CONSTITUTION LAW – II

PART -A (5 X 6 = 30 MARKS)

1. State Legislative Councils

Ans: In our country, the Legislative Council (also known as Vidhan Parishad) is the Upper
House of a bicameral legislature. The creation of which is given in Article 169 of the Indian
Constitution and can also be abolished according to Article 169 of the Constitution.

Article 168 mentions about the Legislative Council in some of the States of our country.
There is no rule of having a bicameral legislature in the State of India. It is because our
Constitution framers knew that it will not be possible for every State to have a bicameral
legislature (due to financial or any other reason).

Article 169 talks about the creation or abolition of the Legislative Council. For the creation
or abolition of the Legislative Council, the Legislative Assembly must pass a resolution that
must be supported by more than 50% of the total strength of the assembly. It must be
supported by more than 2/3rd of the total members present in voting. Therefore, it talks
about the absolute and special majority. The resolution to create or to abolish the
Legislative Council needs the assent of the President as well.

Legislative Council (Vidhan Parishad)

The composition of the Legislative Council is given in Article 171 of the Indian Constitution.
The total members in the Legislative Council should not exceed one-third of the total
members in the state Legislative Assembly. There is another criteria for the composition of
the Legislative Council. The member in the Legislative Council should not be less than 40 in
any case. There is an exception in the composition of Vidhan Parishad. The Legislative
Council of Jammu and Kashmir has only 36 Member in Legislative Council, unlike the other
Legislative Council.

2. Money Bill

Ans: A money bill is defined under Article 110(1) of the Indian Constitution which states
that a bill is said to be a money bill only if it deals with the provisions either related to all or
any of the following matters-

1. The imposition, abolition, remission, alteration or regulation of any tax,

2. 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
obligation undertaken or to be undertaken by the Government of India,

3. The custody of the consolidated and the contingency fund, the payment of money or
withdrawal of money from these Funds,

4. The appropriations of money of the consolidated fund in India,

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 5. The declaration of any expenditure charged on the consolidated fund of India or the
increment of the amount of any such expenditure,

6. 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 the State, or

7. Any matter incidental to any of the matters specified in sub-clause(a) to (f).

A bill will not be referred to as a money bill if it mentions only the imposition of any
monetary fines or penalties, or for the demand or payment of fees for licences or any other
services given, or if it provides any imposition, abolition, remission, alteration or regulation
of any tax imposed by any local authority for local purpose.

Types of a money bill

There are two categories of money bill:

1. Appropriation Bill

Article 114 of the Indian Constitution talks about the Appropriation Bill. This bill gives
authority to the government to use the funds from the consolidated fund during a financial
year.

2. Finance Bill

This bill is presented in Lok Sabha right after the presentation of the union budget to make
the financial plans of the government operative for the subsequent financial year. All
finance bills are money bill but Finance Bill is defined under Rule 219 of the Rules and
Procedures of Lok Sabha.

3. Doctrine of Repugnancy

Ans: Article 245 empowers the Parliament to make laws for the whole or any part of India
and the State legislature to make laws for the whole or any part of the State. It also states
that a law made by the Parliament shall not be deemed invalid due to its extraterritorial
application. Further, Article 246 provides the subject-matter of laws that can be made by
the Parliament and Legislature of the States.

Repugnancy means a contradiction between two laws which when applied to the same set of
facts produce different results. It is used to describe inconsistency and incompatibility
between the Central laws and State laws when applied in the concurrent field. The situation
of repugnancy arises when two laws are so inconsistent with each other that the application
of any one of them would imply the violation of another.

One of the landmark judgments concerning this doctrine is M. Karunanidhi v. Union of

India. In this case, a constitutional bench of the Apex court considered the question of
repugnancy between a law made by the Parliament and a law made by the State legislature.

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It was observed that the following conditions should be satisfied for the application of the
doctrine of repugnancy:

i. A direct inconsistency between the Central Act and the State Act.

ii. The inconsistency must be irreconcilable.

iii. The inconsistency between the provisions of the two Acts should be of such nature
as to bring the two Acts into direct collision with each other and a situation should
be reached where it is impossible to obey the one without disobeying the other.

4. Executive Power

Ans: Article 53(1) vests in the President the executive power of the Union which shall be
exercised by him either directly or through officer’s subordinate to him in accordance with
this Constitution. Article 154(1), with respect to State Executive and specifically the
Governor, is exactly worded like A. 53(1), however, A. 156(1) states that the Governor holds
his office at the pleasure of the President unlike the tenure of the President which is fixed
at 5 years according to A. 56(1). It means that the Union Executive controls the tenure of
the Governor since he is expected to be a channel between Union and State Executive. The
Governor thus, is appointed by the President (under Article 155) and holds office at his
pleasure. The Court has time and again reiterated that the “pleasure of the President” is
“unjustifiable” and cannot be questioned since the post of the Governor is not an
employment under the Government of India.

Article 74 provides for a Council of Ministers with a Prime Minister at the head, who shall
aid and advice the President, who has to act in accordance with such advice. Article 163,
similarly, provides for a Council of Ministers with the Chief Minister at the head to aid and
advice the Governor in the exercise of his functions, except in so far as he is by or under
the Constitution is required to exercise his discretion. The Governor is expressly given a
discretionary power, the extent of which will be discussed subsequently. However, to what
extent can the President and the Governor act independently of the Council of Ministers is
another important issue to be dealt with subsequently.

5. Ordinance making power of President

Ans: Article 123 of the Indian Constitution grants the President of India certain Law
making powers i.e., to Promulgate Ordinances when either of the two Houses of the
Parliament is not in session which makes it impossible for a single House to pass and enact a
law. Ordinances may relate to any subject that the parliament has the power to make law,
and would be having same limitations. Thus, the following limitations exist:

 When legislature is not in session: the President can only promulgate when either of
the House of Parliament is not in session.

 Immediate action is needed: the President though has the power of promulgating
the ordinances but same cannot be done unless he is satisfied that there are
circumstances that require him to take immediate action.
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  Parliament should approve: after the ordinance has been passed it is required to be
approved by the parliament within six weeks of reassembling. The same will cease to
operate if disapproved by either House.

The President may withdraw an ordinance at any time. However, he exercises his power with
the consent of the Council of Ministers headed by the President. The Ordinances may have
retrospective effect and may modify or repeal any act of parliament or other ordinances. It
may be used to amend a tax law but it can never amend the Constitution.

6. Doctrine of colourable legislation

Ans: Colourable legislation comes from a legal maxim- “Quando aliquid prohibetur ex directo,
prohibetur et per obliquum” which means which is prohibited directly is also prohibited
indirectly. It means when a legislature does not have the power to make laws on a particular
subject directly, it cannot make laws on it indirectly. Colourable legislation is one of the
doctrines under the Indian Constitution. It basically means coloured legislation which is not
its true colour. So, whenever the Union or state encroaches their respective legislative
competence and makes such laws, colourable legislation comes into the picture to determine
legislative accountability of that law.

The doctrine of colourable legislation does not apply to subordinate legislation. It is based
only on the question of competency of a particular legislative body to enact a particular law.
The presumption is always in favour of the constitutionality of the law and the burden is on
the person who wants to show that there has been a clear violation of constitutional
principles. Whoever is taking any new law to the court and claiming that to be a colourable
legislation, he has to prove how the law is a colourable legislation.

In State of Bihar v. Kameshwar Singh, the Bihar Land Reforms Act, 1950 was enacted
to remove the landlord custom from the state. The State gave half of the arrears of rent
due as compensation to the landlord. The compensation for property acquired comes under
Concurrent List’s Entry 42. So, here it was to be determined whether the Act is for a public
purpose or not. The Supreme Court held that the Act instead of determining the
compensation, indirectly removes the petitioner from his property without any
compensation. In reality the Act purported to lay down a principle for determining
compensation and indirectly deprived the petitioner of claiming compensation. Thus, the Act
was colourable legislation and was held invalid.

7. Presidents Rule in States

Ans: Article 356 of the Indian Constitution gives the President the power to impose the
President’s Rule on any state in case the constitutional machinery of that state fails. When
and if the President gets a report from the Governor of the state or is otherwise convinced
or satisfied that the state’s condition is such that the state government cannot rule as per
the Constitution’s provisions, he can then, based on his assessment, impose President’s Rule
in that State or, if a state fails to adhere to all orders made by the Union on subjects over
which it has authority, President’s Rule can be enforced.

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The establishment of the President’s Rule in any state requires parliamentary consent and
must be approved by both House of Parliaments within two months of its execution.
Hereafter, a simple majority’s approval is required for the establishment of the President’s
Rule, which can stay in effect for six months. It can be prolonged for three years with
legislative permission every six months after its implementation. Article 357 contains some
consequential measures relating to the exercise of legislative powers under the proclamation
established under Article 356.

8. Pardoning Power of the President

Ans: Article 72 of the Indian Constitution confers the power of pardon on the President
and Article 161 gives the same power to the Governor.

The scope of clemency power by the President under Article 72 of the Indian Constitution
is wider than the pardoning power of the Governor as mentioned under Article 161 of the
Indian Constitution. Article 72 condors the power on the President to grant pardon,
reprieve, respites, or remissions of punishment or to suspend, remit or commute the
punishment of any person convicted in crime in the following cases-

i. Where the punishment is by court-martial.

ii. Where the punishment is for the offense against any law relating to the matters of
executive power of the union.
iii. Where the sentence is a death penalty.

Article 161 confers the power of clemency on the Governor to grant pardon etc in certain
cases. The Governor of the State shall have the power to grant clemency, reprieves,
respites, or remission of punishment or to suspend or cancel or lessen the punishment of any
person convicted of any offense.

The powers of President and Governor differs in the following ways:

i. The power of the President to grant clemency extends in the cases where the
punishment is by the Court Martial but Article 161 does not provide such power to
the Governor under Indian Constitution.
ii. The President can allow pardon in all cases where the sentence of death but the
pardoning power of the Governor does not extend to the death sentences cases.

9. Anti- Defection Law

Ans: Anti Defection Laws basically provide for the grounds under which a Member
Legislative Assembly or a Member Parliament can lose his privileges as an Elected
Representative of a party and hence can be disqualified from the party. These Grounds have
been provided under the Tenth Schedule of the Constitution. The Anti-Defection provision
was added into the constitution by the way of Tenth schedule of the constitution by the
52nd Amendment in the constitution in 1985. These provisions provide for the
disqualification of Member Parliaments under Article 102(2) and Member Legislative
Assembly under Article 191(2).

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The law of Anti Defection states that if a Member Parliament or Member Legislative
Assembly, if disqualified from the party and he will not hold the position of a nominated or
an elected individual under the party. Thus, he will lose his position as an MP or an MLA on
the following grounds for applying Anti Defection Law:

1. Voluntarily gives up the membership of the party.

2. Votes or abstains for voting or defies any party whip.

3. Joins any other party.

10. Principle of Collective responsibility

Ans: The principle of collective responsibility is the basic principle of parliamentary form of
government. The principle of collective responsibility is present under article 75(3) of the
Indian Constitution, which deals with the special provisions of this principle. Article 75(3)
provides that the council of ministers shall be put together accountable to the Lok Sabha.
The rule of collective responsibility explains that the council of ministers is as a body
responsible to the Lok Sabha for the general conduct of affairs of the government. The
council of ministers works as a team and all decisions taken by the cabinet are the joint
decisions of all its members.

The term “collective” says that each and every minister within the council of ministers
should swim together or stand and fall together. Whatever is the personal difference of
opinion within the cabinet, but once a decision has been taken by it, it is the duty of each
and every minister to adhere by it and support it both in the legislature and outside. It is
therefore important for all the cabinet members to have inline responses with the rest of
the cabinet members. And this effort will result as the principle of collective responsibility.

11. Court of Record

Ans: In Indian constitution article 129 make the Supreme Court the ‘court of record”.
Article 129 says: Supreme Court to be a court of record. The Supreme Court shall be a
court of record and shall have all the powers of such a court including the power to punish
for contempt of itself. A court of record, a court whose powers and proceedings get as
reference for perpetuity and testimony. These records are of high evidentiary value and
cannot be brought into question when presented before any other court.

12. Impeachment of Supreme Court Judges

Ans: Article 124 of the Constitution of India throws light upon the establishment of the
Supreme Court of India. Further, Article 124(4) enshrines the guidelines for the removal of
a sitting Supreme Court judge. The procedure for removal of the Supreme Court judge is
guided by Article 124(4) of the Constitution of India and the Judges (Inquiry) Act,
1968. Article 218 of the Constitution of India provides for the impeachment of High Court
judges. As per the Judges (Inquiry) Act, 1968, a motion has to be move as contemplated
under the Act and after admitting the said motion the Inquiry Committee will be
constituted for conducting the Inquiry under the chairmanship of the Speaker, on
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submission of the report of the Inquiry Committee, the same shall be placed in both the
houses of Lok Shaba and Rajya Shaba, if there any misbehaviour or incapacity finds in the
report and on adoption of the report by both the houses the same shall be sent to President
for issuing orders accordingly.

13. Judicial Accountability

Ans: Judicial accountability is nothing but a consequence of the concept of judicial

independence. Accountability generally means to be responsible for one’s actions and
decisions. Judiciary being the most important organ of our government is responsible for
passing orders and judgements and providing justice to society. Thus, it is absolutely
essential that judiciary is accountable for its actions and decisions and is not compromised
by biasness and corruption.

However, it is not clear whether the judiciary is accountable to anyone, as diplomatically

stating, the judiciary neither stands accountable to the people or the two organs of the
government. That being said, the need of accountability in the judicial system is evident.
The judiciary has been given the right to award capital punishment to the law breakers. It is
the organ of government that performs essential checks and balances and hence judicial
accountability must be taken seriously.

Judicial accountability brings about transparency and it can only be achieved if the
accountability is ensured and corruption in the system is brought to a stop. Many questions
arise as to what has gone wrong with the system. Pt. Nehru has said in a statement, “Judges
of the Supreme Court sit on ivory towers far removed from ordinary men and know nothing
about them.” Judges are also humans after all and can make errors all the time. So how can
one achieve accountability in such a system?

14. Writ of Certiorari

Ans: Certiorari is a command or order to an inferior Court or tribunal to transmit the

records of a cause or matter pending before them to the superior Court to be dealt with
there and if the order of inferior Court is found to be without jurisdiction or against the
principles of natural justice, it is quashed:

“Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is

issued in the form of an order by a superior Court to an inferior civil tribunal which deals
with the civil rights of persons and which is public authority to certify the records of any
proceeding of the latter to review the same for defects of jurisdiction, fundamental
irregularities of procedure and for errors of law apparent on the proceedings.”

The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the
Court is not entitled to act as a Court of appeal. That necessarily means that the findings of
fact arrived at by the inferior Court or tribunal are binding. An error of law apparent on the
face of the record could be corrected by a writ of certiorari, but not an error of fact;
however grave it may appear to be.

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 15. Original Jurisdiction of Supreme Court

Ans: Article 131 elucidates the original jurisdiction of the Apex Court. It provides that the
Court will be competent to exercise original jurisdiction:

 In disputes between the Union Government and one or more States

 In such disputes, where the Union Government and one or more states constitute one
party and one or more states constitute the other party
 In disputes between two or more states

The disputes under this Article must raise a pertinent question of legal right. No other
court has the power to try the disputes envisaged under this Article. The intent of the
Constitution makers behind conferring such wide jurisdiction on the Apex Court was to
ensure that the disputes of such nature are decided once and for all at the highest federal
court.

However, the proviso to Article 131 states that the jurisdiction of the Supreme Court can
be excluded by virtue of any treaty, agreement, or similar instrument. This Article is
ostensibly based on Section 204 of the Government of India Act, 1935.

Moreover, the wording of Article 131 implies that it has to be read in accordance with and
“subject” to other Constitutional provisions. Thus, the original jurisdiction under Article 131
can be restricted by other Constitutional provisions, such as in the case of disputes relating
to the operation and distribution of inter-State River waters (Article 260) or Presidential
recommendations to the Finance Commission under Article 280

16. Doctrine of Pith and Substance

Ans: The doctrine of Pith and substance is an age-old legal doctrine firmly ingrained in the
jurisprudence of the Indian constitution. The concept was first acknowledged in the
Canadian Constitution and it has been subsequently borrowed by the framers of the Indian
Constitution. First and foremost, beginning with the literal meaning of the terms “Pith” and
“Substance”:

 Pith: “True character” or “essence of something”.

 Substance: “sine qua non elements of something” or “indispensable part of

something”.

Therefore, the doctrine, in toto, can be considered as sine qua non part of something in
which its genuine essence lies.

Like Canada, India also has two legislative bodies i.e., the Centre and the state legislature
which derives its power mainly from Article 246 of the constitution. India has three lists
enumerated in Seventh Schedule accommodating various subject matters with a vivid
demarcation of matters which can be dealt with exclusively by the union or by the state.
Unlike the Canadian Constitution, there are certain subject matters enlisted in List 3 i.e.,
the Concurrent List in the Seventh Schedule on which both the Centre and State can

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legislate and exercise their powers. In Indian constitution the residual powers vest with the
Centre.

The A.P. State Council of Higher Education Act, 1988, established a State Council for
higher education in the present case. The Council’s responsibilities and tasks are divided,
and it must operate in accordance with Central UGC’s rules. The state Act is within the
legislative competence of the state legislature and does not trespass on the Central field. In
addition, the Act is not a colourable piece of legislation. It is observations by the Supreme
Court of India in State of A.P. v/s K. Purushotham Reddy (2003) that the state legislation
may only be declared ultra vires when it cannot coexist with the Central legislation. The
legislation should be construed in such a way that its constitutionality is preserved. When it
is determined that a state Act does not encroach into the legislative sphere defined by
Entry 66 List I, the state Act cannot be declared illegal.

17. Inter State Water Disputes

Ans: Article 262(1) provides that Parliament may adopt legislation for the settlement of
disputes or complaints concerning the use, distribution or control of transboundary waters
in a river or river valley. According to Article 262(2), Parliament may adopt a law which may
impede the jurisdiction of the Supreme Court or of any other court in relation to the
dispute/appeal referred to in Article 262 (1).

According to Article 262(1), Parliament may “enact” a specific law. This shows that it is up
to Parliament to pass such a law. Article 262(2) also states that ‘Parliament may legislate …’.
For the purposes of Article 13(3) of the Constitution, the term “law” may therefore include
law, order, law, regulation, regulation, notification or legal force in India. The topic of such a
right could be a transnational river or river valley.

Article 262(2) begins with the phrase “despite this constitution …”. This means that other
provisions of the Constitution that violate Article 262(2) are not applicable. For example,
when examining Article 262(2), Article 131 does not apply, which provides for the primary
jurisdiction of the Supreme Court in disputes between two or more States. If Parliament
loses jurisdiction of the Supreme Court for cross-border river water disputes, it must do so
through the mechanism referred to in Article 13(3), as the term “legal” is used.

If the Parliament has not enacted any legislation under Article 262(2), it may refer to the
Supreme Court or higher court. The term “may” is used here, which means that the
introduction of such a law depends on Parliament’s discretion.

18. All India Services

Ans: In the British era, civil servants were selected by the Court of Directors of the British
East India Company. But now, candidates for these services are selected by the Union
Government in the federal polity. They have the accountability to serve both, the state and
the centre. This mechanism makes the Union Government stronger than the state
government. During British times these services were known as Indian Civil Services. When
India got independence in 1947, Indian Civil Services (ICS) got replaced by Indian
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Administrative Services (IAS), Indian Police got replaced by Indian Police Services
(IPS) and were given recognition by the Indian Constitution as All India Services. Indian
Forest Services (IFS) was also added in 1963 and came into existence in 1966.

Article 312 was promulgated in the Constitution of India by 42nd Constitutional amendment
by adding All India Judicial Services (but till date the same is not implemented as such the
words used where the parliament may create….) The Article empowers the Parliament to
create one or more All India services that are common to the Union and the States. The
recruitment for all these services was made by the Union Public Services Commission
(UPSC).

19. Doctrine of pleasure

Ans: The doctrine originated in England. In England, the Crown is regarded as the Executive
head and the civil services are part of the Executive. The doctrine of Pleasure means that
the Crown has the power to terminate the services of a civil servant at any time they want
without giving any notice of termination to the servant. Thus, the civil servants work at the
pleasure of the Crown which can remove them at any time. When the civil servants are
removed from their service, they do not have the right to sue the Crown for wrongful
termination and they also cannot ask for damages undergone due to wrongful termination.

the President of India is the Executive Head of the Union and he enjoys the same position
as the Crown enjoys in England, the President has been vested with the power to remove a
civil servant at any time under this doctrine.

According to Article 310, except for the provisions provided by the Constitution, a civil
servant of the Union works at the pleasure of the President and a civil servant under a
State works at the pleasure of the Governor of that State. This implies that the operation
of the Doctrine of Pleasure can be limited by constitutional provisions. Under the
constitution, the following are excluded from the operation of this doctrine:

1. Judges of the Supreme Court;

2. Judges of the High Courts;

3. Chief Election Commissioner; and

4. Comptroller and Auditor General of India.

Thus, this doctrine is not absolute and is subject to Constitutional provisions. The civil
servants can also be excluded from the operation of this doctrine because they have been
provided with some protection under Article 311 and thus this doctrine’s application can be
limited to civil servants as well.

20. National Emergency

Ans: Part- XVIII of Indian Constitution deals with the Emergency provisions i.e. Articles
352 to 360. There are three types of Emergencies mentioned in the Constitution. The power
of imposing all three types of Emergencies is vested upon the President of India. The
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concept of Emergency was borrowed from the Weimar Constitution of Germany. The three
types are as follows –

 Article 352 – National Emergency

 Article 356 – President’s Rule
 Article 360 – Financial Emergency

National Emergency

Grounds for the proclamation of National Emergency are as follows:

War: When a country declares a formal war against India and there is a violent struggle
using armed forces, the President of India may impose National emergency.

External Aggression: When a country attacks another country without any formal
declaration of war. It is a unilateral attack by any country towards India. In such
circumstances, the President of India may impose a National Emergency.

Armed Rebellion: Emergency due to the armed rebellion may be imposed by the President
of India when a group of people rebel against the present government which will lead to the
destruction of lives and property.

21. Financial Emergency

Ans: Article 360 deals with “Provisions as to Financial Emergency”. Financial Emergency is
imposed by the President when there arises any situation which causes a financial threat to
India or any part of India.

Financial Emergency has never been imposed in India. However, in 1990, the possibility of
financial emergency emerged but the situation was controlled by the Indian Government as
in July 1991 the Reserve Bank of India pledged 46.91 tonnes of Gold with Bank of England
and Union Bank of Switzerland to raise $400 million.

22. State Emergency

Ans: Article 356 deals with State Emergency or President’s Rule in the State (“Provisions in
case of Failure of Constitutional Machinery in States”). The President of India has the
power to proclaim State Emergency when he receives a report from the Governor of that
particular State explaining that the situation in the State Government is such that they
cannot carry out the Constitutional provisions.

President’s Rule has been imposed on the State of Jammu and Kashmir for six years and 264
days from January 19, 1990, to October 9, 1996. The State has always been a target for
many external elements. The Indian Government imposed President’s Rule to control the
situation of Jammu & Kashmir which was facing a military threat from Pakistan.

23. Public Service Commission

Ans: The government of India act, 1919 provided for the establishment of a Public Service
Commission to discharge such functions as may be assigned in the relation to the
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recruitment and control of public services in India. the government of India Act 1935, this
public service commission was converted into Federal Public Service Commission after the
enforcement of the constitution on 26th January 1950 the name of the Federal Public
Service Commission was changed to Union Public Service Commission. The Commission has
been constituted under article 315 of the Constitution.

Article 315 to 323 of Part XIV of the Indian Constitution deals with the composition of
UPSC, SPSC, appointment, and removal of its members, and the powers and functions of
UPSC, SPSC. Under this provision, JSPSC is also mentioned.

COMPOSITION OF U.P.S.C AND S.P.S.C

 Both U.P.S.C and S.P.S.C consists of one chairman and other members at central and
state level respectively.

 The commission consists of 9 to 11 members including the chairman, though the

number is nowhere defined or mentioned and it varies from time to time and is
decided by the president in case of UPSC and by the governor in case of SPSC.

 The present strength of the commission is 11 which is a chairperson and 10 other

members.

APPOINTMENT OF MEMBERS

The appointment of members of UPSC and SPSC is mentioned under article 316 of the
Indian constitution.

 The chairman and other members of UPSC and SPSC are appointed by the president
and governor of the state respectively.

 Though there is no specific qualification is mentioned in the constitution, one-half

(50%) of the UPSC members must be those who have served in a government office
for at least 10 years.

 The person to be appointed as a member of UPSC and SPSC should hold any office of
profit under the central or state government.

 When the chairman post is vacant or when the chairman is unable to perform his
duties, then the president and governor can appoint one of the members of UPSC and
SPSC as the chairman of UPSC and SPSC respectively.

TENURE and REMOVAL:

In the case of UPSC any member can hold office till the age of 65 years or for a term of six
years whichever is earlier, In the case of SPSC any member can hold the office till the age
of 62 years or for a term of six years whichever is earlier.

Chairman of the UPSC and SPSC can leave their offices at any time by addressing their
resignation to the president and governor respectively. In both cases UPSC and SPSC the

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president can remove the chairman or any other member on the ground (Removal provision is
given under article 317):

 If he sees any member unfit

 If the chairman and any member dissolve insolvent on the view of the president
 During his tenure of office if chairman or any member engaging in any offers which
give him payment.

But on the ground of misbehaviour then the president will consult or refer the case to the
supreme court, then the supreme court will form a body which will investigate those cases
and the supreme court will advise the president and that advice is binding on the president.

The president and governor can suspend the member and chairman of UPSC and SPSC
respectively during the period when the matter is being inquired by the supreme court.

24. Promissory Estoppel

Ans: The doctrine of promissory estoppel cannot be applied against the government if it
endangers the constitutional powers of the government. Similarly, the plea of estoppel
also may not be enforced against the government if it has the effect of repealing any
constitutional provision intended for the protection of the general public.

In C. Sankaranarayan v State of Kerala, a notification was issued under Article 309 of the
Constitution, raising the age for retirement while a later notification brought it down again.
The Supreme Court, in this case, rejected the contention of estoppel and held that the
powers conferred by Article 309 could not be curtailed by any agreement.

Part – B (2 X 15 = 30 Marks)

1. Explain the constitutional Provisions relating to President of India with regard to

Election, Qualifications, Powers and Privileges. (Nov 2012)
Explain the method of Election of the President of India (May 2014)
What are the powers of President of India with special reference to the
Pardoning Powers. (Sept 2016)
Discuss the Powers and functions of the President of India under Indian
Constitution. (Sept 2018) (Dec 2020)
Explain the process of Electing the President of India and his powers (Sept
2021)
Explain the Constitutional position of the President of India in the light of his
powers and functions (Oct 2012)

Ans: The Indian President is the head of the state. He is the first citizen of India and is a
symbol of solidarity, unity, and integrity of the nation. He is a part of Union Executive
along with the Vice-President, Prime Minister, Council of Ministers, and Attorney-
General of India.

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How is President elected?
There is no direct election for the Indian President. An electoral college elects him. The
electoral college responsible for President’s elections comprises elected members of:
1. Lok Sabha and Rajya Sabha
2. Legislative Assemblies of the states (Legislative Councils have no role)
3. Legislative Assemblies of the Union Territories of Delhi and Puducherry
Who does not take part in the President’s elections?
The following group of people is not involved in electing the President of India:
1. Nominated Members of Rajya Sabha (12)
2. Nominated Members of State Legislative Assemblies
3. Members of Legislative Councils (Both elected and nominated) in bicameral
legislatures
4. Nominated Members of union territories of Delhi and Puducherry

What is the term of the President’s office?

Once President is elected, he holds office for five years. He sits in the office even after
the completion of five years given no new election has taken place or no new President has
been elected till then. He can also be re-elected and there is no cap on his re-election.

What are the qualifications of the President?

A candidate has to meet some qualifications to be elected as the president. Those
qualifications of the President are:
1. He should be an Indian Citizen
2. His age should be a minimum of 35 years
3. He should qualify the conditions to be elected as a member of the Lok Sabha
4. He should not hold any office of profit under the central government, state
government, or any public authority

What are the conditions of the President’s office?

There are a few conditions for the candidate running for the President’s elections:
1. He cannot be a member of Lok Sabha and Rajya Sabha. If he has been a member of
either of the house, he should vacate the seat on his first day as President in the
office
2. He should not hold any office of profit
3. For his residence, Rashtrapati Bhavan is provided to him without the payment of rent
4. Parliament decides his emoluments, allowances and privileges
5. Parliament cannot diminish his emoluments and allowances during his term of office
6. He is given immunity from any criminal proceedings, even in respect of his personal
acts
7. Arrest or imprisonment of the President cannot take place. Only civil proceedings can
be initiated for his personal acts that too after giving two months’ of prior notice.

What are the powers and functions of the President of India?

Executive Powers of President
1. For every executive action that the Indian government takes, is to be taken in his
name

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 2. He may/may not make rules to simplify the transaction of business of the central
government
3. He appoints the attorney general of India and determines his remuneration
4. He appoints the following people:
i. Comptroller and Auditor General of India (CAG)
ii. Chief Election Commissioner and other Election Commissioners
iii. Chairman and members of the Union Public Service Commission
iv. State Governors
v. Finance Commission of India chairman and members
5. He seeks administrative information from the Union government
6. He requires PM to submit, for consideration of the council of ministers, any matter on which
a decision has been taken by a minister but, which has not been considered by the council
7. He appoints National Commissions of:
i. Scheduled Castes (Read about National Commission for Scheduled Castes in
the linked article.)
ii. Scheduled Tribes Read about (National Commission for Scheduled Tribes in
the linked article.)
iii. Other Backward Classes (Read about National Commission for Backward
Classes in the linked article.)
8. He appoints inter-state council
9. He appoints administrators of union territories
10. He can declare any area as a scheduled area and has powers with respect to the
administration of scheduled areas and tribal areas
Legislative Powers of President
11. He summons or prorogues Parliament and dissolve the Lok Sabha
12. He summons a joint sitting of Lok Sabha and Rajya Sabha in case of deadlock
13. He addresses the Indian Parliament at the commencement of the first session after every
general election
14. He appoints speaker, deputy speaker of Lok Sabha, and chairman/deputy chairman of Rajya
Sabha when the seats fall vacant (to know the difference between Lok Sabha and Rajya
Sabha check the linked article.)
15. He nominates 12 members of the Rajya Sabha
16. He can nominate two members to the Lok Sabha from the Anglo-Indian Community
17. He consults the Election Commission of India on questions of disqualifications of MPs.
18. He recommends/ permits the introduction of certain types of bills (to read on how a bill is
passed in the Indian Parliament, check the linked article.)
19. He promulgates ordinances
20. He lays the following reports before the Parliament:
i. Comptroller and Auditor General
ii. Union Public Service Commission
iii. Finance Commission, etc.

Financial Powers of President

1. To introduce the money bill, his prior recommendation is a must
2. He causes Union Budget to be laid before the Parliament
3. To make a demand for grants, his recommendation is a pre-requisite

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4. Contingency Fund of India is under his control
5. He constitutes the Finance Commission every five years

Judicial Powers of President

1. Appointment of Chief Justice and Supreme Court/High Court Judges are on him
2. He takes advice from the Supreme Court, however, the advice is not binding on him
3. He has pardoning power: Under article 72, he has been conferred with power to grant
pardon against punishment for an offence against union law, punishment by a martial court,
or death sentence.
Note: Pardoning powers of the president includes the following types:
 Pardon with the grant of pardon convicts both conviction and sentence completely
absolved
 Commutation with this nature of the punishment of the convict can be changed
 Remission reduces the term of the imprisonment
 Respite awards lesser punishment than original punishment by looking at the special
condition of a convict
 Reprieve stays the execution of the awarded sentence for a temporary period

Diplomatic Powers of President

1. International Treaties and agreements that are approved by the Parliament are
negotiated and concluded in his name
2. He is the representative of India in international forums and affairs

Military Powers of President

He is the commander of the defence forces of India. He appoints:
1. Chief of the Army
2. Chief of the Navy
3. Chief of the Air Force

Emergency Powers of President

He deals with three types of emergencies given in the Indian Constitution:
1. National Emergency (Article 352)
2. President’s Rule (Article 356 & 365)
3. Financial Emergency (Article 360)
What is the Ordinance Making Power of the President?

Article 123 deals with the ordinance making power of the President. The President has many
legislative powers and this power is one of them. He promulgates an ordinance on the
recommendation of the union cabinet.
What is the Veto Power of the President?
When a bill is introduced in the Parliament, Parliament can pass the bill and before the bill
becomes an act, it has to be presented to the Indian President for his approval. It is on the
President of India to either reject the bill, return the bill or withhold his assent to the bill.
The choice of the President over the bill is called his veto power. The Veto Power of the
President of India is guided by Article 111 of the Indian Constitution.

2. Explain the position of Union Council of Ministers vis-a-visa the President. (Aug
2012) (Aug 2014)
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 Explain the relation between the President and the Union Council Ministers.
(Sept 2019)

Ans: President’s Relation to His Council of Ministers in India

Until the Forty-second Amendment to the Constitution settled the issue, there was a great
deal of academic debate over the role contemplated, in the Constitution of India for the
President of the Republic.
Dr. Rajendra Prasad gave an edge to the controversy by drawing attention to the fact that
‘there is no provision in the Constitution which in so many words lays down that the
President shall be bound to act in accordance with the advice of his Council of Ministers”.
One view was that the President of India could not become a ‘real’ executive except by
ignoring the Constitution. As against this, there was a small, but apparently growing, school
of thought which tended to take an ultra-literal view of certain Constitutional Clauses and
drew the conclusion that the President had considerable ‘real’ powers which he could use at
his discretion.

A third school of thought took a middle position, namely, that while the President was a
Constitutional head of State and acted ordinarily on the advice of the Ministers he had
unspecified “reserve” powers, as guardian of the Constitution, to be used by him at his
discretion. However, the intention of the founding fathers is not quite clear. “The
President,” Dr. Ambedkar declared, “occupies the same position as the king in the British
Constitution.”

He can do nothing contrary to their (Ministers’) advice. The President’s ‘symbolic’ position
was repeatedly stressed. According to Dr. Ambedkar, he is “the head of the State, but not
of the Executive”. At the same time, it is suggested that the framers expected the
President to be more than a mere rubber stamp, as in Jawaharlal Nehru’s view the President
of India would not be an automaton like the President of France: “We did not give him any
real powers but we have made his position one of authority and dignity.”

The 42nd Amendment Act of 1976 amended Article 74 (1) to clearly state that the
President was bound to act in accordance with the advice of his Council of Ministers; earlier
there was no express provision to this effect in the Constitution. After the 44th
Amendment Act of 1978 the President has no power, except in certain marginal cases, to act
in his discretion.

He was not only bound to act according to the advice of his Council of Ministers, but also be
liable to impeachment for violation of the Constitution if he refused to act by the advice.
He has been given the new power to send back to the Council of Ministers for
reconsideration the advice given by them in any particular case.

He can do so only once and if the Council of Ministers adheres to their previous advice, the
President has no option but to act in accordance with the advice. The Amendments clarify
the real position of the President of India who is and was meant to be a Constitutional head.
The Indian President, thus, possesses the British monarch’s three traditional rights—the
right to be consulted, the right to encourage and the right to warn. The doctrine that, in
unforeseen situations, the President can act without or even against ministerial advice,

17
because he is a “custodian” of the Constitution or the “supreme guardian of the democratic
process” is no longer tenable.

But, at the same time, the amendment so made has erred on the other side, by making it an
absolute proposition, without keeping any reserve for situations when the advice of a Prime
Minister is not available (e.g., in the case of death); or the advice tendered by the Prime
Minister is improper according to British conventions, e.g., when a Prime Minister defeated
in Parliament successively asks for its dissolution.
a. So far as the contingency arising from the death of the Prime Minister is
concerned, it instantly operates to dissolve the existing Council of Ministers.
Hence, it would appear that notwithstanding the 1976-78 Amendments of Art.
74 (1), the President shall have the power of acting without ministerial advice,
during the time taken in the matter of choosing a new Prime Minister, who, of
course, must command majority in the House of the People. In this
contingency, no Council of Ministers exists, on the death of the erstwhile
Prime Minister.
b. But as regards the contingency arising out of a demand for dissolution by a
Prime Minister who is defeated in the House of the People, it cannot be said
that no Council of Ministers is in existence. On the amended Act. 74 (1), the
President of India, must act upon the request of the defeated Council of
Ministers even if such request is improper, e.g., on a second occasion of
defeat.

3. Explain the privileges of Union and State Legislation. (July 2012)

Describe the Privileges and immunities of Legislative with the help of decided
cases. (July 2012) (Aug 2012)
Examine the privileges of Legislature under the Constitution of India. (Sept
2015)
Explain powers, privileges and immunities of legislature in India. (Sept 2017)
Discuss the Privileges and immunities of Member of Parliament with the help of
decided cases. (June 2018)

Ans: Article 105 and Article 194 grant privileges or advantages to the members of the
parliament so that they can perform their duties or can function properly without any
hindrances. Such privileges are granted as they are needed for democratic functioning.
These powers, privileges and immunities should be defined by the law from time-to-time.
These privileges are considered as special provisions and have an overriding effect in
conflict.

Privileges mentioned in the constitution

Freedom of speech and publication under parliamentary authority
This is defined under Article 105(1) and clause (2). It gives the members of parliament
freedom of speech under clause (1) and provides under Article 105(2) that no member of
parliament will be liable in any proceedings before any Court for anything said or any vote
given by him in the Parliament or any committee thereof. Also, no person will be held liable
for any publication of any report, paper, votes or proceedings if the publication is made by
the parliament or any authority under it.
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The same provisions are stated under Article 194, in that members of the legislature of a
state is referred instead of members of parliament.

Both the Articles, Article 19(1)(a) and Article 105 of the Constitution talks about freedom
of speech. Article 105 applies to the members of parliament not subjected to any
reasonable restriction. Article19(1)(a) applies to citizens but are subject to reasonable
restrictions.

Article 105 is an absolute privilege given to the members of the parliament but this privilege
can be used in the premises of the parliament and not outside the parliament.

If any statement or anything is published outside the parliament by any member and if that
is reasonably restricted under freedom of speech then that published article or statement
will be considered as defamatory.

Case Law
Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukherjee And Others, AIR 1961 SC 613
The appellant is an elected member of the West Bengal Legislative Assembly. The appellant
had an intention to ask certain questions in the assembly and therefore he gave the notice
for the same. The questions to be asked in the assembly were refused in compliance with
the rules of procedure for the conduct of the business in the assembly. But the appellant
published those questions he was not allowed to ask in the assembly in a local newspaper
called JANAMAT.

The first respondent, who was then functioning as a Sub-Divisional Magistrate and because
of whose conduct the matter of questions arose, filed a complaint against the appellant and
two others, the editor and the printer and publisher of those questions. The petition
contained the fact that the appellant had made slanderous accusations against him with an
intention to be read by the members of the public. These accusations were false and the
appellant published them, having an intention of harming the reputation of the complainant.
He also alleged that publishing such false questions in the journal first requires prior
permission by the government in instituting the legal proceeding against the public servant.
In this case, it was held that the provisions of Article 194 even though disallowed by the
speaker were a part of the proceedings of the house and publication for the same will not
attract any sections of the Indian Penal Code.

He will not be prosecuted, as Article 194(1) not only gives them freedom of speech but also
give the right to ask questions and publish them in the press.

P.V. NARSIMHA RAO v. STATE (1998)

The facts of the case are – some of the MP’s received bribes to vote against the motion of
no-confidence against the Prime Minister P.V. Narsimha Rao. He was charged under IPC and
Prevention of Corruption Act on the grounds that he bribed some MPs to vote against the
no-confidence motion when he was serving as the Prime Minister. In this case, the question
arose that under Article 105(2) does any member of parliament have any immunity to
protect himself in criminal proceedings against him?

19
It was held by the majority of the Court that under Article 105(2) the members of the
parliament will get immunity and thus, the activity of taking bribe by the MP’s will get
immunity despite anything said by them or any vote given by them in the Parliament. The
Court further explained that the word “anything” here will be interpreted as a wider term.
The Court interpreted the term “anything” in a wider sense and did not prosecute P.V.
Narsimha Rao.

Power to make rules

The Parliament has the power, which is given by the Constitution of India, to make its own
rules but this power is subjected to the provisions of the Constitution. Though it can make
its own rules, the rules should not be made for its own benefit. If they make any rule which
infringes any provision of the Constitution then it would be held as void.

Internal independence/autonomy
For the effective working of both the houses of parliament and their members, internal
independence should exist without the interference of any outside party or person. The
houses can deal with their respective issues internally without any interference of the
statutory authority.

The Indian Judiciary might not interfere with the proceedings or issues dealt in the
parliament or by the members in the course of their business. Nevertheless, it may
interfere in the proceedings if it is found to be illegal or unconstitutional.

Freedom from being arrested

The member of parliament cannot be arrested 40 days before and 40 days after the session
of the house. If in any case a member of Parliament is arrested within this period, the
concerned person should be released in order to attend the session freely.

Right to exclude strangers from its proceedings and hold secret sessions
The object of including this right was to exclude any chances of daunting or threatening any
of the members. The strangers may attempt to interrupt the sessions.

Right to prohibit the publication of its reporters and proceedings

The right has been granted to remove or delete any part of the proceedings took place in
the house.

Right to regulate internal proceedings

The House has the right to regulate its own internal proceedings and also has the right to
call for the session of the Legislative assembly. But it does not have any authority in
interrupting the proceedings by directing the speaker of the assembly.

Right to punish members or outsiders for contempt

This right has been given to every house of the Parliament. If any of its members or maybe
non-members commit contempt or breach any of the privileges given to him/her, the houses
may punish the person.

The houses have the right to punish any person for any contempt made against the houses in
the present or in the past.

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Privileges and fundamental rights
Part III of the Constitution contains fundamental rights wherein Article 19(1)(a) grants
freedom of speech to the citizens. It is subjected to reasonable restrictions. These
restrictions are:-
 Sovereignty and integrity of India should be maintained,
 Security of the states should be maintained,
 Public order should not be disturbed,
 Decency and morality should be maintained,
 Defamation should be avoided,
 Incitement to an offence should be avoided,
 Contempt of court should be avoided,
 Friendly relations with foreign states should be maintained.
Where on the other hand the members of parliament have been granted powers, privileges
etc. their powers or privileges are absolute unlike fundamental rights for the citizens. The
Parliament enjoys mostly all the supreme powers while making laws and exercise its power to
the best possible extent because of the absolute nature of its powers and privileges.

The powers of the legislators are too wide such as they decide their own privileges, include
points which can breach the laid down privileges, and also decide the punishment for that
breach. Article 105(3) and Article 194(3) states that the parliament should from time to
time define the laws or pass the laws on the powers, privileges and immunities of the
members of the parliament and members of the legislative assembly.

Case Law
Gunupati Keshavram Reddy v. Nafisul Hasan and the State of U.P AIR 1952
The facts of the case:- The U.P. Legislative Assembly issued a warrant against the Home
Minister who was arrested from his residence in Bombay on the ground of contempt of the
house. The Home Minister under Article 32 applied a writ of Habeas Corpus on the ground
that his detention under Article 22(2) violates his fundamental right.

The Supreme Court accepted the arguments and ordered his release according to Article
22(2). He was not presented before the magistrate within 24hrs of his arrest or detention.
Not presenting him before the magistrate resulted in the violation of his fundamental right
under Article 22(2). In this case, it was opined that Article 105 and Article 194 cannot
supersede the fundamental rights.

MSM Sharma v. Sri Krishna Sinha AIR 1959 SC395

The facts of the case:-the petitioner is the editor of the English Daily newspaper of Patna.
He published a report on the proceedings of the Bihar Legislative Assembly and the reports
were said to be removed by the speaker. The editor was presented before the Legislative
Assembly to give reasons for the breach of privilege committed by him. At first, he was
held guilty for his conduct. Then, in an appeal, the editor under Article 19 (1)(a) argued that
he has a right to freedom of speech. But the Court denied all the arguments based on
Article 19(1)(a) as it is a general provision and Article 194 is a special provision. If at any
time both of these articles come under any conflict the latter will prevail over the former.
As the general provision cannot overrule the effect of the special provision.

21
It has also been suggested that if both Articles, Articles 19(1)(a) and 194, are in conflict,
the rule of Harmonious Construction (every statute should be read as a whole and
interpretations consistent of all the provisions of the statute should be adopted when in
conflict of any statute or any part of the statute) should be applied.

Privileges and the law courts

Article 143 confers the power on the President to consult the Supreme Court if at any time
it appears to the President that a question of fact or a law arises or may arise in future.
Also, such questions must be of public importance or it must be advantageous to seek the
opinion of the Supreme Court. And after such hearing, if the court thinks it relevant, it may
give its opinion to the President.

The house of parliament though have a lot of powers, privileges and immunities but despite
all these advantages it cannot act or perform similar to a Court. The Courts are the one who
interprets the laws or acts passed by the parliament. For instance, if any offence is
committed even in the house of parliament the jurisdiction vests with the ordinary Courts.

Case Law
In Keshava Singh v. Speaker, Legislative Assembly
The facts of the case – Keshava Singh, who was a non-legislative member of the assembly,
printed and published a pamphlet. Because of the printing and publishing of the pamphlet,
the Speaker of the U.P. Legislative assembly criticized him for contempt and breach of the
privilege of one of the members. On the same day, Mr Keshava being present in the house
committed another breach by his conduct. As a result of his conduct in the house, the
speaker directed him to be imprisoned, issued a warrant for the same and ordered his
detention in jail for 7 days.

Under Article 226, a writ of Habeas Corpus was applied in his petition. The petition claimed
that the detention in jail is illegal and is done with malafide intentions. The petition also
stated that he was not given any chance to explain or defend himself. The petition was
heard by the 2 judges who gave them interim bail.

As a result of the decision in Keshava’s case, the assembly passed a new resolution. In this
resolution, it was laid that the 2 judges entertained the writ filed by the petitioner and his
lawyer. In its resolution, the assembly issued a contempt notice to present the two judges
and the lawyer before the house and explain the reasons for their conduct. It also ordered
that Keshava should be taken into custody. Under this, they moved petitions under 226 and
filed a writ of mandamus before the Allahabad High Court to set aside the resolution passed
by the assembly.

It was held by the majority of the Supreme Court that the conduct of the 2 judges does
not amount to contempt. The Court further explained that if in the matters of privileges
stated under Article 194(3) then the house will be considered as the sole and exclusive
judge provided that it should be stated in that. But if any such privilege is not mentioned in
the article then it’s the Court who has to decide upon it.

4. Explain the Doctrine of Tortious Liability of State with the help of decided case
claws. (Oct 2012)

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 Explain the Tortious Liability of State with the help of landmark decisions. (Sept
2015)
Explain the recent trends in relation to the Tortious Liability of State (Sept
2019)

Ans: As there is no legislation which specifies the vicarious liability of the state for the
torts committed by its servants, it is under Article 300 of The Constitution of India, 1950
by which enumeration of the right to file a suit comes from.

Article 300
Suits and Proceedings
(1) The Governor of India may sue or be sued by the name of the Union 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 of 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 Indian States might have sued or been sued if this
Constitution 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; and
b. any legal proceedings are pending to which a 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.

A general reading of part 1 of the Article tells about suing the state and other dominions by
their name in the same way as they have been if the constitution had not been enacted. Part
2 talks about pending legal proceedings against the state and provides to substitute
dominion of India with Union of India and province with Indian State respectively in clauses
(a) and (b).

Landmark judgements on Constitutional Tort

P & O Navigation Company v Secretary of State for India–
This was the first case in which the Sovereign immunity of the state was debated. There
was a piece of a funnel made up of iron which was being carried by some workers on a
Government’s steamer, which in its way hit plaintiff’s horse-driven carriage. Plaintiff sued
the Govt. for damages due to negligence on the part of the servants employed by the govt.
Held- “The Government cannot be held liable when the injuries are caused while carrying
out sovereign functions but is liable when the acts of the servants are non-sovereign
functions”.

Nobin Chunder Dey v Secretary of State–

When the Plaintiff pleaded for damages for refusal of Government to give him licence to
sell liquor and drugs, it was held that it was out of sovereign functions of the state and
thus, is out of reach of tortious liability. Since this decision, the distinction between

23
sovereign and non-sovereign functions is the foremost criteria that are looked into by the
courts in their judgements.

Rajasthan v Mst. Vidyawati–

The facts were that in this case- a Government jeep hit a pedestrian who eventually died of
an accident. The plea of Sovereign immunity was rejected but it was held that the
government cannot be held liable for the “Act of State” under Article 300. Compensation of
Rs. 15000 was given. The Hon’ble Supreme Court stated that “in the modern era, the liability
of State is not limited to Sovereign functions, but is socialistic and is related to the welfare
of the people and thus, the old immunity of State functions is irrelevant”.

Kasturi Lal v State of Uttar Pradesh–

The police seized the gold which belonged to the Plaintiff. The head constable later
misappropriated the gold and flew with it to Pakistan. The Court did not take account of the
judgement in Vidyawati case and ruled in favour of the State stating that the act was
sovereign in nature. It was held that the law established in P & O Navigation is still good
law. The court was not pleased as it could help the Plaintiff with its ruling. Through this
judgement, in addition to disapproving the law in Vidyawati, it was also added by the Court
that the state is not liable when the tort is done in statutory power by its servants.

N. Nagendra Rao v State of Andhra Pradesh–

t was held that the ratio of Kasturi Lal is applicable in rare cases only where the statutory
authority to carry out certain functions are delegated. In any civil society, the state cannot
be allowed to play with the rights of the citizens and take the plea of sovereign function and
thus, it cannot be treated above and against the rule of law.

Devaki Nandan Prasad v State of Bihar–

In this landmark ruling, the Apex court laid the foundation of new reasoning in matters
involving constitutional tort and compensation. In this case, the plaintiff who has been
denied his pension, without much discussion, was allowed to recover exemplary damages of
Rs. 25000 for being harassed by the defendant deliberately.

Rudal Shah v State of Bihar– In this case, the petitioner had filed a case against the
state for his illegal imprisonment for 14 years and asked for compensation and rehabilitation
cost. The question presented before the Apex court was whether the court can award
monetary damages under its jurisdiction as given in Article 32 or not.

The court gave the answer in affirmative by stating that monetary damages under article 32
may be granted and thus gave a judgement that proved to be a giant leap in the cases
involving both constitutional tort and compensation.

The judgement formulated two landmark rules by holding that:

1. Civil liability can arise when constitutional rights are violated.
2. Civil liability can also emerge when there is a violation of personal liberty.

Saheli v Commissioner of Police–

In this judgement, the ratio in Vidyawati was revisited and upheld by its application. When a
child died by police assault and beating, the compensation of Rs. 75000 was granted and the

24
Delhi Administration was allowed to recover the same from the officials which were
responsible for the incident.

Common Cause, A registered society v Union of India–

In this judgement, the court ruled that when there is a violation of fundamental rights of
the person, the remedy for him is available under public law despite the fact that there is
an optional remedy in private law also. The distinction between damages and remedies given
in private and public law were evaluated and this judgement opened the way for the
development and growth of public law torts increasing State’s liability.

Growth of remedy under Constitutional Tort

The principle established in Rudal Shah established and crystallized the concept of
constitutional torts. The court did not follow a rapid formulation of law but instead stick to
the case by the case evolution as per the need. In Sebastian Hongray v Union of India,
when two persons whisked away by the Sikh regiment were found missing, a writ petition of
habeas corpus was filed by a JNU student under Article 22. The court issued a command to
the respondents i.e. UOI, State of Manipur and Commandant, Sikh Regiment. In the events
followed in the course of the inquiry, the Court discovered that the respondents misled the
inquiry and committed wilful disobedience. In the subsequent judgement, the Court awarded
the exemplary damage of 1 lakh each to the wives of both the individuals who had
disappeared after they were taken into custody, ignoring the common consequences of
imprisonment and fine in such circumstances.

The doctrine of constitutional tort has grown in many steps. Some of the established
principles are as follows:
1. Doctrine to Entertain Appropriate Cases
The court in Bhim Singh v State of J & K states that the court will entertain only
appropriate cases but it did not elaborate more on the qualification criteria for a case to be
called as an appropriate case. The case was related to the illegal detention of an MLA so
that he cannot attend the proceedings of the house. His wife filed a writ of habeas corpus
under Article 32 of the constitution.

The decision of detention was held violative of Article 21 along with Article 22 (1). Although
at the time of judgement the MLA was free, still the court chose to grant exemplary
damage by monetarily compensating. The court observed, “when a person comes to us for
the remedy for violation of his constitutional and legal rights, and the court finds it as an
appropriate case, it may award exemplary damages”.And, the court awarded Rs. 50000 to
Bhim Singh.

The trinity of cases i.e. Rudal Shah, Sebastian Hongray and Bhim Singh ensured state’s
liability for compensating a person who is illegally detained by it thus, violating his right to
life and personal liberty.

In MC Mehta, there was a reiteration of appropriate cases doctrine but in more elaborative
manner, the court stated that “an appropriate case may be considered as a case when there
is a gross and potent infringement of a person’s right in a manner whose magnitude may
shock the court”. In addition, it was stated, “the decision of qualification of a case as

25
appropriate or not is inclusive and not conclusive and the court is free to decide on the
question based on the facts and circumstances of each case separately based on its merit”.

The role of High Courts in awarding compensation was recognised by the Apex Court in the
case of State of Maharashtra v Ravi Kant S Patil where a person was paraded on the
street with handcuffs without any justification, the Court awarded compensation of Rs.
10000 by the police officer himself and directed the government to make an entry into the
policemen’s service record that he violated a person’s right without any valid justification.
However, in appeal, the Apex Court upheld the judgement but ordered the government to
compensate instead of compensation from the officer himself and also directed to avoid
making an entry in the official records. This was a contrary step from the law in Saheli v
Commissioner of Police when the recovery was allowed by the officer himself. However, in
this case, HC’s role under Article 226 for providing compensation was recognised and helped
the High Courts to enjoy the authority vested in them for providing damages in future.

2. Constitutional Tort and the end to Sovereign Immunity

Although, with the cases like Bhim Singh and Rudal Shah the law of constitutional tort was
evolving, the Courts did not take recourse to the law in Kasturi Lal. The decision in Kasturi
Lal was neither reiterated nor overruled.

The claim of damages in every case of infringement of fundamental rights was obvious in
every judgement, but there was no refinement of the doctrine of fixing the liability or
dealing with the provision of remedy. There was a demand by legal scholars that unless the
law in Kasturi Lal is discussed, the arrangement of providing compensation in breach of
fundamental right will only be understood as a provision on an ad-hoc basis.

The Hon’ble SC in the case of Nilabati Behera v State of Orissa clarified the law after
passage of one decade of judgement in Rudal Shah. Nilabati Behera was a case which came
before SC through PIL and was related to the custodial death of a 22-year-old boy whose
body was discovered lying on the railway track on the day after he was sent for police
custody. The court directed the State to pay Rs. 1.5 lakhs to the mother of the victim. In
addition, there were many observations made by the court. Some of those are as follows:
1. The Court clarified the observations in Rudal Shah that “a remedy under Article 32
or 226 may be denied if the claim presented before the court is controversial in
facts and that monetary claims are allowed under Article 32 and 226”. The Court
stated, “the remedy under both the articles is precise and available in all the cases
distinctively, in addition to an alternate remedy, if there is a violation of fundamental
right”.
2. The liability under private law and liability of state under violation of fundamental
rights by the State was distinguished and the Court observed “even though the
defence of sovereign immunity and exceptions to strict liability may apply in cases
dealing under private law, they are not applicable when the case is relating to
infringement of rights by the State under public law. The award of compensation is a
recognised remedy under Article 32 and 226 and the Court must remember the
distinction while entertaining both types of cases”.
3. The provision of compensation from the State in the event of an infringement of
fundamental rights is an inherent remedy under the constitution. The question of
26
 sovereign immunity is not even a question to ask by the State to prevent itself from
providing damages to the victim and is alien to the idea of guaranteeing fundamental
rights to every citizen of the country.

In addition, it is the only practical mode available for remedying the victim and thus it
provides a justification for exemplary damages in monetary form. The court further stated,
“the enforcement of fundamental rights by taking recourse to the provision under Article
32 and 226 is the law in Rudal Shah and thus, it provides a basis for subsequent decisions”.
Even though in the majority of cases which deal with constitution tort, the remedy has been
provided for infringement of article 20 and 21, there are some exceptions too. In the cases
of Assam Sillimite Ltd. v. India and Gajanan Vishweshwar Birjur v. India, there was a
violation of other fundamental rights.

In Assam Sillimite case, the compensation was provided for infringement of article 19(1)(g).
The dispute was over the cancellation of the lease without giving any chance of hearing. The
act was also not in line with the principle of natural justice.

In Gajanan Vishweshwar case, the honourable Supreme Court quashed the order of seizure
of some books, when the concerned authority was not able to provide a satisfactory answer
on grounds of confiscation under section 111 of the Customs Act. Rs. 10000 was awarded as
compensation as the act of administration was held to be resulting in violation of petitioner’s
right under article 19 (1)(a) of the Indian Constitution.

3. Compensation for Constitutional Tort under SLPs (Article 136 of the Indian
Constitution)
Supreme court faced heavy criticism for awarding damages under article 32 but not under
article 136. It was argued that a plea for compensation under article 136, if not higher in
merit, is at equal footing with that of article 32.

However, this was not always a case. In State of Haryana v Smt. Santra, when the
sterilization failed and the woman gave birth to a baby, the suit for compensation was
allowed as an SLP and the Supreme Court rejected the defence of sovereign immunity.

The Court held ” the contention regarding vicarious liability of the doctor of the
government hospital cannot be accepted as a case of negligence on the part of the doctor
only. As the operation was done in a government hospital, the theory of sovereign immunity
is not applicable”.

The court also referred to the cases of N. Nagendra Rao v Union of India, Common
Cause, and Achutrao Khodwa which was related to sterilization operation.

4. Defence of Sovereign immunity in Civil Law Proceedings

The apex Court differentiated the remedy under public law, civil law and private law in the
landmark judgement of Nilabeti Behera. It was concluded that although the defence of
sovereign immunity applies to cases of private law such as tort, it does not apply to
compensation resulting under Articles 32 and 226.

The case of C. Ramakonda Reddy v State of AP may be considered as a landmark

judgement in this regard. The High Court of Andhra Pradesh pronounced a highly prognostic
verdict in this case which was later affirmed by the Supreme Court. In this case, due to the

27
negligence of the prison authority, one of the accused died due to the entry of an outsider
into the jail premises which planted a bomb in order to kill the deceased, one of the accused
person.

The incident took place due to misfeasance and malfeasance of the defendants i.e. the
State. The damage to the plaintiff was calculated to be Rs. 10 lakhs. Subsequently, the
State denied its liability and contended that it is not to be sued for its sovereign functions
which were, in this case, the maintenance of the jail. The judgement was declared in State’s
favour.

In the appeal, the HC observed, “the right to life cannot be defeated by the archaic
defence of sovereign functions and when the person is denied his right to life and liberty, it
is not a valid argument that the deprivation was due to the state carrying out its sovereign
functions.”

Observing the facts, the Court awarded the compensation of Rs. 1.44 lakh and stated that it
is the only way to enforce Article 21 in such cases. On the later stage, the judgement of the
High Court was affirmed by the Apex Court and the appeal was dismissed.

5. Supreme Court’s approach on Constitutional Tort Issues

The Apex Court always took recourse to the extent of enforcement of fundamental rights
in order to answer on the remedy for the constitutional tort. The analysis was divided on
the substantive basis of the compensation if there is a gross violation of the fundamental
rights. As Chief Justice of the United States John Marshall remarked ” the Government of
the United States has been always witnessed as the government of laws and not of man”, in
India also the same was the case when the government’s using constitutional provisions and
by applying the defence of sovereign immunity kept on violating the fundamental rights.
The court in Rudal Shah opined ” the plaintiff has the right to compensation if there is a
violation of their fundamental rights along with penalizing the authorities which acting in the
name of public interest, use their powers as a shield to prevent themselves from scrutiny.
At a later stage, after awarding compensation in Devki Nandan case for deliberate and
motivated harassment of the plaintiff, the court established the doctrine of appropriate
cases in Sebastian Hungry and Bhim Singh. Subsequently, in MC Mehta, the complete
doctrine of Constitutional Tort was established along with the introduction of deep pocket
theory.

However, due to the sole focus of law formation on public law and judicial pronouncements,
it is hard to find a jurisprudence of further developments. Thus, there was an attempt to
incorporate a separate clause under Article 13 as 13A coming just before the fundamental
rights dealing with the right to compensation for violation of fundamental rights. It was
suggested that this will help in increasing the liability and act in consonance with Article 32.
Ultimately, the award of damages by the hands of the judiciary is indeed a creative concept
introduced in India but fails at certain stages due to the absence of well-defined criteria.

It may be stated that the doctrine of Constitutional Tort is a creative jurisprudence

evolved by the Courts in spite of the fact that the criteria employed had faced various
criticism in the past. The Apex Court must evolve a scientific criterion for future cases.
The “voting right model” of the United States may be adopted for measuring the damages in
Constitutional Tort actions to prevent the victim from a legal injury to their rights.
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 5. Explain the concept of Independence of Judiciary how it is maintained in India.
(Oct 2012) (Aug 2014)

Ans: Concept of an independent judiciary

An independent judiciary implies that the executive and legislature should not interfere in
the work of the judiciary. The judiciary is expected to be free from all the influences and
interests of the government and the ruling party and should not act on its behalf. The
judges, in an independent judiciary, should have the freedom to exercise the judicial powers
conferred upon them without any influence, pressure or fear. The impartial judges play the
most vital role to ensure the independence of the judiciary and act as a foundation of a fair
and impartial system of courts.

In other words, an independent judiciary is a political principle that states that the
judiciary should interpret the law and the Constitution of the respective country while being
completely free from the influence of other branches of government, political parties or
public opinion or any partisan interests.

The separation of powers is a fundamental guarantee of the independence of the judiciary.

In the decision-making process, judges should have the freedom to decide cases impartially,
in accordance with their interpretation of laws and facts. They should be able to act without
any restriction, improper influence, fear or favour.
A classic example in this regard can be a landmark judgement delivered by the US Supreme
Court in the case of United States v. Nixon (1974), a unanimous decision was passed against
President Richard Nixon, asking him to submit the Watergate Trial Tapes, which upheld the
principle of Rule of Law and subsequently reminded that even the US President is not above
the law.

Similarly, in an Indian case of State Of U.P v. Raj Narain & Ors (1975), the Allahabad High
Court declared the then Prime Minister of India Indira Gandhi guilty of electoral
malpractices and therefore ordered to set aside the election.

In India, to ensure the independence of the judiciary, judges in the High Courts, as well as
the Supreme Court, are appointed with very little interference from other branches of the
government. Once appointed, it is also very difficult to remove a judge.

An independent judiciary is the sine qua non to ensure the vibrant democratic spirit of
any nation.
Types of judicial independence
Judicial independence is mainly of two types. They are i) institutional or functional
independence and ii) decisional independence.

Institutional or functional judicial independence

Institutional or functional judicial independence refers to the fact that the other organs of
the government should not interfere in the judiciary by any means. It is solely based on the
degree of separation of power. The judiciary is free to decide the appointments, transfers
and salaries and amenities provided to the judicial officer or the judges. It is the
independence of the judiciary from the other institutions or organs of the State.

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Institutional or functional judicial independence includes protection from interference and
freedom from influences of powerful individuals, groups and lobbies. Institutional or
functional independence of the judiciary from the executive and the legislature is
fundamental to the idea of rule of law.

Decisional judicial independence

Decisional judicial independence refers to the idea that a judicial officer should be
impartial, neutral and free from prejudices and any biases while deciding any particular case.
The independence of an individual judge is termed decisional judicial independence.

It also includes the fact that a judge should decide a case based on the concerning facts
and laws only without being affected by the opinions of the media, politics, pressure or
interference or influence from any quarter and fear of any penalty in their own careers.
Decisional judicial independence is again of two types. They are:

i) Substantive judicial independence which means that while deciding a case and exercising
judicial powers conferred upon them, the individual judges are not subordinate to any other
authority but are the law themselves.
ii) Personal judicial independence refers to the fact that judges should be impartial or
neutral without any influence or fear and they should decide the case based on the facts of
the case and existing laws.

Independent judiciary in an Indian perspective

After post-independence, the concept of an independent judiciary has been enshrined in
the Constitution of India itself. The idea of independence of the judiciary was adopted from
the laws of the United States of America. However, from ancient times, India had a well-
maintained judicial system free from any external influences.

According to Justice S. S. Dhavan of Allahabad High Court in the essay “Judicial System in
Ancient India”, “India has the oldest judiciary in the world. No other judicial system has a
more ancient or exalted pedigree.”

The necessity of an independent judiciary

Judiciary is the most important organ of the government and it keeps the overreach and
abuse of power by the Executive and Legislature in check. Judicial independence is vitally
important in a democracy. Individual judges and the judiciary as a whole must be impartial
and independent of all external pressures and of each other so that those who appear
before them to seek justice and the public, in general, can have the confidence that their
cases will be decided fairly and in accordance with the law.

While carrying out their judicial function, judges must be free from any improper influence.
Such influence can come from any number of sources such as the executive, legislators, the
media as well as the particular litigants, especially the particular pressure groups.

The responsibilities of individual judges have increased with the growth in the role of the
government in our daily lives over the last century. Disputes between the citizens and the
state have also increased together with the growth of governmental functions. Now, the
judiciary, apart from providing justice, also protects the common citizen from the unlawful

30
acts of the government. Thus, the requirement for an independent judiciary has increased
ever since.

An independent and impartial judiciary is one of the cornerstones of democracy and this
principle was endorsed by the UN General Assembly in 1985 and 1990.

Judicial independence in India

In the post-independent era, the concept of judicial independence has been enshrined in
the Constitution of India itself. There are several constitutional provisions that help in
securing the independence of the judiciary. The provisions are discussed below:

Security of the tenure of judges

Article 217 of the Constitution states the conditions and appointing a judge of a High Court.
Once appointed, the Supreme Court and high court judges have the tenure to continue their
services until reaching the age of sixty-five years and sixty-two years respectively.

However, the age of retirement of the High Court judges was proposed to increase to 65
through the Constitution (114th Amendment) Bill, 2010. But it was not passed.

Article 124(2) lays down that the President should appoint every Supreme Court judge and
they will remain in office until the age of sixty-five years.

For the appointment of the judges in the High Court and Supreme Court, the President shall
consult the Chief Justice of India and here consultation means concurrence and this was
held in the case of Supreme Court Advocates on Record Association v. Union of India
(1993), also known as the Second Judges Case (1993).

Salaries and Allowances of judges

Article 125 of the Constitution of India deals with the salaries and allowances of judges.
The salary is specified in the Second Schedule and may be decided to change by the
Parliament by law.

In the cases of judges in the Supreme Court, their salaries are provided by
the Consolidated Fund of India and the judges of the High Court of the respective states
are paid by the consolidated fund of that state.

Powers and Jurisdiction of the Supreme Court

Under Article 32, the Supreme Court of India has the power to issue writs and an individual
may move to the Supreme Court to access proper justice. Though the Parliament can change
the pecuniary jurisdiction in civil matters, it cannot curtail any powers of the Supreme
Court.

No discussion of judicial conduct in the Parliament or state legislatures

Article 211 of the Constitution states that there should be no discussion of the judicial
conduct of any High Court or Supreme Court held in the Legislature of a State.
Contempt of Court

Under Article 129, the Supreme Court has the power to punish for contempt of itself.
Similarly, Article 215 confers the power to the High Court to punish for contempt.

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Complete independence of the judiciary
Article 50 of the Constitution ensures complete independence of the judiciary and frees it
from executive control. It contains one of the Directive Principles of State Policy and
states that the state shall take steps to separate the judiciary from the executive.

One of the most recent and landmark cases regarding judicial independence is the case
of Supreme Court Advocates-on-Record Association and another v. Union of India (2015),
the constitutionality of the Constitution (99th Amendment Act), 2014 was challenged by the
Supreme Court Advocates-on-Record Association. The amendment sought to form the
National Judicial Appointment Commission (NJAC) to appoint judges. National Judicial
Appointment Commission would have been a body containing the following six persons:

 Chief Justice of India acting as ex officio Chairperson;

 Two other senior judges of the Supreme Court acting ex officio;
 The Union Minister of Law and Justice also acting ex-officio; and
 Two eminent persons are to be selected by a committee consisting of the Chief
Justice of India, Prime Minister of India, and Leader of Opposition in the Lok Sabha
for a period of three years once only. One such person would be from the Scheduled
Castes or Scheduled Tribes or OBC or minority communities or a woman.

The Supreme Court held it unconstitutional and struck it down since the amendment is a
threat to the independence of the judiciary.

Challenges to judicial independence in India

An independent judiciary cannot be taken for granted. It is important to keep in check that
the judiciary is not politicised and is free from political influences as much as possible.
Otherwise, judicial independence will be at stake. The basic challenges faced by the
judiciary are as follows:

Possible biases
It is expected that the judges should be completely impartial and free from biases while
declaring any verdict. The maxim Nemo Judex In Causa Sua originated from this idea. It
means ‘no one should judge their own cause’ because this is the main reason for biases.

However, there are mostly three types of biases of the individual judge which may hamper
the impartiality of judicial proceedings. The biases are listed below as follows:
 Personal bias in the judiciary is the bias created due to a relation (friendship,
grievance or egoism) between both the parties, adversely affecting the verdict. In
the case of Nanjundappa (B.N.) vs State Of Mysore (1964), the Karnataka High Court
declared that while appealing a case on the ground of personal bias, it must be proved
effectively.
 The issue of pecuniary bias arises when the deciding party has any kind of monetary
or financial interest in the subject matter of the dispute.
 Subject matter bias arises when the authority is directly involved in the subject
matter of the case. In the case of M/s Chetak Construction Ltd. v. Om Prakash &
Ors. (1998), the court set aside an impugned order and assigned the appeal to
another judge to decide without being influenced.

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Influence of political parties
Political influences on the judiciary are a matter of grave concern. The political parties
often try to malign and disparage the Indian judiciary for personal and political interests.
The members of any political party often interfere to stop the working of the judiciary if
their interest is not satisfied. Recently, the members of the ruling party in West Bengal
protested in front of the court of a judge in Calcutta High Court and blocked the litigants
from entering the courtroom, apparently because they were not satisfied with the
judgements passed by the Hon’ble judge.

Security issues while discharging judicial duty

The judges are also human beings and naturally, they are concerned with the safety and
security of their families. It is not uncommon for a judge to receive threats for the honest
discharge of judicial duties.

Life-threatening situations faced by individual judges for mere discharging of judicial duties
are not uncommon. There have been several instances where a judge has been murdered in
open daylight for passing an unfavourable verdict.

In 1989, Justice Neelkanth Ganjoo, a judge in the Jammu & Kashmir High Court was
assassinated by militants. In 2021, Additional Sessions Judge Uttam Anand in Jharkhand
was brutally murdered in an open street. The Supreme Court took suo moto cognisance of
the issue of the safety of judges and the persons involved in his murder have been awarded
rigorous life imprisonment till death. These incidents raise serious concerns regarding the
safety of the judges while performing their judicial duties.

Interference of other two organs

Even though the doctrine of separation of powers is followed in India, the other two organs
of the government often try to encroach on and limit judicial powers. Alternatively, the
judiciary also tries its best to keep the executive and legislature in check. However, the
functional overlap of the organs may take place sometimes which hampers the impartial
working of the judiciary.

Lack of transparency in the appointment of judges

The appointment of a judge is done following the collegium system in India to safeguard
judicial transparency. However, there are flaws in the collegium system that need to be
rectified. Former Chief Justice P.N. Bhagwati, known for introducing Public interest
litigation (PIL) was not satisfied with the collegium system for appointing the judges
because of the involvement of the Executive. A former Supreme Court judge AK
Sikri stated that the appointment of judges is mostly done based on personal “impressions”
rather than the qualifications and integrity of the individual judge.

Influence on the judiciary from powerful quarters

The influence exerted by powerful quarters for personal and private gains greatly hampers
the working of the judiciary. Examples of offering bribery to judges are very common. A
Senior Civil Judge Rachna Tiwari Lakhanpal of Tis Hazari Court, Delhi and her husband have
been booked by the CBI for disproportionate assets under the Prevention of Corruption Act.
Apart from that, the personal political or ideological influences of the individual judges may
affect the nature of the verdict passed.

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 6. Discuss the various kinds of Jurisdiction exercised by the Supreme Court of
India. (July 2012) (Aug 2012)
Discuss the Jurisdiction of the Supreme Court of India. (Sept 2017)

Ans: Jurisdiction of Supreme Court of India:

The Supreme Court of India is the highest Judicial Court within the territory of India. It is
the highest appellate and Constitutional Court in India. More importantly, it works as the
‘Sentinel on the qui vive’ because; it has the absolute power to protect the ‘Supremacy
of Fundamental Rights’ of the citizens guaranteed by Part III of the Constitution of India.
It consists of the Chief Justice of India and a maximum of 33 judges, it has also the powers
in the form of original, appellate, and advisory jurisdictions. Articles 124 to 147 of the
Constitution lay down the composition and jurisdiction of the Supreme Court.

Being the final court of appeal of the country, it takes up appeals against verdicts of the
High Courts of various States of the Union and other courts and tribunals. It safeguards
the Fundamental Rights of citizens and settles disputes between various government
authorities as well as the State Governments vs. another State Government or Union
Government vs. State Governments within the country.

Exercising ‘Advisory Jurisdiction’ of Supreme Court, it hears matters which may be

specifically referred to it under the Constitution by the President of India. It may take
cognizance of some matters of extraordinary importance on its own (or acting suo moto),
without anyone drawing its attention to them. The judgment declared by the Supreme Court
acts as a binding precedent on all courts within the territory of India and also by the Union
and State Governments.

As per Article 142 of the Constitution of India, “It is the duty of the President to enforce
the decrees of the Supreme Court”. The proceedings of the Supreme Court of India are
conducted in English only. The Supreme Court Rules of 1966 are framed under Article 145
of the Constitution to regulate the procedure and practice of the Supreme Court. The same
is further amended and presently governed by the Supreme Court Rules of 2013. It has the
following jurisdictions-

1. Original jurisdiction:
Article 131 of the Constitution states Original Jurisdiction of the Supreme Court. The
Supreme Court hears directly any disputes between (i) the Government of India and any one
or more States, (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 which involve some
question of law or fact on which the existence of a legal right depends.

2. Appellate jurisdiction:
Article 132 states: Appellate jurisdiction of Supreme Court in appeals from High Courts in
certain cases. Supreme Court hears the appeals against the judgments passed by any of the
High Courts. Articles 133 and 134 state Appellate jurisdictions of Supreme Court in appeals
from High Courts in regard to Civil and Criminal matters respectively.

34
3. Advisory jurisdiction:
Article 143 of the Constitution states the Advisory jurisdiction of the Supreme Court. If
the President of India seeks opinion on issues of public importance, the Supreme Court may,
after such hearing as it thinks fit, report to the President its opinion thereupon.

4. Review judgments:
Article 137 states: Review of judgments or orders by the Supreme Court. — Subject to the
provisions of any law made by Parliament or any rules made under article 145, the made by
it. Here the Supreme Court is empowered to review any judgment pronounced by it.

5. Enforcement of Supreme Court’s orders and decrees and acting as Court of records:
Article 141 of the Constitution states the law declared by the Supreme Court shall be
binding on all courts within the territory of India. The judgments of the Supreme Court are
recorded and considered authoritative and serves as cases, laws, or proceedings.
As per Article 142 of the Constitution, it is the duty of the President to enforce all decrees
and orders of the Supreme Court in the country.

6. Contempt of court:
Article 129 of the Constitution states the Supreme Court can start contempt
proceedings against anyone who indulges in malicious propaganda against the judges or tries
to influence the judges.

7. Guardian of Constitution:
The Supreme Court is the guardian of the Constitution, particularly relating to
the Fundamental Rights guaranteed to the citizens. Under Article 32, Supreme Court can
issue any of the writs mentioned therein to enforce the Constitutional Remedies to the
person whose Fundamental Right is infringed by any acts or omissions of the administrative
or any other State authorities.

8. Public Interest Litigation:

Even though the victim or affected parties do not file cases, people, who are not involved in
the case, may file litigation, if it is in the general public interest. It is the privilege of the
Court to entertain or not to entertain the application for Public Interest Litigation (PIL).

9. Granting Special Leave Petition:

Under Article 136 of the Constitution of India, the Supreme Court in its discretion grant
special leave to appeal from the judgment, decree, determination, sentence, or order in any
cause or matter passed by any court or tribunal within the territory of India except the
orders passed by any court or tribunal constituted under any law relating to the Armed
Forces.

7. Examine the scope of Writ Jurisdiction of Supreme Court under the Constitution
of India. (Sept 2013)

Ans: The Supreme Court acts as a custodian of the fundamental rights of citizens. It is
considered the “guarantor” and “defender” of the fundamental rights of the citizens of
India. It has the power to issue five types of writs; habeas corpus, mandamus, quo warranto,
certiorari, and prohibition. A writ is an order or command from a higher authority (Supreme

35
court or High Court) which directs an individual to perform or abstain from performing a
certain act. A writ petition can be filed by any individual when his/her fundamental rights
are infringed upon by the state.

Different types of writs

There are five types of writs which are guaranteed by the Indian Constitution to the public
in case their fundamental rights are being violated. The five types of writs mentioned below
are issued in distinct circumstances, and each of them has different imputations.
1. Habeas corpus is a Latin term which means “to have a body of”
2. Mandamus is a Latin term which means “to command”
3. Quo warranto is a Latin term which means “by what authority”
4. Certiorari is a Latin term which means “to certify”
5. Prohibition is an English term which means “to forbid or to stop”

Writ of habeas corpus

The phrase ‘Habeas corpus’ in its longer form is called—”Habeas corpus coram nobis ad
subjiciendum,” which means “you must have the body before us for submitting.”

This writ helps in the release of an unlawfully detained person. By virtue of this writ, any
person who is either in police or judicial custody or private custody is presented before the
court of law and released if such detention is found to be illegal. The burden of proof lies
with the public official or the private person who is taking a person into his custody. Article
20 of the Constitution states that a person cannot be forced to be a witness against himself
or herself and that a person cannot be convicted twice or more for the commission of the
same offence. The Article also states that a person can only be held liable for a certain
offence if, at the time of the commission of the offence, there exists a law which is being
violated by the commission of such an offence. This writ is used to enforce the fundamental
right of personal liberty under Article 21 of the Constitution against unlawful detention.
The writ petition can be filed by the detained person himself/ herself, or by any of his/ her
friends or relatives on his/ her behalf. The writ can be issued against both public
authorities and private individuals.

In which situations can the writ be issued

1. When the detention is not in accordance with the procedure established by law.
2. When an arrest is made under a law that in itself is unconstitutional.
3. When the procedure established by law is not strictly followed.

In which situations can the writ not be issued

1. The writ is not available during the proclamation of an emergency.
2. The writ is not available if the writ petition is dismissed by the competent court.
3. The writ is not available when the detention of the person is related to the order of
the court.
4. The writ is not available when the confinement of the person is shown to be legal by
providing the necessary evidence.

Illustration– Ram, a person, was taken into police custody by B, a police officer without a
warrant to arrest Ram. B did not present Ram before the magistrate and also did not allow
his family members to know about Ram’s whereabouts for many days. B was physically and
36
mentally torturing Ram. Thus, it can be said that B has wrongfully detained Ram, and a writ
of habeas corpus can be issued by Ram’s family on his behalf.

Relevant case laws

In the case of Kanu Sanyal v. District Magistrate Darjeeling and Ors.,(1974), it was held
by the Supreme Court that this writ is a procedural writ and not a substantive writ. The
Court also said that there should be a focus on examining the legality of the detention
according to the facts of a case.

In the case of Lallubhai Jogibhai Patel v. Union of India and Ors.,(1980), it was held
that a second writ petition could not be issued if it is filed on the same grounds as the first
writ petition. However, if there are certain additional grounds which were missed to be
mentioned in the first petition on reasonable grounds, only then will a second writ petition
be entertained by the Hon’ble Court. The writ petition, in this case, was filed challenging the
order of detention, which was received by the petitioner on certain grounds. Later on, a few
more additional grounds were added and thus a second petition was filed for the issuance of
the writ of habeas corpus by the petitioner.

In the case of Sunil Batra v. Delhi Administration,(1979), the Supreme Court widened the
scope of the writ of habeas corpus and held that the writ cannot only be issued in case of
unlawful detention but can also be issued against ill-treatment of prisoners by the officers
in authority while in custody, i.e., the writ also provides for the protection of prisoners.
Writ of mandamus

This writ is issued by a court of higher authority directing the lower courts, or any other
public servant, who has failed to perform their duty, to perform their mandatory public duty
correctly and efficiently. This writ is the last resort, i.e., it is issued only when all other
attempts to solve the problem have been made. The writ can be issued against any type of
authority; legislative, judicial, quasi-judicial or administrative.

The writ petition can be filed by any person who, in good faith, wants a public authority to
function properly. The writ can be issued against any person or public authority who has
failed to perform their mandatory public duty.

In which situations can the writ be issued

1. The person or any public authority against whom the writ has to be issued must be
under an obligation by law to perform a certain duty, which he has failed or neglected
to do.
2. The public duty must be mandatory in nature, and there must be a failure to perform
such a mandatory act.
3. The petitioner must have a legal right to compel the performance of such public duty.

In which situations the writ cannot be issued

1. This writ cannot be issued against the judges of the High Court and Supreme Court,
compelling them to perform their duty.
2. This writ cannot be issued against the President of India and the Governor of any
state, compelling them to perform their duty.
3. This writ cannot be issued against the working Chief Justice of India, compelling him
to perform his duty.
37
 4. This writ cannot be issued when the nature of the duty is discretionary.
5. This writ cannot be issued against a private individual.
6. This writ cannot be issued to enforce a private contract.

Example- The writ can be issued to compel the performance of certain public duties like-
holding elections, preventing dissolution of panchayats and municipalities, or restoration of
public offices.

Relevant case laws

In the case of E.A. Co-operative Society v. the State of Maharashtra,(1966), the state
government had denied the jurisdiction to revise the order of the lower authorities. The
issue was to grant membership in the society to the respondent, which was first denied and
then accepted by the Registrar of the society. Hence, an application for the issuance of this
writ was filed in the concerned High Court, failing which the respondent reached the
Supreme Court by special leave petition. It was held by the Hon’ble Supreme Court that the
writ of mandamus can be issued where a public servant has denied its jurisdiction, which it
has under the law.

In the case of Sohanlal v. Union of India,(1957), the Government of India allotted plots
to the refugees from Pakistan, provided they met the eligibility criteria set by the
government. However, the appellant was evicted from his allotted plot and thus a petition
was filed by him for the issuance of this writ. The Supreme Court said that a writ of
mandamus can be issued against a private individual provided the private individual has
merged with a public authority.

In the case of Manjula Manjari v. Director of Public Instruction (DPI),(1952), the Orissa
High Court denied issuing a writ of mandamus against the DPI to order him to include the
petitioner’s book in his list of approved books because this was a discretionary duty and not
mandatory in nature. The petitioner’s contention was that she suffered a great amount of
loss in terms of money when her book was not included in the list of approved books for the
next year.

Writ of quo warranto

This writ is issued asking public servants or any private person to prove under what
authority they are holding a certain public office. The burden of proof lies with the
concerned person. However, if the concerned person fails to prove his authority, he can be
removed from public office. This writ prevents any person from wrongfully usurping a public
office without any authority.

The writ petition can be filed by any person whose fundamental rights are being violated, or
in the public interest. The writ can be issued against any unlawful holder of a public office
(public or private person).

In which situations can the writ be issued

1. There must be an existence of a public office created by law.
2. The public office must be substantive and permanent in nature.
3. The position in a public office may be unlawfully held by a private person.

38
 4. There has been a contravention of the law in appointing a person to the concerned
public office.
5. The duties arising from public office must be public in nature.

In which situations the writ cannot be issued

1. This writ cannot be issued if there is any political gain to the petitioner by the
issuance of this writ.
2. This writ cannot be issued against any state minister.
3. Illustration- If A, a public servant, is holding a public office even after his
retirement, then this writ can be issued against him as he no longer has the authority
to hold such a public office.

Relevant case laws

1. In the case of Amarendra Chandra v. Narendra Kumar Basu,1952, the respondents
wrongly admitted themselves into some rival Managing Committee of a private school,
and there were many alleged loopholes in the procedure of the respondents being a
part of the Committee. The Hon’ble High Court of Kolkata held that the writ of quo
warranto could not be issued against usurping a private office.

2. In the case of the University of Mysore v. CD Govinda Rao,1963, the university had
appointed a person who was not meeting the eligibility criteria required for the post.
As a result, an application for the issuance of this writ was presented before the
Hon’ble Supreme Court which said that the office against which the issuance of the
writ of quo warranto is prayed for must be of a “substantive” nature.

3. In the case of Mahesh Chandra Gupta v. Dr Rajeshwar Dayal and Ors.,2003, the
appointment of the respondent in a medical college was questioned, but no connection
was found between the respondent and the appointment. The Allahabad High Court
was of the opinion that for the issuance of the writ of quo warranto, there must be
some connection between the petitioner and the respondent.

Writ of certiorari
This writ is issued by the higher courts (Supreme Court or High Courts) directing a lower
court to transfer a particular case to the higher court for consideration. The higher courts
also have the authority to quash an already passed order by the subordinate courts. This
writ aims to correct the mistakes made by the judiciary at the lower level.

A writ petition can be filed by any aggrieved person to the Supreme Court or High Courts
against the decision given by the lower courts.

In which situations can the writ be issued

1. This writ can be issued when a person is bound by a legal authority.
2. This writ can be issued when such a person acts beyond its jurisdiction.
3. This writ can be issued when a person acting judicially commits an error of law.
4. This writ can be issued when such a person has committed fraud or has violated the
principles of natural justice.

39
In which situations the writ cannot be issued
1. This writ cannot be issued in cases when the judge refuses to accept the request for
review.
2. This writ cannot be issued when the only objective is to waste the time and effort of
the court.

Example– When the decision of the lower court violates the fundamental rights of either of
the parties, the aggrieved party can file for the writ of certiorari.

Relevant case laws

In the case of Noor Mohammad v. the State of U.P., (2020), the complainant’s sister
committed suicide within two years of her marriage because of the harassment she had to
face from the appellant and his family members for the demand for dowry. It was held by
the Supreme Court that the writ of certiorari can be issued mainly to amend the
jurisdiction-related errors made by the lower courts.

In the case of Syed Yakoob v. K.S. Radhakrishnan and Ors., (1963), the appellant was
not given the permit for a two-stage carriage to run as an express service by the concerned
authorities, even after completing all the required qualifications. As a result, an application
was filed before the Supreme Court of India which held that only an error of law could be
rectified by the issuance of this writ and not an error of fact.

In the case of A. Ranga Reddy v. General Manager of co-operative electric supply society,
(1987), various appeals were made demanding elections of the co-operative societies to be
held in the state. However, the High Court of Andhra Pradesh held that the writ of
certiorari cannot be issued against a private person.

Writ of prohibition
This writ is issued to prevent a lower court or tribunal from acting beyond its authorised
jurisdiction. After the issuance of this writ, the proceedings in the lower court stop
immediately, and the case is transferred to the authority that has authorised jurisdiction
over the case. This writ can also be termed a “stay order.”

This writ can be issued against any judicial or quasi-judicial body acting beyond its
jurisdiction. This writ can be issued in the same situations in which the writ of certiorari is
issued, except in cases of error of law.

Relevant case laws

In the case of S. Govinda Menon v. Union of India, (1967), several allegations of
dishonesty were made against the appellant, which were also to be inquired about by the
government. As a result, a writ petition was filed to quash the proceedings initiated against
him. The Kerala High Court held that the writ of prohibition can be issued in both
situations—excess of jurisdiction or absence of jurisdiction.

In the case of Hari Vishnu v. Syed Ahmad Ishaque, (1954), the appellant was nominated
for the election of the Rajya Sabha representing the state of Madhya Pradesh. The
appellant won the elections, but an issue was raised that the ballot papers did not contain
the distinguished marks, and the election of the appellant was terminated. The difference
between the writ of certiorari and prohibition was given by the Hon’ble Supreme Court. The
40
court was of the opinion that one can file for the writ of certiorari only after the
judgement of a particular case has been delivered, and on the contrary, one can file for the
writ of prohibition when the judgement of a particular case is still pending. The court
further ruled that fresh elections must take place.

In the case of Prudential Capital Markets Ltd. v. State of A.P. and Ors., (2000),
various petitions were filed to prohibit the district forum or state commission from
addressing any complaints from the respondent. The High Court of Andhra Pradesh said
that the writ of prohibition cannot be issued in cases where the district forum or state
commission has already given judgement.

Legal provisions under Article 32 of Indian Constitution

Article 32 is given in Part III of the Indian Constitution, which allows individuals to
approach the Supreme Court in cases of violation of their fundamental rights. Dr B.R.
Ambedkar, the Father of the Indian Constitution, once said that “Article 32 is the heart
and soul of the Indian Constitution.” The powers provided to the Supreme Court under this
Article are:

1. The Supreme Court has the power to relax the locus standi and allow public interest
litigation (PIL) by the citizens of India. The Supreme Court can provide relief to
bonded labour, undertrial prisoners or victims of extra-judicial killings etc.
2. The Supreme Court also has the power to grant exemplary damages.
 In the case of Bhim Singh v. the State of Jammu and Kashmir, the fundamental
rights of Bhim Singh were violated as he was not presented before the
Magistrate within 24 hours. Thus, the Supreme Court ordered the state to grant
exemplary damages to Bhim Singh.
 In the case of Rudul Sah v. the State of Bihar, the fundamental rights of Rudul
Shah were violated as he was illegally detained by the state. Thus, the Supreme
Court ordered the state to grant exemplary damages to Rudul Shah.
3. The Supreme Court has the power to issue writs or orders for the enforcement of
any of the fundamental rights.
4. The rights of the individuals seeking remedy can be suspended only by the President
of India during the proclamation of a national emergency in the country (Article
359).
5. The Supreme Court has said that where relief can be granted by moving to the High
Court's under Article 226, the aggrieved party must first move to the High court.
6. The Parliament can also transfer the power of the Supreme Court to some other
authority with the required jurisdiction.

8. Discuss the appointment of Judges and explain powers and functions of the
judiciary. (Nov 2012)
Explain the appointment of Judges. Power and jurisdiction relating to the
Supreme Court. (Sept 2014)
How the Judges of Higher Judiciary appointed at present? Explain with
reference to the decided cases. (May 2014)

41
 How are the Judges of the Supreme Court and High Court appointed in India?
Refer to the recent initiatives and proposed Changes in this regard. (Sept 2015)
Discuss the Collegium System of appointment of judges of Higher Judiciary in
India.
How are the Supreme Court and High Court appointed? Explain (June 2018)

Ans: How judges are appointed is a matter of extreme legal importance to a country. This
appointment procedure is directly linked to the redressal of the citizens’ grievances; a non-
partisan and transparent mechanism ensures speedy, efficient and satisfactory delivery of
justice. Beginning with a description of the constitutional procedure for appointment of
judges, this article goes on to address the structure followed at present and the
controversies related to the same.

Constitutional Procedure: Articles 124 and 217

Under Article 124 of the Constitution of India, ‘every judge of the Supreme Court shall be
appointed by the President after consultation with such of the Judges of the Supreme
Court and of the High Courts in the States, as the President may deem necessary’. In case
of the appointment of a judge other than the Chief Justice, the CJI must be consulted.
Apart from being a citizen of India, further qualifications include:

a) has been for at least five years a Judge of a High Court or of two or more such Courts in
succession; or (b) has been for at least ten years an advocate of a High Court or of two or
more such Courts in succession; or (c) is, in the opinion of the President, a distinguished
jurist Similarly, for the appointment of judges in the High Court, Article 217 prescribes
that every Judge of the High Court shall be appointed by the President after consultation
with the Chief Justice of India, the Governor of the State; and in the case of appointment
of a Judge other than the Chief Justice, the Chief Justice of the High Court concerned.
Apart from being a citizen of India, further qualifications include:

(a) has for at least ten years held a judicial office in the territory of India; or (b) has for at
least ten years been an advocate of a High Court or of two or more such Courts in
succession.

Evolution of the Collegium Model

Despite this clear constitutional mandate, the actual appointment of judges in our country
remains a complex procedure. And this complexity arises due to the word ‘consultation’ in
the Constitutional articles. There has been a constant tussle between the executive and and
the judiciary on matters of appointment. As long back as 1958, the 14th Law Commission
Report under the chairmanship of India’s first attorney general MC Setalvad, noted that
several appointments were made on the basis of ‘political, regional or other grounds’, as a
result of which the fittest men were never appointed.

Later, a series of three judicial cases popularly referred to as the ‘Three Judges Cases’
helped in the development of the modern collegium system. The first case was SP Gupta v
Union of India (1981) which held that ‘consultation’ in the Constitution did not mean
‘concurrence’ and in case of a dispute between the executive and the judiciary, the position
of the former shall prevail. After 12 years, in 1993 the Second Judges case ‘Supreme Court
Advocates-on-Record Association v Union of India’ overruled the earlier ruling. This decision
42
gave primacy to the final opinion of the Chief Justice and also stated that ‘the process of
appointment of judges to the Supreme Court and High Court is an integrated participatory
consultative process’. It held that the opinions of two senior-most judges must be taken by
the CJI while appointing judges.

Post this decision, the CJI made a few unilateral appointments and the role of the President
was reduced to giving mere approvals. Ultimately, in 1998, replying to the presidential
reference issued by the then President K.R. Narayanan, the SC laid down the collegium
system as followed today. A collegium comprising of four senior-most judges of the Supreme
Court, headed by the CJI was to decide on appointments. In case no one from the collegium
is to succeed the CJI, then the judge who is to do so must be included in the consultation
process.

Criticism of the collegium model

The collegium system has come under a lot of flak over time. Main reasons for the same are
lack of transparency and accountability in this mechanism. The consultation is limited to
members of the judiciary, and the opinion of the other pillars of democracy is not taken into
account. Members of the legislature are elected by direct participation of the people and
Members of the executive are nominated by indirect public participation. No such
framework exists for the judiciary, and hence the current system has been termed as
‘closed brotherhood’.

In comparison, the US follows a process wherein the judges are appointed by the President
in consultation with the Senate. In the UK this is done by the Judicial Appointments
Commission (JAC), a body comprising of 15 members, out of which three are from the
judicial backgrounds and the remaining are elected through open competition. These
systems are far more participatory and popular than the collegium system and the secrets it
encompasses.

The collegium system allows for favoritism wherein appointments on grounds of common
interests and biases are not a rare phenomenon. Moreover, the process is lengthy and hence
does not solve the problem of vacancies in the lower and higher judiciaries. This further
aggravates the pendency of cases in the judiciary. Also because the collegium is not
answerable, there are cases where merit is not given due importance in the course of
appointments. In conclusion, democracy is under peril in such an arrangement.

Introduction and subsequent striking down of the NJAC Act

To modify this trend, the NDA government in 2014, brought about the Ninety-Ninth
amendment bill for the introduction of a National Judicial Appointments Commission
(NJAC). This bill was passed by both the houses in quick succession and became an act on
the 31st of December, 2014. The NJAC was to replace the collegium system of judicial
appointments with a more inclusive structure. The commission was to comprise of six
members: the Chief Justice of India as the Chairperson, two other senior most judges of
the Supreme Court, the Union Law Minister, and two eminent persons to be nominated by a
collegium of the Prime Minister, the CJI and the Leader of Opposition of the Lok Sabha.

This tale took a major twist when the Supreme Court, in deciding a PIL on the constitutional
validity of the Act, struck the Act down and re-enforced the collegium model. The NJAC

43
model was held to be violative of the ‘basic structure’ doctrine as the independence of the
judiciary, enshrined under the Basic Structure, would be infringed by the involvement of the
Executive. Moreover, the primacy of the Chief Justice’s opinion would be curtailed under
this new mechanism.

Despite ruling against the NJAC model, it was a welcome move when the Bench admitted
that all was not well with the system, with Justice Kurian Joseph remarking, “… the present
collegium system lacks transparency, accountability, and objectivity. The trust deficit has
affected the credibility of the collegium system, as sometimes observed by the civic
society. Quite often, very serious allegations and many a time not unfounded too, have been
raised that its approach has been highly subjective.

Deserving persons have been ignored wholly for subjective reasons, social and other national
realities were overlooked, certain appointments were purposely delayed so as either to
benefit vested choices or to deny such benefits to the less patronized, selection of
patronized or favored persons were made in blatant violation of the guidelines resulting in
unmerited, if not, bad appointments.

Towards change
This admission of loopholes by the judiciary was no less than a landmark move. It showed an
inclination towards a democratic atmosphere both within and outside the collegium. Giving
effect to this impulse to change; soon after, the Constitution Bench asked lawyers involved
in the case to propose suggestions on four counts: transparency, eligibility criteria, a
Secretariat to assist the collegium and dealing with complaints against persons being
considered for appointment.

The participants in the discussion harped on more accountability and increase in

receptiveness of the collegium to the opinions of lawyers. Justice Kurian Joseph also made
reference to the concepts of ‘glasnost’ (openness) and ‘perestroika’ (listen) to ensure open
consultation and wider dissemination of information.This course of action shows a positive
acknowledgment of transformation.

One of the most pertinent examples of change in long followed traditions was the
introduction of the subject-wise roster system. Last year in January, four senior-most
judges of the Supreme Court, Justice Chelameswar, Justice Gogoi, Justice Lokur and
Justice Joseph held a press conference to tell the nation that ‘things less than desirable’
were happening in the Supreme Court; they had written a letter to the Chief Justice of
India, Dipak Misra mainly pertaining to the assignment of matters.

The letter aimed to address the ‘abuse of power of the master of the roster’, that is the
power of the Chief Justice of India in referring extremely important matters to benches of
his preference. Soon after, in an attempt to address these grievances, the subject-wise
roster system was introduced. This clearly lays down which judge will decide on what
matters.

Taking a cue from this, we can conclude that the Supreme Court is not a place insulated
from the conflict of power. The acceptance of faults in the collegium system, a major
change through the introduction of the ‘subject-wise’ roster system, open challenge by the

44
legal community, media, and the public; all are indications that a movement might be made
towards a change in the way judges are appointed to the higher judiciary. Would the
collegium system be continued? Or would there be an introduction of application-based
nomination to the posts of judges? With a plethora of changes being introduced by the apex
court the last year, a change in the appointment mechanism would not be an unexpected
move.

9. Explain the advantages of making such appointments through the National Judicial
Appointment Committee (NJAC) (Sept 2016)
Make a critical analysis of the Supreme Court Judgement in Supreme Court
Advocates on Records Association Vs Union of India in the context of the NJAC
Act. (Sept 2019)

Ans: The case is based on the independence of the judiciary as the part of basic structure
of the Constitution. This case is famously known as ‘Second Judges Case”. To secure the
‘Rule of Law’ which is essential for the preservation of the democratic system and the
separation of powers which is adopted in the constitution with the directive principles of
‘Separation of judiciary from the executive’, the case was decided on 6th October 1993.

After its judgement, the collegium system was adopted in the appointment of judges of
Supreme Court and High Courts. Nine Judges examined two questions:
1. The position of the Chief Justice of India.
2. The justiciability of fixation of judge strength.

Facts
The nine-Judge Bench not only overruled S.P. Gupta’s case, but also devised a specific
procedure for appointment of Judges of the Supreme Court in the interest of “protecting
the integrity and guarding the independence of the judiciary.” For the same reason, the
primacy of the Chief Justice of India was held to be essential.

The bench held that the recommendation in that behalf should be made by the Chief
Justice of India in consultation with his two senior-most colleagues and that such
recommendation should normally be given effect to by the executive.

Thus, in 1993, the Chief Justice of India got primacy in appointing judges, and till this time,
it was the government’s job to fill vacancies in HCs and the SC.

The matters relating to the appointment of the judiciary have plagued and perplexed the
judicial mind ever since the inception of the constitution. This matter has to be resolved by
the interpretation of the constitutional provisions relating to the appointment of judiciary.
The omnipresent bogey haunting every pronouncement is the independence of the judiciary.
A delicate balance had to be struck between democratic control of an essentially
undemocratic institution and impartial arbitration.

The matter came up for adjudication in Sankal Chand vs. Union of India, where the court
upheld the transfer of the Chief Justice of Himachal Pradesh. However, by 1982, the
debate had reached epic proportions. These matters took solid form in a batch of writ

45
petitions questioning the move to transfer the judges challenging the affected transfer of
some judges and demanding the justifiability of judge strength.

The Supreme Court, while disposing of the matter, vested the ultimate control with the
Central Government. At this juncture, a bill was introduced in the parliament seeking to
amend the Constitution (67th Amendment) Bill 1990 seeking to amend articles 124(2),
217(1), 222(1) and 231 (2) (a). This bill brought to empower the president to set up a judicial
commission known as National Judicial Commission. The avowed objective was to implement
the 121st Law Commission Report. This report recommended that a judicial commission is set
up to oversee the appointment of the judiciary. However, nothing came of this as the bill
lapsed with the dissolution of the 9th Lok Sabha. The writ petitions seeking a review of SP
Gupta case were heard by a three judge bench, namely Chief Justice Ranganath Mishra and
Justices MN Venkatachaliah and MM Punchhi, which recommended reconsideration.

Issues
There were broadly two issues in this case:
Whether the opinion of Chief Justice of India should be given primacy with regard to the
appointment and selection of Judges of High Courts and the Supreme Court, as well as in
the transfer of Judges from one High Court to other?

Import of the Term ‘Consultation’

The first major issue was the import of the term “consultation” occurring in Art. 124. The
majority held that it indicates an integrated, participatory and consultative process. This
entails the full discharge of constitutional obligations on the part of constitutional
functionaries. Various approaches have been used by the judges to show that “consultation”
means occurrence or primacy notably among which are”

1. The Chief Justice of India as a ‘PaterFamilias’ would be in the best position to judge.
2. In contrast to other constitutions, the Indian constitution does not vest absolute
discretion in the hands of the executive. Hence, the Chief Justice of India cannot be
regarded as an inferior position.
3. The practice of appointments has become an inseparable part of the constitution
leading to the formation of a convention. This convention does not allow the making
of an appointment without the concurrence of the Chief Justice of India.
4. The central government being a litigant in a large number of cases before the court
cannot be a party to the appointment of judges.
5. All the judges have also given the maintenance of the independence of the judiciary
as a reason.

The initiation of the proposal must be made by the Chief Justice of India. In the case of a
High Court, the proposal must emanate from the Chief Justice of that concerned High
Court. The Chief Justice of India is expected to initiate any proposal for transfers.
Further, a check has been placed at the discretion of the Chief Justice of India, who is now
bound to consult with two of his senior-most colleagues. Thus the Chief Justice of India will
effectively mean this judicial troika. If a proposal for appointment is made by this judicial
troika and is turned down by the central government, there are two possibilities. These
depend upon the concurrence of the senior most colleagues. The other two judges are of the
view that it must be withdrawn, the recommendation will be withdrawn. However, if they are
46
in concurrence with the Chief Justice of India, the recommendation will be made again and
it has to be accepted.

The Criteria for Appointment

In relation to the appointment of the Chief Justice of India, the majority held that
seniority must be the prevailing criteria, provided of course the person in question is fit. In
relation to the appointment of judges to the Supreme Court, the seniority semi-quotes inter
se in the High Court as well as their combined seniority have to be given weightage. Further,
the legitimate expectations of the judges slated for elevation must be kept in mind.

The Transfer of High Court Judges

 Consent of the transferee is irrelevant. However, the personal factors of the
transferee must be kept in mind by the Chief Justice of India while affecting
the transfer. This is in conformity with the decision rendered in the SP Gupta
case. The transfers affected must not be deemed to be punitive.
 Justiciability of such transfers is not possible, except on the ground that a
transfer was not made on the recommendations of the Chief Justice of India.

Whether these matters, as well as that of fixation of the number of Judges of each High
Court, is justiciable?

Justiciability of Judge Strength

The fixation of judge strength is justiciable but, it must be shown that lack of strength is
leading to “slow justice”, (as it is mandated by article 21, that speedy justice in courts is a
fundamental right in respect of criminal trials) The opinion of the Chief Justice of India and
the Chief Justice of respective High Court must be taken into account.

Other Issues
Appointment of the Less Privileged Class
Justice Ratnavel Pandian has devoted a substantial part of his judgement to throw light the
inadequate representation of certain classes. He has adduced statistics to show that
women, OBCs, SCs, STs have not been given adequate representation. He has, therefore,
placed an onus upon the government to forward the list of these classes, upon which the
Chief Justice of India shall decide.

Ratio Decidendi
In 1993, a nine-Judge Constitution Bench of the Supreme Court in Supreme Court
Advocates-on-Record Association Vs. Union of India (1993) by 7-2 majority overruled the
decision in SP Gupta’s Case (S.P. Gupta vs. Union of India), a late 1980’s case where a
Supreme Court Constitution Bench held that ‘consultation’ does not mean ‘concurrence’ and
ruled further that the concept of primacy of the Chief Justice of India is not really to be
found in the Constitution.

Judgement
Thus on the question of primacy the court concludes that the role of Chief Justice of India
in the matter of appointment of the Judges of the Supreme Court is unique, singular and
primal, but participatory vis-a-vis the executive on a level of togetherness and mutuality,

47
and neither he nor the executive can push through an appointment in derogation of the
wishes of the other.

In this judgement, the majority consisting of Justices JS Verma, Yogeshwar Dayal, GN Ray,
Dr. AS Anand and SP Bharucha with concurring separate judgements delivered by S. Pandian
and Kuldip Singh, JJ, held that view in SP Gupta’s case insofar as the issue of “primacy” is
concerned is overruled.

The minority consisting of Ahmadi and Punchhi, held that the executive had primacy over
the opinion of the Chief Justice of India while on the matter of the fixation of judge
strength, Punchhi did not express a view, Ahmadi, J concurred with Venkataramaiah, J in SP
Gupta’s case allowing a limited mandamus to the issue.

Advice
The majority in this case, has ruled that the advice, viz., given to the president must be
constitutional. Any advice that is given to the president, which is not in accordance with the
constitutional provisions is not advice. To this extent, this marks a landmark in the
interpreting of Art. 74; which has been held not to be applicable to Art. 124.

The judgement does not augur well for the future. There are many possible flash points.
This must be viewed as a part of a macro-trend, namely the splurge in ‘Judicial Legislation’.
The judiciary has not placed checks upon it and has suffered in consequence, the decision in
Unnikrishnan case [19] and its aftermath is a prime example.

The judgement is flawed ab initio. A large part of the majority judgement is in danger of
being rendered otiose. As MM Punchhi, J. has pointed out, a large part of the majority
decision is obiter, as it was not based on the reference. The court has answered questions it
was not asked. The reference only contained the question of ‘primacy’ and fixation of judge
strength. Hence, the rest of the judgement is obiter.

Further, this judgement virtually re-writes the constitution. The word ‘consultation’ can
never mean ‘concurrence’. This may be an attempt to implement the 121st Law Commission
recommendation which never got off the ground. Hence, it is not the duty of the legislature
to do the work of the legislature.

Furthermore, the majority in the instant case have attempted to create a collegium in the
form of the judicial troika. This constitutionally is not tenable. The “Chief Justice of India”
cannot mean the Chief Justice and his two colleagues. If this is accepted in all cases, where
the Chief Justice of India is consulted, he must consult the other two. This may cause great
conflict in the future. The constitution of India has given a different position to the CJI.
He has the ‘primus inter pares’ position in the judiciary. He is the administrative head.

10. Explain the Scheme of Distribution of Legislative Powers between Union

and States in India. (July 2012) (Sept 2013)
Explain the Legislative Relations between the Centre and State. (Sept 2014)
Explain the scheme of distribution of Legislative Powers between Union and
States. (Sept 2018)

48
Ans: India, in the Constitution, has been described as a federation of States. Indian
Constitution provides for three lists for distribution of legislative and executive power
between the Center and the States; i.e.
1. the Union (Central) List,
2. the State List, and
3. the Concurrent List (subjects within the ambit of the Union Government & the State
Governments).

According to Dicey, power distribution is an essential feature of a federation. The object

behind the formation of a federal State involves an authoritative division between the
National Government and the Government of the separate States.

The legislative powers are subject to the scheme of the distribution of legislative power
existing between the Union and State legislatures (as provided in the 3 lists under the
constitution), fundamental rights, and other Constitutional provisions.

Distribution of Legislative Powers between the Union and the States

Let us now go through the three lists enshrined under the 7th Schedule of the Constitution.

Union List
The Union list contains 97 items which comprise of the subjects having national significance.
This list admits uniform laws that are applicable over the entire Indian territory, and only
the Indian Parliament is capable of legislating upon them.

Some of the items in this List-I are as follows:

 Defence;
 Central Bureau of investigation;
 Foreign Affairs;
 Banking;
 Intellectual Properties;
 Census;
 Corporation Tax;
 Atomic energy and necessary mineral resources;
 Preventive Detention;
 Diplomatic, consular, and trade relations;
 War & peace;
 Citizenship;
 Highways and Railways, etc.

State List
The State list contains 66 items that comprise subjects relating to local interest or the
interest of the State. The State legislature is thus competent in legislating over these
subjects.
Some of the subjects in this List-II are as follows:
 Public Order;
 Local Government;
 Public health & Sanitation;
 Agriculture;

49
  Fisheries;
 Libraries, museums, and other resembling institutions;
 Markets & fairs;
 Gas & allied works.

Concurrent List
This list enshrines 47 items, with respect to which; both the Union Parliament and the State
legislature hold a concurrent legislative power. This list was meant to serve as a device for
avoiding excessive rigidity in a two-fold distribution. Besides, the states can additionally
legislate purporting to amplify the Parliamentary legislation. However, in case a dispute
arises in relation to any subject contained in this list, the Union legislation shall prevail over
that of the State.
Some of the subjects contained in this List-III are as follows:
 Criminal law & procedure;
 Archaeological sites;
 Marriage & divorce;
 Transfer of property, excepting agricultural land;
 Contempt of Court, excluding that of the Supreme Court;
 Civil law & procedure;
 Prevention of animal cruelty;
 Electricity;
 Economic & social planning;
 Legal, medical, and other professions.

The extent of the Parliamentary laws and the laws by the State Legislatures
According to Article 245; subject to the constitutional provisions, Parliament may legislate
for the whole or any part of the Indian territory, a State legislature for the State
territory, and no parliamentary legislation shall be invalid because of having extra-
territorial operability, i.e. takes effect outside the Indian territory.

In A.H Wadia vs. Income Tax Commissioner; the Supreme Court held that in case of a
sovereign legislature, the question on the extraterritoriality of any enactment cannot be
raised before a Municipal Court for the purpose of challenging its validity. The legislation
may be contrary to the rules of the International Law, may be unrecognizable in the foreign
Courts, or may have practical difficulties in relation to their enforceability, but the
domestic tribunals are concerned solely with the questions of policy.

Subject-matter of the Parliamentary laws and laws made by the State Legislature
According to Article 246;
1. The Union Parliament, notwithstanding anything under clause 2 and clause 3, is
exclusively empowered to legislate in respect of any matters enshrined in the Union
List (List-I).
2. The Union Parliament and the State Legislature, notwithstanding anything under
clause 3 and also clause 1, is empowered to legislate on any matters contained in the
Concurrent List (List-III).

50
 3. The State Legislature, excluding anything under clause 1 and clause 2, is exclusively
empowered to legislate for such state and its any part with respect to any of the
matter contained in the State List (List-II).
4. The Union Parliament is empowered to legislate with respect to any matter for any
part of the Indian territory not included (in a State) notwithstanding such matter is
enumerated in the State List.

Parliamentary power to provide for the establishment of certain additional courts

According to Section 247; notwithstanding anything under this chapter, the Parliament may
legally provide for the establishment of any number of additional courts for improving the
administration of Parliamentary laws or of any existing laws with respect to any matter in
the State List (List-II).

Thus, the Parliament is empowered by the provision of this Article to establish Courts or
judicial bodies for better administering the laws passed by the Parliament or relating to any
laws under the State List.

Residuary legislative powers

According to Article 248; Parliament is exclusively empowered to legislate with respect to
any matter absent in the Concurrent List or State List. Also, such power shall include the
legislative power for imposing a tax not mentioned in either of those Lists.

Therefore, the Parliament has the power to make laws in relation to any matter which is not
present in either the concurrent list or the State List, including the power to make laws on
tax imposition.

Parliamentary legislative power with respect to a matter in the State List

In the national interest
According to Article 249; if the Rajya Sabha passes a resolution relating to a matter of
national interest with a two-third majority. Such resolution empowers the Parliament to
legislate with respect to any matter in the State List, then it shall be lawful for the
Parliament to legislate. Such legislation can extend to the whole or any part of the Indian
territory until the legislation operates.

Such a resolution normally lasts for a year and maybe renewed upon the necessity but such
extension cannot exceed a year.

These Parliamentary laws, however, shall cease to operate after the expiration of 6 months,
following the cessation of the resolution.

Thus, the Parliament is competent to legislate on any law which is based on a resolution
passed by a majority in the Upper House of the Parliament, if such resolution contains any
matter of national importance. However, such a resolution can last for a year and can be
extended for a period at a maximum of one year.

If a Proclamation of Emergency is in operation

According to Article 250; during the operation of the Proclamation of Emergency, the
Parliament shall be empowered to legislate for the entire Indian territory or any of its
parts with respect to all the matters enumerated in the State List.
51
However, such law shall come to cessation on the expiration of 6 months following the
cessation of the Proclamation of Emergency.

During Emergency, the Parliament has the power to make any law which shall be applicable
over the entire or any part of India, and such law shall be applicable for only a year after
the emergency is withdrawn.

Inconsistency between Parliamentary legislation under articles 249 and 250 and laws
made by the Legislatures of States

According to Article 251; nothing under the Articles 249 & 250, shall restrict the State
Legislature from legislating on any matter for which it has been empowered under the
Constitution. However, if any legal provision legislated by the State Legislature is repugnant
to any legal provision so legislated by the Parliament, whether legislated prior to or following
the State law, then the law made by the Parliament shall prevail over the one passed by the
State and the State legislation shall be inoperative until the operation of the Parliamentary
law.

Parliamentary legislative power for two or more States by consent and adoption of such
legislation by any other State
According to Article 252; If it appears to the two or more State Legislatures that it is
desirable that any of the matters with respect to which Parliament lacks any legislative
power for the States except as provided under the Articles 249 and 250 should be
regulated so that the States by Parliamentary law, and if resolutions are passed to that
effect by all the House of those State Legislatures, it shall be lawful for Parliament to pass
an Act in order to regulate that matter accordingly, and any Act so passed shall be
applicable to such States and to any other State by which it is adopted later through a
resolution passed in that behalf by the House or Houses of the State Legislature, as the
case may be.

Any Parliamentary Act can be amended or repealed solely by a Parliamentary Act passed or
adopted in resembling manner but not by an act of the State Legislatures.

Legislation for effecting international agreements

According to Article 253; notwithstanding anything in the foregoing provisions of this
chapter, the Parliament has legislative power for the whole or any part of the Indian
territory for-
 Implementation of any treaty, agreement, or other convention with another country;
 Implementing any decision made at any international conference, or international
association, or international body.
The Parliament is hereby empowered to pass any law relating to implementing any
international treaty, or agreement or convention, as the case may be; and related to any law
for any decision taken at any international conference or association, and shall be applicable
over the whole or any part of the nation.

Inconsistency between Parliamentary laws and the laws by the State Legislature
According to Article 254; if any legal provision made by the State Legislature is repugnant
to any legal provision made by the Parliament over which it has the competency, or to any
52
existing legal provision with respect to any of the matters contained in the Concurrent List,
then, subject to the provisions of clause (2), the Parliamentary laws, whether passed prior
or following the enactment by the State Legislature, or, as the case may be, the existing
law, shall prevail over the law passed by the State Legislature.

Where an enactment by the State Legislature with respect to any matter enumerated in the
concurrent List is repugnant with the provisions of the prior Parliamentary law or existing
law in respect to that matter, then, the State law, if it has been reserved for the
Presidential consideration and has received his assent, prevail in that State.

Provided that nothing in this clause shall prevent the Parliament from legislating any law any
time with respect to the same matter including the addition of law, amendment, variation, or
repealing of the law enacted by the Legislature of the State.

Requirements as to recommendations and previous sanctions to be regarded solely as

procedural matters
According to Article 255; no Parliamentary Act or an act of a State legislature and no
provision in any such Act shall be invalid solely for the reason that some recommendation or
previous sanction required by this Constitution was not given in case the assent to that Act
was given:
1. In case the required recommendation was of the Governor’s and had to be given by
the Governor or the President;
2. In case the recommendation required was that of the Rajpramukh, either by the
Rajpramukh or by the President;
3. In case the recommendation or previous sanction required was that of the President,
by the President.

From the above comprehension, we can thus see Central domination over the States of the
Indian Union. India, although regarded as a federation of States, cannot be regarded as
truly federal. In times of emergency as well as during normal situations, the Union
Parliament is always competent to supersede any State Law and prevail its own. Therefore,
India can be regarded as a quasi-federal State, having a higher resemblance with Canada
than the truly federal United States of America.

11. Elaborately discuss about the Union and State Relations ((Nov 2012)
Discuss the Centre and State Relationship in India. (Aug 2014)
Explain the scope of relationship between Union and States (Dec 2020)

Ans: Centre-State Relationship in India

There are 3 main elements of the Centre-state relationship which is as follows –
1. Legislative relations
2. Administrative relations
3. Financial relations
Legislative Centre-state relationship
The legislative relationship between the centre and the states are mentioned between
Articles 245 to 255 of the constitution. These legislative provisions enshrined under part
XI of the constitution are as follows –

53
The extent of laws Making
The parliament of India is empowered to make laws for any part of India including our union
territory. Further, the parliament can make extra-territorial legislation for the security and
well being of Indian’s inhabitants residing in any other part of the world. On the other hand,
the law-making areas of the states are confined to the geographical area of a particular
state.

Subject-matter of Legislature
The constitution of India has divided the legislative authority of the centre and states into
3 lists namely union list, state list and concurrent list. The union list comprises 99 subjects
including foreign affairs, defence, etc. and the union parliament has the sole authority to
make law on these subjects. The state list includes 61 subjects including health, public
order, etc. and the state legislature has the exclusive jurisdiction to formulate laws on
these subjects.

7th schedule of Indian constitution- Union list, State list and Concurrent list
Lastly, the concurrent list has 52 subjects including education, family planning, criminal
procedure code etc. It is important to note that under the concurrent list both the
parliament and the state can frame laws. However, in case of conflict, the laws formulated
by the parliament will prevail.

Power to legislate on the residuary subject

The constitution of India also contains provisions related to those subjects which are not
mentioned in any of the aforesaid lists. These subjects are known as residuary subjects and
the union parliament is given the authority to frame laws on these subjects. However, if any
dispute arises, it is the duty of the court to determine whether a subject falls in the ambit
of the residuary list or not.

Parliament’s Power to Legislate on the subjects falling in the domain of state legislature
In ordinary circumstances, the law-making power between both the union and the state
legislature is confined to their concerned list. However, the constitution of India can allow
our union parliament to legislate on the state list under certain circumstances. These
conditions are as follows –

To protect the National Interest

This provision is given under Article 249 of the constitution and it allows the parliament to
make law on any subject if the national interest is at stake. For using this provision, firstly a
resolution is passed in Rajya Sabha with more than 2/3 members stating the need for
making a law on the state list to protect our national interest. After the resolution is
passed, the parliament is empowered to formulate the law and it remains in force for a
maximum period of 1 year. However, the period can be extended by passing the subsequent
resolution.

When National Emergency is in Operation

This power is given under Article 250 of the constitution. As per this Article, the
parliament is empowered to make the law even on the state subjects when the emergency is
in operation. However, it is important to note that the laws made under this provision will
lose their validity after 6 months from the date of emergency.
54
Agreement between States
As per Article 252 of the constitution, the parliament can make law on the state list if a
particular state passes a resolution that it is lawful for the union parliament to make law for
this state and they will abide by the law. Thus, any law passed by the union parliament will
also have applicability to that state also. However, the parliament still possesses the right
to amend or repeal such a law made under this provision.

For Giving Effect to any International Treaties

As per Article 253 of the constitution, the president can enter into any bilateral or
multilateral treaty and the union parliament had to make a domestic law for giving effect to
any such treaty. Thus, the Parliament can enact any law for implementing any treaty or
convention irrespective of the list the subject may belong to.

When President’s Rule is in operation

The concept of imposing president rule is mentioned under Article 356 of the constitution.
This Article empowers the president to suspend the state assembly on the ground of the
breakdown of constitutional machinery in a state. During this period, the parliament
formulated laws for that particular state and these laws have the validity of 6 months from
the date of declaring president rule.

The control of Parliament over State Legislature

The constitution of India is quasi-federal in nature with a strong centre that ensures that it
keeps a vigil over the functioning of the states. The centre can exercise control over the
state’s legislature by the following methods
 The governor possesses the author to transfer a bill to the president to seek his
opinion. The president can exercise an absolute veto over such a bill.
 There are certain matters in the state list on which the bill can be introduced only
before the prior consent of the president. These bills generally relate to the subject
of trade and commerce.
 During a financial emergency, the president possesses the authority to direct the
state authority for reserving money bills and other financial bills for his
consideration before passing in the state legislature.

Administrative Centre-state relationship

As with the legislature authority, the administrative function of the centre and states are
confined to the subjects mentioned in the union and the state list respectively. Thus, the
administrative relation can be defined through the following –

The extent of Executive power of State and Centre

This provision is dealt with under Article 256 of the constitution. It states that the
executive power of a state shall be exercised in a manner that complies with the union laws
framed by the parliament. Similarly, the central government shall also issue its direction
after having regard to the particular state laws.

Duty on State to not interfere with the executive power of the union government
As per Article 257 of the constitution, the state should exercise its executive power in a
manner that doesn’t contravene or prejudice the executive power exercised by the union

55
government. However, the union government has broad powers and it is empowered to issue
such directions that may result in the encroachment of state authority.

To construct or maintain means of communication relating to military or national

importance
As per this provision, the central government is empowered to issue directions to the state
government relating to the construction or the protection of the existing means of
communication that are very important for the military and national interest. The state had
to abide by the same.

To Protect Railways:
This provision states that the union government can issue directions to the state
government pertaining to the protection of railways falling under the concerned state’s
jurisdiction. However, it is important to note that any expense incurred during this process
of protection is reimbursed by the central government.

For the welfare of Scheduled Tribes

This provision states that the union government can direct the state government to launch
any scheme or programme to ensure the welfare of the scheduled tribes of the state.

To impart primary education in a mother-tongue language

This provision is mainly used for the betterment and advancement of minority linguistic
groups. The central government can issue directions to a state to make arrangements so
that the children can learn their initial education in their mother tongue language.

To ensure that the constitutional provisions are followed by the state government
This provision is the heart of the centre-state relation. Under this, the central government
is empowered to issue any direction to the state government to ensure that it is functioning
as per the provision of the constitution. However, if a state doesn’t comply with the
provision of the constitution for a substantial period of time, then the central government is
authorised to suspend the state government and impose president rule in that state.

The power of the Union government to adjudicate the Inter-State River Water
Disputes
The constitution of India has provided our union government with the power to adjudicate
any dispute that may arise in relation to the use or distribution of water or any other inter-
river dispute. The pertinent thing to note is that the parliament is also empowered to
exclude this kind of dispute from the jurisdiction of the Hon’ble supreme court or High
court.

Administrative Relations During Emergencies

President’s Rule: When a president’s rule is imposed under Article 356 of the constitution,
the union gets all the administrative power of the state.

National Emergency: When a national emergency is in operation, then the central

government is empowered to issue directions relating to those subjects which may fall in the
domain of a state’s executive power. It is mandatory for the states to follow these
directions.

56
Financial Emergency: When a financial emergency is declared by the central government,
then it is empowered to issue directions to the states relating to reducing the salary or
allowance of government servants or the judges of various courts etc. It can also direct the
state government to put all the money bills before the president for his consent.
Thus, we can say that in the administrative field, the states can’t work in isolation and they
have to follow the directions of the central government.

Financial Centre-state relationship

The financial relationship between the Centre and the state government is governed by
Articles 268 to 293 of the constitution. It provides detailed provisions relating to the
distribution of tax as well as non-tax revenue between the centre and the state.

Distribution of tax
As per the constitution, the parliament has the exclusive or the sole jurisdiction to levy
taxes on those subjects which are mentioned in the union list and the state government can
impose a tax on the subjects falling under the state list. In the case of a concurrent list,
both the centre and the states are eligible to levy taxes.

Grants-in-Aid from the Central Resources

Apart from tax, the state government also received certain kinds of grants from the
central government. These grants can be divided into 2 parts –

 Statutory Grants:
It refers to that grant which is given by the parliament from the consolidated fund
of India. It is generally given to those states who are facing some financial adversity.
The amount of grants is not certain and it keeps changing as per the requirement of
the states. Sometimes, a specific grant is given by the central government to
promote the welfare of scheduled tribes of a state.
 Discretionary Grants:
This provision is dealt with under Article 282 of the constitution. As the name
suggests, this grant is discretionary in nature and is given on the basis of the
recommendation received from the planning commission. The main objective of giving
such grants is to assist the states in achieving the result of a particular plan.

During a National Emergency, the union government can declare that the distribution of tax
between the centre and states shall remain suspended. Further, it can also suspend or
cancel any proposed grant in aid given to a particular state.

Finance Commission
Article 280 of the constitution deals with the establishment of the finance commission. The
main objective of setting this commission is to ensure the effective distribution of financial
resources between the centre and the states. This commission works under the authority of
the president and he can recommend changes every 5 years.
The commission mainly has 5 members including 1 chairman and 4 members. The chairman
must have experience in public affairs. Other 4 member includes –
 A judge of the high court or a person having equivalent qualification
 A person having expertise in the field of finance and account of the government.
 A person having experience in public administration
57
  A person having expertise in the field of economics.

Federalism is a part of the basic structure of the constitution and the centre-state
relationship is the core principle behind it. There are mainly three facets namely legislature,
administrative and financial matters wherein their relationship is governed. Broadly, in all
three domains, the power of the centre and the states are confined to the subject of union
and the state list respectively. However, in case of an emergency, all the power got
transferred to the central government.

12. Explain the Doctrine of Basic Structure in relation to amendment of

Indian Constitution. (July 2012) (Aug 2012)
Explain the process of Amendment of the Indian Constitution and discuss the
Basic Structure Theory. (Nov 2012) (Sept 2014)
Explain the scope of Doctrine of Basic Structure formulated by the Supreme
Court of India in Kesavananda Bharati Case (Sept 2013).
Explain the Parliament’s power to amend the Indian Constitution with reference
to the Doctrine of Basic Structure (Aug 2014)
Analyse the evolution of Basic Structure Theory in the context of Constitutional
Amendment. (June 2018)
Discuss the evolution of Basic Structure Theory in India (Sept 2019)
Explain the power of Parliament in amending Indian Constitution. (Sept 2021)

Ans: Doctrine of Basic Structure

The first step toward constitutional law wisdom is realising that the Constitution founded a
self-governing republic. The Constitution is a natural law. As said by Edmund Burke (the
Father of Conservatism), “A Constitution is an ever developing thing and is continuously
ongoing as it embodies the spirit of the nation. The impact of the past enriches it now and
makes the future richer than the present.”

Article 368 falls under Part XX of the Constitution. It provides for three kinds of
amendments, i.e., amendment by simple majority; amendment by a special majority; and
amendment by special majority along with ratification by the States. The Constitution must
be amended on a regular basis based on the dynamic nature of society. A stagnant
constitution puts a significant barrier in the way of the country’s advancement. A provision
for amending the Constitution has been made in order to address any challenges “We the
People” may face in the future as the Constitution functions, since time is not static; it is
always changing, just as the political, economic, and social circumstances of the people do.
If there were no provision for the Constitution’s revision, citizens would have turned to
extra-constitutional means, such as war, to alter it. Our Constitution’s authors were so
concerned with preserving India’s integrity that they provided us with a system through
which, if a citizen had a claim against the government (whether it be Central or State), even
if it were only for 100 rupees, they would issue a decree against the government; this
decree would then be charged to the Consolidated Fund of India and would be due and
payable without any right of appeal on the part of any State Legislature or Parliament.

58
The judiciary, as well as Parliament, has not provided an exhaustive or exclusive definition
of the fundamental structure. The doctrine of basic structure has been defined by the
judiciary using a case-by-case approach.

The Constitution’s framers had a feeling of India’s integrity and honour before 73 years,
but today Parliament is doing everything it can to avoid falling under the jurisdiction of the
court, which serves as the Constitution’s custodian. This concept, as it was defined
in Kesavananda Bharati v. State of Kerala and Another (1973), aims to address a legal
issue that occurs in written constitutions as a result of the interaction between the
sections that protect fundamental rights and those that give Parliament the authority to
change the Constitution.

In Minerva Mills judgement (1980), the judiciary had very loosely defined the basic
framework by stating that Parliament has the authority to amend the Constitution, which
was made with the utmost care by the founding fathers, whenever societal needs call for it.
But it is to be remembered that the Constitution is a cultural heritage and its integrity and
identity should not fall under the purview of questions.

Essential features of basic structure of Indian Constitution

Through a variety of cases over these years, the judiciary has expanded the meaning of
what is included in the basic structure. Let’s have a look at some of these essential features
below:

In Kesavananda Bharati’s case, the following essentials were accepted as ‘basic structure’:
 The supremacy of the Constitution, republican and democratic forms of government,
the secular nature of the Constitution, the division of powers between the legislative,
executive, and judicial branches, and the federal nature of the Constitution are all
part of the basic structure, according to Chief Justice Sikri.
 The directive to create a welfare state found in the Directive Principles of State
Policy as well as the unity and integrity of the country are two additional basic
features that Shelat, J., and Grover, J., added to this list.
 The sovereignty of India, the democratic nature of the polity, the nation’s unity, the
core elements of the individual freedoms secured to its citizens, and the mandate to
create a welfare state are among the basic characteristics that Hegde, J., and
Mukherjea, J., separately and more succinctly listed.
 According to Jaganmohan Reddy, J., the Preamble of the Constitution and the
constitutional provisions into which they were translated, such as sovereign
democratic republic, parliamentary democracy, and three organs of the state
contained aspects of the basic features.

In Indira Gandhi v. Raj Narain (1975) case, according to Justice K.K. Thomas, the ability
for judicial review is a crucial component. Justice Y.V. Chandrachud also stated four
fundamental principles that he believed could not be changed. These include:
 The sovereign democratic republic status,
 Equality of status and opportunity for all people,
 Secularism and freedom of conscience and religion,
 The rule of law (It was also held in an implied manner as a feature of the basic
structure in the Golak Nath case (1967) by Justice Mudholkar.)
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In Minerva Mills judgement, the judges with the concurring opinion from the majority ruled
that ‘limiting the amending power’ itself is a basic feature of the Constitution.

According to the judgement in the Central Coal Fields case (1980), effective access to
justice is a fundamental component of the basic structure.

In Kihoto Hollohon v. Zachillhu (1992) case, the Court hinted toward democracy along with
a fair electoral process as being a feature of the basic structure.

Further in S. R. Bommai v. Union of India (1994), democracy and federalism, along with
secularism were recognised as essential features of the basic structure.

In M. Nagaraj v. Union of India (2006), the Court acknowledged the doctrine of equality
as an essential feature of the basic structure.

Let us now discuss some of these essential features in detail:

Supremacy of law
According to the idea of constitutional supremacy, all state institutions, including the
parliament and state legislatures, are bound by the Constitution as the highest law of the
realm. They are required to act within the restrictions imposed by the Constitution. The
Constitution is what gives them life and authority, so everything they do must be in
accordance with it.

The basic structure of the Indian Constitution is federal, and it is distinguished by the
traditional features of a federal system, including the supremacy of the Constitution, the
division of powers between the Union and State governments, the existence of an
independent judiciary, and a strict process for amending the Constitution. It creates a dual
polity where the Union and the States have distinct spheres of authority that they can
exert in the domains that are entrusted to them. There is an independent judicial system
that can be used in the areas that have been delegated to it to decide disputes between the
Union and the States. Only by using a distinctive parliamentary procedure and having a
majority of the States ratify it, an amendment is made in the respective spheres of the
Union and the States.

It was determined in K.T. Plantation Ltd. v. State of Karnataka (2011) that there is
numerous legislation that, despite depriving a person of his property, is protected by Article
30(1-A), Articles 31-A, 31-B, and 31-C, and are therefore unchallengeable under Article
19 or Article 14. Aside from the ground of legislative competence, the grounds for
challenging the deletion of Article 19(1)(f) include Article 14, the fundamental structure,
and the rule of law. In other words, Article 14 simpliciter as a ground of challenge is
accessible for statutes not covered by Articles 31-A, 31-B, or 31-C. A challenge under
Article 14 wouldn’t be maintainable for statutes covered by Articles 31-A, 31-B, and 31-C
unless it was viewed as a component of the fundamental framework of the Constitution.

The Constitution is a fundamental law. The Constitution gave rise to the governmental
bodies, and it is within its bounds that they exercise their authority and carry out their
duties. Both the State Legislature and the Union Parliament are not sovereign. Any law,
whether from the Union or a state, is evaluated for legality in light of the Constitution’s
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definition of each jurisdiction. If any constitutional provision is determined to have been
violated by a statute, the judiciary has the authority to declare the law unconstitutional.
Republican and democratic forms of government

In the years before its independence, India was divided up into numerous princely states.
The Constitution is what made India into a republic. The qualifiers ‘sovereign’ and
‘democratic’ define ‘republic’ in the phrase “sovereign democratic republic.” Both the terms
‘democratic’ and ‘sovereign’ are equally important. If weight must be ascribed between
‘sovereign’ and ‘democratic,’ then ‘sovereign’ is deeper and more complex than ‘democratic.’
Sovereignty is therefore both a characteristic and a source of democracy.

The term ‘republic’ then needed to be defined as ‘democratic,’ therefore democratic should
simply come before the republic. Because of this, the words “sovereign democratic republic”
were arranged in that particular order. In order to provide justice, liberty, equality, and
fraternity to all of its citizens, a sovereign democratic republic must include all citizens
without exception. The phrase ‘to secure’ expresses security and confidence. Justice is
necessary for liberty to exist, and liberty is necessary for justice to exist. Equality would
be guaranteed by justice and liberty. Additionally, justice and liberty would present
themselves as equality through their interaction. If justice, liberty, and equality didn’t
exist, “fraternity” would only exist in people’s imaginations or in their idealised visions.

The four words, which are arranged in that manner, represent a philosophical journey
through thought and ideology as well as a clear explanation of how the Constitution will
operate. The most important of the four ideas is ‘justice.’

The Indian Constitution guarantees “rule of law” governance and calls for the country to be
governed by its three main pillars: the legislature, the executive, and the judiciary.
Therefore, upholding the “rule of law” is a must under our constitutional structure and is
crucial to the survival of any democracy.

Secularism
As a core principle for state policy and conduct, secularism is a fundamental element of the
Constitution. A cornerstone of an egalitarian and progressive society that our Constitution
seeks to construct is secularism in the positive sense. In a society that is multireligious and
socially divided, it is the only basis for a consistent and long-lasting national identity. It is
an effective method for resolving disputes and promoting harmony and peace. It guarantees
full civil liberties, constitutional rights, and equal opportunities while giving followers of all
religions a sense of security.

Secularism and socialism were added to the Preamble of the Constitution by

the Constitution (Forty-second Amendment) Act in recognition of the fact that political
democracy would not endure in a democracy unless all segments of society were given the
means and opportunities to engage in it, regardless of caste, religion, or sex. India’s
Constitution upholds a secular State. There is no recognised religion by the State. Its
provisions, which fully permit everyone to profess, practise, and propagate the religion of
their choice, are permeated with secularism. In addition to ensuring a person’s freedom of
religion and conscience, the Constitution also provides freedom for those who do not

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practise any religion and scrupulously prohibits the state from engaging in any form of
religious discrimination.

Federal character of the Constitution

The Indian Constitution is a tool for achieving a goal; it is not merely a political philosophy of
democracy but rather a system of social justice. The federalism of India is distinct except
that it is designed to meet the particular requirements of the nation. A fundamental aspect
of the Indian Constitution is federalism, which establishes the Union of India as eternal and
unconquerable. Both the Center and the States are cooperating and coordinating
organisations with their own independence, and they should each execute their own
authority with respect, understanding, and mutual adjustment.

In the strictest sense, the Indian Constitution is not viewed as federal or unitary. It’s
frequently described as having a quasi-federal structure. India’s unity as a single country is
emphasised often in the Constitution. India is a sovereign, socialist, secular, and democratic
republic that is referred to as a union of states. The right of the states to draft their own
constitutions and the inclusion of dual citizenship have both been considered to be
requirements of federalism that the Indian Constitution does not meet making it quasi-
federal.

Natural Law and basic structure of Indian Constitution

This segment of the article attempts to prove that there is a relationship between the two
disparate theories of natural law and the basic structure of the Indian constitution. Thus,
the foundation of natural law is the idea that there is a greater law that is permanent and
therefore above the whims of the sovereign. Natural law is frequently used to explain the
complete body of rights, making it the ultimate superset of rights. The concept of human
rights emerged from natural law. All people were born with a distinctive identity that was
distinct from their state. Grotius presented a non-theistic explanation of natural law after
that. As a result, we may conclude that human rights are a part of the larger natural law
system.

Part III of the Indian Constitution affirmatively transcribes human rights. Only a few
human rights, though, were protected as Fundamental Rights. A quick comparison of
the Universal Declaration of Human Rights (UDHR) and Part III of the Indian Constitution
reveals that the rights to life and liberty under Article 3 of the UDHR have been
transformed into Article 21 of the Indian Constitution, the right to a fair trial under
Article 10 of the UDHR has become Article 22 of Part III, the right to property under
Article 17 of the UDHR, which was formerly Article 31 of the Constitution, has been
changed to become a constitutional right under Article 300, and the right to freedom of
expression under Article 19 of the UDHR has been adopted as Article 19 in the Constitution
of India. Thus, it is also shown that fundamental rights are a subset of more general human
rights, which form the second link in the rights chain.

Now we turn to the question of whether the basic structure, which is a subset of
fundamental rights, also includes additional natural law notions that fall outside the purview
of fundamental rights. The answer to this has already been discussed above under the
heading “Essential features of the basic structure”. We can infer that the basic structure

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was the result of the judiciary’s search for a more effective provision in the Constitution
to prevent an all-powerful executive.

As a result, we conclude that while many fundamental rights were fundamentally

safeguarded, Part III as a whole never received such protection. As stated in Minerva, the
Constitution’s identity is found in the equilibrium between Parts III and IV. The
fundamental structure includes much more than just fundamental rights; it also includes the
fundamental principles of natural law in the form of democratic institutions, the rule of law,
and other similar concepts.

Scope of amending the basic structure of Indian Constitution

Without a doubt, fundamental rights are crucial and the foundation of civilisation. However,
when the socioeconomic landscape shifts, society also does. The boundaries of these rights
might need to be constantly redefined. Even the core of their ideas could change drastically.
Generally, most constitutions include an amending power to allow for required changes to
legal relationships and to bring them into compliance with social realities. A very good
example of a flexible Constitution with an easy method for enacting any changes in law,
including constitutional law, is the British Constitution. Broad amending authority and a
simple amendment process do not devalue or call for the abolition of fundamental rights;
rather, they provide a way of preserving them through required adjustments that are in
keeping with shifting social realities. Fundamental rights are stable because of both political
and societal backing, not because there is no legal authority to revoke them.

The power and process for amending the Constitution are outlined in Article 368 of the
Constitution. There is no higher law that can be used to verify its legitimacy because it is a
constituent power sui generis. As the fundamental standard, the Constitution is a valid
starting point. The Constitution will be altered in conformity with the terms of the
amending Bill if the prescribed procedure is followed while passing the Bill. Constitutional
amendments must receive a special majority in order to be approved. A majority of the
members present and voting in each House, as well as a majority of at least two-thirds of
the members present and voting, are required to adopt an amendment bill in accordance with
article 368. Before a bill can be brought to the President for assent if it pertains to state
issues as specified in the proviso, it must be approved by the legislatures of at least half
the states.

For a lot of years, Indian legal experts have been debating whether there are any express
or implicit restrictions on Parliament’s ability to change basic rights beyond the need to
follow the established method. This issue initially came up in the Shankari Prasad case of
1951, in which the constitutionality of the First Amendment was contested. Fundamental
rights underwent several alterations as a result of this revision. The amendment in question
is subject to a test under Article 13(2) and is unlawful because it breaches fundamental
rights, according to the argument behind the challenge. The Supreme Court ruled
unanimously in favour of the amendment’s legitimacy, concluding that Article 13 does not
apply to constitutional amendments because the phrase ‘law’ included therein refers to
common law rather than constituent law. It can be helpful to keep in mind that the
Constituent Assembly was changed into the Provisional Parliament with the same
membership, which approved the first amendment.

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In the second instance, Sajjan Singh v. State of Punjab (1963), this issue came up. In
this case, the 1964’s Seventeenth Amendment was contested on identical grounds. This
time, the Court determined by a vote of 3 to 2 that the amending power granted by Article
368 is a broad power that includes the ability to take away the fundamental rights
protected by Part III and cannot be regulated by Article 13. In the well-known Golak Nath
case, where the Supreme Court disagreed with precedent, this issue was raised once more.
By a vote of six to five, it was concluded that the term ‘law’ in Article 13(2) included
Constitutional Law, which in turn limited and constrained the modifying power granted by
Article 368. It prohibited Parliament from amending any of Part III’s clauses in a way that
would eliminate or curtail the rights guaranteed therein.

The recent Kesavananda case, which was determined by the Court in April 1973, has
brought the entire debate to a head. The legitimacy of the Twenty-fourth, Twenty-fifth,
and Twenty-ninth amendments, in this case, was contested primarily on the grounds that
Parliament lacked the authority to enact amendments that curtailed or eliminated
fundamental rights. Article 13 and Article 368 both undergo changes as a result of the 24th
amendment. This makes it clear that constitutional amendments are not included in the
definition of ‘law’ in Article 13(2). It makes it very clear that Article 368 provides the
authority and the process for changing any provision of the Constitution by way of addition,
modification, or repeal. Additionally, it makes the President’s approval of an amending Bill,
which has been lawfully enacted by both Houses, when it is given to him for this reason,
mandatory. The petitioners further argued that even if Parliament had the authority to
amend fundamental rights, there were inherent and implied restrictions on that authority
that prevented it from altering the Constitution’s fundamental design or core principles. In
response to the first query, the Court determined that because Article 368 gave Parliament
the authority to change basic rights and because Article 13’s definition of ‘law’ did not
encompass constituent law, the amending power could not be restrained. The 24th
Amendment was thus preserved by the Supreme Court. There were discrepancies about the
scope of the amending authority and the associated limitations on this power. Although
there was disagreement among the judges over the definition and content of the so-called
basic structure, the ratio of 7:6 judges believed that the Constitution’s basic structure
could not be changed under the amending power.

The entire Constitution is the basic law. Since there is no unbiased test to determine which
portion is more basic than the other, it is difficult to make this distinction. There are
therefore subjective preferences and choices in determining what makes up this so-called
basic structure, as there are no objective criteria to differentiate between them. It is not
possible to claim that essential features are necessarily eternal and unchangeable, even if it
were possible to distinguish between essential and non-essential features.

Kesavananda Bharati case

On April 24, 1973, the landmark decision in the “Essential Features Case” was handed down.
In the official law reports, the verdict filled more than 700 densely printed pages. Despite
its length, Kesavananda is not regarded as a case that specifically addresses the issues
raised by the parties; rather, it takes on the duty of extensively describing the
constitutional jurisprudence surrounding amendments in the Indian legal system. The

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thirteen-judge Constitutional Bench responded with eleven judgements, only two of which
were written jointly by Shelat J. and Mukerjea J. (first) and Hegde J. and Grover J.
(second).

What is interesting to know about this case is that out of the 13 judges, 6 ruled in favour of
the petitioners while the other 6 ruled against them, leaving the 13th judge, Justice Khanna,
with a neutral position. He decided on a mid-away between the two conflicting opinions of
the rest of the judges. The most interesting part is that the opinion of Justice Khanna, to
which none of the other 12 judges fully agreed, has actually become the law of the land. He
held that the power of amending is limited and that Parliament is not enabled to alter the
basic structure of the Constitution. The substantive portion of Article 31-C, which repealed
the fundamental rights, was constitutional since it did not change the Constitution’s
fundamental framework, which is its basic structure. Whereas, the remaining part of the
article which ousted the judicial jurisdiction was held to be invalid. Lastly, on the issue of
amending power under Article 368, he held that parliament does not enjoy unlimited power
in this situation either.

Twenty-fourth Amendment issue

In order to determine whether the Twenty-fourth Amendment is constitutional,
Kesavananda’s concept was immediately used. The arguments against a limitless amending
power were founded on the concern that, if given, the Fundamental Rights and other
important aspects of the Constitution may be in jeopardy. According to Seervai (the
author), this argument was refuted in the same way it always has by stating that, despite
the fact that actual abuse of power would be upheld, “the dread of abuse of power was not a
justification against its existence.”

In Kesavananda, the government argued that even though it had unlimited authority to
change the Constitution following the twenty-fourth Amendment and could eliminate human
freedoms under Article 31-C, the legislature would not exercise the authority. The Bench
itself expressed concern about this viewpoint because, if the argument of dread were to be
followed to its logical conclusion, many other significant parts of the Constitution would also
have to be deemed unamendable. Looking back, it appears that the Court reached the logical
conclusion of the debate but ultimately favoured Privy Council’s position over the poet’s
reflections. The Twenty-fourth Amendment as a whole was upheld as legal. However, there
was a condition that applied to the use of the amending power under the revised Article
368: Parliament could only change fundamental rights subject to the general constraint of
the Constitution’s “basic structure” not being amendable. Additionally, it was believed that
the Golak Nath decision’s overturning restored the pre-Golak Nath status quo, rendering
the Twenty-fourth Amendment superfluous. In this way, Kesavananda had accomplished for
the government what the state had hoped to do through the 24th Amendment.

Twenty-fifth Amendment
The following was upheld regarding the twenty-fifth Amendment, subject to some
qualifications:
1. The courts could not address the issue of the sufficiency of the ‘amount’ payable for
property acquired or requisitioned, notwithstanding the fact that ‘amount’ was not
the same idea as ‘compensation.’ However, the ‘amount’ must, have some reasonable

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 relation to the original worth of the subject property and cannot be illusory or
arbitrary.
2. The Amendment had brought things back to how they were before the Supreme
Court’s Golak Nath ruling when it was decided that Article 19(1) (f) and Article 31(2)
were mutually exclusive, hence Article 19(1) (f) was not applied to a statute that was
passed under Article 31(2).
3. The first part of Article 31-C, which sought to shield laws from liability for violating
Articles 14, 19, and 31, was upheld because it defined a specific category of
legislation intended to secure the obligation under Articles 39(b) and (c). As a result,
no amendment authority delegation was necessary.
4. Article 31-C’s second clause was declared unlawful. This decision was made with the
intention that while a law passed to implement Articles 39(b) and (c) would not have
been subject to a challenge under Articles 14, 19, and 31, the courts still had the
authority to determine whether the contested law actually accomplished the goals
set forth in those Articles or whether this privilege was being abused for a different
reason. If the second portion of Article 31-C had remained in effect, this would not
have been possible. The Court overturned it and declared that no legislature can, by
its own proclamation, establish a statute immune to legal challenges.

Twenty-ninth Amendment
The petitioners’ primary defence of the Twenty-ninth Amendment’s legality focused only on
the connection between Articles 31A and 31B. It was argued that Article 31B was closely
related to Article 31A and that only laws that fell under Article 31A could be listed in the
Ninth Schedule in accordance with Article 31B.

The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga (1952),

Visweshwar Rao v. The State of Madhya Pradesh (1952), and N.B. Jeejeebhoy v.
Assistant Collector, Thana Prant, Thana (1964) were among the cases that the Court
considered had already resolved the same concerns raised in the present case. It was
determined in each of these situations that Article 31B stood alone from Article 31A. It
was difficult to reopen a case that had been closed for so long. However, the question of
whether the Acts incorporated into the Ninth Schedule by the Twenty-ninth Amendment or
any of their provisions nullified any fundamental tenets of the constitutional framework or
stripped the Constitution of its distinctive character remained open for the Court to
resolve. A Constitution Bench was given the authority to rule on the Twenty-sixth
Amendment‘s constitutionality and determine if it is consistent with Kesavananda’s ruling.
Significance of the case

Kesavananda’s ruling was most significant in the following ways:

1. In the earlier judgements, the judiciary opined that there are several other
provisions of the Constitution that are equally significant, if not more, then in the
same manner as the fundamental rights. However, Golak Nath had restricted such
comprehension to solely fundamental rights. Kesavananda identified some more
elements as constituting the “basic structure” of the Constitution, which cannot be
altered by a constitutional amendment.
2. All of the fundamental rights were rendered non-amendable by Golak Nath, which
many people, including the government, viewed as an overly rigorous formulation. In
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 this regard, Kesavananda introduced some flexibility and asserted that not all FR’s en
bloc are a part of the Constitution’s fundamental design. Only those FRs that are
considered to be a component of the ‘basic structure’ are non-amendable.

The IR Coelho’s judgement

The Supreme Court’s judgement in the case of IR Coelho v. Union of India (2007) is very
significant. The case was decided by a nine-judge bench and resulted from a constitution
bench’s 1999 order of reference.

Facts of the case

The Supreme Court overturned the Gudalur Janmam Estates (Abolition and Conversion into
Ryotwari) Act, 1969, in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu (1972)
because it was determined to fall outside the protections afforded to agrarian reforms
under Article 31-A of the Constitution. The Constitution (Thirty-fourth Amendment)
Act allowed the insertion of the Janmam Act into the Ninth Schedule, which was
challenged.

The Constitution bench noted in its referral order that, in accordance with Waman Rao &
Ors. v. Union of India & Ors (1981), amendments to the Constitution made on or after
24.4.1973 (the date of the Kesavananda Bharati judgement), inserting various laws in the
Ninth Schedule, were subject to challenge on the grounds that such amendments are
outside of Parliament’s constituent power because they weaken the basic structure of the
Constitution.

Issue of the case

The issue, in this case, was how much judicial scrutiny should be applied to a constitutional
amendment that, as a result of Article 31-B, places a statute in the Ninth Schedule and how
much immunity, if any, such an amendment, and implicitly the law it immunises, should have.
In simple words, the issue was, whether a law or regulation that violates one or more of the
fundamental rights guaranteed by Articles 14, 19, or 31 can be included in the Ninth
Schedule, or whether only a constitutional amendment that amends the ninth schedule and
endangers or undermines the foundation of the Constitution can be declared void.

Judgement of the case

Absolute immunity is not available
In the IR Coelho case, the Court declared that Kesavananda Bharati had not decided
whether or not Article 31-B is legal, but it continued, “Be that as it may, we will regard
Article 31-B as lawful. We are not debating the constitutionality of the First Amendment’s
insertion of Article 31-B into the Constitution.” This is so because the constitutionality of
Article 31-B was not raised as a question to be resolved in the referral order to establish a
nine-judge bench.

In any case, the Court determined that the ability to give absolute immunity at whim is
incompatible with the basic structure theory, and as a result, the laws included in the Ninth
Schedule would no longer have absolute immunity as of 24.4.1973 (the date of
the Kesavananda Bharati verdict). According to the IR Coelho court, laws introduced into
the Ninth Schedule after 24.4.1973 were unable to avoid judicial review based on the rights

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outlined in Part III of the Constitution, and as a result, they are “consequently susceptible
to the review of fundamental rights as they stand in Part III.”

The Court has also stated that the elements of the fundamental structure that cross over
with fundamental rights will serve as a higher bar for the validity tests of such laws. Since
some of the fundamental rights are part of the Constitution’s basic structure, the Court
stated that any law receiving Ninth Schedule protection deserves to be put to the test
using these principles. Any law that violates a fundamental right’s core or an essential
feature will be declared void. Each situation requires an examination of the scope of the
abrogation and the limit of the abridgement.

What constitutes the basic structure?

The most recent turning point in the legal definition of the Constitution’s basic structure is
the IR Coelho case. The five-judge bench judgement in the M. Nagaraj case, which was
rendered a few months earlier, has been expanded upon by the IR Coelho court. The Court
had taken into consideration the conflict between the necessity to interpret the
Constitution textually based on the original meaning on the one hand, and the ambiguous
nature of the constitutional text that allows for the interpretation of diverse values in the
Constitution on the other. The Court in Nagaraj stated that the fundamental framework
need not be contained in the language of the Constitution.

The Nagaraj Court reaffirmed that the secularism, federalism, socialism, and
reasonableness elements that provide the Constitution’s coherence were part of the
constitutional law even if they were not explicitly stated in the text of the Constitution.
The IR Coelho Court elaborates on this issue by pointing out that the basic structure may
include both textual provisions and such underlying principles. The Court defined the
contrast between the ‘essence of the rights test’ and the ‘rights test,’ which in this context
corresponds to the difference between the fundamental principle supporting an express
right and the express right stated in the constitutional text.

The Kesavananda Bharati case, according to the IR Coelho Court, could not be interpreted
to mean that fundamental rights are not a part of the basic structure. The Court could then
continue to develop its theme as a result of this. The IR Coelho Court wisely relies on
Nagaraj to support its conclusion that people’s fundamental rights are not gifts from the
government but rather their own. Part III only just confirms their core existence and
grants people protection through it. Therefore, every fundamental right in part III has
“foundational value,” as per the Court.

The Court then identified Article 32 as part of the basic structure. It cited Minerva
Mills and then reiterated that Articles 14, 19, and 21, which were identified by the Court as
the ‘golden triangle’ are also a part of the basic structure of the Constitution.

The ‘rights test’ and ‘essence of rights’

In IR Coelho, the Court needed to define and differentiate between the “rights test” and
the “essence of rights” in order to understand these in the context of part III rights and
those that participate in the quality of the basic structure. While laws may be added to the
Ninth Schedule, in the Court’s opinion, once Article 32 is implemented, these laws must pass
the full test of fundamental rights. Part III may be entirely excluded at will from the Ninth
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Schedule with no restrictions on how often it will be reviewed. Because of this, every
change to the Ninth Schedule affects Article 32, which is an element of the basic structure
and is therefore subject to Part III’s analysis of the fundamental rights as they currently
exist.

The Court has held in this case that the constitutional validity of the legislation under the
Ninth Schedule could be adjudged by applying the direct impact and effect test, i.e., the
rights test. The rights test requires that, though not a form of law, its effect would be the
determinative factor. It is the court that is to decide if this interference is justified and if
it does or does not amount to a violation of the basic structure. The Court has ruled that
the direct impact and effect test, often known as the rights test, can be used to determine
whether or not the ninth schedule provisions are constitutional. This test stipulates that
the impact of a law, not its form, should be the deciding element. The Court will determine
whether or not this interference is appropriate and whether it constitutes a violation of the
fundamental framework.

This position then serves to transfer the decision of whether a law is necessary from
Parliament to the courts. Additionally, it gives the courts the freedom to address the
admissibility of such instances using both the rights test and the rights test’s core
components. In either scenario, it would be up to the courts to decide how the infringement
affected things. In the end, this might be the decisive factor in the verdict.

The Ninety-Ninth Constitutional Amendment and the doctrine of basic structure

The National Judicial Appointment Commission Act (hereinafter referred to as the NJAC
Act) and the Ninety-Ninth Constitutional Amendment were proposed as a constitutional
body to replace the current system of judicial appointments, whereby the three senior-most
judges of the Supreme Court (the Collegium) decide upon the appointments to the Supreme
Court with the Executive acting in a nominally consultative capacity.

The constitutionality of the Ninety-Ninth Amendment was challenged in the Supreme Court
Advocates-on-Record Assn. v. Union of India (2015). The issue in the case was whether the
impugned amendment was void on grounds that it altered or damaged the basic structure.
The petitioners argued that the Constitution’s basic feature of the judiciary’s supremacy in
judicial appointments and the Executive’s absence from those processes is essential to the
judiciary’s independence and its separation from the Executive.

The respondents contend that the judiciary’s independence is not affected by its
preeminence in the appointment of judges. The independence of the judiciary is not
compromised even when executive appointments are made. Alternately, in the revised
system, the judiciary’s supremacy and independence are both preserved. Without changing
the basic structure of the Constitution, the amendment supports accountability and
transparency while also contributing to necessary reform.

The Court rejected the arguments and ruled, 4:1, that the new system violates the
Constitution’s basic structure, which requires that the judiciary be given priority in the
selection of justices. Such predominance has been abolished in the current plan. The
contested modification cannot, therefore, be upheld. The proposed core provisions of the

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99th Amendment, Articles 124A, B, and C, have been criticised for undermining the
separation of powers, the independence of the judiciary, and the rule of law.

It can be concluded that the basic structure of the Constitution has changed over time
since it was first established in the 1970s, with more and more rights being incorporated
into it with each passing year. Thus, the underlying basic structure that is visible today is
the result of years of court supervision of fundamental rights and the associated
constitutional framework. The doctrine of basic structure’s restriction on the dynamic
nature of societal concerns is wise and well-advised. It cannot be used to contest regular
legislation. Otherwise, Pandora’s box would be unsealed. It would undermine the structure of
the Constitution. In fact, it might not be incorrect to state that applying the basic
structure theory to determine whether ordinary legislation is constitutional would equate to
undermining and destroying the Constitution’s basic structure.

13. Explain the State Emergency and justification for imposing the same.
Analyse impact of the judgement in S.R.Bommai Vs Union of India on the same.
(May 2014)
What amounts to failure of Constitutional Machinery in State under Article 356?
Explain with the help of leading cases on the Topic. (Sept 2016)
What is State Emergency? Explain whether the power to impose state
emergency in India has been misused. (Dec 2020)

Ans: President rule/state emergency under Article 356 of Indian constitution –

proclamation & impacts
President’s Rule is imposed in a State or Union Territory when the Government of the State
or UT is suspended and the Union Government takes direct control of the administration in
the state or UT. The state assembly is either dissolved or prorogued. This provision to
impose President’s rule is mentioned in Art 356 of the Constitution which is based on Sec 93
of the Government of India Act, 1935. The Union Government administers the state through
a Governor which is Centrally appointed.

Grounds of imposition of State emergency

President’s Rule under Article 356 can be imposed on the ground of breakdown of
constitutional machinery. This breakdown is of two types :-
1. If the President is satisfied that the state’s condition is such that the State
government cannot carry on governance in accordance with the provision of the
Constitution, the President can impose State Emergency. The Governor of the State
can inform the President about the situation of the state and the President may
there upon take necessary steps to impose the emergency. (Article 356)
2. President’s Rule can also be imposed if the State fails to comply with the directions
given by the Central Government on matters it is empowered to. (Article 365)

Parliamentary approval and duration

President’s rule must be approved by both the houses of the Parliament within two months.
If the Lok Sabha gets dissolved before approving the President’s Rule (i.e.within two
months), then the proclamation survives till 30 days from the first sitting of Lok Sabha
provided if Rajya Sabha approves it.

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If the proclamation is approved, the emergency can continue for 6 months which can be
extended for a period of 3 years. If the Lok Sabha is dissolved during this period then the
proclamation survives till 30 days from the first sitting of Lok Sabha provided Rajya Sabha
approves it. Simple majority is required in both the houses for the proclamation of state
emergency.
The 44th Constitutional Amendment Act brought many changes in the emergency provisions.
This amendment provided that beyond one year of President’s Rule, it can be extended by 6
months at a time only when-
1. Proclamation of National emergency should be in operation in the whole or part of the
State or in the country.
2. Election Commission should clarify that the general election to the legislative
assembly of the concerned state cannot be conducted on the ground of various
difficulties.

The President can revoke the President’s rule without requiring any Parliamentary approval.

Consequences of President’s Rule

1. The President can take up functions of the state government and the power vested in
the governor of the state or any other executive authority.
2. The President can declare that the power of the legislature of the state is to be
exercised by the Parliament. This means that the Central government can make laws
on the subjects enshrined in the state list as well.
3. The President can suspend any constitutional provision relating to anybody in the
state.
4. The state assembly is either suspended or dissolved by the President.
5. The President can also promulgate ordinance with respect to state’s administration,
when the Parliament is not in session.
6. The laws made by the President during state emergency remains operative even after
the President’s rule is revoked.
7. High Courts of the state function as per their normal rule.

Scope of Judicial Review

According to the 38th Constitutional Amendment Act of 1975, President’s rule was taken out
of the ambit of Judicial review. But after the 44th Constitutional Amendment Act of 1978,
President’s Rule was included under the ambit the ambit of judicial review to prevent the
Central government from misusing the power of imposing the power to invoke state
emergency in any state. This amendment also had the provision that the satisfaction of the
President should be based on reverent material and the burden lied on the center to prove
relevance. If the court proves that the President’s rule is invalid, it can restore back the
state legislature that was suspended.

Cases of proper use of the provision

1. If no party has secured absolute majority in the assembly election(hung assembly)
and there is no alternative then the President can impose State Emergency.
2. If the party having the majority declines to form government, then in this case,
state emergency can be invoked.

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 3. State emergency can also be invoked when the ministry resigns and there is no other
alternative.
4. If the state government is deliberately acting against the constitution then the
emergency can be invoked.

Cases of improper use of the provision

1. If no party in the state gets absolute majority but alternative is available.
2. If the governor of the state does not allow any party to prove its majority on the
floor of the house.
3. When the state government has not been given prior warning in case of breakdown of
constitutional machinery
4. The power is used to solve intra party problems.

In independent India there have been various incidents when the Central government has
misused its power of imposing state emergency. In 1989, the Karnataka government was
dismissed by the governor on the ground that Bommai Government had lost its majority. The
Governor refused to give Bommai an opportunity to test his majority in the Assembly
despite the latter presenting him with a copy of the resolution . Bommai went to court
against the Governor’s decision. The Court ruled that the power of the President to dismiss
a State government is not absolute and the President should exercise the power only after
his proclamation (imposing his/her rule) is approved by both Houses of Parliament.

“The dissolution of Legislative Assembly is not a matter of course. It should be resorted to

only where it is found necessary for achieving the purposes of the Proclamation,” the Court
said.

14. Explain the Doctrine of Pleasure. What are the constitutional safeguards
against misuse? (Sept 2015)
Explain the Constitutional safeguards available to Civil Servants. (Sept 2017)
State the extent which Doctrine of Pleasure tenure qualifies in the Government
servants with reference to the decided cases. (June 2018)
Discuss the safeguards available to Civil Servants under the Constitution of India
(Sept 2021)

Ans: What is the meaning of Doctrine of Pleasure?

As mentioned before, this doctrine originated in England. In England, the Crown is regarded
as the Executive head and the civil services are part of the Executive. The doctrine of
Pleasure means that the Crown has the power to terminate the services of a civil servant at
any time they want without giving any notice of termination to the servant. Thus the civil
servants work at the pleasure of the Crown which can remove them at any time. When the
civil servants are removed from their service, they do not have the right to sue the Crown
for wrongful termination and they also cannot ask for damages undergone due to wrongful
termination. This doctrine is based on the concept of public policy and whenever the Crown
feels that a civil servant should be removed from his office because keeping him will be
against public policy, the Crown can remove such servant.,

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What is the Position of Doctrine of Pleasure in India?
The doctrine of pleasure is also followed in India. Since the President of India is the
Executive Head of the Union and he enjoys the same position as the Crown enjoys in
England, the President has been vested with the power to remove a civil servant at any time
under this doctrine.

While this doctrine has been adopted in India it has not been blindly copied in the same
manner as it is followed in England and there are some modifications which exist in India’s
adoption of this doctrine from that of England. In India, Article 310 of the Indian
Constitution embodies the provision for this doctrine.

According to Article 310, except for the provisions provided by the Constitution, a civil
servant of the Union works at the pleasure of the President and a civil servant under a
State works at the pleasure of the Governor of that State. This implies that the operation
of the Doctrine of Pleasure can be limited by constitutional provisions. Under the
constitution, the following are excluded from the operation of this doctrine:
1. Judges of the Supreme Court;
2. Judges of the High Courts;
3. Chief Election Commissioner; and
4. Comptroller and Auditor General of India.

Thus, this doctrine is not absolute and is subject to Constitutional provisions. The civil
servants can also be excluded from the operation of this doctrine because they have been
provided with some protection under Article 311 and thus this doctrine’s application can be
limited to civil servants as well.

What are the Constitutional Safeguards for Civil Servants?

The Civil servants have not only been provided with Constitutional status under Article
308 but they have also been granted some protection under Article 311. By providing the
civil servants with these protections, the confidence of the public in the civil services is
maintained and the civil servants are also provided with the assurance that they can
honestly carry out their duties without any fear of unjust or unlawful removal from their
office under this doctrine.

The following are the protections available to a civil servant under Article 311 of the
Constitution:
1. No dismissal by subordinate authority
Under Clause 1 of Article 311, a civil servant can only be removed from his services by the
authority who had appointed him or some other person who has the same authority or rank
as the appointing authority. So, any person who is subordinate in authority to the appointing
authority, cannot remove a civil servant and in case he does remove him, the removal will not
be valid.

Illustration: A, a civil servant who was appointed by C. B who is a subordinate of C, removes

A from his office. Here such a removal will not be valid because B did not have the same
authority or rank as C (the appointing authority). But if D, who has the same authority as C,
removes A then such removal will be valid under Clause 1 of Article 311.

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2. The reasonable opportunity of being heard
Under Clause 2 of Article 311, the civil servants are provided with the right of being heard.
This right embodies the principle of natural justice by giving a chance to the civil servant to
prove his innocence.

As per this Clause, to remove a civil servant from his post the following steps should be
followed:
1. Holding an enquiry in the allegations made against the civil servant. This enquiry is
known as departmental enquiry;
2. Providing the accused civil servant with the information about what charges have
been levelled against him;
3. Providing such a civil servant with a reasonable chance of being heard in the case.

This protection is very important because under his Article the Civil servant is provided
with a reasonable opportunity of being heard. While the clause mentions ‘reasonable
opportunity’ it does not define its meaning. When no clarification is provided for the
meaning of reasonable opportunity, it appears to be ambiguous protection because there is
no method to determine whether a civil servant was provided with reasonable opportunity or
not. Thus, the meaning of reasonable opportunity has been taken in the same meaning as the
principles of natural justice are understood. Thus, a reasonable opportunity means that the
accused is given a chance of presenting his side of the case in order to disprove the charges
levelled against him and he should also have the chance to:
1. Present his arguments before the body which is conducting the enquiry;
2. Giving his statements as a witness;
3. Listen to the statements of witnesses against him;
4. Cross-examine the witnesses.

When such an opportunity is provided to a civil servant, the requirement of reasonable

opportunity being afforded to him will be fulfilled.

Illustration: A is a civil servant and corruption charges have been levelled against him. A
departmental enquiry is made to look into this matter and find out whether A is guilty or
not. But A is not informed about any of the charges which are made against him and he has
not been given a single opportunity to argue against these allegations and present evidence.
The enquiry concludes that A is guilty without listening to A and as a result A is removed
from his post. Such removal can be challenged by A in the Court and it will be held that the
departmental enquiry was not valid and the removal of A cannot be deemed to be valid as it
has violated the provisions of Article 311 Clause 2.

Who has the right to these protections?

While these protections are provided to the people working for the Government, all the
Government servants cannot avail of these protections. Thus, only certain people have the
right to be protected under the provisions of Article 311.

The following people have the right to be protected under the provisions of Article 311:
The members of:
1. Civil service of the Union;
2. All India Service; and

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 3. Civil service of any State.
4. People who hold a civil post under the Union or any State.

By the words civil services it has been made clear that the members of the Armed Forces
are not part of the servants who are covered under the provisions in the Constitution,
related to Civil Servants. In the case of Purshottam Lal Dhingra v. Union of India, it was
held that the protection provided under Article 311 to the civil servants includes
permanently employed civil servants as well as temporarily employed civil servants.

What are the exceptions to the protection?

While protection has been provided under Article 311 of the Constitution to ensure that
their interests are protected, these protections are also subject to some exceptions. When
these exceptions arise in a case, the protection cannot be claimed by the concerned civil
servant. The following are the exceptions:

If the civil servant has been found guilty of a criminal offence, in such cases the protection
under Article 311 cannot be availed for him and in such cases, he can be removed for
misconduct without getting a chance of being heard.

Illustration: A is a civil servant who has been convicted by a court for a crime under IPC. In
such case when the enquiry is made for charges against him, he may not be provided with
the chance of being heard and he can be removed and such a removal will not amount to a
violation of article 311. Also, he may also be removed without having an enquiry and it will
also be a valid removal.

In cases where the disciplinary charged with the task of looking into the allegations made
against the civil servant, thinks that it is not practicable to hold an enquiry for the same, he
has the power to not to hold such an enquiry. In the case of Union of India and Another vs
Tulsiram Patel and Others on 11 July, 198, explained the scope of this exception. The
Court observed that for determining the impracticability of holding the enquiry the point of
view of a reasonable man has to be used. If a reasonable man who is in this situation thinks
that holding such an enquiry is not practicable, then not holding such enquiry will not amount
to a violation of Article 311.

The last exception to the protection under Article 311 is the reasons of security of the
State. This right is given to the President and the Governor as the case may be and
whenever the President or the Governor is satisfied that it is not in the interest of the
security of State to hold an enquiry, such an enquiry can be stopped from taking place.
Here, actual threat to the security is not the focus of this exception but only the
satisfaction of the President or Governor about the risk of threat to security is enough to
invoke this exception. This exception appears to be a loophole against the protection to civil
servants because satisfaction is a subjective concept and therefore what a person may
consider being a threat might not be regarded to be the same by another person.

Thus, to remove this problem, the Government is required to inform the Court about the
nature of the activity of the civil servant which is the basis for President’s or Governor’s
satisfaction. If the Court finds the reason to be relevant, then the exception will be allowed
but if the reason is not satisfactory or the government fails to disclose this information to

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the court, the validity of the removal of the civil servant will not be upheld by the court and
this exception will not be applied in such a case.

What is the role of Indian Judiciary on the Doctrine of Pleasure?

Judiciary plays a very important role in India by performing its function as the interpreter
of laws. While the doctrine of pleasure has been adopted from the English Law, Judiciary
has through various cases, provided its judgments regarding the applicability of this
doctrine in India.

In the case of State of Bihar v. Abdul Majid, the rule regarding the maintainability of a
claim by the civil servant regarding arrears for salary was decided by the Supreme Court. In
England, the rule was that a servant could not sue the Crown for arrears of salary. The same
was argued in this case. A sub-inspector had been removed from his service on the ground
of cowardice and was later re-hired. He filed a suit for recovering the arrears of his salary
but the Government contended that he cannot do so under the rule followed in the doctrine
of pleasure. The Supreme Court held that this rule would not apply in India and thus the
sub-inspector had the right to claim the arrears of his salary.

Similarly, the Court also made a judgment regarding another important provision of the
doctrine of pleasure. In the case of Union of India v. Balbir Singh, it was held that the
Court has the power to examine the satisfaction of the President or the Governor as the
case may be. If the Court finds that the satisfaction is based on such grounds which have no
relation to the security of the State then, the Court can hold such a satisfaction to be
based on irrelevant and extraneous grounds and the dismissal of a civil servant can be held
invalid.

While the doctrine of pleasure has been adopted from the British legal system, it has been
modified to suit Indian context as per prevailing social structure in India. The judiciary has
played a key role in balancing the arbitrary aspects of this doctrine by their power of
judicial review.

While England has a Monarch as the Executive head, India elects its Executive head through
elections. So, the principle ‘the King can do no wrong’ is not suitable to the Indian scenario.
Despite the judicial intervention, the exceptions to the protection can still be misused.
Therefore instead of reviewing each and every instance of arbitrariness, it would be better
if certain guidelines are provided which have to be followed while availing these exceptions.
If these guidelines are not followed the dismissal can be held invalid which will also provide
speedy redressal to the aggrieved party.

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