordance with the highest democratic traditions and in the interest of establishing healthy conventions", the prime minister should seek a vote of confidence in the lok sabha at the earliest. even in such a situation (i.e. the case of "hung parliament"), the president's action is guided by certain conventions. the president usually seeks to put in office a prime minister who is able to muster majority support in the house. this is also the position in britain viz. when no party has an overall majority in the house, the queen will have to decide who has a 'reasonable prospect' of maintaining himself in the house. in view of the fact that the framers of the constitution of india have adopted the british cabinet system, the conventions operating under the english constitution are relevant in this regard: (a) first, in the case of defeat of ruling party in the lower house by a no-confidence motion, the president should invite the leader of the opposition to explore the possibility of forming a stable ministry. it was done by the president, shri n. sanjeeva reddy, by inviting y.b. chavan, the leader of the opposition, to form the government after morarji desai tendered his resignation in 1979. however, after four days of hectic activities, y.b. chavan informed the president his inability to form the government. (b) secondly, where none of the parties has attained absolute majority in the lok sabha, the president may invite the leader of the "single largest party" to form the government. in 1991, the president invited mr. narasimha rao, the leader of the congress party, which was the single largest party, to form the government. similarly, after the sixth general elections, the president appointed mr. vajpayee, the leader of the bjp, which was the single largest party. the president asked mr. vajpayee to prove the majority in the lok sabha within 13 days, which he

was unable to prove. in the seventh general elections (1998), the president again appointed mr. vajpayee, the leader of the single largest party. this time, however, the bjp government was able to prove its 19

majority in the lok sabha. (c) thirdly, if two or more parties form a coalition before the election and secure absolute majority in the election, the acknowledged leader of such a coalition should be invited to form the government. in 1977, mr. morarji desai, the leader of the janta party, a coalition of several parties who fought election on the common platform, formed the government. similarly, in 1989, mr. v.p. singh, the leader of the janta dal (a national front, consisting of several local and national parties) was invited to form the government. (d) fourthly, the president should invite the leader of the coalition or alliance formed after the election, to form the government. in 1996, after the sixth general elections, mr. deve gowda, who was elected the leader of the united front (consisting of 13 parties), formed after the election, was invited and appointed the prime minister by the president. the united front secured the requisite majority with the help of 'outside' support form the congress party. it may be noted that the president had first invited the bjp party, the single largest party in the sixth general elections, to form the government. on the bjp government's failure to prove the majority, the president invited the leader of the united front, a post-poll alliance; there was no pre-poll alliance which had secured absolute majority in the election. it may be noted that before appointing any leader of a party/ alliance as pm the president on the basis of documentary evidences (i.e. affidavits, signature-list, etc.) should be reasonably satisfied that the person concerned has the majority support with him in lok sabha. such ascertainment becomes necessary in view of the fact that after being sworn in as pm he may use unfair means to garner the lacking support and the very use of such means to remain in power is anathema to the spirit of the constitution. the president should follow the conventions in the order in which they are mentioned above. however, many scholars do not favour a distinction between a pre-poll and post-poll alliance. according to them, such distinction is superficial

as can a minority alliance be given chance just because it is pre-poll and vice versa. above all, the "sole test" is the possibility of commanding the majority in the lok sabha. and this is what the president is required to ascertain; he should not be concerned about the political manipulations or horse-trading. under the indian system, the gaining of political power through formation of several political parties is legal, hence a mere attempt to get more political power for a party is not unconstitutional. moreover, the president has to remain above the party politics. but, some scholars are of the view that the ruling party should not be just able to command the majority in the house, it should be able to justify its policy in the parliament. therefore, the leader of the coalition/alliance formed after the elections should be given chance in the last, because such a coalition is not formed on any common principles and policies but solely with the object of getting into power. more so, when the coalition is formed with the help of the defectors from the ruling party and other parties join it simply to topple the government. it is submitted that the "sole test" view appears to be correct. neither a pre-poll alliance nor a post-poll alliance guarantees a stable government (the failure of national front /janta dal, on both occasions, is a case in the point). a pre-poll alliance can create as many problems for the ruling party as a post-poll alliance. in 1998 elections, the bjp got support from the parties like aiadmk (ms. jayalalitha) and trinmul congress (mamta banerjee) - a pre-poll alliance. but, every second day, the bjp were involved in negotiating with ms. jayalalitha or ms. banerjee. thus, the president should first invite the leader of the single largest party and ask him to prove his party's majority on the floor of the house. if the single largest party fails to get the majority support, then, the president should invite the second largest party to prove its majority on the floor of the house. it does not matter that the second largest party proves its majority via a pre-poll or post-poll alliance with the other parties. however, the president may look into certain factors like whether there is any condition attached to the support given by one party to the other, or whether the support is unconditional. the 'unconditional' support is to be preferred. some

scholars have suggested that in case of no clear majority in favour of any party, the president should send a message to the lok sabha under article. 86(2) to select its leader (i.e. pm). it is, however, submitted that such a course is contrary to the spirit of the constitution as it is repugnant to the party-based system of democracy and a leader chosen by the house may never enjoy the majority support of it. here, it may also be noted that the direction given by the

dr. ambedkar said: "the prime minister is really the keystone of the arch of the cabinet and until we create that office and endow that office with statutory authority to nominate and dismiss ministers there can be no collective responsibility." it needs to be clarified that along with the principle of collective responsibility the principle of 'individual responsibility' of each minister to the parliament also works. every minister has to answer question regarding the affairs of his department in the parliament. he cannot throw the responsibility of his department either on his officials or another minister. if the minister has taken action with the cabinet's approval the principle of collective responsibility applies and the whole cabinet should support and defend his action. however, if the minister has taken action without the cabinet's approval, the cabinet may or may not support him. in case of non-support, the minister has to go and not the whole cabinet. but the cabinet cannot retain the minister and at the same time contend that the responsibility is all his (ram jawaya versesstate of punjab). there is no doubt about the president's power to dismiss ministry that has lost the confidence of lok sabha. but, can president dismiss such ministry, which though enjoys the confidence of lok sabha, but has lost the support of the people. in india, such ministry enjoying the confidence of legislative assembly have been dismissed in various states. it is no violation of constitutional practice if the president dismisses a ministry when he is satisfied on reasonable grounds that it has lost the support of the people. the will of the people must in the end prevail and president will be violating the constitution if

he allows discredited government to continue only because it has succeeded in managing to keep the members of legislature in its favour. but the real problem is how to know the will of people (press views, by-elections results, etc., may be used, however these methods are not free

PARLIAMENT

Composition of the Rajya Sabha (Article 80)

Article 80 provides that Rajya Sabha shall consist of the following:

(a) Not more than 238 representatives of the States and the Union Territories.

(b) 12 members to be nominated by the President from amongst the persons having

special knowledge or practical experience in respect of literature, science, art or

social service.

The allocation of seats in the Rajya Sabha to be filled by the representatives of the States

and of the Union Territories, shall be in accordance with the provisions in that behalf

contained in the Fourth Schedule to the Constitution.

Composition of the Lok Sabha (Article 81)

Article 81 provides that Lok Sabha shall consist of:

(a) Not more than 530 members chosen by direct election from territorial

constituencies in the States and

b) Not more than 20 members to represent the Union territories, chosen in such

manner as Parliament may by law provide.

The above composition is subject to the provisions of Article 331. Article 331 provides

that if the president is satisfied that Anglo-Indian Community is not adequately represented

in Lok Sabha, he may nominate not more than 2 person belonging to that community to the

Lok Sabha. This nomination shall be over and above the number of members.

QUALIFICATIONS FOR MEMBERSHIP OF PARLIAMENT (Article 84)

Article 84 provides the following qualifications to be possessed by a person to be qualified

for the membership of the Parliament—

(a) He must be a citizen of India;

(b) He must make and subscribe before some person, authorised in that behalf by the

Election Commission, an oath or affirmation, according to the form set out for the

purpose in the Third Schedule to the Constitution;

(c) For the membership of Rajya Sabha he must not be less than 30 years of age and for

the membership of Lok Sabha he must not be less than 25 years of age; and

(d) He must possess such other qualifications as may be prescribed in that behalf by or

under any law made by Parliament.

In this respect Parliament enacted the Representation of People Act, 1951. Sections 3 and

4 of the Act require that the person to be qualified for the membership of the Parliament

must be registered as a voter in any of the Parliamentary constituencies.

DISQUALIFICATIONS FOR MEMBERSHIP (Article 102)

Article 102(1) provides that a person shall be disqualilied for being chosen as, and for being,

a member of either House of Parliament if he incurs any of the following disqualifications—

(a) if he holds any office of profit under the Government of India or the Government of

any State, other than any office declared by Parliament by law not to disqualify its

holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign

State, or is under any acknowledgment of allegiance or adherence to a foreign State;

(e) if he is so disqualified by or under any law made by Parliament. In this respect, the

Representation of People Act, 1951 was enacted by the Parliament. The Act

prescribes the following disqualifications—

(i) if he has been convicted or found to have been guilty of any offence or corruption or

illegal practice in an election. It means the person shall be disqualified if he is guilty

of committing corrupt practices at the election;

(ii) if he has been convicted by a court in India for any offence resulting in imprisonment

for two or more years;

(iii) if he has failed to lodge a return of election expenses within the time and in the

manner required by the Act;

(iv) if he has any share or interest in a government contract for the supply of goods, or

for the execution of any work or for the purpose of any service;

(v) if he is a Director or Managing Agent or holds any office of profit in a government

corporation in which the Government is holding 25 per cent shares;

(vi) if he has been dismissed from Government service for corruption or disloyalty to the

State;

None of the above disqualifications, however, operates for a period of more than five years.

(f) if he is so disqualified under the Tenth Schedule to the Constitution which provides

disqualfIcation on the ground of defection.

Legislative Procedure

Legislative procedure means the procedure, which is followed for making laws. It is

initiated by the introduction of the proposals for legislation in the form of a “Bill” and

involves the following stages—

(a) Introduction of the Bill in one of the Houses.

(b) When it is passed by that House, the Bill is transmitted to the other House.

(c) When the Bill is passed or deemed to have been passed by both the Houses, it is

sent to the President for his assent thereto. On his assent, the Bill becomes law and

the legislative procedure completes.

The legislative procedure is discussed in respect to the following Bills—

(a) Ordinary Bill

(b) Money Bill

(c) Financial Bill

(d) Bill involving expenditure from Consolidate Fund of India

Ordinary Bill (Article 107)

An Ordinary Bill may be defined as “that Bill which is neither a Money Bill, nor a Financial

Bill nor a Bill involving expenditure from the Consolidated Fund”.

An Ordinary Bill may be introduced in either House of Parliament, when passed by the

House in which it is introduced, the Bill is to be transmitted to the other I-louse. When the

other House has also agreed to the Bill, it is said to be passed by both Houses. It is then

presented to the President for his assent.

The passing of a Bill in a House is done through three stages commonly known as

readings: first reading, second reading and third reading. At the first stage the Bill is

introduced in the House. No discussions take place at this stage. Then starts the

consideration stage where the Bill is discussed clause by clause. At this stage, amendments

are moved and accepted or rejected. It is known as the second reading of the Bill. At the

third reading, a brief general discussion takes place and the bill is passed. All the three

reading stages are repeated in each House of Parliament.

If there is any disagreement between the two Houses over the Bill, it cannot be deemed

to have been passed by both Houses.

Money Bill (Article 110)

The expression ‘Money Bill’ is defined by Clause (1) of Article 110. It is that Bill which

contains only provisions dealing with all or any of the following matters, namely—

(a) the imposition, abolition, remission, alteration, or regulation of any tax;

(b) the regulation of the borrowing of money or the giving of any guarantee by the

Government of India, or the amendment of the law with respect to any financial

obligations undertaken or to be undertaken by the Government of India;

(c) the custody of the Consolidated Fund or the Contingency Fund of India the payment

of moneys into or the withdrawal of moneys from any such Fund;

(d) the appropriation of moneys out of the Consolidated Fund of India;

(e) the declaring of any expenditure to be expenditure charged on t e Consolidated

Fund of India or the increasing of the amount of any such expenditure;

(f) the receipt of money on account of the Consolidated Fund of India or the public

account of India or the custody or issue of such money or the audit of the accounts

of the Union or of a State; or

(g) any matter incidental to any of the matters specified in sub-clauses (a) to(f).

Thus, Money Bill is that Bill which contains all or any of the matters contained in Sub-

clauses (a) to (g) of Clause (1) of Article 110. However, a Bill shall not be deemed to be a

Money Bill by reasons only that it provides for the imposition of fines or pecuniary penalties

or for the demand or payment of fees for licences or fees for services rendered, or by

reasons that it provides for the imposition, abolition, remission, alteration or regulation of

any tax by any local authority or body for local purposes.

If any question arises as to whether a Bill is a Money Bill or not, the decision of the

Speaker of the Lok Sabha shall be final.

Special Procedure in respect of Money Bills (Article 109)

Article 109 provides for a special procedure for the passing of Money Bills.

A Money Bill can originate only in the Lok Sabha. Thus, it cannot be introduced in

the Rajya Sabha. A Money Bill cannot be introduced in the Lok Sabha without the prior

recommendations of the President.

When the Money Bill is passed by the Lok Sabha, the Speaker shall make an

endorsement on that B ill that the Bill is a Money Bill, before it is transmitted to the Rajya

Sabha. If the Rajya Sabha passes the Money Bill without making any amendments, the Bill is

said to be passed by both Houses.

If the Rajya Sabha recommends some amendments to the Money Bill, it is then

returned to the Lok Sabha. If all the amendments recommended by Rajya Sabha are

accepted by the Lok Sabha, the Money Bill is deemed to have been passed by both Houses.

If all or any of the amendments recommended by Rajya Sabha to the Money Bill are

not accepted by the Lok Sabha, even then the Money Bill shall be deemed to have been

passed by both Houses.

If Rajya Sabha does not return the Money Bill within a period of 14 days from the

date of its receipt in the House without it being passed by it, the Money Bill shall be deemed

to have been passed by both Houses after the expiration of such period of 14 days.

It is thus clear that Rajya Sabha has no power with respect to the passing of a Money

Bill except delaying its passing for a period of 14 days.

It follows that a deadlock in the two Houses does not result on a Money Bill.

Financial Bill

The Financial Bill is a mixture of an Ordinary Bill and a Money Bill. It is that Money

Bill to which there have been added provisions relating to general legislation. it is, therefore,

that Bill which contains one or more of the subjects mentioned in Subc1ause5 (a) to (g) of

Clause I of Article 110 and also other matters relating to geflera legislation.

A Financial Bill, like a Money Bill, can originate in the Lok Sabha. It cannot be

introduced or moved in the Rajya Sabha. Like a Money Bill, for the introduction of a Financial

Bill in the Lok Sabha prior recommendations of the President are required.

When the Financial Bill is passed by the Lok Sabha, it is transmitted to the Rajya

Sabha. When Rajya Sabha has also passed it, it is then presented to the president for his

assent. A Financial Bill cannot be presented to the President for his assent unless both the

Houses have passed the Bill.

A Financial Bill is therefore similar to a Money Bill in two respects, firstly, it can be

introduced only in the Lok Sabha and secondly, prior recommendations of the President for

its introduction are required. In respect to other matters, a Financial Bill is as good as an

Ordinary Bill.

Deadlock in the Houses of Parliament on a Bill (Article 108)

It may be noticed that a deadlock in the two Houses of the Parliament can result

only on a non-Money Bill i.e. an Ordinary Bill, Financial Bill, or a Bill Involving Expenditure

from the Consolidated Fund.

There would be a deadlock in the two Houses on a Bill in the following cases—

(i) when a Bill passed by the House in which it originated and transmitted to the

other House, is rejected by the other House;

(ii) when a Bill having been passed by the House in which it originated and

transmitted to the other House, the other House recommends some amendments to

that Bill and all or any of those amendments having been rejected by the first House;

(iii) when a Bill having been passed by the House in which it originated and

transmitted to the other House, the other House does not return the Bill for six

months from the date of its receipt in the House without it being passed by it.

Procedure to Resolve the Deadlock in the two Houses on a Bill (Article 108)

Article 108 provides that when a deadlock has resulted on a Bill, the President

may, notify to the Houses of Parliament, his intention to summon a joint sitting of the

Houses for resolving the deadlock on that Bill. The President shall notify his intention by a

message to the Houses if they are in Session and sitting. If the Houses are not sitting, the

President shall notify his intention by a public notification.

After the President has notified his intention to hold a joint sitting of the Houses,

neither House shall proceed further with that Bill. The President shall, then, summon the

Houses to meet in a joint sitting and the Houses shall meet accordingly. The speaker of the

Lok Sabha shall preside over that joint sitting of the Houses.

If at the joint sitting of the two Houses, the Bill is passed by the majority of the total

number of members of both Houses present and voting, it shall be deemed to have been

passed by both Houses. The Bill shall be deemed to have been passed with such

amendments, if any, as are agreed to at the joint sitting. No new amendments except those

on which the disagreement had resulted in the two Houses, shall be proposed at the joint

sitting.

A joint sitting of the two Houses shall be held even if the Lok Sabha has been

dissolved provided the President had notified his intention to hold the joint sitting before

the dissolution of the House takes place. Thus, the dissolution of the Lok Sabha shall have no

effect on the joint sitting ofthe Houses and the Bill passed at the joint sitting shall be deemed

to have been passed by both Houses.

It is the only case in which the members of a dissolved House take part in the

passing of a Bill.

Assent to Bills (Article 111)

When a Bill has been passed by both Houses of the Parliament, it shall be presented

to the President for his assent. The President may declare either that he assents to the Bill,

or that he withholds his assent therefrom. When the President assents to the Bill it becomes

an Act, if he withholds his assent the Bill lapses.

With respect to a non-Money Bill, the President has one more option. 1* may return

a non-Money Bill to the Houses with a message requesting them to reconsider the Bill and

may recommend some amendments to that Bill. The Houses when so required, shall

reconsider the Bill alongwith the amendments, recommended by the President. If the Bill is

again passed by the Houses with 01 without amendments it is to be presented to the

President for his assent again Article 111 provides that the President, then shall not withhold

his assent to the Bill.

The Constitution does not prescribe any time limit within which the President

should give or withhold his assent to a Bill presented to him. The President may

thus keep the Bill pending with him indefinitely, which may be called as “pocket veto”.

It may, however, be stated that the powers conferred under Article 111, are formal

powers of the President which he exercises on ministerial advice.

PROCEDURE IN FINANCIAL MATTERS

In financial matters, the legislative procedure is initiated with the presentation of the

Annual Budget in the two Houses of the Parliament. Various estimates, the demands for

grant, and the Appropriation Bills are discussed and passed by the Houses.

Annual Financial Statement (Article 112)

Article 112(1) provides: “The President shall in respect of every financial year cause

to be laid before both the Houses of Parliament a Statement of the Estimated Receipts and

Expenditure of the Government of India for that year, in this Part referred to as the Annual

Financial Statement”. Annual Financial Statement” is commonly known as the “Annual

Budget”.

The estimates of expenditure embodied in the Annual Financial Statement shall

show separately—(a) the sums required to meet expenditure described by this Constitution

as expenditure charged upon the Consolidated Fund of India; and (b) the sums required to

meet other expenditure proposed to be made from the Consolidated Fund of India. It shall

also distinguish expenditure on Revenue Account from other expenditure.

Expenditure Charged upon the Consolidated Fund of India [Article 112(3)]

The essential characteristic of this expenditure is that it is not subjected to

vote of the Parliament. The Parliament can neither refuse this expenditure nor reduce it.

However, the Members of Parliament are not prevented from discussing this expenditure.

The following expenditure has been declared by the Constitution as expenditure charged

upon the Consolidated Fund of India:

(a) the emoluments and allowances of the President and other exnenditure relating

to his office;

(b) the salaries and allowances of the Chairman and the Deputy Chairman of the

Rajya Sabha and the Speaker and the Deputy Speaker of the Lok Sahba;

(c) debt charges for which the Government of India is liable including interest sinking

fund charges and redemption charges, and other expenditure relating to the raising

of loans and the service and redemption of debt;

(d) the salaries, allowances and pensions payable to or in respect of Judges of the

Supreme Court;

(e) the salary, allowances and pension payable to or in respect of the Comptroller

and Auditor General of India;

(f) any sums required to satisfy any judgment, decree or award of any court or

arbitral tribunal;

(g) any other expenditure Qeciared by this Constitution or by Parliament by law to

be so charged.

THE UNION AND

STATE JUDICIARY

(Articles 124 to 147)

Constitution of the Supreme Court Article 124 (1)]

Clause (1) of Article 124 Provides : “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 other judges.”

At the commencement of the constitution, the Supreme Court consisted of a Chief Justice of

India and not more than seven other Judges. Parliament is empowered to prescribe by law a

large number of other Judges. In the exercise of this power, Parliament enacted the

Supreme Court (Number of Judges Act, 1956 ‘increasing the number of other Judges, to

nine. e number of other Judges was raised to 13 in 1960 and then to 17 in 1977. The

Supreme Court Number of Judges (Amendment) Act, 1986 has raised the strength of other

Judges to 25. At present, the Supreme Court consists of a Chief Justice of India and 25 other

Judges. It has been held that the number of other Judges should commensurate to the

amount of Work, otherwise, “the judiciary cannot perform its constitutional obligation.” [See

also Article 214 and 216 for Constitution of High Court.]

Appointment of Judges Article 124 (2)]

“Every judge of the Supreme Court shall be appointed by the President by Warrant under his

hand and seal after Constitution 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 65 years.”

So, it is the president, who appoints the Judges of the Supreme Court. However, his

discretion in this is restricted because he is required to hold Constitution with the Judges of

the Supreme Court and the High Courts while making appointment of Judges.

and of the a Chief Justice of India and, until Parliament by law prescribes a larger number, of

not more than seven other Judges “.

Proviso to Clause (2) Article 124, expressly requires that the President must consult

the Chief Justice of India, in case of appointment of Judges other than the Chief Justice.

Article 124(2) does not laid down the number of Judges of the Supreme Court and of

the High Court which the president should consult in making appointment of Supreme Court

Judges.

Determination of the Age of a Judge [Article 124(2A)]

Clause (2-A) of Article 124 provides that “the age of a Judge of the Supreme Court

shall be determined by such authority and in such manner as Parliament may by law

provide.”

As regards the determination of the age of a Judge of the Supreme Court, Article

124(2-A) confers power of the Parliament to enact a law for the purpose, while Article

217(3) confers power on the President, in consultation with the Chief Justice of India, to

determine any question as to the age of a Judge of a High Court. It may be stated that

Articles 124(2-A) and 217(3) have to be read harmoniously. Once the issue of the date of

birth of a Judge, while a Judge of a High Court, is settled by the President under Article

217(3), it should not again be questioned on the elevation of the Judge, as a Judge of the

Supreme Court.

It has been held that the power to determine the age of a Judge is a judicial power.

Qualifications for Appointment as a Judge [Article 124 (3)]

Clause (3) of Article 124 lays down the following qualifications for a person

to be appointed as a Judge of the Supreme Court—

(a) he must be a citizen of India; and

(b) he has been for at least five years a Judge of a High Court or of two or more High

Courts in succession; or

(c) has been for at least ten years an advocate of a High Court or of two or more

High Courts in succession; or

(d) he is, in the opinion of the President, a distinguished jurist.

It follows that a person to be appointed a Judge of the Supreme CoU1 must possess

two qualifications. Firstly, he must be a citizen of India and secondly, he must possess either

of the qualifications mentioned in Clauses (b) to (d) above. [Respective Provisions with

regard to High Court Judges are Article 217(2)]

Clause (6) of Article 124 provides that every person appointed to be a Judge 0f the

Supreme Court, before he enters upon his office, shall make and subscribe before the

President, or some person appointed in that behalf by him, an oath or affirmation, according

to the form set out for the purpose in the Third Schedule. [See also Article 219 for High

Courts]

Tenure of Office [Article 124(2)]

Clause (2) of Article 124 provides that a Judge of the Supreme Court shall hold office

until he attains the age of 65 years. A Judge may, however, resign his 0ffice by writing under

his hand addressed to the President. He may be removed from his office in the manner

provided in Clause (4) of Article 124.

Removal of Judges [Article 124 (4)]

A Judge of the Supreme Court may be removed by an order of the President on the

ground of proved misbehavior or incapacity.

The order of the President can only be passed after he has been addressed to by

both Houses or1iannLinthe$ame-Session. The address must be supported by each House, by

a majority of total membership of that House and also by a majority of not less than two-

thirds of the members present and voting.

The procedure for the presentation of an address and for the investigation and proof

of the misbehavior or incapacity of a Judge, will be determined by Parliament by law [clause

(5) of Article 124].

Parliament enacted the Judges (inquiry) Act 1968, in the exercise of the power

conferred by Article 124(5). The Act and the Judges (Inquiry) Rules, 1969, made thereunder,

provide for removal of a Judge on the ground of proved misbehavior or incapacity. They do

not provide for the prosecution of a Judge for offences under Section 5(1) (e) of the

prevention of corruption Act 1947.

The procedure for removal of High Court Judges are similar to the Supreme Court

Judges as mentioned under Article 124(4). [See Article 217(1)].

JURISDICTION OF THE SUPREME COURT

The Constitution confers the following jurisdiction on the Supreme Court—

(a) As a Court of Record (Article 129)

(b) Writ Jurisdiction (Article 32)

(c) Original Jurisdiction (Article 131)

(d) Appellate Jurisdiction—

(i) In Constitutional Matters (Article 132)

(ii) In Civil Matters (Article 133)

(iii) In Criminal Matters (Article 134)

(e) Appeal by Special Leave (Article 136)

(t) Federal Court’s Jurisdiction (Article 135)

(g) Review Jurisdiction (Article 137)

(h) Advisory Jurisdiction (Article 143)

Original Jurisdiction (Article 131)

Article 13 (1) confers on the Supreme Court exclusive original jurisdiction, It provides

that the Supreme Court shall have original jurisdiction to the exclusion of any other Court, in

a dispute provided the following conditions are complied with. These are—

(a) The dispute must be—

(i) between the Government of India and one or more States; or

(ii) between the Government of India and any State or States on one side

and one or more States on the other; or

(iii) between two or more States.

(b) The dispute must involve any question (whether of law or fact) on which

the existence or extent of a legal right depends.

An Inter-State Water dispute can be brought only by a State. An individual or a society has

been held to have no locus standi to file such a suit or challenge the validity of the Inter-

State Water Disputes, Act, 1956 or setting up of the Tribunal under it. (Gandhi Sahitya Sangh

v. U.O.I., 2003 (9) SCC 356).

In State of Rajasthan v. Union of India, the question before the Supreme Court was

whether the term “State” in Article 131 (a) also included within its purview “State

Government”. The dispute arose out of a directive issued by the Government of India

requiring the Chief Ministers of the Congress-ruled States to advise their Governors to

dissolve their Legislative Assemblies, in the wake of the defeat of Congress candidates in the

1977 Lok Sabha elections.

The Supreme Court held that the dispute was well within Article 131. The

Court held that Article 131 should not be given a restrictive meaning and that a

dispute between the Central and State Governments, involving a legal right would

be included under Article 131.

The Court further held that the dispute related to the exercise of the Centre’s power

under Article 356 in respect to the State Legislature, which raised a question of legal right.

Exclusion of Original Jurisdiction of the Supreme Court

Article 131 opens with the subjective clause, i.e., “Subject to the provisions of this

Constitution.” Therefore, the jurisdiction conferred by Article 131 is to be read with subject

to other provisions of the Constitution.

Proviso to Article 131 declares that the Original Jurisdiction of the Supreme Court

does not extend to the following disputes—

(1) A dispute arising out of any treaty, agreement covenant, engagement,

sanad or other similar instrument which, having been entered into or executed

before the commencement of the Constitution, continues in operation, after such

commencement,

(2) A dispute arising out of any treaty, etc. which provides that the Original

Jurisdiction of the Supreme Court would not extend to such a dispute.

(i) Appellate jurisdiction in Constitutional Matters (Article 132)

Article 132(1) provides: “An appeal shall lie to the Supreme Court from any

judgment, decree or final order of a High Court in the territory of India whether in a civil,

criminal or other proceeding, f the High Court certUles under Article 131-A, that the case

involves a substantial question of law as to the interpretation of the Constitution”.

An appeal shall lie to the Supreme Court under Article 132 only when the following

conditions are satisfies—

(i) the judgment, decree or final order appealed against, must have been made

by a High Court;

(ii) the judgment, decree or final order appealed against, may be made by the

High Court in any Civil, Criminal or other proceeding; arid

(iii) the High Court must give a certflcate under Article 134-A to the following

effect—that the case involves a substantial question of law as to the interpretation

of the Constitution.

It is only the judgments, decrees or final orders of the High Courts that are appealed

against under Article 132.

The expression final order means an order that puts an end to the suit or

proceeding. The order must not be interlocutory and must not leave the original proceeding

alive. That, there should be a final determination of the rights of the parties.

Explanation attached to Article 132 says that for the purpose of this Article, the

expression final order includes an order deciding an issue which, if decided in favour of the

appellant, would be sufficient for the final disposal of the case.

(ii) Appellate Jurisdiction in Civil Matters (Article 133)

Clause (1) of Article 133 provides “An appeal shall lie to the Supreme Court from any

judgment, decree or final order in a civil proceeding of a High Court in the territory of India, f

the High Court certifies under Article 134-A—

(a) that the case involves a substantial question of law of general importance; and

(b) that in the opinion of the High Court the said question needs to be decided by

Supreme Court.”

The appeal under Article 133 lies to the Supreme Court against the decision of the High

Courts under the following conditions—

(i) the judgment, decree or final order appealed against must have been

passed or made by a High Court in any Civil Proceeding;

(ii) the High Court must give a certificate under Article 134-A to the following

effect—

(a) that the case involves a substantial question of law of general importance,

and

(b) that in the opinion of the High Court the said question needs to be decided

by the Supreme Court

The expressions “final order “, “a substantial question of law” and “civil proceeding”

carry the same meaning as under Article 132. The expression Civil Proceeding, thus means

proceeding in which a party asserts the existence of a civil right.

Article 133 requires that the High Court, while giving a certificate of fitness for

appeal to the Supreme Court under Article 134-A, must not only say that the case involves a

substantial question of law of general importance, but should also express that in the

opinion of the High Court, the said question needs to be decided by the Supreme Court.

(iii) Appellate Jurisdiction in Criminal Matters (Article 134)

Appeal from the decision of a High Court in criminal proceedings lies before the

Supreme Court in the following two ways:

(a) Without a certificate of the High Court; and

(b) With a certificate of the High Court.

Appeal Without a Certificate [Article 134 (l)(a)&(b)]

Article 134 (1) provides: “An appeal shall lie to the Supreme Court from any

judgment, final order or sentence in a criminal proceeding of a Court in the territory of India

f the High Court—

(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.

In the above two cases, no certificate need to be obtained from the High Court under Article

134-A and the accused person may go for appeal to the Supreme Court in his own right.

The expressions “final order” and “criminal proceeding” carry the same meaning as

under Article 132.

The term acquittal in Article I34 (1)(a) does not mean that the trial must have ended

in a complete acquittal but would also include the case where the accused has been

acquitted of the charge of murder and has been convicted of a lesser offence.

In Tarachand Danu Sutar v. State of Maharashtra, AIR 1962 SC 130 the accused who was

charged under Section 301 of IPC for murder was convicted by the Sessions Court under

Section 304 (i.e. for culpable homicide not amounting to murder). The High Court reversed

the order and convicted the accused for murder under Section 302, IPC, and sentenced him

to death. The Supreme Court held that the accused was entitled to come in appeal before it

without a certificate of fitness under Article 134-A.

Enlargement of Criminal Appellate Jurisdiction Article 134(2)1

Article 134 (1) conferred a limited criminal jurisdiction on the Supreme Court, for, an

appeal in criminal matters could go to the Supreme Court only in exceptional cases.

Clause (2) of Article 134 empowers the Parliament, by law, to enlarge the criminal

appellate jurisdiction of the Supreme Court. In the exercise of this power Parliament enacted

the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. Section 2 of

this Act provides that an appeal shall lie to the Supreme Court from any judgment, final

order or sentence in a criminal proceeding of a High Court, without a certificate of fitness

obtained under Article 134-A in the following cases—

(a) if the High Court has on appeal reversed an order of acquittal of an accused

person and sentenced him to imprisonment for life or to imprisonment for a

period of not less than 10 years;

(b) if the High Court has withdrawn for trial before itself any case from any

court subordinate to its authority and has in such trial convicted th accused

person and sentenced him to imprisonment for life or tc imprisonment for a

period of not less than ten years.

Thus, after the passing of the S.C. (Enlargement of Criminal Appellate Jurisdiction) Act, 1970,

the accused can go to the Supreme Court in appeal under Article 134, without obtaining a

certificate of fitness from the high Court under Article 134-A, in cases where the High Court,

after reversing the order of acquittal of accused or after withdrawing the case for trial before

itself, sentenced the accused to death or life imprisonment or an imprisonment for not less

than ten years.

Appeal with a Certificate [Article 134 (l)(c)]

In cases other than those covered under Sub-clauses (a) and (b) of Clause (1) of

Article 134, or under the Supreme Court (Enlargement of Criminal Appellale Jurisdiction) Act,

1970, an appeal shall lie to the Supreme Court from any judgment final order or sentence in

a criminal proceeding of a High Court if the High Cout certifies under Article 134-A that the

case is fit one for appeal to the Supreme Court.

Proviso to Clause (c) of Article 134 explains that an appeal thereunder shall lie

subject to such provisions as may be made in that behalf under Clause (1) of Article 145 and

to such conditions as the High Court may establish or require.

It is the settled practice of the Apex Court that if on the face of it the Court satisfied

that the High Court has not properly exercised the discretion under Article 134(1)(c), the

matter may either be remitted or the Apex Court may exercise that discretion itself or treat

the appeal as one under Article 136. (State of Gujarat v. S.A. Shaikh, AIR 2003 SC 3234).

It has been held that the Supreme Court is not a regular Court of Appeal to which every

judgment of the High Court in criminal case maybe brought up for scrutinising its

correctness.

Certificate for Appeal to the Supreme Court (Article 134-A)

Article 134-A provides: “Every High Court, passing or making a judgment, decree,

final order, or sentence, referred to in clause (I) of Article 132 or clause (1) of Article 133, or

clause (1) of Article 134,—

(a) may, if it deems fit so to do, on its own motion; and

(b) shall, if an oral application is made, by or on behalf of the party aggrieved,

immediately after the passing or making of such judgment, decree, final

order or sentence, determine, as soon as may be after such passing or

making, the question whether a certificate of the nature referred to in

clause (1) of Article 132, or Clause (1) of Article 133 or, as the case may be,

sub-clause (c) of clause (1) of Article 134, may be given in respect of that

case.

Article 134-A makes it obligatory on the High Court to determine the question of granting

certificate immediately on the passing or making of the judgment, decree, final order or

sentence, either on oral application made by the party aggrieved or if it deems fit to do so,

on its own motion.

Appeal By Special Leave (Article 136)

Clause (1) of Article 136 provides: “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.’

Article 136 (1) confers discretion on the Supreme Court to grant special leave to appeal

before itself from any judgment, determination, sentence, order passed or made by any

court or tribunal in any cause or matter.

Scope of Article 136

Article 136 is in the nature of special or residuary power, exercisable outside the

purview of ordinary law, where requirements of justice demand interference by the

Supreme Court.” It is to be exercised sparingly. The Constitution for the best of reasons does

not choose to fetter or circumscribe the powers, exercisable under this Article, in any way.

Article 136 confers a wide discretionary power on the Supreme Court. It is in the

nature of a residuary or reserve power and therefore, it can not be defined exhaustively.

The jurisdiction under Article 136 cannot be limited or taken away by any legislation

subordinate to the Constitution.

It is an extraordinary jurisdiction vested by the Constitution in the Court with implicit

trust and faith and extraordinary care and caution has to be observed in the exercise of this

jurisdiction. Being extraordinary jurisdiction, it is meant to be exercised by the consideration

of justice, call of duty and eradicating injustice.

The following two conditions must be satisfied for invoking Article 136(1)):

(1) The proposed appeal must be against a judicial or quasiiudal and not a

purely executive or adminiStrat1’’e order; and

(2) The determination or order must have been made or passed, by any Court

or tribunal, in the territory of India.

An “order” against which appeal is maintainable under Article 136 must be a judicial or

quasi-judicial order and must be passed by a “Court” or a tribunal.

Review Jurisdiction (Article 137)

Article 137 provides: “Subject to the provision of any law made by Parliament or any

rules made under Article 145, the Supreme Court shall have power to review any judgment

pronounced or order made by it.”

The power of review is not an inherent power. it must be conferred by law either

specifically or by necessary implication.

Article 137 confer on the Supreme Court power to review its judgments. However,

this power is subjected to any law made by Parliament. Also, this power is exercisable in

accordance with, and subject to, the rules of the Court made under Article 145. As per the

rules, the review petition has to be moved before the same Bench which had passed the

judgment sought to be reviewed. The rules provide that the Court may review its judgments

on the grounds mentioned in Order 47, Rule 1 of the Civil Procedure Code, 1908.

These grounds are:

(i) discovery of new and important matter or evidence;

(ii) any mistake or error apparent on the face of the record; and

(iii) any other sufficient reason.

Advisory Jurisdiction (Article 143)

Article 143 confers power on the President to consult the Supreme Court on matters

of public importance.

Clause (1) of Article 143 provides: “If at any time it appears to the President that—

— a question of law or fact has arisen, or is likely to arise, and

— the question 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, such hearing as it thinks fit, report to the President its opinion

thereon”.

It is for the President to decide what question should be referred to the Supreme Court.

Thus, if the President does not entertain any serious doubt on the other provisions, it is not

for any party to say that doubts arise also out of them. The power vested in the President

under Article 143 is purely discretionary and no direction can be issued by the Court for the

exercise of the power by the President.

Reference Under Clause (2) of Article 143

Clause (2) of Article 143 refers to matters mentioned in Proviso to Article

131 in respect of which the original jurisdiction of the Supreme Court is excluded.

For example disputes arising out of any treaty, agreement or other similar instrument

which having been entered into or executed before the commencement of the

Constitution, continued in operation after such commencement.

Clause (2) of Article 143 provides that “the President may refer a dispute of the kind

mentioned in the Proviso to Article 131 to the Supreme Court.” It requires that “the Court

after such hearing as it thinks fit, shall report to the President its opinion thereon. This

Clause uses the term “shall” which denotes that it is the constitutional obligation of the

Supreme Court, to make a report on that Reference containing its advisory opinion.

However, the Supreme Court in Re the Special Courts Bill, 1978, AIR 1978 SC 478 held that

even in matters arising out of Clause (2), the Court may be justified in returning the

reference unanswered for a valid reason.

INDEPENDENCE OF JUDICIARY

The concept of independence of the Judiciary took time to grow in England. Before

1701, the Judges held their office during the Crown’s pleasure and, like any other Crown

servant, he could be dismissed by the King at will. The Judges were thus sub-servient to the

Executive. This subservience naturally led the Judges to favour the royal prerogative. The

most typical example of such an attitude is to be found in the Hampden‘s case (the Ship

Money case) in which seven out of twelve Judges gave an award in favour of the Crown’s

prerogative to collect money without parliamentary approval. One of the Judges even

propounded the view that “Rex is Lex.” In 1616, Coke was dismissed from the office of the

Chief Justice of the King’s Bench. The judicial independence was secured by the Act of

Settlement, 1701, which declared the judicial tenure to be good behaviour, and that upon

the address of both the Houses of Parliament it would be lawful to remove Judge. This

position regarding security of judicial tenure is now secured by statutes.

An independent judiciary is the sine qua non of a vibrant democratic system. Only an

impartial and independent Judiciary can stand as a bulwark for the protection of the rights of

the individual and mete out even handed justice without fear or favour. The Judiciary is the

protector of the Constitution and, as such, it may have to strike down executive,

administrative and legislative acts of the Centre and the States. For rule of law to prevail,

judicial independence is of prime necessity. Being the highest Court in the land, it is very

necessary that the Supreme Court is allowed to work in an atmosphere of independence of

action and judgment and is insulated from all kinds of pressures, political or otherwise.

TRANSFER OF JUDGES

In Re Presidential Reference 7

(In Re Special Reference No. I of 1998)

(AIR 1999 SC 1)

Decision

The apex court held that the CJI must consult a co11egiumeniormnst Judges of the

Supreme Court and made it clear that “if two Judges give adverse opinion the CJI should not

send the recommendation” to the President. The collegiums should make the decision in

consensus and unless the opinion of the collegium is in conformity with that of the CJI, no

recommendation is to be made. In effect, the CJI and at least three of the four senior most

Judges had to agree.

The nine questions posed by the Reference as answered by the apex court are:

(1) The expression “consultation with the Chief Justice of India” in Articles 217(1) and

222(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 CJI does not constitute “consultation” within the meaning of the said articles.

(2) The transfer of puisne Judges is judicially reviewable only to this extent:

that the recommendation that has been made by the Chief Justice of India in this

behalf has not been made in consultation with the four senior-most puisne Judges of

the Supreme Court and or that the views of the Chief Justice of the High Court from

which the transfer is to be effected and of the Chief Justice of the High Court to

which the transfer is to be effected have not been obtained.

(3) 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 the two senior-most puisne Judges of the Supreme Court.

(4) The Chief Justice of India is not entitled to act solely in his individual capacity,

without consultation with other Judges of the Supreme Court in respect of materials

and information conveyed by the Government of India for non-appointment of a

Judge recommended for appointment.

(5) The requirement of consultation by the Chief Justice of India with his colleagues who

are likely to be conversant with the affairs of the High Court concerned does not

refer only to those Judges who have that High Court as a parent High Court. It does

not exclude Judges who have occupied the office of a Judge or Chief Justice of that

High Court on transfer.

(6) “Strong cogent reasons” do not have to be recorded as justification for a departure

from the order of seniority in respect of each senior Judge who has been passed

over. What has to be recorded is the positive reason for the recommendation.

(7) The views of the other Judges consulted should be in writing and should be

conveyed to the Government of India by the Chief Justice of India along with his

views to the extent set out in the body of this opinion.

(8) The CJI is obliged to comply with the norms and requirements of the consultation

process, as aforestated, in making his recommendations to the Government of India.

(9) Recommendations made by the CJI without complying with the norms and

requirements of the consultation process, as aforestated, are not binding upon the

Government of India.

cannot be quested by any Constitutional or statutory provision.

LEGISLATIVE RELATIONS:

DISTRIBUTION OF LEGISLATIVE

POWERS BETWEEN UNION

AND STATES

(Articles 245-254)

The legislative competence to enact laws is an attribute of sovereignty. But this

attribute is divided between two parallel sets of legislatures namely the Central and State

legislature. The division of powers is both in respect of the territory and topics of’ legislation

or subject matter of legislation i.e. three lists. Article 245 defines the territorial limits of

legislative powers vested in the Parliament and State legislatures. Article 246 defines

respective jurisdiction of the Union and State legislatures with respect to topics of

legislation. Article 245 is concerned exclusively with the territorial division of law-making

power of the Union and the States.

EXTRA TERRITORIAL JURISDICTION

According to Prof. Wheare; ‘Extra-territorial legislation’ simply means legislation

which attaches significance for courts within the jurisdiction to facts and events occurring

outside the jurisdiction.

Article 245(2) makes it clear that a law passed by the Parliament shall not be

deemed to be invalid on the ground that it has extra territorial operation. To illustrate,

suppose Parliament passes an Act to the effect that if a person domiciled in the territory of

India marries wheresoever while his former wife is alive and has not been divorced by a

competent court, he shall be a competent court, he shall be guilty of the offence of bigmy

and shall be liable to punishment for seven years. For example if a citizen of India domiciled

in India marries again while his former wife is alive and has not been divorced; he shall be

guilty of offence of bigamy even though the second marriage has taken place outside India.

The S.C. in (A.H. Wadia v. Income Tax Commissioner, Bombay, AIR 1949 FC 18) has

however, clarified that the sovereign power of Parliament to make laws with extra territorial

operation must respect the sovereignty of other State also and therefore, provocation for

the law must be found within India itself.

DOCTRINE OF TERRITORIAL NEXUS’

The Doctrine of territorial nexus a deeply rooted in laws of India even before the

commencement of Constitution of India in 1950. The Govt. of India Act, 1935 for the

purpose of territorial legislative jurisdiction was primarily based on the ground of extra

territoriality. It first recognised that the laws of Union and States are enforceable in the

territory of India and of State respectively although this simple generalisation is subject to

the exception of doctrine of territorial nexus.

In Wallace Bros. & Co. Ltd. v. C.I.T., the assessee company which was incorporated

in England and had its registered office there was a partner in a firm which carried on

business in British India. This connection of the assessee company with British India was

considered sufficient to tax not only the income or profits made by the assessee as a partner

in the firm but also its income or profits which accrued out of British India.

Distribution of Legislative Subjects (Article 246)

The pivotal point of a federal Constitution is the distribution of powers and functions

between the Union and the States, around which the whole structure of a federal system

moves. As far as the distribution of subject matters of legislation is concerned the

Constitution of India substantially follows the pattern of Govt. of India Act, 1935, which is

mainly based on Canadian pattern.

Thus subject matter of legislation are enumerated in, three lists. The ordinary

arrangement for operation of legislative power of the Centre and the States with the various

subject-matter is as follows:

1. With respect to subject-matters enumerated in Union List (List I), the Union

Parliament has the exclusive powers to make laws (Article 246

(1)).

2. With respect to subject-matters enumerated in State List (List II), the

legislature of the State has the exclusive power to make laws (Article246

(2)).

3. With respect to subject-matters enumerated in concurrent List (List III) both

the Parliament as well as State Legislatures have the power to make laws,

but in case of repugnancy i.e., conflict between Union and State Laws, the

laws made by the Union Parliament shall prevail. (Article 246

(2)).

4. All subject-matters which are not included in any of these three lists are

called the residuary subject-matters. The Parliament has exclusive power to

make laws in respect of such matters. (List I-Entry 97 read with Article 248).

There is pre-dominance of the Union Parliament in matters of legislative law making.

The opening words of Article 246 (1) give an overriding effect to the legislative law making

power of the Union. If the same subject which is included in the Union List (List 1) is also

covered in State List (List II) or Concurrent List (List III), that subject in such a situation shall

be read exclusively in the Union List. Article 246(2) makes it amply clear that the Union

power shall prevail in case of conflict between State List i.e. List II and Concurrent List i.e. List

III.

However the Indian Constitution envisages the following exceptions to the general

rule of distribution of subject-matters of legislation under Article 246.2

1. Parliament can make a law with respect to matter enumerated in the State

List, if it is necessary or beneficial to the national interest. (Article 249).

2. Article 353 provides that while a proclamation of emergency under Article

352 is in operation, the Parliament shall have the power to make laws with

respect to matters not included in the Union List or Concurrent list

3. Parliament can make laws in respect of matters in State List (List U) for a

particular State which is under the President rule.

4. Two or more States may request the Parliament to legislate on the subject

matter of the State List (Article 252).

5. Article 253 authorises Parliament to make laws on any subject included in

any list to implement:

(i) any treaty, agreement or convention with any other countries, or

(ii) any decision made at any international conference, association or

other body.

i. Plenary Power and Power to make Retrospective and Validating Legislation

The power of a legislature to enact legislation within its legislative competence is

plenary (without any limits) unless the Constitution itself has expressly prohibited legislation

on the subject either absolutely or conditionally. The legislature is fully competent to enact

freely laws on the subject assigned to it, no matter whether such enactment is contrary to

any undertaking or guarantee given by the State. For example, the Parliamentary power of

legislation to acquire property is unrestricted but for the express provision of the

Constitution. In State of West Bengal v. Union of India (AIR 1963 SC 1241) the SC upheld the

Constitutionality of the Coal Bearing Areas (Acquisition and Development) Act of 1957,

authorising the Union Government to acquire land and rights in or over land which is vested

in a State, by virtue of Entry 42. Justice Sinha said that the power of the union in respect of

property situated, in the States, even if the States are regarded qua the union, as sovereign,

remains unrestricted and the State property is not immune from its operation. No positive

interdict against the exercise of power by virtue by Entry 42 of List III is perceptible in the

Constitution, and the implication of an interdict based upon the States being absolutely

sovereign assumes a degree a sovereignty in the States of such plenitude, as transcends the

express legislative power of the union.

The Principle to interpret the entries so as to really make the legislative power of

Parliament and State legislatures plenary is that the entries should not be read in narrow or

restricted sense. The widest possible and most liberal meaning should be given to such

entry. Each general word in an entry should be construed to include all ancillary or

subsidiary matters which can fairly and reasonably be said to be comprehending in it.

When a legislature has the authority to make a valid law, it may provide for not only

prospective operation of the material provisions of the said law, but it can also provide for

retrospective operation of the said provision. Simply speaking, prospective operation of a

law means that the said law comes into force or take effect from a future date. Similarly,

retrospective operation of a law means that the law takes effect from a back date.

The meaning of a Validation Act is to remove the cause for ineffectiveness or

invalidity of action which are validated by a legislative measure. In Prithvi Cotton Mills v.

Branch Borough Municipality (AIR 1970 SC 192), the Court held that validity of a validation

act or law depends upon.

1. Whether the legislature possesses the competence which it claims over the

subject matter?

2. Whether in making the Validation Act it removes the defect which the

Courts have ‘found in existing laws and makes adequate provision in the

Validating Act or Law for a valid enforcement of the said law?

In this regard the power to levy a tax is not different from other legislations. The

legislature may levy such tax either prospectively or retrospectively. (J.K.

(ii) Liberal and Harmonious Construction of List5

An attribute of plenary power of Legislature is that the most liberal and widest

possible meaning should be given to various entries in the lists. But it could not have been

the intention of constitution makers to create a conflict and make any entry nugatory. It is

the duty of the Courts, however, difficult it may be, to ascertain what matters fall within the

jurisdiction of each legislature and to define in the particular case before them the limits of

their respective powers.

.

(iii) Ancillary or Incidental Power

In United Provinces v. Atiqa Begam, AIR 1941 SC 16, the Court laid down

an important and basic principle of interpretation of legislative powers. The Court

Stated that it is well settled that the power to legislate on a topic of legislation

Carries with it the power to legislate on an ancillary or incidental matter, which

Can be said to be reasonably included in the power given.

The S.C. observed in State of W.B. v. Union of India, (AIR 1963 SC 1241) that an

elementary rule of interpretation is that the words used in the constitution Conferring

legislative power (Entriees under list of Vllth Schedule) must receive the most liberal

construction. A general word u5ed in an entry must be construed

to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be

included in it.

(iv) Pith and Substance Rule7

The Rule of Pith and Substance means that where a law in reality and substance falls

within items on which the legislature has the competence to legislate then such law shall not

become invalid merely because it incidently touches a matter outside the competence of

legislature in a federal constitution.

The Doctrine of Pith and Substance is applied when the Legislative competence of a

legislature with regard to a particular enactment is challenged with reference to the entries

in the various lists i.e., a law dealing with the subject in one list is also touching on a subject

of another list. If on examination of the statute, it is found that the legislation is in substance

one on a matter assigned to the legislature enacting that statute, then it must be held valid

in its entirety even though it may incidently encroach upon matters included in list beyond

its competence. In Vijay Kumar Sharma v. State of Karnataka, (AIR 1990 SC 2072) sc has

held that doctrine of pith and substance applies even when Parliament and State legislatures

legislate in the same list (concurrent list or List III) but with respect to different entries.

The justification of doctrine of pith and substance is that in a federal Constitution, it

is not possible to make a clear cut distinction between powers of Union and State

legislature. In Subramanyam Chettiar v. Muthuswami Goundan, (AIR 1941 FC 47), the court

explaining the validity of Doctrine of pith and substance said that a strictly verbal

interpretation would result in a large number of statutes being declared invalid on the

ground of overlapping. If the legislature is to have the full scope to exercise its powers, it is

necessary to assume that the constitution does not prevent a legislature from dealing with

the matter which may incidently affect any matter in the other list.

The Doctrine of Pith and Substance also finds support from the expression “with

respect to” used in clause (1) to (4) of Act. 246. In State of Rajasthan v. G Chawla, (AIR 1959

SC 544) the S.C. explained that the power to make laws “with respect to” a subject matter is

a power to make laws which in reality and substance are laws upon that subject matter. It is

not enough that a law should refer to the subject matter or applied in the subject matter.

For example 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.

In Prafulla Kumar v. Bank of Commerce, (AIR 1947 PC 60), the Constitutional validity

of Bengal Money Lenders Act, 1940 was in question. This Act provided for limiting the

amount and rate of interest recoverable by a lender on any loan. It was challenged on the

ground that although it was a law made under entry 27 of List II yet it encroached upon

entry 28 List I. The Privy Council held that, Pith and Substance of the Act was money lending

which came under entry 27 List II of Govt. of India Act, 1935. It could not be rendered invalid

merely because it incidently affected matters reserved for the federal legislature by virtue of

entry 28 of List I.

The rule of pith and substance was applied by S.C. in State of Bombay v. EN.

Balsara, (AIR 1951 SC 318). The question was whether Bombay Prohibition Act, 1949 falls

under entry 31 of List II of Govt. of India Act, 1939 (Intoxicating liquors i.e. to say the

production, manufacture, possession, transport, purchase and sale of intoxicating liquors),

or under entry 19 of List I of Govt. of India Act,

1935 (import and export of liquors across customs frontier). The court rejected the

arguments that prohibition on purchase, use, transport and sale of liquor would affect the

import. Upholding the validity of the Act, the court observed that the pith and substance of

the Act fell under entry 31 of List!! and not entry 19 of List I, even though the Act incidently

encroached upon the central legislature’s power of legislation.

In D.N. Banerjiv. P.R. Mukherjee, (AIR 1953 SC 58) the Industrial Disputes Act of

Union Parliament, in so far as it applied to municioalities, was challenged on the ground that

it related to a state subject namely the local Govt. The S.C. held that having regard to the

Pith and substance of impugned act it dealt with Union subject i.e. entry 23 of List Ill

(Industrial and Labour Disputes) and not with State Subject under entry 4 of List II (Local

Govt).

Prafulla Kumar v. Bank of Commerce Ltd., Khulna,8

AIR 1947 PC 60

Facts

The constitutional validity of Bengal Money Lenders Act, 1940, which had provided

for limiting the amount and rate of interest recoverable by a money lender on any loan was

challenged on the ground that it was ultra vires (beyond power) the power of Bengal State

Legislature.

It was contended on behalf of the appellant that Act was valid as it dealt with a

matter within the exclusive competence of provincial legislature under List II, entry 27 of

Govt. of India Act, 1935. On behalf of respondent it was contended that the Act was invalid

as it encroached upon the exclusive legislative power of federal legislature by virtue of entry

28, List I of Govt. of India Act, 1935 (cheques, bills of exchange, promissory notes and other

like instruments).

Issue

The validity of Bengal Money Lenders Act, 1940 was in question or in other words

what was the pith and substance of the impugned Act.

.

(v) Doctrine of Colourable Legislation10

The doctrine of colourable legislation is based on the maxim that what cannot be

done directly cannot also be done indirectly. The doctrine becomes applicable when a

legislature seeks to do something in an indirect manner what it cannot do directly. The

doctrine thus refers to the question of competency of the legislature to enact a particular

law. If the impugned legislation falls within the competence of the legislature, the question

of doing something indirectly which cannot be done directly does not arise.

The doctrine of colourable legislation does not involve any question of bonG fides or

mala fides on the part of the legislature. If the legislature is competent to pass a particular

law, the motives which impelled it to act are irrelevant. On the other hand, if the legislature

lacks the competency, the question of motive doeS not arise at all; the legislation will be

invalid even if enancted with the best Of motives. Whether a statute is constitutional or not

is thus a question of power “Malice or motive is beside the point, and it is not permissible to

suggest parliamentary incompetence on the score of Mala fides” R.S. Joshi v. Ajit Milk

Ahmedabad, AIR 1977 SC 2279.

The Constitution distributes legislative powers between the State Legislatures and

Parliament, and each has to act within its sphere. In respect of a particular

legislation, the question may arise whether the legislature has transgressed the

limits imposed on it by the Constitution. Such transgression may be patent, manifest

or direct, or may be disguised, covert or indirect. It is to the latter class of cases

that the expression ‘colourable legislation’ is applied. The underlying idea is that

although, apparently, a legislature in passing a statute purports to act within the

limits of its powers, yet, in substance and reality, it has transgressed these limits

on its powers by taking resort to a mere pretence or disguise. If that is so, the

legislation in question is invalid. (KC Gajapati Narayana Dec. v. State of Orissa,

AIR 1953 SC)

Residuary Power (Article 248)11

Article 248 read with entry 97, of List I of Schedule Seven of the Constitution of India

gives residuary power of legislation exclusively to the Union legislature or Parliament.

Residuary power of legislation means the power to make laws in respect of subject matters

which have not been mentioned or enumerated in List II or List III including the power to

levy tax. The reason for giving residuary power to parliament is to equip the legislatures to

make laws on subject matter which have come up with advancement of society and were

impossible to conceive at the time of making of the Constitution.

In U.S.A. and Australia the residuary powers are vested in the Component

States whereas in Canada they are vested in the centre. Under Govt. of India Act,

1935, the residuary power of legislation was given neither to the federal legislature

nor to the provincial legislature but was left to the discretion to the Governor

General to assign these powers to the either legislature. But under the present

Constitution of India, the residuary powers have been given exclusively to the

Parliament.

Test of Repugnancy

Repugnancy may arise in the following ways (Tests of repugnancy):—

(i) Direct Conflict—Repugnancy occurs when there is a clear and direct

inconsistency between the Central Act and the State Act, and such an

inconsistency of such nature that the two acts coming into direct collision.

(ii) Occupied Field—There may not be an apparent conflict between the two

provisions, yet there may be repugnancy because both cover the same field.

In such case it would be no defence to argue that it is possible to

obey both the laws. When it appears from the terms, nature or subject-

matter of a Central law that it was intended as a complete statement of law

governing a particular matter then for a State law to enact a law with

respect to same subject matter is regarded as a detraction from the full

operation of the Central Law and so is inconsistent. (Zaverbhai v. State of

Bombay).

(iii) Intended Occupation—There may be repugnancy because a law may be in

conflict with the intention of the dominant law to cover the whole field.

In Deep Chand v. State of U.P. (AIR 1959 SC 648), the validity of U.P. State’s law

authorising the State Govt. to frame scheme of nationalisation of Motor transport vis-a-vis

subsequent union law enabling the State Govt. to frame and execute Schemes of

nationalisation of Motor Transport was in question. The Court held that the two laws

occupied the same field and the State Law, to the extent of repugnancy was void. The Court

laid down that repugnancy between two statutes may thus be ascertained on the following

three principles:

(i) Whether there is direct conflict between the two provisions.

(ii) Whether Parliament intended to lay down an exhaustive code in respect of

the subject matter replacing the Act of the State Legislature.

(iii) Whether the law made by Parliament and the law made by the State

legislature occupy the same field.

In M. Karunanidhi v. Union of India (AIR 1979 SC 898) the issue was whether the

Tamil Nadu Public Men (Criminal Misconduct) Act, 1947 passed by the Tamil Nadu

Legislature is repugnant to the Indian Penal Code or Prevention of Corruption Act, 1947

passed by the Union Parliament, keeping in view that the definition of Criminal Misconduct

was substantially the same in state law as in Prevention of Corruption Act. The Court held

that the impugned State Act was not repugnant to the Central law and summarised the tests

of repugnancy in the form of following principles:

1. In order to decide the question of repugnancy it must be shown that the

two enactments contain inconsistent and irreconcilable provisions so that

they cannot stand together or operate in the same field.

2. Where can be no repeal of a state law or statute by implication unless the

inconsistency appears on the face of the two statutes.

3. There the two statutes occupying a particular field, but there is room or

possibility of both the statutes operating in the same field without coming

into collision with each other, no repugnancy results.

4. Where there is no inconsistency, but a statute occupying the same field

seeks to create distinct and separate offences, no question of repugnancy

arises and both the statutes continue to operate in the same field.

In Hoechst Pharmaceuticals Ltd. v. State of Bihar, Supreme Court evaluated the

aforesaid tests and held that in order to establish repugnancy two conditions must be

fulfilled:

1. The State law and the Union Law must operate in the same field.

2. The State and the Union Law must be repugnant or inconsistent with each

other.

Both these conditions are cumulative conditions i.e. they must be fulfilled

simultaneously.

The effect of repugnancy as envisaged under Article 254 is that if a law made by a

State legislature is void due to repugnancy with a law made by the Parliament, what is void

is not the entire law but the State law only to the extent of its repugnancy with the law

made by the Parliament.

“Article 254: The test is explicit”

Prof. P.K. Tripathi’15 presented a critical examination of the interpretation put on Article

254(1) in the decision of Hoechst Pharmaceuticals Ltd. v. State of Bihar. This interpretation

(Hoechst Case) is as follows: The question of repugnancy between a Union Law and a State

law under Article 254(1) arises only when

(i) Both the laws occupy the same field with respect to one of the matters

enumerated in concurrent list.

(ii) There is a direct conflict between the two laws.

Prof. Tripathi says that the Court has limited the scope of words “law made

by legislature of a State” and ‘Laws made by Parliament which the

Parliament is competent to enact, only to laws made by Parliament and

States on matters enumerated in concurrent list. Prof. Tripathi criticises the

Courts justification for the above departure from plain meaning of the text

as follows:

(a) The Court stated that clause (2) is an exception to clause (I) and since

clause (2) refers oniy to laws “in concurrent list, this should also control

the scope of clause (I).

With due respect to Hon’ble Judges Prof. Tripathi differs from this

interpretation. The scope of an exception is invariably narrower than

that of main provision because the function and object of an exception

is to set aside a part of subject matter from the operation of the main

provision.

(b) The Court has stretched itself too for when it treats the words “with

respect to one of the matters enumerated in concurrent list,” as

qualifying not only the expression “existing law” but also expression

—”Law made by Parliament which Parliament is competent to enact”

and “law made by legislature of a State.”

Prof. Tripathi referred to Meghraj v. Allah Rakha (AIR 1947 PC 72), and

FREEDOM OF TRADE,

COMMERCE AND INTERCOURSE

(Articles 301 to 307)

Part XIII of the Constitution contains provisions relating to the freedom of trade, commerce

and intercourse within the territory of India. Article 301, in general terms, declares that

“trade, commerce and intercourse throughout the territory of India shall be free”. This

freedom is subjected to the other provisions of this Part, i.e., Articles 302 to 305. The

freedom envisaged in Article 301 is thus subjected to:

(a) non-discriminatory restrictions imposed by Parliament in public interest

[Articles 302, 303 (1)]

(b) discriminatory or preferential legislation by Parliament for the purpose of

dealing with scarcity of goods in any part of India [Article 303 (2)];

(c) reasonable restrictions imposed by the Legislature of a State in the public

interest [Article 304 (b)];

(d) non-discriminatory taxes imposed by the Legislature of a State on goods

imported from other States [Article 304 (a)]; and

(e) restrictions imposed by pre-Constitution laws continued in force [Article

305]

Trade, Commerce and Intercourse

The term “trade” means buying and selling of goods. It also includes other activities which

may be regarded as integral parts of the transaction of buying and selling, such as the

transport of goods or merchandise from one place to another, the interchange or exchange

of commodities, Atiabari Tea Co. V. State of Assam, AIR 1961 SC 232.

The word “commerce” is wider than “trade.” Technically, it also means buying and

selling of goods. But, what is essential for “commerce” is transmission and not the profit-

making as is there in “trade”. It includes transportation of not only goods but also men or

animals.

The expression “intercourse” if read in the context in which it occurs in

Meaning of Freedom of Trade, Commerce and Intercourse

Freedom of trade, commerce and intercourse means the free movement and

exchange of goods. It means that there shall be no prior restraint upon trade and

commerce. In Automobile Transport Ltd. v. State of Rajasthan,AIR 1962 Sc 1406, the

Supreme Court explained:

The freedom declared under Article 301 may be defmed as a right to free movement

of persons or things, tangible or intangible, commercial or noncommercial, unobstructed by

barriers, inter-State or intra-State or any other impediment operating as such barriers.

Object behind Article 301

The object of this Article or of any similar provisions in any federal constitution is to

break down barriers between the states and to create one unit with a view to encouraging

trade and commerce in the country.

In a federation, it is necessary to minimise the inter-State barriers as much as

possible, so as to inculcate in the minds of the people the feeling that they are members of

one Nation, though residing in different geographical divisions of the country, A.K. Gopalan

v. State of Madras, AIR 1950 SC 27; Article 19 (1)(c) and (d) of the Constitution of India. The

underlying idea is to abolish the frontiers between different States and create one India. It is

there lies the strength of the country.

The progress of the Nation further requires that there should be free flow of trade,

commerce and intercourse as between different parts, without any barriers, so that the

economic resources of the country, of its various parts, may be utilized to the common

advantage of the entire Nation. The object behind this all is to create and preserve a national

economic fabric, Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232. The emphasis,

undoubtedly, is on the unity of India and that no barriers might be set up to the national

unity, State of Bombay v. R.M.D.C, AIR 1957 SC 699.

Scope of Article 301—Freedom

Article 301 is an adaptation from Section 92 of the Australian Constitution, CAD. IX,

1123-45; Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232, which declares: “ Trade,

commerce and intercourse among the States, whether by means of internal carriage or

ocean navigation, shall be absolutely free “. However, Article 301, in its scope, is

improvement over Section 92 of the Australian Constitution.

Firstly, while Section 92 guarantees the freedom of trade, commerce and

intercourse among the States, i.e., at inter-State level, Article 301 has made trade,

commerce and intercourse free throughout the territory of India, inter-State as well as intra-

State.

Secondly, Section 92 declares the freedom absolutely free, leaving it for the courts,

to impose certain restrictions or limitations on the freedom, as dictated by

Freedom of common sense and the exigencies of the changing society, State of Bombay v.

R.M.D.C A1R-1957 SC 699. On the other hand, Article 301 secures the freedom 5jectedt0

restrictions or limitations which may be imposed under other provisions

0f part XIII.

The freedom assured by Article 301 is not confined to freedom from such laws as

the Legislature may pass in the exercise of its legislative power under those Entries in the

Legislative Lists in the Seventh Schedule which relate to “trade and commerce”. Article 301,

thus, constitutes a general limitation on legislative power and competence of Parliament as

well as of the State Legislatures, Automobile Transport Ltd. v. State of Rajasthan, AIR 1962

SC 1406. For instance, it would include restrictions imposed by taxing laws.

The expression “throughout the territory of India “, in Article 301 means throughout

the various regions comprising the territory of India. Article 301 will, therefore, be violated

whether restrictions are imposed at the frontiers of a State or at any stage prior or

subsequent thereto, Automobile Transport Ltd. v. State of Rajasthan, AIR 1962 SC 1406;

Atiabari Tea Co. Ltd. v. State of Assam, AIR 1961 SC 232; State of Madras v. Natraja, AIR

1969 SC 147. Direct and Immediate Restrictions2

It may be taken as settled law that the restrictions or impediments which directly

and immediately impede or hamper the free flow of trade commerce and intercourse fall

within the prohibition imposed by Article 301. If the restriction is directed against the flow of

trade and commerce or if the imposition is excessive, it may be said to be direct and would

offend Article 301, Automobile Transport Ltd. v. State of Rajasthan AIR 1958 Raj. 114.

A. Restrictions on Freedom of Trade under Parliamentary law (Article 302)

Article 302 provides: “Parliament may impose such restrictions on the freedom

of trade, commerce or intercourse between one State and another or “within any part of the

territory of India as may be required in the public interest.

Restrictions under Article 302 may. be imposed by Parliament by iciw in the exercise

of its legislative power. Thus, no restrictions can be imposed upon the freedom by a mere

executive action. However, restrictions may be imposed by an executive action if taken in

the exercise of power delegated by the Parliament, Government of Tamil Nadu v. Salem

Assocn. AIR 1976 SC 1006; Bishamber v. State of U.P., AIR 1982 SC 33; State of Madras v.

Nataraja Mudaliar, AIR 1969 SC 147.

Secondly, Article 302 requires that restrictions on the freedom may be imposed in

the public interest. The test of public interest is required to be satisfiçd for a restriction to be

protected under Article 302.

The word “restriction” in Article 302 is not qualified by the adjective “reasonable” as

it is in Article 304 (b).

Limitation upon Power of Parliament under Article 302 (Article 303)

The Power conferred by Article 302 which empowers Parliament to impose

restrictions on the freedom in the public interest, is subjected to a limitation contained in

Article 303 (1).

Clause (1) of Article 303 provides that Parliament shall have no power to make any

law under Article 302 giving or authorising the giving of any preference to one State over

another, or making or authorising the making of any discrimination between one State and

another, by virtue of any Entiy relating to trade and commerce in any of the Lists in the

Seventh Schedule.

Article 303 (1) does not operate a general restriction on the legislative power of the

Parliament and that the prohibition against preference and discrimination contained in this

Article, would not apply to laws made by Parliament with reference to Entries other than

those relating to ‘trade and commerce’, e.g., defence. It is also clear from the discussion in

the Constituent Assembly on Article 243 of the- Draft Constitution which corresponds to

present Article 303 (1). See C.A.D. IX. 11412.

.

But, later in Automobile Transport Ltd. v. State of Rajasthan, AIR 1962 SC 1406, the

Court rejected the literal interpretation so given in Sundararamier’s Case. It was observed

that the expression “relating to trade and commerce” was capable of a liberal interpretation

as to include any law made under any entry in the Seventh Schedule, if such Law directly and

immediately impeded the free flow of trade and commerce.

A law applied uniformly in all parts of the country, in effect, may result, in

differential treatment of the States owing to economic conditions prevailing therein. Such a

law however, will not be hit by Article 303 (1).

[Article 303 (2)]

N.R Clause (2) of Article 303, authorises Parliament to make a law relating to

“trade and commerce” which may give preference to one State over another or discriminate

between one State and another, provided such a law declares that it is necessary to do so

for the purpose of dealing with a situation arising from scarcity of goods in any part ‘of the

territory of India. The discriminatory law would be saved by Article 303 (2) only if it contains

such express declaration, Clause (2) was enacted with a view that it would be in the national

interest as a whole that “the economy of the country will be balanced and everybody will be

supplied with his necessities”.

B. Restrictions on Freedom of Trade and Commerce under a State Law

(Article 304)4

It was realised that some local control would be necessary in order to safeguard the

particular interests of each State, of course, without unduly burdening the freedom so

declared. With this object in view, Article 304 empowers the State legislature to regulate

trade and commerce by way of (i) imposition of a tax; or (h) imposition of reasonable

restrictions.

(I) State’s Power to Impose Tax on Imported Goods (Articles 303(1) & 304 (a)]

Article 303(1) prohibits the State Legislatures from making any law, by virtue of any entry

relating to trade or commerce in any of the Lists in the Seventh Schedule, which may give or

authorise the giving of any preference to one State over another or discriminate between

one State and another. Since, State lotteries cannot be construed to be trade and commerce

within the meaning of Article 301, there could possibly be no question of any discrimination

or violation of Article 303, MIs. B.R Enterprises v. State of U.P., AIR 1999 SC 1867.

Clause (a) of Article 304 provides that “the Legislature of a State may by law impose

on goods imported from other States or the Union Territories any tax to which similar goods

manufactured or produced in that State are subject, so, however, as not to discriminate

between goods so imported and goods so manufactured or produced”

Clause (a) of Article 304 has to be read with Article 303 (1). While Article

303 (1) prohibits discriminatory legislation in general being made by a State

legislature, Article 304 (a) strikes at discriminatory tax laws being made by

the state Legislature, Weston Electronics v. State of Gujarat, AIR 1988 SC

2038.

The object behind Article 304 (a) is to prevent discrimination against imported goods

by imposing tax on such goods at a rate higher than that borne by local goods, since the

difference between the two rates would constitute a tariff wall or fiscal barrier and thus

impede the free flow of inter-State trade and commerce, KG Naidu & Sons v. State of Tamil

Nadu, AIR 1977 SC 548.

Article 304 (a) involves an element of intentional and purposeful differentiation

creating economic barriers and an unfavourable bias. It implies an unfair classification

between local goods and imported goods. It is for the petitioner challenging levy of tax, to

establish that such tax is discriminatory, KG Naidu v. State of Tamil Nadu, AIR 1977 SC 548;

(b) State’s Power to Impose Restrictions on Trade and Commerce [Article 304 (b)]5

Clause (b) of Article 304 empowers the State Legislature to impose such,

“reasonable restrictions” on the freedom of trade, commerce or intercourse, as may be

required in the “public interest “.

However, “no Bill or amendment for this purpose, shall be introduced or moved in

the Legislature of the State without the previous sanction of the President.” Proviso to

Article 304(b).

Power of the State to impose restrictions on the freedom oftrade and commerce is

subjected to the following conditions—

(i) A restriction can be imposed only by a law made by the Legislature of the

State. A subordinate legislation, if valid, is treated as if it was enacted in the

Act and has the same force as the statute which enabled its making M/s.

Jagadale & Sons v. State of Karnataka, AIR 1990 Kant. 251.

(ii) Before a Bill or amendment is introduced in the State Legislature for the

purpose, previous sanction of the President must be obtained; However, if

the prior assent of the President is not secured, the infirmity can be cured by

subsequent assent of the President after the Bill has been passed by the

State Legislature, by virtue of the provisions of Article 255, Article 255. See

also A.B. Abdul Kadir v. State of Kerala, AIR 1976 SC 182; State of Karnataka

v. Hansa Corporation, AIR 1981 SC 463.

(iii) The law imposing restrictions must be made in the public interest; and

(iv) the restriction so imposed must be reasonable.

Unless, the Presidential assent has been obtained, a law restricting trade or

commerce, cannot be upheld even if it imposes reasonable restriction or

restriction which is merely regulatory with a view to facilitating trade; M/s.

Punjab Traders v. State of Punjab, AIR 1990 SC 2300; B. Sundaresan v. State

of Kerala, AIR 1995 Ker 307.

Where sanction of the President has been given to the Bill, sanction for the Rules

framed under the Act, is not necessary. Nor, the failure to take such assent to as

“amendment to such Act will render the amendment invalid on that ground; bodhaya Chit

Fund (P) Ltd. v. Director of Chits, Madras, AIR 1991 SC 98. See also M/s. Widia (India) Ltd. v.

State of Karnataka, JT 2003 (7) 237.

Article 304 (b) require that restrictions which may be imposed on the freedom of

trade and commerce, under a State law, must be “reasonable” and must have to imposed in

the “public interest “. The two elements “reasonableness” and “public 1nterest’ make the

issue justiciable.

C. saving of Existing Laws (Article 305)

Article 305 saves the “existing laws” from the operation of Articles 301 and 303,

except in so far as the President may by order otherwise direct.

The expression “existing law” is defined in Clause (10) of Article 366 of the

Constitution.

An Act passed before the Commencement of the Constitution is included within the

expression “existing law even though the Act has been brought into force after the

commencement of the Constitution.

CASE LAW

Atiabari Tea Co. Ltd. v. State of Assam6

(AIR 1961 SC 232)

Issue

Whether requirements of Article 304 (b) and 301 have been complied with or not?

Whether Part XIII of the Constitution was applicable to the Act in question?

Relevant Law

Article 301 and 304 of Constitution of India.

Decision

The Court held that tax laws are not outside the purview of Article 301.

Restrictions which directly and immediately impede free flow or movement of trade

are not permissible u/a 301. It was pointed out that taxes may and do amount to restrictions

but it only such taxes which directly and immediately restrict trade that would fall within the

purview Article 301. Since the tax in the instant case effected the free flow of trade it would

only be valid if it had satisfied the requirement of Article 304 (b).

The Court held that the impugned Act has put a direct restriction on freedom of trade and

since it does not satisfies the requirement of Article 304 (b), the Assam Taxation Act, 1954 is

void.

Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan

(AIR 1962 SC 1406)

Facts

By virtue of Section 4 of Rajasthan Motor Vehicle Taxation Act, 1951 no one could use or

keep a Motor Vehicle in Rajasthan without paying an appropriate tax for it and if he fails to

do so, he was liable for penalties Imposed under Section 11 of that Act The appellants

carried on business of plying stage carriages. They failed to pay the tax under the above act.

Notices were issued against them for recovery of tax.

The appellants challenged the validity of the Act on the ground that the provisions of

the Act under which they were made liable to pay tax was violative of Article 301 and was

not saved by provisions in Article 304(b).

Issue

Whether the levy of tax under Rajasthan Motor Vehicles Taxation Act, 1951 is violative of

the provisions of Article (31)1 and 304 (b).

Relevant Law

Article 301 and 304 (b) of the Indian Constitution.

Decision

The Court accepted the formulation of directness and immediateness of tax— test laid down

in Atiabari Tea Co. Case as correct but added a clarification that regulatory or compensatory

taxes do not come within the purview of restrictions contemplated by Article 301. What

follows from the above observations is that the State while imposing such taxes do not

require the previous sanction of President as is required by provisions of Article 304 (b). The

Court laid down the following principles:

1. A measure which operates on trade commerce and intercourse indirectly

and remotely is not violative of Article 301.

2. A measure which operates on trade, commerce and intercourse directly and

immediately may be violative of Article 301.

3. A measure which operates on trade directly and immediately may not be

violative of Article 301 provided it is (i) regulatory (ii) imposing

compensatory taxes.

For the purpose of determining whether a tax is compensatory or not it is necessary

to find out: (i) Whether traders are having the use of facilities’ for better conduct of their

business, (ii) Whether traders are paying patently much more than what was required for

providing the facilities.

PROCLAMATION OF

EMERGENCY (Article 352)

Who can proclaim Emergency

Article 352 (1), as originally enacted provided that the President when satisfied that

a grave emergency existed whereby the security of India or any part of the territory of India

was threatened could by making a proclamation, declare emergency. However, ours being a

Parliamentary system, the President could proclaim emergency only when advised by the

Council of Ministers through the Prime Minister. This provision was said to have been

misused by the Prime Minister in 1975, when the President was advised to make a

proclamation of emergency on the ground of internal disturbance. In order to minimize the

chances of abuse of power to declare emergency and to ensure that a proclamation of

emergency is issued only after due consideration, Article 352 was amended by the

Constitution (44th Amendment) Act, 1978.

After 44th Amendment, it is provided that the President can make a proclamation

declaring emergency, only when he receives in writing the decision of the Union Cabinet to

this effect.

Grounds for proclamation of emergency

Prior to the 44th Amendment, article 352 (1) provided that the President could

make a proclamation declaring emergency on the ground of threat to the security of India.

The security might be threatened by:-

(1) War, or

(2) External aggression, or

(3) Internal disturbance

The expression “internal disturbance” is too vague and wide. It may cover a minor

disturbance of law and order or even a political agitation.

With a view to exclude the possibility of an emergency being proclaimed on the ground if

internal disturbance of any nature, minor or grave, the 44th Amendment has substituted

the expression “internal disturbance” by the expression “armed rebellion”. Thus, after 44th

Amendment internal disturbance not amounting to armed rebellion would not be a ground

for the issue of a Proclamation of Emergency. This change has thus, restricted the scope of

what may be known as internal emergency.

After 44th Amendment, Proclamation of Emergency may be issued on any of the

following grounds—

(a) War; (b) External Aggression; or (c) Armed Rebellion.

However, actual occurrence of war, external aggression or armed rebellion, is not a

condition precedent for the issuance of a Proclamation of Emergency. Such a Proclamation

may be made by the President, even before the actual occurrence of the above events,

when the President is satisfied that there is imminent danger of war external aggression or

armed rebellion. (352 (1))

Satisfaction of the President—Its Judicial Review

In Ghulam Sarwar v. Union of India, (AIR 1467) Sc 1335 it was contended that the

satisfaction of the President in regard to the issuance of a Proclamation of emergency had

not been declared final and conclusive and that it could be challenged on the ground of mala

fide or an abuse of power of the President. Since no material was placed before the court

making out a case of mala fide or abuse of power, the Supreme Court declined to express

any opinion on this question. With a view to contain such litigation which involves wastage

of public money and time, the Constitution (38th Amendment) Act, 1975 inserted clause (5)

in article 352, declaring the satisfaction of the President with regard to the issuance of a

proclamation of emergency as “final and conclusive” and “not to be questioned in any Court

on any ground”.

However, in State of Rajasthan v. Union of India, (AIR 1977) SC 1361. Bhagwati, J.,

speaking for himself and for Gupta, J., made it clear that “a Proclamation of Emergency is

undoubtedly amenable to judicial review though on the limited ground that no satisfaction

as required by Article 352 was arrived at by the President in law or that the satisfaction was

absurd or perverse or mala fide or based on extraneous or irrelevant ground”.

clause (5) inserted by the 38th Amendment, 1975 has been deleted by the

Constitution (44th Amendment) Act, 1978. Which implies that the satisfaction of the

‘President is not altogether beyond judicial review.

Duration of Proclamation of Emergency—Without Approval [Article 352 (4)]

Prior to the 44th Amendment, a proclamation of emergency made under article

352 (1) could be continued in force for a period of two months from the date of

Proclamation without the Proclamation being approved by both houses of Parliament.

The 44th Amendment Act, 1978, has reduced this period to one month. Clause

(4) of Article 352, thus, provides that a proclamation made under Article 352 (1)

shall cease to operate at the expiration of “one month” unless before the expiration

of that period it has been approved by resolutions of both houses of Parliament.

resolutions.

For continuance of the proclamation of Emergency beyond this period of six

months, approval by both Houses of Parliament is needed. Thus, each time it is

approved by both Houses of Parliament, the duration of such proclamation is for

six months.

Prior to the 44th Amendment, 1978, resolutions in each house of parliament,

required to be passed by the Simple majority of memebers present and voting.

Prior to the 44th Amendment, 1978, the Proclamation of Emergency issued

under Article 352, was required to be approved by both houses of the Parliament

only once i.e. within 2 months from the date of Proclamation.

Duration of proclamation of emergency—with approval [article 352(5)]

After the 44th Amendment, 1978, a Proclamation declaring emergency is required to

be approved by both Houses of the Parliament within one month of the date of such

Proclamation. A Proclamation so approved by both Houses of Parliament, shall, remain in

force for six months from the date of such approval are passed by the two Houses on

different dates, the period of six months would run from the date of the passing of the later

of the resolution.

Prior to the 44th Amendment, 1978, resolution iii each House of Parliament, for

approving the Proclamation of Emergency, were required to be passed by the simple

majority of members present and voting.

12. Though, there is no provision in article 352 to this effect, however, it is

the effect of clause (7), added by the 44th Amendment, empowering Lok

Sabha to disapprove the Proclamation, on such a resolution passed, it is

made obligatory or the President to revoke the emergency. (See also

M.P.Singh, constitution of India, 1995, 852).

After the 44th Amendment, 1978,therefore, a Proclamation of Emergency as well as

its periodical extension every six months, is required to be approved by resolution passed in

each House of Parliament, by the majority of the total membership of that House and by the

majority of not less than two thirds of the members of the House present and voting.

Revocation of Proclamation of Emergency [Article 352(2) and (7)]

Prior to the 44th Amendment, 1978, a Proclamation of Emergency once approved by

both Houses of Parliament could be revoked by the President by making a fresh

Proclamation. Thus, the executive was the sole judge to decide as to when the Proclamation

should be revoked.

The 44th Amendment, 1978, has made the following important changes in regard to

revocation of emergency-

Firstly, a Proclamation of Emergency may be revoked by the President by making a

subsequent Proclamation. This provisions was already there in Article 352.

Secondly, the 44th Amendment requires a periodical review, every six months, of the

Proclamation of Emergency. it is now provided that the Proclamation shall cease to operate

on the expiry of six months unless the continuance of Proclamation for further period of Six

months has been approved by the house of Parliament before the expiry of the earlier

period of six months.

Thirdly, the President shall revoke the Proclamation of Emergency, if the Lok Sabha

passes a resolution disapproving the Proclamation or disapproving the continuance in force

of such Proclamation.

Failure of constitutional machinery in a

State

Article 356 and 357 provide for meeting a situation arising from the failure of the

constitutional machinery in a State.

If the President on receipt of a report from the Governor of a State or otherwise is

satisfied that a situation has arisen in which the Government of the State cannot be carried

on in accordance with the provisions ofthe Constitution, the President may by proclamation

—

(a) assume to himself all or any of the functions of the State Government, or

the powers of the Governor, or any body or authority in the State other than

the State Legislature;

(b) declare that the powers of the State Legislature are to be exercised by

Parliament;

(c) make such incidental provisions as may appear to him to be necessary or

desirable for giving effect to the provisions of the proclamation: the

President may even suspend in whole or in part the provisions of the

Constitution relating to any body or authority in the State [Article 356(1)].

Procedure for approval of proclamation & justification of proclamation

Every proclamation under Article 3 56(1) is to be laid before each House of

Parliament, and it ceases to operate (except the one which revokes the earlier one), after

two months, unless in the meaning, it has been approved by resolutions of both Houses of

Parliament [Article 356(3)]. Parliament can thus discuss at this time whether the

proclamation should or should not have been made by the Central Government.

If at the time of issuing the proclamation (other than revoking an earlier

proclamation), or thereafter, the Lok Sabha is dissolved without approving it, and

if the Rajya Sabha approves the proclamation, then it ceases to operate thirty days after the

date on which the Lok Sabha first sits after the general elections unless a

resolution approving the proclamation is passed by it before that period.

The normal operative period for the proclamation is six months from the last of the

days on which the Houses pass resolutions approving the same. The life of the proclamation

may be extended by six months each time by both Houses passing resolutions approving its

continuance. In this way, each time Parliament ratifies

the proclamation, its life is extended for another six months.

In case Lok Sabha is dissolved within any period of six months, the proclamation

remains in force for thirty days from the date the Lok Sabha first sits after its recon situation

within which period it can pass the necessary resolution. The Rajya Sabha should, however

pass the necessary resolution within the stipulated period.

The Forty-fourth Amendment has introduced a new provision to put restraint on the

power of Parliament to extend a proclamation issued under Article 356 beyond one year. No

House of Parliament is to pass a resolution approving continuance of such a proclamation

beyond one year unless the following two conditions are satisfied 356(5).

(i) there is a proclamation of emergency (under Article 352) in operation at the

time of passing of such a resolution in the whole of India, or the concerned

State, or a part of the State; and

(ii) the Election Commission certifies that the continuance in force of the

proclamation under Article 356 during the period specified in such

resolution is necessary on account of difficulties in holding general elections

to the concerned State Legislative Assembly.

The effect of the clause is that normally a proclamation under Article 356 remains in

force in a State for one year at the most, but under special circumstances mentioned above,

it can remain in force up to three years which is the absolute maximum ceiling.

From the above discussion it appears that a proclamation issued under Article 356(1)

expires in any of the following modes: (Revocation of Proclamation)

(a) After two months of its making if it is not presented for approval before

both Houses of Parliament [Article 356(3)].

(b) Even before two months, ifthe proclamation on presentation to the Houses

of Parliament fails to get approval from any House [Article 356(3)).

(c) After 6 months from the date of the proclamation, in case no further

resolution is passed by the House of Parliament after the passage of the

initial resolution approving the said proclamation [A>> licle 356(4)].

(d) After the expiry of 6 months from the passage of the last resolution of

approval passed by the two Houses of Parliament subject to an overall

maximum limit of 3 years from the date of the proclamation. Continuance of

the proclamation beyond one year is subject to the fulfilment of the

conditions laid down in Article 356(5), and mentioned above.

(e) The date on which the President issues a proclamation of revocation [Article

356(2)].

Under Article 356(1), the President acts on a report of the Governor, or on

information received otherwise. In view of the fact that Article 355 impose an obligation

upon the Centre to ensure that each State Government is carried on in accordance with the

Constitution, and Article 356 is designed to strengthen the hands of the Centre to discharge

this obligation and to protect a State, the framers of the Constitution felt it necessary not to

bind the Centre to act under Article 356 merely on the Governor’s report. A situation may

develop in a State when, though the Governor may not make a report, the Centre may yet

feel that its intervention has become necessary. The centre thus has freedom to act even

without the Governor’s report when, on the basis of the facts within its knowledge, it thinks

that it ought to act in fulfillment of its constitutional obligation.

Legislation for the state

When a proclamation under Article 356(1) declares that the powers of the State legislature

are to be exercised by or under the authority of Parliament, Parliament can then confer on

the President the power of the State Legislature to make laws. The President may also be

authorized by Parliament to delegate the power so conferred on him, to any other authority

specified by him subject to such conditions as he may impose [Article 357(1)(a)].

When is Article 356 Invoked? (Ground for proclamation under Article 356)’

The phrase, “the government of the state cannot be carried on in accordance

with the provisions of this Constitution” in Article 356(1) has indefinite connotations. Failure

of the constitutional machinery in a State may arise because of various factors; these factors

are diverse and imponderable Nevertheless, some situations of the breakdown of the

constitutional machinery may be as follows:

(1) No party in the Assembly has a majority in the State Legislative Assembly to

be able to form the government.

(2) A government in office loses its majority due to defections and no

alternative government can be formed.

(3) A government may have majority support in the House, but it may function

in a manner subversive of the Constitution. As for example, it may promote

fissiparous tendencies in the State.

(4) The State Government does not comply with the direction issued by the

Central Government under various constitutional provisions.

(5) Security of the State may be threatened by a widespread breakdown of law

and order in the State.

(6) It may be debatable whether Article 356(1) can be invoked when there are

serious allegations of corruption against the Chief Minister and the Ministers

in a State.

Reading Articles 355 and 356 together, it can be argued plausibly that the

constitutional machinery breaks down in the State when the government indulges in

corruption.

Satisfaction of the President

The satisfaction of the President under Article 356 and the basis thereof “are

subjective and are not subject to objective tests by judicial review. The question involves

high executive and administrative policy and the court will find out no standard for resolving

it judicially.”

Scope of Judicial review of president action under Article 356 (clause (5) of 356 (38th

amendment)2

In 1975, the Thirty Eighth Constitutional Amendment introduced cl. 5 in Article 356

barring judicial review of a Proclamation under Article 356(1) on any ground. The clause

made presidential ‘satisfaction’ to issue a Proclamation under Article 356(1) as ‘final and

conclusive’ which “shall not be questioned in any court on any ground’. This clause was

however withdrawn by the Constitution (44th Amendment) Act, 1978.

State of Rajasthan v. UOI3

AIR (1977) SC 1361

A constitutional controversy of great significance vis-a-vis Article 356 was raised in State of

Rajasthan v. Union of India, AIR 1977 SC 1361.

S.R. Bommai v. Union of India,4

AIR 1994 SC 1918

Special Reference No. 1 of 2002

AIR 2003 SC 87

Fact

In this case, President has referred the question regarding interpretation of Article 174 and

Article 324 of the Supreme Court for its advisory opinion.

Decision

Court referred Article 174 and held that

(1) Article 174(1) does not apply to a “dissolved Assembly” but to a live

Assembly”.

(2) Article 174(1) neither relates to elections nor does it provide any outer limit

for holding elections for constituting the Assembly. The holding of elections

is the exclusive domain of the Election Commission Parliament is

empowered to frame law as regards conduct of elections but conducting

elections is the sole responsibility of the Election Commission,

The court further held because the time schedule fixed under Article 174 cannot be

complied with, that is not a ground for brining into operation of Article 356. Since Article

174(1) does not apply to dissolved legislative Assembly and as such there being no violation

of Article 174(1) in preparing schedule for election by the commission, so the question of

applicability of Article 356 does not arise.

Synopsis

“Suit against the Government in Torts and Contracts”

Liability in Torts Act of State Liability in Contracts:

Suit against the Government in Torts and Contracts”

1. Liability in torts 2.Act of State 3.Liability in Contracts

(1) Liability in Torts- the Government for the tortious acts of its servants, based on the remnants of old feudalistic Notion that the king can be sued in his own courts without his consent never existed. The doctrine of sovereign immunity, a common law rule which existed in England also found place in the United States before 1946 Mr. Justice Holmes in 1907 declared for an unanimous supreme Court:

‘A sovereign is exempt from suit not because of any formal conception or absolute theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.

Scope Art. 300: Says that the constitution of India lays down provisions that the State can sue and can be sued and it is also liable for its and its employee’s torts.

Art. 300: Suits and proceedings – (1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the state and may subject to any provisions which may be made by the Act of Parliament or of the legislature such State enacted by virtue of Powers conferred by this constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding provinces or the Corresponding India States might have sued or been sued if this constitutions had not been enacted.

(2) If at the commencement of this constitution-(a) Any legal proceedings are pending to which the Dominion of India is a party,

the Union of India shall be deemed to be substituted for the Dominion in those proceedings.

(b) Any legal proceedings are pending to which province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the province or the Indian State in those proceedings.

The State was held not liable for torts arising out of

1. Commandeering goods during war.2. Making or repairing Military roads.3. Administration of justice.4. Improper arrest negligence or trespass by Police officer..5. Wrongful refusal to issue a licence to sell ganja.6. Negligence of officers of the court of words in the administration of estate in

their charge.7. Negligence of officers in the discharge of statutory duties. 8. Loss of movable property in the custody of Government.

State of Rajasthan V. Vidyawati, AIR 1951.

Meaning:

(2) Act Of State – ‘Act of State’ means an act of the executive i.e. the sovereign

power of a country, that cannot be challenged, controlled or interfered with by Municipal Courts. Its sanction is not that of law, but that of sovereign power and whatever it may be, Municipal Courts must accept it as it is, without question.

Wade and Philips & explained :

“Act of State means an act of the executive as a matter of Policy performed in the course of its relations with another State, including its relations with the subjects of that State, , unless they are temporarily within the allegiance of the crown”.

State of Gujarat V. Vora fiddali AIR 1964 SC 1043, Vedir Venkata Reddy V. Union of India AIR 2005, A.P. 155

(3) Liability in Contracts : Art. 294 read with Art. 300, the liability of the Government in the contract as well as in tort has been fully established. Art. 299 at the constitution the Union of India and each of the State of the Union are made persons of capacity which can enter into Contracts. A contract with the Union is executed in the name of the President or by ‘such persons and in such manner as the President directs, similarly contract for the State is executed in the name of governor or by such persons and in such manner as he may direct, it is clear from the word ‘executed’ that it must be in writing , an oral contract would not bind the Government, A contract not in writing and wanting in form was held unenforceable and the Union could not be sued on it.

In Bihar E.G.F. Co-Operative Society V. Sipahi Singh AIR 1977 SC 2149. The Supreme Court reiterated that the provisions of Art. 299 of the constitution which are mandatory in character require that a contract made in the exercise of the executive power of the Union or of a state must satisfy three conditions, viz.:

(1) The contract must be executed by a person authorized by the President or Governor, as the case may be.

(2) The contract must be executed by such person on behalf of the President or Governor, as the case may be.

(3) The contract must be expressed to be made by the President or the Governor, as the case may be.

The provisions of Art. 299 are mandatory and their non-compliance would render a contract void. Bhikraj V. Union of India, AIR 1962, SC 113. It follows that no suit against the Government union or State can be brought if the requirements lay down in this Art. Are not complied with equally the contract will not be enforceable by this Government.

Pherainal V. Union of India Art. 1953 SC 460.

Enforcement of liability under the contract.

Government privileges in legal proceeding immunity from statute operation.

Privileges of the Government under the civil procedure code and the evidence Act.

Privilege to with hold documents.

Amendment of the Constitution. Art. 368.

(1) Amendment by Simple Majority

(2) Amendment by Special Majority

(3) By Special Majority and Ratification by States

Procedure for Amendment – A Bill to amend the Constitution may be introduced in either House of Parliament. It must be passed by each House by a majority of the total membership to that house and by a majority of not less than 2/3 of the members of that house present and voting. When a Bill is passed by both Houses it shall be presented to the President for his assent who shall give his assent to Bill and

thereupon the Constitution shall stand amended. The Constitution (24th Amendment) Act, 1971. But a Bill who seeks to amend the Provisions mentioned in Art. 368 requires in addition to the Special Majority mentioned above the ratification by the ½ of the States.

Amendment of fundamental rights – The question whether fundamental rights can be amended under Article 368 come for consideration of the Supreme Court in Sankari Prasad v.Union of India AIR 1951 S.C.455.In that case the validity of the Constitution (1st Amendment) Act, 1951 The Amendment was challenged on the ground that it purported to take away or abridge the rights conferred by Part III which fill within the Prohibition of Article 13 (2) and hence was void. It was argued that the „State. In Article 12 includes Parliament and the word „Law. In Article 13 (2). Therefore must include constitution amendment. The Supreme Court however, rejected the above argument and held that the power to amend the Constitution including the fundamental rights is contained in Article 368, and that the word „Law. in Article 13(8) includes only an ordinary law made in exercise of the legislative powers and does not include constitutional amendment which is made in exercise of constituent power . Therefore, a constitutional amendment will be valid event if it abridges or takes any of the fundamental rights.

In Sajjan Singh v. State of Rajasthan AIR 1965 S.C.845. The validity of the constitution (17th Amendment) Act, 1964 was challenged. The Supreme Court approved the majority judgment given in Sankari Prasad’s case and held that the word “Amendment of the Constitution” means amendment of all the provisions of the constitution.

In Golak Nath v. State of Punjab AIR 1971 S.C.1643 The validity of the Constitution (17th Amendment) Act, 1964, which inserted Certain State Acts in Ninth Schedule was again challenged. The Supreme Court by a majority of 6 to 5 prospectively overruled its earlier decision in Sankari Prasad.s and Sajjan Singh case and held that Parliament had no power from the date of this decision to amend Part III of the Constitution so as to take away or abridge the fundamental rights.

24th Amendment Act, 1971 – In order to remove difficulties created by the decision of Supreme Court in Golak Nath.s case Parliament enacted the (24th Amendment) Act..

The Amendment has made the following amendments.

(1) It has added a new clause (4) to Art. 13 which provides that „nothing in this Art. Shall apply to

Any amendment of this constitution made under Art.368.

(2) It substituted a new marginal heading to Art. 368 in place of the old heading “Procedure for

Amendment of the Constitution” The new heading is “Power of Parliament to amend the Constitution and Procedure therefore”

(3) It inserted a new-sub-section (1) in Art. 368 which provides that “notwithstanding anything in this constitution, Parliament may, in exercise of its constituent power amend by way of addition, Variation, or repeal any Provision of this Constitution in accordance with the procedure laid down in this Article”

(4) It substituted the words, “it shall be presented to the President who shall give his assent to the

Bill and thereupon for the words “it shall be presented to the President for his assent and upon such assent being given to the Bill”

(5) It has added a new clause (3) to Article 368 which provides that “nothing in Article 13 shall apply to any amendment made under this Article” Theory of Basic Structure: A limitation on Amending Power

(1) The validity of the Constitution (24th Amendment) Act, 1971, was challenged in

Keshvanand Bharti v. State of Kerala AIR 1973 SC 1461.

(2) What is the basic structure?

- In Indira Nehru Gandhi v. Raj Narayan AIR 1975 SC 2299

- In Minerva Mills Ltd. v.Union of India AIR 1980 SC 1789

- In Keshavanand Bharati v. State of Kerala AIR 1973 S.C.1461

42nd Amendment and Article 368 – after the decisions of Keshavananda Bharti and Indira

Nehru Gandhi a New Constitutional (Amendment) Act 1976 come into existence and added two new clauses, clauses (4) and (5) in Art.368.

Clauses (4) – Provided that „no Constitutional amendment (including the provision of Part III) or purporting to have been made under Art. 368 whether before or after the commencement of the Constitution (42nd Amendment) Act, 1976 shall be called in any court on any ground.

Clauses (5) – removed any doubts about the scope of the amending power. It declared that there shall be no limit an whatever on the constituent power of parliament to

amend by way of addition, variation or repeal of the provisions of the Constitution under this Art.

The Constitutional amendments made under Art.368 can still be challenged on the ground that they are destructive of the “basic features” of the constitution.

Basic structure of the Indian Constitution is an inherent organ of the Original Constitution. In various cases the court verdicts describes the Basis structure as follows.

Rule of Law – In Indra Nehru Gandhi v. Raj Nurayan AIR 1975 S.C. 2299- The S.C. while Interpreting Art 14 held that rule of Law is the Basic structure of the Indian Constitution.

Natural Justice – In Menka Gandhi v. Union of India AIR 1978 S.C. 597 the Supreme Court held that Natural Justice is the Basic structure (feature) of the Indian Constitution.

Secularism – In S.R. Bommai v. union of India AIR 1994 the court held that Secularism is a Basic Structure of the Indian Constitution.

- Harmony between D.P.S.P and Fundamental right. In Minarua Millsv.Union of India AIR 1980 and Sanjeev Coke Mfg. Ltd. V.Bharat Cooking Ltd.1983.

The S.C. held that harmony between D.P.S.P. and fundamental right is the basic structure of the Indian Constitution.

In Kesvananda Bharti v.State of Kerala AIR 1973

A special bench of 13 judges declared the following as Basic structure According to C.J.Sikri

1. Supremacy of the Constitution

2. Republic and democratic form of Govt.

3. Secular character of the constitution.

4. Separation of power between three organs

5. Federal character of the constitution.

Judicial review. The judicial review was also known as the basic structure of the Indian

Constituon.

In Indira Nehru Gandhi V.Raj Narayan AIR 1975 S.C 2299-

1. Rule of law

2. Judicial review

3. Democracy which implies free and fair election

4. Jurisdiction of Supreme Court U/A 32 is also Basic Structure of Indian Constitution.

In Bhim Singh v.Union of India (2010) 3 SCC 538. the S.C.held that separation of power is an essential feature of the Indian Constitution.

Protection Available to civil servants under Indian Constitution

INTRODUCTION

The idea of establishing a Public Service Commission for the recruitment of Public Services in the country was first formulated in the memorandum presented by the Government of India in 1919 to the Committee on the division of functions. It is provided that “there shall be established in India a Public Service Commission which shall discharge in regard to the recruitment and control of the public services in India., such other functions as may be assigned thereto by rules made by the secretary of State in council” The Government of India considered this question and forwarded its recommendations to the Provincial Governments of their views. It also said that competitive examinations were going to be introduced; it must be subject to the following conditions.

First the candidates must be graduates; there should be a preliminary selection of candidates by a Committee to be constituted for the purpose; the Provincial Governments should decide upon the recommendations of the Committee; there should be some age limit. In 1924, the Royal Commission on public Services (Lee Commission) laid stress on the necessity for constituting without delay a Public Service Commission under the Government of India Act, 1919. They proposed to assign to the Commission four distinct functions; First, the recruitment of personnel for public services; Second, the establishment and the maintenance of proper standards of qualifications for admission to the services; Third, quasi-judicial functions relating to disciplinary control and protection of services and finally, advisory functions in regard to the general service problems.

The Government of India Act, 1935 accordingly provided in section 264 that, “there shall be a Public Service Commission for the Federation and a Public Service Commission for each Province. After India attained her Independence in 1947 and proceeded to frame a constitution according to her own ideals, the Constituent Assembly, entrusted with this

eds of the state.

Public Service Commission

The Constitution of India, unlike the constitution of many other countries, has provided for public service commission at the Centre as well as in the States. In most Countries of the world such agencies are created by the legislature; they have no constitutional existence. Considered from this point of view, the commissions are only advisory bodies, and the governments may disregard their advice with impunity. Experience, however, reveals that the governments both at centre and in the states have been implementing the recommendations of the Commissions with all sincerity.

In a democratic state, like India, it is desirable that the government should be guided in respect of appointment and control of its officials by an impartial body of experts like the public service commission. It has been observed from the discussion in parliament and in state legislature over the years on the reports of the Commissions that only in a very few cases the government failed to accept the recommendations of the Commissions, and even for such few cases the government concerned has been bitterly criticised.

Recruitment and Conditions of Service

Under the provisions of Article 309, Parliament is empowered to regulate the recruitment and conditions of service of persons appointed to public service and posts in connection with the affairs of the Union. Similarly, State Legislatures are empowered to regulate recruitment and conditions of service of persons appointed to public service or posts in connection with the affairs of the states. But according to the opinion of the Supreme Court, In the case of Rajinder Singh v State of Punjab AIR, 2001 S.C 1769, the executive instructions cannot amend the rules, where appointment or promotion is made without requisite qualifications prescribed by Rules only, relying upon notification the appointment or promotion shall be illegal.

Article 311 expressly imposes restrictions upon the pleasure of the president or the Governor, as the case may be, and provisions of clause (1) and (2) of it come within the ambit of the words “Except as otherwise provided by this constitution” which qualify Article 310(1). However, opening words of Article 309 make it expressly subject to other provisions of the constitution and therefore it cannot operate as an exception to pleasure doctrine. Rules made under the proviso to article 309 or Acts

referable to it would be subject to both Articles 310 and 311 decided in Union of India v Tulsiram Patel, AIR,1985 S.C. 1416. Where however, no law is made by Parliament or State Legislature for such regulation, President can make rules in connection with the Union Public Services and posts and Governor in connection with State Public Services and posts. The President and Governors have also been given power to delegate their rule making power to any other person.

The law made by Parliament or legislature of a state under this article is subject to restrictions in other provisions of the constitution, for example, fundamental rights or restrictions in Article311 and the rules made by the president and Governors have been expressly made subject to Act of Parliament and State legislatures’ respectively. Thus, if there is no

Doctrine of Pleasure and its Limitations: Protection of Civil Servants 15

law made by Parliament and rules are made by the president or person authorised by him and later on Parliament passes an Act and the provisions of which are inconsistent with such rules, the rules will cease to be effective.

Doctrine of Pleasure

In India the doctrine of pleasure has been incorporated in Article 310 of the Constitution of India. Article 310 provides that except as expressly provided by the Constitution, every person, who is a member of defence service or of a civil service of the Union or of an All India Service or holds any post connected with defence or any civil post under the Union, holds office during the pleasure of the President and every person who is a member of a civil service of a State or holds any civil post under a state holds office during the pleasure of the Governor of the State.

Exceptions to Doctrine of Pleasure

The Doctrine of pleasure is subject to other express provisions of the Constitution. Article 310(1) will not apply where the constitution expressly provides for secured tenure. Article 124 and Article 217 guarantee a secured tenure to the judges of the Supreme Court and the High Courts. Similarly, the Comptroller and Auditor-General of India (Article148), Chairman and Members of Public Service Commission (Article 317) and the Chief Election Commissioner (Article324) also have constitutionally secured tenure. Doctrine of pleasure does not apply to the holders of these offices. They can be

Save Guards to Civil Servants (Article 311)

Article 311 is a bulwark of civil servants. This is an important guarantee which severely restricts the doctrine of pleasure contained in Article 310 (1) of the Constitution. Article 311 envisages three major penalties which may be inflicted on a

civil servant. They are dismissal, removal and reduction in rank. Dismissal and removal from service are grave penalties which end the services of an employee. Article 311 gives more protection to a civil servant against these penalties. Reduction in rank does not end the services of an employee and, has been treated differently. Article 311 (1) provides that no person who is a member of 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.

Doctrine of Pleasure and its Limitations:

Protection of Civil Servants 17

Reasonable Opportunity of Hearing

A civil servant cannot be dismissed, removed or reduced in rank unless: (a) an inquiry is made in which (b) he is informed of the charges against him; and (c) given a reasonable opportunity of being heard in respect of those charges. Procedural defect in the inquiry proceedings does not set aside the order of dismissal etc. and reinstate the employee. In such cases, the enquiry proceedings shall continue from the stage where it stood before the alleged vulnerability surfaced. Decided in the case of (Union of India v Y.S. Sandhu, Air,2009 SC 162; U P State Spining Co. Ltd. V R.S Pandey, (2005) 8 SCC 264)

Reasonable Opportunity is a facet of natural justice. Natural Justice has no fixed meaning. The basic object is to ensure fairness, impartiality and reasonableness In the case of Uma Nath Pandey v State of U.P. AIR 2009 SC 2375, it was held by the Supreme Court that the very purpose of the following principles of natural justice is the prevention of miscarriage of justice. Broadly reasonable opportunity may include the following:

The employee against whom action for either of three punishments (removal, dismissal or reduction in rank) is proposed should be informed of the charges;

The charges must be clear, precise and accurate;

The delinquent employee should be informed of the evidence by which those charges are sought to be substantiated against him;

Copies of relevant document must be supplied to the employee;

If charges are framed on the basis of evidence of witnesses examined in the absence of delinquent employee, copies of statements of witnesses must be given to him;

Personal hearing if demanded by the delinquent servant, must be given;

The employee charged must be given an opportunity to cross-examine the witnesses produced against him;

All the witness should be examined in the presence of delinquent and he should be given an opportunity to cross-examine them;

18 Chintamani Rout

The employee against whom an inquiry is being held has a right to argue his own case. It is a part of personal hearing;

Inquiry officer should not be biased;

Reasons must be given by an inquiry officer for his decision;

Inquiry officer cannot be a witnesses himself.

It was decided in the case of Secretary A P Social Welfare Residential Educational Institutions v pindigee Sridher, AIR 2007 SC 1527, that no hearing is required where the employee has secured the employment by fraud. If a case is made out of such an inquiry for imposing penalty, the punishment, would be given on the basis of evidence adduced during such inquiry and the employee will not be entitled to make representation against the penalty proposed.

CONCLUSIONS

Experience of democratic countries underlines the importance of an efficient and independent civil service. The Constitution of India assures reasonable security of tenure to civil servants. The Recruitment to important civil services becomes vital for an independent, efficient and impartial administration. The values of independence, impartiality and integrity are the basic determinants of the constitutional conception of Public Service Commissions and their rule and functions. It is mandatory for the Commission to present annual reports to the president Or Governor as the case may be. The President and the Governor shall cause to be laid before each House of Parliament and the State Legislature a copy of the report and a memorandum explaining the reasons where the advice of the commission was not accepted. These reports are discussed in the respective Houses and the Government explains the reasons for not accepting the advice of the Commission. Cases of non-acceptance of advice are also subjected to judicial review and action of the Government in not accepting the advice has been struck down primarily on the basis of arbitrariness or malafide.

Assignments and Important

Questions(Long)

Q.1. Discusses the various emergency powers of the President and also indicates their effects

Q.2. Define the procedure of Amendment of the Constitution.under Art. 368 with the help of relevant case law .

Or

What is the theory of Basic structure of constitution?

Q3 .Explain in detail the liability of Govt. in Tort committed by its servants.

Q.4. Postion of prime Minister under Indian constitution. Is he real Head of the state?.

Q.5. what are different kind of writes which may be issued by the Supreme Court?

Q.6. Discuss the constitution position of the president of India.

Q.7. Discuss the appellate jurisdiction of the Supreme Court of India.

Or

Discuss the provisions of Indian constitution relating to freedom and independency of judiciary.

Q.8. Describe the procedure for the constitution. Whether fundamental rights can be amended under Article 368 of the constitution? Refer the case laws.

Or

what do you understand by the doctrine of basic structure of the constitution

Q.9 Explain Privileges and immunities available to civil servant under Indian constitution.

Q.10. Discuss the provisions of Indian constitution relating to legislative relation between union and state ?

Or.

What do you understand by the doctrine of colourable legislation/pith and substance/ territorial nexus / interpretation of Indian constitution.

Short Questions

Q..1. Discuss the procedure of passing money bill by the parliaments.

Q.2. constitutional position of Right to property.

Q.3. write a short note on following

(a) C.A.G.

(b) Attorney General Of India