Constitutional-II (54-102) PDF

Constitutional Law— II
(Excluding Political and Civil Rights)
D. K. Siiwh
Tlie present C onstitution was adopted by the Constituent Assembly

on N ovem ber 26, 1949, in the name o f the people of India. It is a
fairly elaborate and comprehensive docum ent consisting o f 395 articles
under 22 parts and 9 schedules. It does not merely lay down the
basic principles fo r the governance o f the country, but also provides
for m atters such as ofQcial language, public services and elections which
do not generally form p a rt of other constitutions. Fundam enlal
rights and directive principles of state policy have been meticulously
drafted drawing a delicate balance between individual liberty and social
interest. It makes detailed provisions for (i) the organisation and
structure o f the U nion and the state executive, (ii) the com position and
functions o f Parliam ent and state legislatures, (iii) the legislative,
administrative and financial relations between the U nion and the states,
(iv) the Union judiciary and the state High Courts, and (v) relationship
between the various organs o f government of the Union and the stales.
The fram ers of the Constitution were faced with m any initial diffi
culties of a new born state like India w hich became independent after a
long colonial rule, and, in particular, had to face distrust and suspicion
am ong various com m unities after the com m unal riots which took place
a t the time of p artition of undivided India into India and Pakistan.
The size o f the country, vast population, disparity and prejudices
among various communities have also been responsible fo r the bulk o f
the Constitution. F o r example, a p art o f the Constitution is devoted
to special provisions relating to scheduled castes, scheduled tribes and
other backward communities besides other provisions elsewhere
safeguarding their interests wherever it was thought to be appropriate.
Being an infant democracy, the fram ers o f the Constitution w ere

keen to preserve the democratic values and aspirations o f the people,,
and, therefore, incorporated in the C onstitution all th at was thought
CONSTITUTIONAL LAW— II 55
necessary to prevent the spirit o f the Constitution from being perverted.

An eflbrt was made lo foresee the possible constitutional controversies,
and care was taken to ensure the sm ooth working o f the constitutional
machinery. The Constitution, therefore, became a detailed and com
prehensive docum ent thereby reducing considerably the chances of
getting the constitutional image distorted or becoming subject to abrupt
changes in its essential features through either legislative measures or
judicial interpretation.
Sources
The basic structure o f the C onstitution is similar to the one

envisaged in the Government of India Act, 1935, which provided for the
constitutional fraraework in India before 1947. The Act of 1935 was
devised to m eet the requirem ents o f British government with a view to
transferring limited power to Indians while continuing its hold on
India; ]t did not meet the aspirations and needs of the people. How
ever, for the sake of continuity o f the political structure which was in
operation, the Act o f 1935 was largely adopted with necessary modifica
tions. The fram ers of the C onstitution also drew upon the m ature
experience o f other dem ocratic countries. P a rt III on fundam ental
rights derives its inspiration from the Bill o f Rights enshrined in the
American C onstitution, and so also P art IV on directive principles o f
slate policy from the Irish C onstitution. The principles of cabinet
governm ent and the relations between the executive and legislature
have been largely drawn upon from the British experience. I t is
specifically provided that the privileges o f the members o f Parliam ent
and of the state legislature would, u n til they are defined by legislature,
be the same as those enjoyed by the m em bers of the House o f Commons
in the United Kingdom.^ The structure o f the Union governm ent is
based to a great extent on the models o f the C anadian and A ustralian
Constitutions. The U nion-state relations find a similarity in the Act
o f 1935 and also the Canadian C onstitution, though the expanded con
current list in the Seventh Schedule has a model in the A ustralian
Constitution. P art X III on trade, commerce and intercourse again
appears to derive inspiration from the A ustralian C onstitution. H ow
ever, certain fundam ental departures have been made from the prevalent
theories and practices so as to make suitable adjustm ents keeping in
view the Indian conditions, such as, coping with emergency during
peace a n d war and, superintendence, direction and control o f elections.
Some new institutions like panchayats and ideals, such as, prom otion
1. See note SOa/rt/ra.

56 THE INDIAN LEGAL SYSTEM
o f international peace and security have been incorporated into th e

Indian constitutional structure.
The preamble
The pream ble to the Constitution declares India to be a sovereign

socialist, secular, dem ocratic republic," India has, therefore, adopted a
system o f government in which the governm ent is directly responsible
to the people, and the head o f (he state holds an elected olSce. T he
people o f India hold the ultim ate power and exercise authority through
their elected representatives who in their tu rn are accountable to the
people. The C onstitution thus establishes a democracy for over six
hundred million people and enshrines dem ocratic values which the
people can cherish following the p ath o f the rule o f law. T he
C onstitution confers on all adults citizenship, the right to vote and
choose their representatives and removes all discriminiation based on
religion, caste, race or sex.
The dem ocratic Republic of India is declared to be a sovereign

stale. N o attribute of its external sovereignty is outside the constitu
tional provisions, and the sovereign pow er is free from external control.
As an essential attrib u te o f sovereignty Ind ia can acquirc foreign terri
tory and, if necessary, cede a part of its territory in favour of a foreign
state subject, however, to constitutional requirements.^ Internal
sovereignty rests w ith th e U nion and the states as delineated in the con
stitutional provisions. H ow ever, sovereignty vests in the people as
reflected by the w ords “ We, the people o f In d ia ” in the pream ble to the
Constitution.
The pream ble spells out the aims and aspirations of the people o f
India, that is, to secure to all citizens social, economic and political
justice, liberty o f thought, expression, belief, faith and worship, equality
o f status and opportunity ; and to prom ote among them all fraternity,
assuring dignity o f th e individual and the unity o f the nation. T he
Constitution thus recognises the basic hum an values and declares at the
very out-set the form ation of a forw ard-looking state which is wedded to
the prom otion of the good and well-being o f th e people w ithout com m it
ting itself to any particular philosophy or social order within the fram e-
2. The Constitution (Forty-second Amendment)Act, 1976 added the words-

‘socialist’ and ‘secular’ to the description o f the republic in the preamble.
3. In re Bentbari, A. I. R . 1960 S. C. 845, 856', Maganbfiai Ishwarbliai P atel v .
Union o f India, (1970) 3 S.C.C. 400.
w ork envisaged in it. ‘The unity of the n ation’ as a declaration in the

pream ble and its m anifestation thro u g h o u t the constitutional provisions
providing fo r a strong central governm ent reflect a resolution to hold
together the nation with diverse linguistic and ethnical entities. The
pream ble is thus a key to the understanding of the constitutional
provisions.
A secular state
The C onstitution stands for a secular state, and it is opposed to any

kind of com m unal policy. The word ‘secular’ is nowhere defined in
the C onstitution, but this concept pervades its provisions giving full
opportunity to all persons to profess, practise and propogate any religion
of their choice. The C onstitution not only guarantees a person’s freedom
of religion and conscience but also ensures freedom for one who has no
religion, and it scrupulously restrains the state from m aking any discri
m ination on grounds of religion. Nevertheless, a person’s religion will not
come in th e way of the state from regulating an individual's behaviour in
relation to another, o r dealing with socio-economic reform s, o r prom ot
ing the basal concepts delineated in the preamble. A single citizenship
is assured to all irrespective of their religion, caste or colour. Electoral
rolls are p repared in disregard of religious considerations.
Fundamental law
The C onstitution operates as a fundam ental law. The govern

m ental organs owe their origin, derive their authority and discharge
their responsibilities within the fram ew ork o f th e C onstitution. The
Union Parliam ent and the state legislatures are n o t sovereign, like the
British Parliam ent. The validity o f a law, whether U nion o r state, is
judged by reference to their respective jurisdictions defined in th e C on
stitution; the judiciary is empowered to declare a law unconstitutional
if it is fo u n d to have contravened any provision of the Constitution.
The C onstitution thus stands as a supreme law o f the land and the
function o f the judiciary is to act as a w atchdog to prevent any co ntra
vention of its provisions. H ow ever, judicial review in India does not
assume the character o f policy making as is the case in the U nited States
o f Am erica. R ath er it m akes a balanced com prom ise betw een the
judicial suprem acy under the Am erican C onstitution and the sovereignty
o f British Parliam ent in the British Constitution.
4. The preamble is a part o f the Constitution ; See Kesavamnda Bharati v. The

State o f Kerala, (1973) 4 S- C. C. 225.
38 THE INDtAN LEGAL SYSTEM
The Indian Union

The Constitution describes India as a U nion of States, and it implies
the indestructible nature of its unity. The word ‘U nion’ indicates th a t
it was not th e outcom e of any agreement am ongst the existing constitu
ent units with the result th a t no unit constituting the Indian Union can
secede from it.'*" The country is divided into several units, known as
States or Union Territories, and the C onstitution, like the Canadian
Constitution, lays down not only the structure of the Union govern
m ent b a t also o f the state governments. It functions as an integral
whole under the C onstitution, its people living under a single im perium
derived from a single source.
Federal structure
The Indian Union under the C onstitution is neither a league of
states like a confederation n o r are the states adm inistrative units o f the
centre. The Indian C onstitution is basically federal in form like the one
in the United Slates o f America and is m arked by the traditional
char-acterfstics o f a federal system , namely, suprem acy o f the C onstitu
tion, division of power between the central and the regional govern
ments, the existence o f an independent judiciary and a rigid procedure-’
for the am endm ent o f the C onstitution. I t establishes a dual policy
with clearly defined spheres o f authority between the U nion and the
states each endowed w ith sovereign pow ers to be exercised in fields
assigned to them respectively. There is an independent judiciary to
determine issues involving constitutional interpretation and to resolve
disputes between the U nion and the states or between one state and
another. A n am endm ent in the respective jurisdictions of the U nion
and the states can be brought about by invoking a special procedure in
Parliam ent and ratification by a m ajority o f the states.® However, there
are marked differences between the American federation and the Indian
federation. First, in Am erica, there is dual citizenship, whereas in India,
there is a dual polity with one citizenship ; Indian citizens, wherever
they reside, are equal in th e eye of th e law. Second, the states in America
have a right to make th eir own constitutions, whereas no such power is
given to the states in India. But the Indian Constitution is heavily
biased towards the Union with unitary m odifications which were neces-
siated by historical reasons and political expediency. The centralising
tendency may be found in several provisions, e.g., the adoption o f a long
concurrent list,®“ the power o f Parliam ent to reorganise the political
4a. VII Constituent Assembly Debates 43.

5. Article 368.
5a. List III in the Seventh Schedule read with article 254.
c o n s t it u t io n a l LAW— II 59
structure of the country,'’ supremacy of Pai'liam ent over state legislatures

if there is a direct conflict between their respective ju risd ic tio n s,tlie
vesting o f residuary power in Parliament,® power o f G overnors to
reserve a Bill for the consideration o f the President® o f the Republic.
Further, the Union is empowered to supersede the autliority o f states
in certain circumstances, such as, emergency^^® or on grounds o f national
interest.
In a federation the central £ind the regional governm ents enjoy

equal status and function independently within their respective jurisdic
tions. H ow ever, the pattern of distribution o f powers in each federation
is determ ined by the peculiar conditions under which it came into exist
ence. In the Indian context, whatever may have been the variations
from the fam iliar patterns, there is u clear distribution o f legislative
powers, and also of executive powers, which is co-existensive with their
legislative com petence, between the U nion and the states. The fram ers
o f the C onstitution followed in substance the pattern o f distribution o f
pow ers th a t existed in the G overnm ent o f India Act of 1935 which
closely resembled the C anadian pattern and provided fo r three lists of
subjects, central, provincial and concurrent, leaving the residue for the
G overnor-G eneral to be assigned in his discretion either to the centre o r
lo the provinces. H owever, some changes in the pattern o f the A ct o f
1935 have been made to m eet the social and econom ic needs o f a m odern
state and to provide for an effective constitutional m achinery for the
preservation o f the unity of India counteracting fissiparous and disinte
grating tendencies generated by local and parochial interests. Though
th e C onstitution remains basically federal, th e functioning o f the state
governm ents has been made in m any spheres subordinate to the U nion
governm ent. F o r example, the G overnor of a state is appointed by the
President and holds his office during the pleasure o f th e President.’^
T he G overnor is likely to act as an agent to the President rath er th an as
a state functionary in a m atter in which he is free to exercise his discre
tio n in disregard of the advice o f the state governm ent o r w ithout its
consultation. F or instance (1) under article 200, the G overnor is given
discretion to reserve a Bill, which has been passed by the legislature of
a state, for the consideration o f the President, who is not bound to give
6. Article 3.
7. Articles 246,247 read with the Seventh Schedule.
S. Article 248.
9. Article 200.
10. Article 250 read with articles 352-360.
n. Articles 249, 25J, 252, 253.
12. Articles 155, 156.
assent to th a t Bill; f2) under article 365, if the governm ent o f a state fails
to function in accordance with the provisions o f the C onstitution, or if
the governm ent o f a state fails to carry o u t the directions given in the
exercise o f the executive power of the U nion, on receipt of a rep o rt
from the G overnor o r otherwise, the President, whose assessment o f the
situation is not justiciable, can assume the governm ental functions o f
that state and ru n the adm inistration through the G overnor o f th a t
state, (3) under article 258A, the G overnor is em powered to entrust to
the Union governm ent functions in relation to any m atter relating to the
state executive, and this can be done w ithout the knowledge o f the state
government. U nder article 3, Parliam ent is em powered to restructure the
political m ap o f the country, and in this process an existing state may
be completely wiped out even against its wishes. One may get the
impression th at the federal principle has been diluted considerably in
India. But th a t appears to be the trend even in the traditional
federations such as in America, A ustralia, and C anada which initially
commenced with a weak centre and strong states and later turned o u t to
be as highly centralised federations either through the process o f
judicial interpretation or through conventions or both. The Indian
federation has simply fallen into that p a tte rn with the diiference th a t its
Constitution is elaborate, comprehensive and exhaustive providing
expressly m uch of what is found in judicial decisions or in conventions
in other federations. As a m atter of fact, th e Indian trend of consti-
tutionahsm has become a model for m any new states in Asia and A frica
providing a fram ew ork for drawing up their constitutions.
The territory of India
U nder the C onstitution the territory o f India comprises (i) the

territory o f the states, (ii) th e Union territories and (iii) such other terri
tories as m ay be acquired.^® Having th e attributes o f a sovereign state,
India can acquire new territories or cede a p a rt of the territory of India.^*
Acquisition may take place by m ethods recognised in international law,
such as conquest, occupation, etc. A cquisition o f a new territory is a
factual situation and no parliam entary legislation is necessary. But its
legal or form al assim ilation is brought ab o u t by a parliam entary law by
adm itting it in to the U nion or establishing it as a new state on such
terms and conditions as Parliam ent thinks fit.^® This could also be
brought ab o u t by merging it into an existing state or U nion territory.^®
13. Article l(3)(c).

14. Ill re Indo-Pakistan Agreement, A .I.R . 1960 S.C. 845.
13. Article 2.
16. Article 3.
Cession o f a p art of the territo ry of India to a foreign state can be

made by invoking the procedure required for the am endm ent of the
Constitution.
Pow er to diminish the area o f a state does not entitle Parliam ent to
cede a p a rt o f the territory o f India. However, if there is a dispute
relating to adjustm ent of boundaries between India and a foreign state,
no am endm ent of the relevant provisions of th e C onstitution, o r a
Parliam entary law, is necessary to im plem ent an agreem ent reached
between the parties or an award given by a tribunal appointed with the
consent o f the parties, for this purpose.’® This could validly be achieved
by an executive act.
Parliam ent is empowered to reorganise the boundaries of the

states, or diminish the area of any state including wiping a state
com pletely o u t o f the map o f India.^’ F o r this purpose no Bill may be
introduced in Parliam ent except on the recom m endation o f the President
who has already ascertained the views o f the legislature o f the state on
th e proposal contained in the Bill affecting the area o f th a t state.^**
However, the President is under no obligation to accept the views
expressed by th e state legislature. If the views o f the state legislature
are n o t received within the tim e stipulated by the President, the state
legislature m ay be taken as having waived its privilege. I t is n o t
necessary to make a fresh reference to ascertain the views o f the state
legislature if an am endm ent to the proposal contained in th e Bill is
proposed and accepted in accordance with the procedure o f Parliam ent^'-
Since the form ation o f the Indian Union, th e political structure o f th e
country has been reorganised from tim e to tim e rationalising th e states
into a coherent p attern after taking into account the growing im portance
o f the regional languages and also financial, economic and adm inistrative
conveniences. A law for this purpose in so far as it seeks to am end
17. In re Indo-Pakistan Agreement, supra note 14.

18. In re Jndo-Pakistan Agreement, AA .'R . 1950 S.C, 845; Maganohai v. Union o f
India, A .I.R . 1969 S.C. S83.
19. Article 3.
20. Proviso to article 3.

21. Babulal Parate v, State o f Bombay, A .l.R - 1960 S.C. 51.
22. See, e.g.. The States Reorganisation Act, 1956, the Bihar aad W. B. {Transfer
o f Territory) Act, 1956, the Andhra Pradesh Act, 1953, tlie Andlira Pradesh
and M adras (Alteration of Boundaries) Act, 1959, the Bombay Reorganisa
tion Act, 1960, the State o f Nagaland A ct, 1962, the Punjab Reorganisation
Act, 1965.
fiirst^^ an d fourth^^ schedules of the C onstitution, in order to give

effect to its provisions or to malce supplemental, incidental o r consequen
tial provisions, shall be deemed to be an am endm ent of the C onstitution
for all purposes.
The Union executive

The Indian C onstitution provides for a parliam entary form o f
government. The executive power of the U nion vests in the President
and shall be exercised by him either directly or through officers subordi
nate to him in accordance with the Constitution;-® the officers subordi
nate to him will include a minister.^*^ The President is also invested
with the suprem e com m and of the defence forces, b u t this power is
subject to laws made by P a r lia m e n t.B e s id e s , there are several other
provisions which m ention specific functions o f the President.^® The
President in the exercise of his functions acts on the advice o f the
Council o f M inisters which is headed by the Prim e Minister.^® T he
Prime M inister is appointed by the President and the members of the
Council o f Ministers are appointed by him on the advice of the Prim e
Minister.®" All executive actions are expressed to be taken in the name
of the P r e s id e n t,th o u g h the Council of M inisters wields the real and
effective executive power. Even where the C onstitution requires the
satisfaction of the President for the exercise by him o f any power o r
function, the satisfaction required is not the personal satisfaction o f the
President but the satisfaction o f the President in the constitituional
sense.®' This is substantiated by other provisions o f the Constitution.
First, the Council o f M inisters is collectively responsible, and is, there
fore, answerable to Parliam ent for all its functions, decisions and
actions,^^ whereas the President is answerable to none for the acts o f the
23. It Specifics ihe slates and Union territories.

24. It specifies the aDocation of seats to a state and U n ion territory in the
Council of States.
25. Article 53(1).
26. Emperor v. Shihnath, A.LR. 1945 P.C- 163.
27. Article 53(2).
28. Articles 72, 77, 75,155, 124 (2), 217, 316, 76 (I), 324 (2). 148, 324. 280, 339 (1),
340, 344 (1), 352-360, 123,242, 244, IIJ. 85 (2), 86, 87, 112, 117,200, 286 (3),
288 (2), 31 (3), 304 (proviso).
29. Article 74(1).
30. Article 75(1).
31. Article 77.
32. Shamsher Singh v. State o f Punjab, (1974) 2 S.C.C. 83. This is now expressly
made clear by clause 13 of the Forty-second Amendment. It is provided
that the President shall act in accordance with the advice of his Council
o f Ministers.
33. Article 75 (2).
CONSTITUTIONAL LA W —H 63
governm ent. It appears to be anom alous to make the Council o f

M inisters answerable for executive acts of the U nion unless tlie Council
o f M inisters is made responsible to take decisions in m atters of policy
and adm inistration o f the Union. Secondly, this is indicative from the
fact th at the Prim e M inister has to com m unicate to the President all
decisions o f the Council of M inisters relating to the adm inistration o f the
affairs of the Union and proposals for legislation and, if the President
so requires, to subm it for consideration o f the Council o f M inisters any
m atter on which a decision has been taken by a m inister but w hich has
n o t been considered by the council.^® Thirdly, a com parison of the
position o f the President with th a t o f the G overnor o f a state who, in
som e m atters under the C onstitution, is required to exercise his functions
in his discretioii, and is, therefore, constitutionally com petent to reject
th e advice o f tbe Council of M inisters, leads to a conclusion that the
President has no option but to accept the advice of th e Council o f
M inisters and act as a nominal or constitutional head o f the government.
Fourthly, if the President in any m atter acts against the advice of the
Council of M inisters, a conflict may arise betvi'een the two functionaries.
In case the Prim e M inister, who has the support o f the H ouse of the
People, chooses to resign, it may not be possible for the President to
find an alternative Council o f Ministers; in other words, the President
can n o t dispense with the Council of M inisters which has the support
o f the House o f the People. Fifthly, any conflict between the President
and th e Council of M inisters which has th e support o f the House o f
People, may de'velop into a conflict between the President and the H ouse
o f the People which in its tu rn controls the executive prim arily through
its authority over the purse,th at is, pow er to levy and collect taxes.
In that event, the President will iind it alm ost impossible to run the
governm ent m achinery within the constitutional fram ework. I t is true
th a t any advice tendered to the President and its rejection by him may
n o t be questioned in a cou rt o f law,'"* any am ount incurred by him in
running the governm ental machinery w ithout proper authorisation by a
p arliam e n ta ry ' law would be unconstitutional, and the President may
even be impeached for violation o f th e C o n s t i t u t i o n , I n the w ords o f
B. R. Ambedkar, Chairm an o f the D rafting C om m ittee o f the
C onstitution :
H e (The President) is the bead o f the state b u t n o t of the
Executive. H e represents the N ation b u t does not rule the
34. Article 78(o).

35. Articlc 78(c).
36. A rtic le 74(2).
37. A rtic le 61.
nation. H e is the sym'bol of ihe nation. His place in th e

adm inistration is th a t of a cerem onial device on a seal by
which the n ation’s decisions are m ade known.^®
The structure o f the U nion executive closely resembles the B ritish

model which provides a constitutional head in the B ritish m onarch w ho
in tu rn acts on the advice of the cabinet. In England, the relationship
between the m onarch, the cabinet and P arliam ent is governed by conven
tions. In In d ia, however, some of the conventions in this context have
been w ritten into th e Constitution®'' and others operate as unw ritten
practices. This system differs from th a t o f the U nited States of Am erica
where the President is the head o f the executive. Beyond the
identity o f th e nam es o f the office o f ‘President’ and a fixed tenure fo r
this offiice there is nothing in com m on between the form s o f govern
m ent prevalent in India and in the U nited States o f America.
The President o f In d ia holds office for a term o f five years from th e

date on which he enters upon his ofBce.'"’ H e is indirectly elected by
an electoral college consisting o f the elected m em bers o f both the H ouses
o f Parliam ent and th e legislative assemblies o f the states. The election
is held in accordance with the system o f proportional representation by
means o f th e single transferable vote by secret ballot.*^ Votes are
apportioned to them on th e principle th a t so far as practicable there is
uniform ity in the scale o f representation of different states a t the
e l e c t i o n A l l doubts and disputes relating to the elections of the Presi
dent are to be decided by the Suprem e C ourt whose decision is final but
the exiitence of any vacancy in th e electoral college electing him shall
be o f no consequence.*'^ I f any vacancy occurs in the ofBce o f the
President by reason o f his death, resignation or removal or otherwise,
the Vice-President will act as President until a new President is elected.'*'''
The President has hardly any discretion in the m atter o f appoint

m ent o f the Prim e M inister, who should be able to enjoy the confidence
of the m ajority of the members of the H ouse o f the People, be it in the
form of a single party or a coalition o f two or m ore parties. N orm ally,
the person to he appointed Prime M inister is the leader o f the m ajority
38. VII Cotistituent Assembly Debates, 32.

39. E . g., articles 74 and 75.
40. A r ticJ e 5 6 (l).
41. A rticle 55.
42. Article 55 (2).
43. Article 7 1 (1 ). For a general discussion s e e re Presidential P oll, {197^^) 2
S.C.C. 33.
44. Article 65 (1).
CONSTlTUTEONAL LAW— II 65
party in the H ouse o f the People. However, if no single party is able

to com m and the support o f the H ouse o f the People, the President may
explore the possibilities o f finding a person who could form a coalition
governm ent with the help o f tw o or m ore parlies and com m aud the
support o f th e House of the People. This perhaps is the only occasion
w hen the President may exercise his personal discretion in the selection
o f Prim e M inister under th e C onstitution.
The rule of collective responsibility o f the Council o f M inisters to

the H ouse o f the People is expressly provided in the Constitution.^*^
The Council o f M inisters norm ally accepts responsibility for all m ajor
policy decisions taken by its m em bers and a m otion o f censure passed
against any one o f them m ay become th e censure of the Council o f
M inisters. All members o f the C ouncil o f M inisters stand o r fall
together and m ust be in agreem ent w ith all the decisions taken by the
governm ent. It is, therefore, necessary th at no person should be
appointed a m inister except on the advice o f the Prime Minister,'*® and
no person should be retained as a m inister who is in disagreem ent w ith
the policies o f the governm ent. It is, therefore, implied in the porvision
th a t a m inister holds office during the pleasure o f the President b u t the
President in the m atter o f appointm ent and removal acts on the advice
o f the Prim e M inister.^’
T he executive pow er o f the U nion extends to m atters with rcspcct

to w hich Parliam ent has pow er to m ake laws and also to the exercise o f
such rights, authority and ju risdiction as are exercisable by the G overn
m ent of Ind ia by virtue o f any treaty or agreement.^® Though the
executive has n o authority to act against the provisions o f a law, it does
n o t m ean th a t in order to enable the executive to function there m ust
be a law in existence and th a t the powers o f the executive are limited
to the carrying out o f these laws.''® Executive function com prises b o th
determ ination o f policy and carrying it into execution, and broadly
em braces th e direction o f general policy including initiation o f legisla
tio n , m aintenance o f order, prom otion o f social and econom ic welfare,
and direction o f foreign policy.
45. Article 15 (2).

46. Article 75 (1).
47. Article 75 (I) and (2).
48. Article 73.
49. Ram Jawaya y. State o f Punjab, A .I.R . 1955 S.C. 549; also see Jayatttilal
A m ritlatv. F. N. R am , A .I.R . 1964 S.C. 648.
66 THE INDIA.N LEGAL SYSTEM
Parliam ent
The Constitution provides for Parliam ent fo r the Union which

consists o f the President and two Houses known as the Council o f
States (Rajya Sabha) and the House of the People {Lok Sabha)}^ The
President does not actively participate io the deliberations of the two
Houses. Yet he is an essential constituent o f Parliam ent and discharges
certain formal functions—he summons the Houses,^'- prorogues them®®
and dissolves the House o f the People.®* He may give his assent to a
Bill or withhold assent therefrom after it has been passed by b o th the
Houses and presented to him for his assent;^'* a Bill takes effect only
after the President has given his assent. Both Houses sit separately
and their functions differ in some respects, particularly in m atters of
taxation and expenditure o f public money.®® The H ouse o f the People
is elected directly by the people, unlike the Council o f States which is
indirectly elected, and reflects the popular will. It, therefore, plays a
dominant role by having a control over the policies o f the government,
besides having a final say in financial matters.®® However, the Council
o f States has its own usefulness in providing another forum fo r giving a
calm and m ature consideration to governm ent proposals and
programmes.®'
The Council of States is a contin-uing body, one-third of its

members retiring every two years.^s Its members are elected by an
electoral college consisting of the members o f state legislative
assemblies in accordance w ith the system, o f proportional representation
by means o f a single transferable vote.®® Unlike the House of Lords in
the United Kingdom which is predom inantly hereditary in character,
the Council o f States in its composition corresponds to the Senate of
the American Congress in giving representation to the states. In
practice, however, the Council o f States does n o t act as Ghatnpioning
30. Article 79,

51. Article 85(1).
52. Article 85(2)(a).
53. Article 85(2)(6),
54. Article 111.
55. Article 112,
56. Articles 112-117.
57. See VII Constituent Assembly Debates 1198.
58. Article 83(1).
59. Article 83(4). Representatives of the Union territories shall be chosen in such
manner as Parliament may by law prescribe : Article 83(5); in this context see
Part 1V(A) a f t.tie Representation of the People Act, 1950.
the cause o f the states in federal m atters, and its m em bers do n o t vote
as instru cted delegates of th e state. R ath er, the p attern o f its delibera
tions is sim ilar to th a t o f the H ouse o f the People. I ts sessions are
presided over by th e Vice-President w ho acts as its e x officio
Chairman.®''
T he H ouse o f the People is elected directly by the people on th e

basis o f adult suffrage. Its term is ordinarily five years but it m ay be
dissolved earlier by the P resident or extended by law during a period o f
emergency.®^ Seats in the H ouse are allotted to each state in such
m an n er th a t th e ratio betw een the m em bers and the population o f the
state is, so far as practicable, the same fo r all states.®- F o r purpose
o f election, each state is divided into territo rial constituencies in such
m an n er th a t th e ratio between the population o f each constituency and
th e num ber o f seats allotted to it is, so far as practicable, the same
th ro u g h o u t th e state.®® This H ouse in its com position corresponds to
th e H ouse o f Com m ons in th e U nited K ingdom and to som e extent the
H ouse o f Representatives in th e U nited States. The H ouse o f C om m ons
is elected directly by th e people for five years by adult suffrage in single
m em ber constituencies. In the U nited States too, the H ouse o f
Representatives is elected directly by the people for two years, and the
seats are apportioned am ong the states by Congress on the basis of
population, b u t th e regulation o f suffrage i.s wholly within the control
o f the states. T he House o f Representatives is also n o t subject to
dissolution.
The Houses o f Parliam ent shall be sum m oned by the President to

m eet a t such tim e as he thinks fit, btit six m onths shall n o t intervene
betw een its last m eeting in one session and the date appointed for its
first sitting in th e next session.®^ I f the President refuses to sum m on
P arliam ent, it m ay am ount to violation o f th e constitutional obligation
fo r w hich he m ay be removed from his office by impeachment.®" H ow
ever, he cannot be impeached unless Parliam ent is sum m oned and it can
be done only by th e President. Such a stalem ate cannot continue for
long as the President would find it alm ost impossible to ru n the
governm ental m achinery on his own. Nevertheless, an alternative
60. Article 64(1).

61. Article 83(1) and (2). The term is now extended to six years by clause 17 o f
the Forty-second Amendment.
62. Article 81 (2)(a).
63. Article 8I(2)(6).
64. Article 85(1).
65. Article 61.
provision in the C onstitution to m eet this anom aly could have been
provided."®
The President is also given the pow er to dissolve the H ouse o f the
People. O rdinarily, the dissolution vs'ill take place on the advice o f the
Prime Minister.®’ T he governm ent m ay continue in office so long it
enjoys the support o f a m ajority o f th e H ouse of the People. H ow ever,
tlie Prim e M inister m ay advise dissolution if there are good reasons to
do so, a n d the tim ing of dissolution is entirely in the discretion o f the
Prime M inister. On the o th er hand, if the governm ent is defeated on
a question of m ajor policy, the Prim e M inister along w ith his colleagues
should resign o r ask for a dissolution. N evertheless, there m ay be
circumstances in which the President may dissolve the H ouse o f the
People without obtaining th e advice o f the Prim e M inister or refuse to
dissolve when advised by the Prim e M inister to do so. Thus, dissolu
tion may be justified if the President is satisfied th a t there are good
grounds for thinking th a t the governm ent no longer enjoys the confi
dence of the House o f the People or p erh ap s o f th e people. Similarly,
refusal o f dissolution may be justified if the President is satisfied th a t
an existing Parliam ent is capable o f doing its jo b , or it is possible to
find another person who could act as Prim e M inister with a w orking
majority fo r a reasonable period, or a general election is inopportune
for reasons of econom y o r th e natio n is passing th rough a critical period
such as w ar with a foreign country. T his is one o f th e rare decisions
which the President has to take on his own in the interest o f the nation.
However, so fa r such an occasion has n o t arisen.
A situation may arise during the recess o f P arliam ent in which an

executive action may n o t be sulficient to meet the exigency and it
becomes necessary to take im mediate legislative action. It is, therefore,
provided th a t if, at any tim e, when both H ouses o f Parliam ent are n o t in
session, the President is satisfied th a t circum staces exist which render
it necessary to take im m ediate action, he may prom ulgate such
ordinances as the circum stances ap p ear to him to require. Such
ordinances shall have the same force and effect as an A ct o f Parliam ent
but it m ust be laid before both Houses o f Parliam ent and it ceases to
operate a t the end o f six weeks from the reassembly o f Parliam ent
unless resolutions disapproving it are passed by b o th Houses before the
66. E.g., see article I, section 4 of the U .S.A. Constitution.

67. In this context, conventions governing the exercise o f the royal prerogative to
dissolve Parliament may be examined ; see Jennings, Cabinet Government,
387-389; Wade, Constitutional Law, 6th ed. 79; O. H ood Phillips, Constitutional
Law, 2nd ed., 88-91; Keith. The British Cabinet System, 2nd ed., 299-305.
CONSTITUTtONAL LAW— II 69
expiry o f th a t period. It m ay, o f course, be vvithdrawa a t any time by

th e President. Such an ordinance is subject to all those restrictions
which affect the legislative competency o f P arliam ent under the
Constitution.*^® The satisfaction o f the President to issue ordinances
is subjective and is, therefore, n o t justiciable. This pow er o f the
P residen t is an unusual power which has no corresponding provisions in
oth er constitutions. However, its justification lies, as A m bedkar
explained, in th a t a situation, which has arisen suddenly a n d im m ediate
ly and could n o t be m et effectively by the ordinary existing law, m ust
be dealt with ex hypothesi.^^ But, from the past experience, it could
n o t be said w ith certainty th a t the ordinances have been issued
prim arily to deal with situations w hich required im m ediate action w ith
o u t waiting fo r Parliam ent to be sum m oned in due course; in m ost
instances they gave the impression th at the government wished to avoid
a discussion on issues dealt w ith in th e ordinance.
Detailed procedure is laid dow n in th e C onstitution fo r P arliam ent

to m ake laws.’“ A legislative p roposal may be initiated in either H ouse
in the form o f a Bill, and it should be approved by both H ouses before
it is presented to the President fo r his assent. If there is disagreem ent
between the tw o Houses, a jo in t sitting m ay be sum m oned fo r the
purpose of deliberating and voting on the Bill. This procedure gives an
u p p er h and to th e H ouse o f the People whose m em bers may form a
decisive m ajority a t the joint sitting. A jo in t sitting to resolve differ
ences between th e two H ouses is a unique feature o f th e legislative
procedure in India. In the U nited K ingdom th e H ouse o f L ords have a
lim ited pow er o f veto under th e Act o f 1949 lim iting its d u ratio n to two
sessions and to a period of one year and one m onth counting from the
second reading o f the Bill in the H ouse o f Com m ons in th e first session.
In the United States, a convention has been established to resolve such a
difference th ro u g h a joint conference o f representatives o f b o th Houses
o f Congress. However, if the re p o rt o f this conference is rejected in
eith er H ouse, th e proposal is dropped.
In financial m atters, the powers o f the Council o f States a re limited

to m erely a delaying veto.’'^ A m oney Bill shall be introduced only in
the House o f the People. A fte r it has been passed by the H ouse o f the
People, it shall be transm itted to the Council o f States for its recom m end-
68. Article 123.

69. V t ll Constituent Assembly Debates 214.
69“. See J. M iaattur, “Government by Ordinance” , 1 Academy Law Review 55
(1977).
70. Articles 107-122.
71. Article 109.
70 THE INDJAN legal SYSTEM
atioD S and th e Council o f States s h a ll within a peiiod of fourteen days

o f i ts receipt return it to the House o f the People with its recom m end
ation. I f the recom m endations are accepted by the House o f the
People, it shall be deemed to have been passed by both Houses, If the
recom m endations are not acceptcd, th e Bill will be deemed to have been
passed by both Houses in the form in which it was passed by the H ouse
o f the People. Even if the Council o f States fails to return the Bill
within th e stipulated period, the Bill will be deemed to have been passed
by both Houses in the form in which it was passed by the H ouse of the
People. The President has no option but to give assent to a m oney Bill,
unlike in the case o f an ordinary Bill which is subject to the President’s
veto,’^ It will thus be seen th at the role o f the Council of States in
financial m atters is to provide a fo ru m for discussion and, if necessary,
make recom m endations, and not to take decisions. This role is sim ilar
to that o f the House of Lords in the U nited K ingdom except th a t it can
make a delay of one m onth and has no pow er even to make
lecom m endalions for the consideration of the H ouse o f Commons.
In a parham enlary form of governm ent a legislature should be

able to discharge its functions properly, freely and independently. It is,
therefore, essential th at adequate pow er, privileges and im m unities are
conferred on Parliam ent and its members. This aspect has not escaped
the attention o f th e fram ers of the Constitution.™ It is specifically
provided th a t there shall be freedom o f speech in Parliam ent and no
member of Parliam ent shall be liable to any proceedings in any court
in respect o f anything said or any vote given by him in Parliam ent o r
any committee of it. T hus a m em ber o f Parliam ent is free to express
his views on any m atter, and no action, civil or criminal,, will be against
him for the views expressed by him in Parliam ent o r in its committees.
It is fu rth er provided th a t the validity o f any proceedings in Parliam ent
shall not be called in question on the ground o f any alleged irregularity
of procedure, and no officer or m ember o f Parliam ent in whom powers
are vested by o r under th e C onstitution for regulating the procedure
or the conduct o f business, or fo r m aintaining order in Parliam ent
shall be subject to th e jurisdiction o f any court in respect of the exercise
by him o f those pow ers.’*
The freedom of speech as a privilege of Parliam ent and its m em bers

is made “ subject to the provisions o f this C onstitution and to the rules
72. Article UO.

73. F or powers and privileges and immumties of Parliament and its members see
article 105. A replica o f this provision is found in article 194 which deals
with state legislatures and their members,
74. Article 122,
CONSTITUTIONAL LAW— il 71
and standing orders regulating the procedure o f Parliam ent.’’^ Thus the
provisions o f the C onstitution subject to which freedom of speech in
PaTliament is excersised are only such o f them as relate to th e regulation
o f th e procedure of P a r l i a m e n t F o r exam ple, clause (2) o f article 19,
w hich perm its the im position o f certain restrictions o n the enjoy
m ent o f the right to freedom o f speech an d expression o f a citizen, does
n o t control the freedom of speech o f a m ember o f Parliam ent under clause
(1) of article 105,’' ’ whereas, u n d er article 118 Parham ent is em pow ered
to make rules fo r regulating its procedure and the conduct o f its business,
and these rules may provide fo r m atters w ith respect to which the
freedom o f speech o f a m em ber of Parliam ent is restricted.’® So also
by virtue o f article 121, no discussion is to take place in Parliam ent
w ith respect to the conduct o f a judge o f the Supreme C ourt or o f a
H igh C ourt in th e discharge o f his duties except upon a m otion for
presenting an address to th e President praying for the rem oval of the
judge as provided in article 124(4) and article 217(l)Ci'). H ow ever,
in term s o f clause (2) of article 105 which provides im m unity o f action
in any cou rt in respect o f a speech made by a m em ber, the position
appears to be th a t though the conduct o f a judge in relation to the
discharge of his duties cannot legitim ately be made a subject o f dis
cussion inside Parliam ent, a speech, if m ade in contravention o f
article 121, is protected from action in any court. The only remedy
is the pow er o f the House to take suitable action against a defaulting
m em ber under its Rules of Procedure. T hus, freedom o f speech o f a
m em ber of Parliam ent inside the H ouse is literally absolute.’* Clause
(2) o f article 105 further declares th a t no person shall be liable in
respect o f the publication by or under the auth o rity o f either H ouse o f
Parliam ent o f any report, paper, votes o r proceedings. U nder the
P arliam entary Proceedings (Protection o f Publication) A ct o f 1956,
pubhcation o f a substantially tru e report o f th e proceedings o f either
H ouse o f Parliam ent is protected from proceedings, civil o r criminal,
in a court o f law. In this respect the In d ian law follows closely the
English com m on law.®"
In addition, clause (3) of article 105 lays dow n th a t in o th e r res

pects, th e pow ers, privileges and im m unities o f each H ouse o f Parlia-
75. Opening words of clause (1), article 105.

76. See generally articles 107-121.
77. See M. S. M . Sharma v, S. K . Sinha, A .I.R . 1959 S. C, 395.
78. See rule 159 o f the Rules of Procedure o f Parliament.
79. In re : Article 143, Constitution o f India. A .I.R . 1965 S. C. 745 at 761.
80. E. g , tVason V. Walter, L, R . 42 B. 73, and the Parliamsntary Papers Act o f
1840 passed as a consequence o f the decision in Stockdale v. Hansard, (1839)
19A& E.1.
72 th e INDIAN LEGAL SYSTEM
m ent ar.d its n iein ters aie the same as ihosc enjoyed by the H ouse o f
Com m ons and its m em bers in E ngland a t th e com m encem ent o f the
Constitution.®"" This will continue to be so until a law is m ade by
Parliam ent in this reg ard . H ence it becomes necessary to refer to
privileges enjoyed by th e English H ouse of Com m ons whenever a
question arises as regards the existence and extent o f powers, privileges
and im m unities enjoyed by each H ouse o f Parliam ent in India. It m ay
be emphasised th a t th ere are certain privileges which cannot be claim ed
by the H ouse in India. Thus, for exam ple, the privilege of freedom o f
access w hich is excercised by the H ouse o f C om m ons through its
speaker to have at all tim es the right to access, counsel or dem onstrate
with their sovereign through their chosen representatives and for a
favourable consideration placed on his words, can have no application
in India. Similarly, a general w arrant o f arrest issued by the H ouse
in India cannot claim im munity from scrutiny by courts in India as it,
unlike th e English H ouse o f C om m ons, never discharged any judicial
functions and cannot claim to be regarded as a court o f record in any
sense. So th e court could examine the legality o f com m ittal under
orders o f the H ouse in p ro p er proceeding.®^ F urther, it is likely th a t
conflict may arise betw een a privilege of the H ouse under the la tte r
part of clause (3) of article 105 and a fundam ental right guaranteed to
a citizen in P art III o f the C onstitution. F o r example, Parliam ent
prohibits by its resolution publication o f its proceedings by any person.
In th at event, publication o f proceedings in contravention o f the re
solution would am ount to contem pt o f Parliam ent even though a citizen
is given the right to freedom of speech and expression under article
19(l)(fl).®® O n the oth er hand, arrest o f a person under orders o f th e
H ouse w ould be regarded as bad if he has n o t been produced before a
m agistrate w ithin tw enty four hours o f his arrest as provided in article
22(2).®® So also article 21 would get precedence over clause (3) o f
article 105. However, if a law is m ade defining privileges, etc., o f
Parliam ent in pursuance of the first p a rt o f article 105(3) it is im
mediately reduced to the status of a ‘law ’ within the meaning o f article
iOa. After the adoption of the Constitution (Forty-second Amendment), A ct, 1976
b y virtue of clause 21, the powers, privileges and immunities o f each H ouse,
and o f members and committees, shall be those o f that House, and o f its
members and committees at the commencement o f theForty-second
Amendment.
81. In re : Article 143, Conslim ion o f India, A .I.R , 1965 S, C. 745.
82. M . S. M . Sharma v. Srikrishna Sinba, A .I.R . 1959 S. C. 395.
83. Gutmupaii Keshavram Reddy v, N ofliul ffasan, A .I.R . 1954 S. C. 636. A lso
refer to its discussion in M . S, M . Sharma v. S ri Krishna Sinha, supra
note 77 and In re : Article 143, Constitution ofltid ia , supra note 81 at 755.
c o n s t it u t i o n a l LAW— n 73
13(2), and courts will be com petent to exam ine its coHslitutionality by
reference to the fundam ental rights guaranteed in P a rt III o f the
Constitution.®^
T he Union judiciary
In a federal state, disputes between the centre and the constituent

u n its are n o t uncom m on as regards the interp retation o f the C onstitu
tion and, in particular, the provisions relating to the distribution o f
pow ers and functions betw een them . H ence, it is essential th a t there
should be a judicial body which should be able to act im partially and
independently. M oreover, th e C onstitution guarantees fundainental
rights to th e citizens and the need fo r an im partial and independent
judicial body is all th e more im perative for adjudicating m atters arising
betw een the state and its citizens. The C onstitution has thus crcated
such a body in the Suprem e C o u rt which is entrusted to act as the
in terp reter and guardian o f the constitutional provisions. Every judge
o f the Suprem e C ourt appointed by the President after consultation
with such o f the judges o f the High C ourts in the states as the
President m ay deem it necessary for the purpose. However, in th e
case o f appointm ent o f a judge o th e r than the C hief Justice, the C hief
Justice shall alw ays be consulted. A Judge may resign his office by
w riting under his hand addressed to th e President, and he may be re
m oved from office by an order o f the President. However, th e President
shall n o t pass th e order of rem oval unless an address by each H ouse
of Parliam ent supported by a m ajority o f the to tal m em bership o f th a t
H ouse and by a m ajority o f n o t less than tw o-thirds o f the m em bers o f
th a t H ouse present and voting has been presented to him in the same
session fo r such removal on the ground o f proved m isbehaviour o r
incapacity. T he procedure for the investigation and p ro o f o f the
m isbehaviour o r incapacity o f a judge is to be regulated by a law made
by Parliament.®® The judges’ privileges, allowances and rights in
respect o f leave o f absence and pensions are to be determ ined by law
m ade by Parliam ent and shall n o t be varied to his disadvantage after
his appointment.®® k person w ho has held office as a judge o f th e
Suprem e C o u rt is debarred from pleading o r acting in any co urt o r
before any au th o rity within the territo ry o f In d ia.” Subject to a law
m ade by P arliam ent, the Suprem e C o u rt may from tim e to tim e, with
the approval o f the President, m ake rules fo r regulating generally the
84. Supra aote 77.

85. Article 124, see the Judges (Inquiry) Act, 1968.
86. Article 125, see the Supreme Court Judges (C onditions o f Service) Act, 1958.
87. Article 124(7).
practice and procedure o f the court. These rules may fix the m inim um
num ber o f judges who are to sit for any purpose, and may provide for
the power of single judges and D ivision Benches. However, the
minimum num ber o f judges who are to sit for the purpose of deciding
any case involving a substantial question o f law ab o u t the in terpretation
of the Constitution o r fo r th e purpose o f hearing a reference fo r advice
made by the President shall be five. I f in the course o f hearing any
appeal, th e Supreme C o u rt is satisfied th a t the appeal involves a
substantial question o f law as to the in terp retatio n o f the C onstitution
the determ ination of which is necessary fo r the disposal of the appeal,
such a question shall be referred fo r opinion to a court duly cons
tituted for such purposes and on receipt of the opinion the appeal will
be disposed o f in conform ity with such opinion. All judgem ents and
opinions o f the Suprem e C ourt are to be delivered in the open court.
A judgem ent o r an opinion shall not be delivered except with the con
currence o f a m ajority o f the judges present at the hearing o f the case.
A judge who does n o t concur with th e m ajority opinion is entitled to
deliver a dissenting judgem ent or opinion.®® T he adm inistrative ex
penses of the Supreme C ourt shall be charged upon the C onsolidated
Fund o f In d ia an d will not b e subject to vote in Parliam ent. Fees and
other money tak en by th e Supreme C o u rt shall form p art o f the
Consolidated Fund o f India. All these provisions are directed to
maintain th e dignity o f the Suprem e C ourt and create conditions for
the judges to act im partially and independently.
The law declared by the Supreme C o u rt shall be binding on all

courts within th e territo ry of I n d i a , T h u s in India, as is the case in
other com m on law jurisdictions, the doctrine of binding precedent is
followed, and the decisions o f the Supreme C ourt are m ade
authoritative. All courts within the territo ry of India m ust take judicial
notice of such decisions. However, there is nothing in the C onstitution
which prevents the Suprem e C ourt from departing from its previous
decision if th e co u rt is convinced o f its e rro r and its baneful effect on
the general interest o f the public,'*'- o r its inconsistency with the legal
philosophy o f th e C onstitution.”* F or example, th e Supreme C ourt in
Golakm th v. S tate o f Punjab,''^ overruled its earlier decisions in Shankri
88. Article 145.

89. Article 146.
90. Article J41.
91. Bengal Immuniiy Co. Ltd. v. State o f Bihar, A .I.R . 1955 S.C. 661.
92. Superintendent and Remembrancer o f Legal Affairs v- Corporation o f Calcutta,
A.I.R . 1967 S.C. 997.
93. A .I.R . 1967 S.C. 1643.
CONSTITUTIONAL LAW— U 75
Prasad v. Union o f India^'^ and Sajjan Singh v. S la te o f Rajaslhan,^^ and

late r overruled Golaknath v. S ta te o f Punjab in Kesavananda Bharati
V. S ta te o f Kerala.
U nder A rticle 32(2), the Suprem e C o u rt has the pow er to issue

directions or orders or writs, including writs in the nature o f habeas
corpus, mandamus, prohibition, quo warranto and certiorari, whichever
m ay be appropriate, fo r the enforcem ent o f fundam ental rights. This
jurisdiction o f th e Supreme C o u rt is itself declared to be fundam ental
rig h t and it cannot be tak en away o r w hittled down by legislation.”
Even th e existence o f an alternate or adequate legal remedy is n o t a
good an d sufficient ground for rejecting a w rit application m ade under
article 32.“® M oreover, a petition und er article 32 will n o t be rejected
simply because th e proper writ o r direction has n o t been prayed for.®®
H ow ever, this jurisdiction can be invoked only for th e enforcem ent of
fundam ental rights and not any other right.^ Nevertheless, Parliam ent
m ay by law confer on the Suprem e C o u rt power to exercise this
jurisdiction for any purpose o th er than the enforcem ent o f funda
m ental rights.“ The Suprem e C o u rt may not exercise its jurisdiction
under article 32 if a petitioner is found guilty o f laches or inordinate
delay.® Also if a writ petition has been heard and decided on merits
by the H igh C o u rt under article 226 fo r th e enforcem ent o f a funda
m ental right, it cannot be heard afresh by the Supreme C o u rt under
article 32 because o f res judicata;'^ a petitioner can choose to make an
application either to the H igh C o u rt und er article 226 or to the
Suprem e C o u rt under article 32.
The Suprem e C ourt has also original jurisdiction in any dispute

(a) betw een the U nion an d one o r m ore states; o r (b) betw een the U nion
and any one state on one side and one or m ore other states on the
94. A .I.R . 1951 S.C. 458.

95. A .I.R . 1965 S.C. 845.
96. (1 9 7 3 )4 S .C C . 225.
97. K. Gopalan v. State o f Madras, A -I.R. 1950 S.C, 27; Prem Chand v. Excise
Commissioner. A .I.R . 1963 S.C. 996.
98. K. K . Kochunni v. State o f M adras, 1959 S.C.J. 858.
99. Charanjit L ai v. Union o f India, A I . R . 1951 S-C- 41.
1. Khyerbari T ea Co. v. State o f Assam, A .I.R . 1964 S.C. 925. Whether a
petition under article 32 is maintainable or not raisescomplex issues, and it
sometimes becom es diffictilt to comprehend them, e.g., see Ujjarnbai v. State o f
U.P., A .I.R . 1962 S.C. 1621,
2. Article 139-
3. Trilokchand v. H. B. Munsl^i, (1969) 2 S.C.R. S24.
4. Daryao Singh v. State o fU .P ., A .L R . 1961 S.C. 1153.
O ther, or (c) betw een two or m ore states, w hich involves any question
o f law or fact on which the existence o r extent o f a legal right
depends.® This jurisdiction does not extend to (i) a dispute arising
ou t of any treaty, agreem ent, covenant, engagem ent, s a n a d or o ther
similar instrum ents, which having been entered into or executed before
the com m encem ent o f the C onstitution, continues in operation after
such com m encem ent, o r which provides th a t this jurisdiction shall n o t
extend to such a dispute,® and (ii) any dispute arising o u t o f any
provision o f a treaty, agreem ent, covenant, engagem ent, s a n a d o r o th e r
similar instrum ent which was entered into or executed before the
commencement o f th e C onstitution by any ruler of an Indian state and
to which the G overnm ent o f the D om inion o f India or any o f its
predecessor governm ents was a p a rty and which has o r has not
continued in operation after such com m encem ent or in any dispute in
respect of any right accruing under or any liability or obligation arising
out o f any o f the provisions o f the C onstitution relating to any such
treaty, agreem ent, covenant, engagement, s a n a d o r som e similar in stru
m ent.’ T he jurisdiction o f the Suprem e C ourt m ay also be taken
away by a 2aw m ade by Parliam ent in any dispute o r complaint with
respect to the use, distribution or control of the w aters o f any inter
state river o r river valley.®
The Suprem e C ourt has also jurisdiction to h ear appeals from any
judgement, decree or final order of a H igh C ourt and other tribunals.
Besides having appellate jurisdiction in appeals from a High C o u rt in
regard to civil and crim inal m atters und er articles 133 and 134, an
appeal shall lie to th e Suprem e C ourt from any judgem ent, decree or
final order of a High C ourt, whether in a civil, crim inal or o th er
proceedings, if the H igh C ourt certifies th a t the case involves a
substantial question o f law as to the interpretation o f the C onstitution.
W here the H igh C o u rt has refused to give such a certificate, the
Supreme C o u rt may gran t special leave to appeal from such judgem ent,
decree or final order if it is satisfied th a t the case involves a substantial
question o f law as to the interpretation o f th e Constitution." Thus
the Suprem e C ourt is given jurisdiction as the final appellate authority
in m atters relating to the interpretation o f the C onstitution irrespective
of the nature of the proceedings in which they m ay arise, and this
5. Article 151. For the exercise o f this jurisdiction, see, e.g., Sra/e o f (V. S . v.
Union o f India, A .I.R . 1963 S.C. 1241.
6. Article 631 (proviso).
7. Article 303(1).
8. Article 262.
9. Article 132-
CONSTITUTIONAL L/VW — II 77
jurisdiction is freed from oth er lim itations im posed under articles 133
and i34.“
By virtue o f article 136, the Suprem e C ourt may, in its discretion,

grant special leave to appeal from any judgem ent, decree, determ ination,
sentence or order in any cause o r m atter passed o r made by any court
o r trib u n al. This is an omnibus provision for appeals to the Supreme
C ourt by special leave, and the conditions necessary fo r the hearing o f
the appeals by th e Supreme C o u rt under o th er provisions o f the
C onstitution are n o t to be fulfilled in this case. H owever, th e determ i
nation, sentence or order which is a subject-m atter o f appeal, m ust have
the character o f judicial adjudication and m ust have em anated from a
co u rt or a tribunal.’^ This jurisdiction will be exercised by the
Supreme C ourt in exceptional cases where grave and substantial
injustice has been done by disregard o f the form s o f legal process or
violation o f the principles of n atu ral justice or otherwise.’^ I t being
an exceptional and overriding pow er, naturally it hcis to be exercised
sparingly and w ith caution and only in special and extraordinary
s i t u a t i o n s . I n crim inal cases, the Suprem e C ourt will n o t grant
special leave to appeal unless it is shown th at special and exceptional
circum stances exist, th at substantial and grave injustice has been done
and the case in question presents features o f sufficient gravity to
w arrant a review o f the decision appealed against.^'' The pow er to
grant special leave to appeal by the Suprem e C ourt is not lim ited to
orders or determ inations of a co u rt o f law, but includes within its am bit
all adjudicating bodies, com m only know n as tribunals, provided they
are constituted by the state and are invested with judicial, as against
adm inistrative or executive, functions.^® Thus an arbitrato r appointed
under section 10 o f the Industrial D isputes Act, 1947 is not a tribunal,
because he lacks the basic, the essential and the fundam ental requisite
in th a t behalf, th a t is, the state’s inherent judicial power.^“ The
grounds on which the Supreme C o u rt would norm ally interfere with the
decisions arrived at by tribunals are, (i) excess o f jurisdiction o r failure
to exercise a p aten t jurisdiction, (ii) erro r apparent on. the face o f the
decision, (lii) violation o f the principles o f n atu ral justice, causing
10 See, e.g.. State o f J. A K. v. Ganga Singh, A .LR . 1960 S.C. J56.

U. Engineering Mazdur Sabh ay. Hind Cycle Ltd., A.T.R, 1963 S.C. 875.
12. Sanwat Singh y. State o f Rajasthan, A .I.R . 1961 S.C. 715.
13. DhakeshwaH Cotton M ills v. C .I.T ,, West Bengal, A .I.R . 1955 S.C. 65.
14. Pritam Singh v. The State, A.I.R . 1950 S.C. 169.
15. Durga Shankar y. Raghuraj Singh, A.I.R . 1954 S.C. 520; Bharat Bank v.
Employees o f Bharat Bank, A .I.R . 1950 S.C. 188.
16. S M p r a n o t e ll.
73 the INDIAN LEGAL SYSTEM
substantial and grave injustice to parties, and (iv) erroneous application

of the well accepted principles of jurisprudence.^’
The Suprem e C ourt has also an advisory or consuhative jurisdic

tion. If at any tim e it appears to the President th a t a question of law
has arisen or is likely to arise, which is o f such a n ature and o f such
public im portance th a t it is expedient to o btain the opinion o f the
Supreme C o u rt upon it, he may refer the question to th a t court fo r
consideration and the co u rt may, after such hearing as it thinks fit,
report to the President its opinion th e re o n ." Accordingly, th e
President may form ulate fo r the advisory opinion o f the Supreme C o u rt
questions relating to the validity o f the provisions proposed to be
included in th e Bills which would com e before the legislature or in
respect o f any oth er question of constitutional importance.^** I t is in
the discretion o f the President to refer a question to the Suprem e C ourt
for its opinion, and the Suprem e C ourt cannot go beyond the reference
and discuss problem s o th er than those m entioned therein. However,
the Supreme C o u rt has a discretion to entertain a reference m ade to it
by the President, and may in a p ro p er case and for good reasons
decline to express any opinion on the question referred to.^“ T he
advisory opinion of the Suprem e C ourt, though entitled to great respect,
is not binding on the President. So also it is not binding on o th er
courts as a precedent as it is not ‘law ’ within the m eaning o f article
141.^1 This jurisdiction o f the Suprem e C ourt is analogous to th a t
of the Privy Council und er the Judicial C om m ittee Act, 1833, and th a t
of the C anadian Supreme C ourt under the C anadian Supreme C o u rt
Act, 1706. B ut the Am erican Supreme C ourt has refused to pronounce
advisory opinions upon abstract questions o f law on the ground th a t to
do so would be incom patible w ith its position under the U.S.
Constitution.®^
The states
G enerally speaking, the structure of a state governm ent closely

resembles the structure o f the Union government. The state executive,
like the U nion executive, is of the parliam entary form o f governm ent.
Article 153 provides th at there shall be a G overnor for each state. T he
17. Alembic Chemical Works v. The Workmen, A .I.R . 1961 S.C. 647.
18. Article 143.
19. In re ; Article 143, ConsHtution o f India, A -l.R . 1965 S.C. 745.
20. In re : K frala Education Bill, A.I.R . 1958 S.C. 956 at 964.
21. In re : Allocation o f Lands and Buildings, A-I.R, 1943 F.C . 13.
22. M uskrat v. U.S., ( 1911) 56 Law Ed. 246 at 252.
c o n s t it u t io n a l la w — II 79
executive power o f the state is vested in the G overnor an d is to be

exercised by him either directly or th ro u g h officers subordinate to him
in accordance w ith the C o n s t i t u t i o n . T h e G overnor is appointed by
the President fo ra p e rio d o f five years, atvd holds officc during the pleasure
of the President.®* He has pow ers to grant pardons, reprieves, respites
or remissions o f punishm ent o r to suspend, rem it or com m ute th e
sentence o f any person convicted o f any offence against any law relating
to a m atter to which the executive pow er o f th e state extends.®® T he
executive power o f the state is coextensive with its legislative com pet
ence.^''
The G overnor is de jure head o f the state, and the de fa cto pow er
is wielded by the Council o f M inisters. Article 163 provides th a t there
shall be a Council o f Ministers headed by th e C hief M inister to aid and
advise the G overnor in the discharge o f bis functions except in the exer
cise o f his functions or any one o f them in his discretion. If any question
arises w hether any m atter is o r is n o t a m atter as respects w hich the
G overnor is by o r under the C onstitution required to act in his discretion,
the decision o f the G overnor in his discretion shall be final, and the
validity o f anything done by the G overnor shall n o t be called in question
on the ground th a t he ought or ought n o t to have acted in his discretion.
This provision may give an im pression th a t th e G overnor has unfettered
pow er to act in his discretion w ith respect to any m atte r and take a
decision in disregard o f the advice given by th e Council o f M inisters o r
w ithout consulting the Council o f M inisters. However, the basis o f the
state executive is full responsible governm ent, and the G overnor in
practice has to accept the advice given by the Council o f M inisters.
Nevertheless, the G overnor as a representative o f the President in the
state has to discharge certain constitutional functions, such as those
envisaged under article 356, and in the discharge o f such functions he
may act in his discretion. I t is tru e th a t th e President has power to act
in his discretion under the C onstitution, b u t it does not m ean th a t
the G o v ern o r by v irtue of the pow er to act in Iris discretion can act
constitutionally on his own or against the wishes o f the Council o f
M inisters.
T he legislature o f a state consists of the G overnor and two Houses

know n as the Legislative Assembly and th e Legislative ConnciL*^’ Some
23. Article 154.

24. Articles 155 and 156.
25. A rticle 16L For discussion on the scope o f this provision see State o f Bombay
V . K. M . Nanavati, 61 Bom. L.R. 383.
26. Article 162.

27. A rticle 168.
states have only one H ouse, th at is the Legislative Assembly. B ut

Parliam ent m ay by law provide for the abolition o f the Legislative
CouBcil o f a state having such a council or fo r the creation o f such a
council in a state having no such council, if the Legislative Assem bly
o f the Slate passes a resolution to th a t effect by a m ajority of th e to tal
m em bership o f the Assembly and by a m ajority o f n o t less th a n two-
thirds o f the members o f the Assembly present and voting.^^ T he
procedure to be followed in legislative m atters is com m on to b o th th e
Houses. A Bill, o th er th a n a M oney Bill, may originate in either H ouse
o f the legislature and shall be deemed to have been passed only when it
is agreed by both the Houses either w ithout am endm ent or w ith such
am endm ents as are agreed to by both th e Houses. H owever, if after a
Bill has been passed by the Legislative Assembly o f the state and is
transm itted to the Legislative Council and the Bill is rejected by the
Council, or m ore than three m onths have elapsed from the d ate on
which the Bill is laid before the Council w ithout the Bill being passed
or the Bill is passed by the Council w ith am endm ent to w hich the
Legislative Assembly does not agree, th e Legislative Assembly may pass,
the Bill again in the sam e o r subsequent session w ith or w ithout such
amendments, if any, as have been m ade, suggested o r agreed to by the
Legislative Council and then transm it the Bill so passed to the Legislative
Council."® I f after a Bill has been so passed for the second time by the
Legislative Assembly and is transm itted to the Legislative Council, and
the Bill is rejected by the Council, or m ore than one m onth has elapsed
from th e d ate on which the Bill is laid before the Council w ithout the
Bill being passed by it, or the Bill is passed by th e Council with am end
m ents to which th e Legislative Assembly does n o t agree, the Bill shall
be deemed to have been passed by the H ouses o f the legislature o f th e
state in the form in which it was passed by the Legislative Assembly
fo r the second tim e w ith such am endm ents, if any, as have been m ade
or suggested by th e Legislative Council and agreed to by th e Legislative
Assembly.®** Thus the powers of the two Houses o f the legislature in a
state are not equal. In effect the Legislative C ouncil can only m ake a
delay in th e passing o f the Bill for some time, and ultim ately the Legis
lative Assembly has a Snal say in legislative m atters. As regards a
M oney Bill, it shall n o t be introduced in th e Legislative Council. A fter
a Money Bill has been passed by the Legislative Assembly o f a state
having a Legislative Council, it shall be transm itted to the Legislative
Council for its recom m endations and th e Legislative Council shall within.
28. Article t69.

29. Article 196.
30. Article 197.
a perio d o f fourteen days from the date of its receipt o f the Bill return
the Bill to the Legislative Assembly with its recom m endations and the
Legislative Assembly may thereupon either accept or reject all o r any
of the recom m endations o f the Legislative Council. I f the Legislative
Assembly accepts any of the recom m endations o f tlie Legislative
Council, th e M oney Bill shall be deemed to have been passed by both
Houses w ith the am endm ents recom m ended by the Legislative Council
and accepted by the Legislative Assembly. If the Legislative Assembly
does n o t accept any o f the recom m endations o f the Legislative C ouncil,
the M oney Bill shall be deemed to have been passed by both th e Houses
in th e form in w hich it was passed by the Legislative Assembly w ithout
any o f th e am endm ents recom m ended by the Legislative Council. If a
M oney Bill passed by th e Legislative Assembly and transm itted to the
Legislative C ouncil for its recom m endations is not returned to the
Legislative Assembly within fourteen days, it shall be deem ed to have
been passed by b o th H ouses at th e expiry o f the above-m entioned period
in the form in which it was passed by th e Legislative Assembly.^^ The
principle underlying this procedure is th a t the proposal for the im posi
tion o f ta x o r th e appropriation of m oney should originate in a H ouse
which represents the people, and th a t H ouse should have a final say in
money m atters. A fter a Bill has been passed by both the H ouses o f the
legislature, it m ust be presented to the G overnor. The G overnor shall
declare either th a t he assents to the Bill o r th a t he w ithholds assent
therefrom or th a t he reserves the Bill fo r the consideration o f the
President. The G overnor may as soon as possible after the presentation
to him o f the Bill, except a M oney Bill, for assent, retu rn the Bill w ith a
message fo r reconsideration or m ay suggest am endm ents, and the H ouse
or H ouses m ust reconsider the Bill accordingly. I f the Bill is passed
again by the H ouse o r Houses w ith or w ithout am endm ents and presen
ted to th e G overnor fo r his assent, th e G overnor shall n o t w ithhold his
assent. I f in the opinion o f th e G overnor a Bill would, if it becam e
law, so derogate from the powers o f th e High C o u rt as to endanger th e
position which th e court is by th e C on stitu tio n designed to fulfil, he
shall n o t assent to it, but shall reserve the Bill for the consideration o f
the President.®^ W hen a Bill is reserved fo r th e consideration o f the
President, he shall declare either th a t be assents to it o r th a t he with*
holds assent therefiom . B ut if th e Bill is not a money Bill, he may
direct the G overnor to retu rn it to the H ouse o r H ouses of th e legis
lature w ith a m essage for reconsideration, o r may suggest am endm ents,
and th e H ouse or H ouses m ust reconsider his suggestions w ithin a period
31. Article 198.

32. A rticle 200,
o f six m onths. If it is again passed with or w ithout am endm ents, it

shall be presented again to the President fo r his consideration.^^ The
pow er to reserve a Bill for the consideration o f the President indicates
the upper hand o f the U nion government in m atters o f legislation in a
state.
For each state there is a High C ourt. Each High C ourt consists
of a Chief Justice and such other judges as the President may from
time to time deem it necessary to appoint. A judge o f a High C ourt
is appointed by the President after consultation with the Chief .lustice
of India, th e G overnor of the state, and, in the case o f appointm ent
of a judge other th an th e Chief Justice, th e C hief Justice o f the H igh
Court. A judge may resign his office o r may be removed from his
office by the President in the same m anner as a judge o f the Supreme
C ourt may be removed, T he High C ourts have the same jurisdiction
which they had immediately before the commencement o f the
Constitution, subject, however, to the provisions o f the C onstitution and
to the provisions o f any law of the appropriate legislature. The
High C ourt did not have original jurisdiction with respect to any
m atter concerning revenue or its collection. But this restriction no
longer applies under the C onstitution. Article 226 confers a new power
on the High Courts to enable them to issue to any person or authority,
including, in appropriate cases, any government, orders or writs, including
writs in th e nature o f habeas corpus, mandamus, prohibition, quo
warranto and certiorari, for the enforcem ent of any of the fundam ental
rights and for any other purpose. The High Courts may issue orders
in the nature o f w rits to government and authorities outside their
territorial jurisdiction provided the cause of action arises within their
jurisdiction. T hus power conferred upon the High Courts is not
in derogation o f the pow er conferred on the Supreme C ourt by clause
(2) o f article 32. B oth the Supreme C o u rt an d the High C ourts
have pow er to issue orders in the n ature o f writs for the enforcem ent
of fundam ental rights. However, the H igh C ourts are further em po
wered to issue orders in the nature of writs for any other purpose, th at
is, for the enforcement o f any oth er legal right or duty. This
jurisdiction o f the High C ourt is to be exercised in extraordinary cases
in which ordinary legal process is not adequate or an aUernative legal
remedy is not available.®^ Nevertheless, the w rit jurisdiction o f the
High Courts is discretionary and the availabiltity o f other legal remedies
33. Article 201.

34. Rashid Ahmad v. Municipal Board, Kalrana, A .I.R . 1950 S. C. 163 at 165.
is n o t per se a b ar to the issue o f an order in the n atu re o f a writ.*®

This ju risdiction is conferred on th e High C ourts in very wide term s
and gives a discretion o f a most extensive nature. B ut this wide and
extensive n ature o f the jurisdiction imposes on the High C ourts the
responsibility to issue orders in th e n atu re o f w rits with great caution
and circum spection. Thus this ju risdiction m ust be in accordance
with well established principles,^® an d the w rits are intended to
enable the H igh C o u rt to issue them in grave cases where an authority
or a tribunal has acted wholly w ithout jurisdiction or in excess o f it
or in violation o f th e principles o f n atu ral justice or refuses to exercise
a jurisd ictio n vested in it or there is an e rro r apparent on the face of
the record, and such act, omission, e rro r or excess has resulted in
m anifest injustice.®’ The H igh C o u rts in th e exercise o f this jurisdiction
cannot convert themselves into a co u rt o f appeal and judge fo r th em
selves the correctness o f the decision im pugned on merits.^® This
jurisdiction may n o t be invoked if there is inordinate delay in m aking
a petition to the H igh Court,®® if the petitio n er is guilty of suppression
of m aterial facts,*® or if the w rit applied fo r is n o t likely to serve any
useful purpose.^"-
Legislative relations
A federation implies distribution o f legislative powers betw een the

central governm ent and the governm ent of the constituent units. Both
sets o f governm ent are independent and autonom ous in their respective
jurisdictions, and th e relations betw een them are governed by the
fundam ental law o f the country, th a t is, th e C onstitution, So is the
case in India. A rticle 245 provides th a t P arliam en t may m ake laws
for th e whole o r any p a rt of th e territo ry of India, and th e legislature
of a state may m ake laws for the state or any p a rt thereof. N o law
m ade by P arliam ent shall be deem ed to b e invalid on the ground th a t
it w ould have ex tra-territorial operation. In th e absence o f any re
ference to the states, it is im plied th a t th e legislature o f a state has
no pow er to m ake a law having extra-territo rial operation. However,
a sta te law is n o t invalid so long as there is a sulBcient nexus between
35. Stale o f U .P . M ohd Nooh, A .l.R . 1958 S. C. 86; A. V. Venkateshwaran v.

R. S . Wadhwani, A .I.R . 1961 S. C. 1506.
36. Janardhan Reddy v. The Stale o f Hyderabad, 1951 S.C.R. 344.
37. Veerappa v. Raman, A .L R ., 1952 S. C. 192.
38. H ari Vishnu Kamath v. M a q Ahmad, A .I.R . 1955 S. C. 233 at 240.
39. M ongey v. Board o f Revenue, A .I.R . 1957 A ll. 47.
40. Abdul Ghafoor v. The Stale, A .I.R , 1968 M. 29.
41. Gopi Prasad v. Board o f Revenue, A .I.R . 1953 Nag. 121.
the S ta le making the law and the subject'iiiatter of legislation.^® Article

246 provides for a three-fold ciistribiuion o f powers as specified in the
Seventh Schedule to the Constitution, and the entire legislative field
has been drawn out elaborately and exhaustively in three lists, P arlia
ment is empowered to m ake law exclusively w ith respect to m atters
e m im e T a te d in List I — U nion List.**® Similarly, the legislature o f a state
is empowered to m a k e law exclusively with respect to a m atter
enumerated in List I — State List.*^ Both Parliam ent and the legislature
of a state are empowered to make law with respect to a m atter enu-
merated in List III — Concurrent F o r parts o f the territory o f
India not included in ‘State’, i.e., the U nion territories, Parliam ent is
empowered to make law with respect to any irrespective of the enu
merations in the three lists.*® If there is a m atter which is not found in
the three lists, i.e., the residue. Parliam ent is empowered to make laws
with respect to that matter;'*^ entry in List I also reads to the same
e ffect: “ Any other m atter not enum erated in List II or List III,”
Parliam ent is also empowered to establish additional courts fo r the
better adm inistration o f laws made by Parliam ent or o f any existing
law with respect to a m atter enumerated in the Union List.^® This
provision was necessary in order to remove the impression th a t by
virtue of entry 3 in List II, ‘Administration o f Justicc, Constitution and
Organisation o f all courts except the Supreme C ourt and the H igh
Courts,’ the state alone is empowered to set up new courts fo r the
administration o f Union laws. The enum eration in the three lists is
not based on any defined principles except perhaps that m atters o f
national im portance are allotted to Parliam ent, and matters o f local
importance to the legislature o f a state. Some m atters, though not
of national im portance but require attention o f Parliament fo r any
reason at a later stage have been provided in the C oncurrent List so
th at Parliam ent may, on its own initiative, make laws with respect to
such m atters as and when necessary. This pattern of distribution o f
powers is indicative o f the centralising tendency which is, o f course, the
theme running throughout the Constitution.
The enum eration of subject-matters in the three lists resembles to

a great extent the pattern o f distribution of powers under the C anadian
42. State o f Bombay v. R. M. D. C„ A.I.R. 1957 S. C. 699; State o f Bihar v.

Charusila Dasi, A.I.R. 1959 S. C. 1002.
45. Article 246(1).
44. Article 246 (31.
45. Article 246 (2).
46. Article 246 (4).
47. Article 248. See Union o f India v. H. S. DhilUm, A .I.R . 1972 S. Q, 1061.
48. Article 247.
C onstitu tio n except th a t the C oncurrent List in the latter is small.

However, in A m erica and A ustralia the C onstitution gives the central
governm ent only enum erated pow ers and leaves the residue to regional
governm ents.
U n d er article 246 P arliam ent an d th e legislature o f a state are

em pow ered to m ake a law with respect to a m atter falling w ithin tlie
jurisdictions allotted to them , and in th e exercise o f its pow ers one can
no t encroach upon the jurisdiction o f another. However, there are
circum stances und er which Parliam ent is em pow ered to make a law w ith
respect to a m atter enum erated in the State List. First, under article
249 if th e Council of States declares by a resolution supported by n o t
less th a n tw o-thirds o f the members present and voting th a t it is neces
sary or expedient in the national interest th a t Parliam ent should m ake a
law w ith respect to any m atter enum erated in the State List and the
m atter is specified in the resolution, it shall be lawful fo r Parliam ent to
m ake a law w ith respect to th a t m a tte r while the resolution is in force.
Such a resolution may rem ain in force up to one year, but it may be
extended fo r an o th er year by another resolution. The desirability o f
em pow ering Parliam ent in this way can be justified in the context o f a
m odern state com m itted to planned economy. However, this kind of
encroachm ent on th e state’s au thority is not to be found in o ther federal
constitutions. Secondly, under article 250 supplem ented by article
353 (b) and article 354, while the proclam ation o f emergency is in
operation, P arliam ent is em powered to make a law w ith respect to a
m atter enum erated in the State List and to im pose duties upon the
U nion governm ent and its officers in th e sam e m atter. Such a law will
cease to have effect on the expiration o f six m onths after th e proclam a
tion ceases to have effect. T here is every justification for Parliam ent to
have overriding au thority in emergency situations. Thirdly, u n d er article
252, if legislatures o f two or m ore states desire th a t any of the m atters
with respect to which Parliam ent has no pow er to m ake a law should
be regulated in such states by Parliam ent by law and if resolutions
are passed by th e legislatures o f these states, it shall be law ful for
Parliam ent to pass an Act for regulating th a t m atter accordingly. Once
a state has requested to do so, it cannot, on its own, w ithdraw subse
quently. This provision is justifiable to m eet a situation in which two
o r m ore states have a com m on concern and wish to have an identical
law. This provision, it appears, has been borrow ed from the A ustralian
C onstitution, j Fourthly, under article 253 in disregard of article 246,
Parliam ent is em powered to make a law fo r im plementing any treaty or
convention with any foreign country o r any decision m ade a t any inter
national conference or association. T hough entry 14 o f L ist I confers
on Parliam ent pow er to m ake law w ith respect to entering into treaties.
agreements and conventions with foreign countries, it is m ade d e a r th a t

this power enables Parliam ent to encroach upon the state’s jurisdiction
exclusively assigned to it under article 246. This provision is based
upon the difficulties experienced in C anada. In the absence of such a
provision in the Canadian C onstitution, th e Privy Council held th a t the
D om inion governm ent having no pow er to im plem ent an obligation
undertaken at an international convention could n o t validly pass such a
law as th e subject-m atter of the legislation fell w ithin the classes o f
subjects assigned to the provinces.^” In A ustralia, the Com m onw ealth
power over external affairs has been interpreted to perm it the C om m on
w ealth to encroach upon the field reserved fo r the states fo r this
purpose.®®
In th e process o f allocating m atters to P arliam ent and the legisla

ture of a state, there is bound to be overlapping o f jurisdictions and
likelihood o f a conflict arising in between th e various entries enum erated
in the three lists of th e Seventh Schedule. F o r resolving such conflicts,
non obstante clause has been inserted in clauses (1), (2) and (3) o f article
246 resulting in an order of precedence am ong the three lists. T hus
List I has priority over List II. However, it is n o t th e intention th a t
such a conflict should exist, and it is only as a last resort th a t th e non
obstante clause should be applied. Initially, an endeavour should b e
m ade by having recourse to the context and scheme o f the CoQStitution
to attem pt a reconciliation between th e two apparent conflicting ju ris
dictions by reading the tw o entries tog eth er and by interpreting and, if
necessary, by m odifying the language o f one by th a t o f the other. O ne
way to reconcile the tw o conflicting entries, a general power and a p a rti
cular power in the same field, is to construe by reading the general
power in a m ore restricted sense than it can theoretically possess so as to
give effect to th e particular power in its ordinary and natural m eaning;
in other w ords, the general power ought not to be so construed as to
make a nullity o f a p articular power.®^ F o r example, item 11 o f L ist I I
— education including universities subject to the provisions o f item 66 o f
List I — empowers th e legislaiure o f a state to prescribe the syllabi and
courses o f study in all institutions including universities and as an
incident th ereo f it has pow er to indicate the m edium in w hich
instruction m ust be im parted, whereas item 66 o f List I — co-ordination
49. A. G .fo r Canada v. A. G .fo r Ontario, 1937 A . C, 326.

50. R. V. Burgess, 55 C .L.R . 608.
51. The doctrine was explained by Sir M aurice Gwyer in the context o f th e
Government of India A ct, 1935, in In re C. P . am lB erat Act, A .I.R . 1939 F.C .
131, but it is equally applicable to the corresponding provision in the present
Constitution.
and determ ination of standards in institutions for higher education —

empowers Parliam ent to ensure th a t the syllabi an d courses o f study
prescribed in institutions o f higher education including universities and
th a t th e media so selected do not im pair standards of education and
renders the co-ordination o r determ ination o f standards im possible or
even difRcult. T here is a degree o f overlapping between the pow ers of
P arliam ent and the legislature o f a state, and, at any rate m edium of
instruction for im parting education in the universities falls within the
am bit o f both th e entries. The conflict can be removed by reading
m edium o f instruction as an integral p art o f item 66 o f List I and
exclviding it to th a t extent from th e am plitude of power conferred by
item 11 o f List II, the form er being a p articu lar pow er taking precedence
over the latter being a general power.®^ I t may be noted th a t the fact
th at P arliam ent has not legislated, or refrained from legislating, does
not invest the legislature o f a state with the pow er to legislate in respect
of a m a tte r which is exclusively assigned to Parliam ent. The validity of
a state law has to be judged having regard to w hether it impinges on the
field assigned exclusively to Parliam ent, and not upon the existence o f
some definite U nion law directed to achieve th a t purpose.
However, if a subject-m atter is n o t to be found in List I I o r L ist III,

it should be taken to have been assigned exclusively to Parliam ent by
virtue of entry 97 o f List I read along w ith article 248—any other m atter
n o t enum erated in List II or List III including any tax n o t m entioned in
either o f those lists. Thus w ealth tax on agricultural land, though
expressly excluded from the purview o f entry 86 in List I, is a subject-
m atter w ith respect to which Parliam ent is validly em powered to m ake
law as this subject-m atter is not to be found in L ist II o r List III.®®
In a p a tte rn o f distribution o f pow ers with m utually exclusive lists,

questions arise about th e com petence o f a legislature with regard to a
particu lar enactm ent by reference to th e m atters enum erated in th e lists.
A law which directly encroaches upon th e forbidden field, is invalid.
But, if th e encroachm ent is only incidental, it m ay be otherwise. F o r
the purpose o f ascertaining w hether the encroachm ent o f a law. is
incidental o r not, th e test o f pith and substance is generally applied. I f
52. Gujrat University Shrs Krishna, A -l.R , 196S S. C. 703. Incidentally such a
reconciliation between the two entries would enable the U a io n to undertake
reforms in the University education withovit disturbing the existing arrange
m ents under the Constitution.
F or the application o f the doctrine of reconciliation or Jj3->™onious
construction see also fVaverty Jute M ills \ , State o f W.B., A .I.R . 1963 S.C. 90;
Calcutta Gas Co. y. State o f IV. B ., A .I.R . 1962 S .C , 1044.
53. Union o f India v. II. S. Dhillon, (1972) 2 S.C.C. 779.
the ‘pith and substancc’ o f a piece o f legisIatioB falls w ithin the pow er
expressly conferred upon the legislature which enacted it, the legislation
is not invalid merely because it incidentally encroaches upon m atters
assigned exclusively to another legislature. The degree o f encroachm ent
upon the forbidden field is relevant not for distinguishing betw een
degrees o f encroachm ent, b u t for the purpose o f determ ining the ‘p ith
and substance’ of th e impugned law. H ow ever, the ‘pith and substance’
o f the impugned law is determ ined by having regard to the enactm ent as
a whole, to its object and to its scope and the effect o f its provisions,s**
A legislature m ust confine its activities w ithin the limits o f its

authority, and a transgression of those lim its w ould render a piecc o f
legislation invalid. Such transgression may be patent, m anifest o r
direct, b u t it may also be disguised, coloured or indirect, th a t is, in
disguise, pretence or pretext o f doing som ething which is w ithin the
limits o f legislative authority. A legislature m ay p u rp o rt to act w ithin
the limits of its authority, yet in substance and reality it trangresses
those lim its, transgression being m erely a substance, and not th e form
or outw ard appearance, th a t is m aterial for unfolding the em ploym ent
o f indirect m ethods for achieving som ething which is denied otherwise.
However, an inquiry into th e substance m ay involve a search fo r purpose,
as distinguished from motive, of the im pugned legislation; m otive on
the p art of a legislature is of no relevance, as the question involved in
such cases relates to the competence o f th e legislature. In other w ords,
w hat cannot be done directly cannot be done indirectly, and this is
known as colourable legislation.®^
Clause (1) o f article 254 provides th at if any provision o f a law

made by the legislature o f a state is repugnant to any provision o f a law
m ade by Parliam ent w hich Parliam ent is com petent to enact, o r to any
provision of an existing law with respect to one o f the m atters enum er
ated in the C oncurrent List, then subject to the provisions o f clause (2)
the law m ade by Parliam ent, w hether passed before or after th e law
m ade by the legislature o f such state, or, as the case m ay be, the existing
law, shall prevail and the law made by th e legislature o f the state shall,
to the extent o f repugnancy, be void. The first p a rt o f this clause
54. Sse scnet&liyPrafulla K um ar -V. Bank o f Commerce, Khulna, A . h K . 1947 P .C .

60; State o f Bombay v. F. N . Ealsara, A .I.R . 1951 S.C. 318; D . N. Banerji v.
P. R. Mukherji, A .I.R . 1959 S.C. 58; State o f Rajasthan V. Chawla, A .I.R , 1959
S.C . 544.
55. G. N. Deo v. State o f Orissa, A .I-R . 1953 S.C . 375- Anil Kumar v . Deputy
Commissioner, A .I.R . 1966 S.C. 1577; G. N ageshwarv. A .P .S.R .T . Corporation.
A .I.R . 1958 S.C. 308; Jagamath SakshSingh v. State o f U.P., A I.R. 1962 S C .
1563.
provides that a Union law shall prevail over a state law if there is
repugnancy between them ; it is presum ed th at Parliam ent and the legis
lature o f a state are com petent to m ake law with respect to the subject-
m atter o f the law and the law is otherwise valid. This is a general
principle o f suprem acy which form s an integral part o f the concept o f
federation.^®
A rticle 251 incorporates this principle to remove an inconsistency

arising o u t of a law m ade by Parliam ent either under article 249 or
article 250. H ow ever, there m ay be other situations such as under
article 253 or article 248, besides a conflict arising between a U nion law
and a state law in spite o f the use o f 'non obstante' clause in article 246,
which requires application of this principle. The second part of clause
(1) provides th a t an existing law shall prevail over a state law if there
is repugnancy between the two laws, b u t the existing law should be with
respect to one o f the m atters enum erated in the C oncurrent List.
Nevertheless, by virtue o f clause (2) where a state law with respect to
one o f the m atters enum erated in the C oncurrent List contains any
provision repugnant to an earlier law made by Parliam ent or an existing
law w ith respect to th a t m atter, then, th e law so made by the legislature
of the state shall, if it has been reserved fo r the consideration o f the
President and has received his assent prevail in th a t state.®’’ It is fu rth er
provided th a t nothing in clause (2) shall prevent Parliam ent from
enacting at any tim e any law with respect to the same m atter including
a law adding to, amending, varying or repealing the law so m ade by the
legislature o f a state. It is necessary th a t tlie parliam entary legislation
must deal with a subject-m atter which form ed the subject-m atter o f an
earlier legislation and clause (2) will n o t apply if the form er dealt with
other distinct subject-m atter though o f cognate or allied character.®®
56. See, e. g., s. 109 of the Commonwealth o f Australia Constitution Act, 1900.
The Caaadian Constitution contains no specific provision in this regard, but
the Privy Council interpreted the .scheme o f the distribution o f powers as
giving primacy to Dominion legislation. A .G .fo r A.G.
Owhr/e
57. There is, however, another view that the entire clause (1) of article 254 is
concerned with laws made with respect to matters enumerated in the Concu
rrent L is t ; v. .M;/. Is/m il, A .l.K . 1958 Mysore 143; State o f
M ysore V. Gampappa, A .I.R . 1961 M ysore 25T, Shetralaam v. Gift Tax Officer,
A-I.R . 1960 A.P- 115; S . K. Villal v . Stare o f M ysore, A .I.R . 1966 Mysore 138;
Premnalh v. Stale o f Jammu and Kashmir, A .I.R . 1959 S C, 749; Deepchand v.
State o f U.F., A .I.K . 1959 S.C. 648, C f . Gujrat University v. Shri Krishna
M udholkar, A .I.R . 1963 S.C, 703.
58. Zaverbhai v. State o f Bombay, A .I.R . 1954 S.C. 752; T ikd S a m ji v. State o f
U.P., A.I.R . 1956 S.C. 676.
A repuganaiicy between a U nion law and a State law may arise :

(1) if there is a direct conflict between the provisions o f the U nion law
and those o f the state law so th a t obeying one results in disobeying the
other, (2) if Parliam ent intends to lay dow n an exhaustive code in
respect o f the subject-m atter replacing the state law, a n d (3) i f the U nion
law and the state law occupy the same field.
Administrative relations
The Indian U nion being federal in character, the Union and th e

states have exclusive, though lim ited, jurisdictions. But the U nion
being ultim ately responsible fo r ensuring peace and safety, m aintaining
law and order and providing for the ru le of law th ro u g h o u t the country,
should have adequate pow er o f adm inistrative control over the states.
Article 256 provides th at the eKecutive power o f a state shall be so
exercised as to ensure compliance w ith the laws o f P arliam ent and
existing laws which apply in that state, and th at the U nion m ay give
such directions as may appear necessary fo r th at purpose. A rticle 257
further authorises th e Union to give directions to the state in specific
m atters, namely (1) the m anner in which the executive power o f the
state shall be exercised so as not to im pede or abridge the executive
power o f the U nion, (2) the construction o f means o f com m unication
declared to be o f national or military im portance and (3) m easures to be
taken for the protection o f railways w ithin th e s t a t e s . A n y failure to
comply w ith or give effect to any direction given in the exercise o f the
executive pow er of th e U nion may am ount to constitutional breakdow n in
the state and em power the G overnor o f th a t state to issue a proclam ation
under article 356 thereby assuming to him self governm ental functions.
However, there is a departure from the federal principle in article 258
and 258A which perm it th e U nion and the states to delegate executive
functions to e a c i oth er in certain m atters. A rticle 258 em powers the
President, with the consent of the state governm ent, to entrust to th at
government functions relating to any m atter falling w ithin the executive
powers o f the U nion, and empowers P arliam ent to use the state executive
m achinery for the enforcem ent of U n io n laws and fo r th at purpose to
confer power, and impose duties upon th at state in respect o f the m a tte r
59. O e e p c / i c m c / v . S / a t e o f U ' . F . , A . L R . . l 9 5 9 S . C . 6 4 S . la t h e Australian context,

see Clyde Engineering Co. y. Cowburn, (1926) 37 C.L.R , 466; State o f Victoria v.
Commonwealth (1937) 58 C.L.R. 618.
60. By dan se 43 o f the Forty second Amendment, a new clause is added
empowering the U nion o f India to deploy any armed force of the U nion or any
other force subject to the coatrol of the U n ion for dealing with any grave
situation o f law and order in any state.
ia th e U nion and C oncurrent Lists. So also article 258A empowers

a state G overnor, w ith the consent o f the U nion governm ent, to entrust
to th e U nion functions relating to any m atter falling w ithin the executive
pow ers o f the states. But an express authorisatio n to th e President
under th e C onstitution, such as under article 123, article 309 and article
360 cannot be entrusted to the state as they are not pow ers o f the
Union,
In a federation conflicts o f policy and interests are bound to arise

between the U nion and its constituent units or between the constituent
units inter se, and a solution of such conflicts cannot be found for all
time. A nd yet such conflicts should n o t be allowed to assum e p ro p o r
tions so as to d isru p t th e unity o f th e country o r create tensions affecting
the harm ony betw een the union and the constituent units o r between the
constituent units inter se. In anticipation the fram ers o f the C onsti
tution provided fo r the establishm ent o f an inter-state council, for
this purpose. U n d er article 263, the President is empowered to establish
an inter-state council charged w ith the duty o f (a) inquiring into and
advising upon disputes which may have arisen between states; (b)
investigating and discussing subjects in w hich th e U nion and the states
have com m on interest: o r (c) m aking recom m endations upon any such
subject an d , in p a rtic u la r recom m endations for th e b etter co-ordination
of policy and action with respect to th a t subject. How ever, the
recom m endations so made are not binding on the President, and the
inter-state coimcil acts only as an advisory body. N evertheless, the
C onstitution provides a forum as a m eeting gro u nd fo r the U nion and
the states to iron o u t their differences and discuss m atters o f com m on
interest. As regards disputes relating to w aters o f inter-state rivers or
river valleys. P arliam ent is em powered to create a body for solving such
disputes by virtue o f article 262.
Financial relations
In a federation, the union and its constituent units should have

adequate finances to perform their governm ental functions and, there
fore, com m and independent resources to m eet th e ir respective exclusive
dem ands. T hus distribution o f pow ers and fucntions should be accom
panied by distribution of resources as well. In a developing country
like Ind ia with growing financial requirem ents due to ever-expanding
governm ental activities, financial relations betw een the U nion and the
state h ad to be so devised as to be flexible to meet th e stresses and
strains of the grow ing ecoaom y o f the country as a whole. Thus after
allocating taxing powers between th e U nion and the state, as specified
in the Seventh Schedule, th e C on stitu tio n lays dow n in P art X II a scheme
giving general principles fo r tlie distribution o f resources. This schem e

is subject to review by the Finance C om m ission periodically, th u s p ro
viding elasticity in the area of financial relations.
Article 265 provides th a t no tax shall be levied and collected

except by authority of law. No tax can be im posed by an executive
fiat or even by a delegated authority u n d er th e law unless expressly
authorised to do so. T he discretion to im pose taxes is absolute and
cannot be questioned in a court o f law except on grounds o f co n stitu
tional prohibitions,®^ T he doctrine o f implied prohibitions is available
to the extent it is recognised expressly by articles 285 and 289 which
provide for th e exem ption of property o f the U nion from state ta x atio n
and, conversely, for the exem ption o f prop erty and incom e o f a state
from U nion taxation.®^
Unlike o th er m ajor federations w here taxing pow ers are concurrent

over a large field, in India there is n o provision for concurrent ju risd ic
tion in L ist III which contains no entry relating to taxation. However,
List III provides for th e levy of ‘fees’ w hich is different fro m ‘ta x ’
when a levy is raised for a specific purpo^fe and is earm arked for a
specific purpose a n d is taken for s e rv ic ^ rendered, the levy is fee and
not a tax. B ut when the levy is collected/ as revenue and form s p a rt
o f public revenue and is spent by th e gjavernment fo r public purposes,
it is a tax.®^
F or th e purpose o f securing an effective control over the public

expenditure o f the U nion and the states, article 266 brings into existence
a Consolidated Fund for th e Union an d a separate one fo r each state
into which flow all revenue receipts, all loans raised and all m oney
received in paym ent o f loans. N o m oney out o f this fund shall be
appropirated except in accordance w ith law and for the purpose and in
the m anner provided in th e C onstitution. T here is also a provision
for public account to which all other public m oneys received by or on
behalf of the governm ent are credited; these am ounts are held in tru st
by the governm ent and paid by the governm ent w ithout prior au th o risa
tion of th e legislature. In article 267 th ere is also a provision fo r the
establishm ent o f a Contingency Fund o f India and a contingency fund
for each state in the n atu re of an im prest to enable advances to be
made o u t of such fund fo r the purpose o f m eeting unforeseen expendi
ture pending authorisation by the legislature. F o r securing com pliance
61. iia m jila ty. Income T ax Officer, A .h K . {1951) s . C ,9TyC hottabhai V. Union o f
India, A .I.R . 1951 S. C. 1006.
62. In re Sea Customs Act, A .I.R . 1957 S. C. 1760.
63. Jaganath v. State o f Orissa, A .I.R . 1964 S. C, 400.
by th e executive w ith the dictates o f th e legislature in financial m atters

and fo r providing an opportunity to scrutinise the expenditure incurred
by th e various m inistries with the sanctioned am ount, article 148 pro
vides fo r the appointm ent o f C o m ptroller and A u ditor G eneral o f India.
A consideration o f the taxing pow er as distributed betw een the

Union and the states reveals th a t th e states would rem ain in the
deficit w ith the resources available at th e ir disposal. H ence, a financial
plan had to be devised for the states either to share in the proceeds or
to retain wholly th e yield or certain specified taxes. Keeping this aim
in view, u n d er th e C onstitution the taxes levied and collected by the
U nion m ay be classified as (i) taxes, such as custom s duties, co rporation
tax, w ealth tax, th e proceeds of w hich are wholly retained by th e U nion,
(ii) taxes, such as du:y in respect of succession to property, estate duty,
term inal taxes on goods and passengers, taxes on railw ay fares and
freights, stam p duties, the net proceeds o f which are assigned to the
states,®^ (iii) taxes, such as income tax , th e n et proceeds o f w hich are
distrib u ted betw een the U nion and the states®® and (iv) taxes, such as
excise duties other th an on m edical and toilet preparations, th e proceeds
o f which are distributed between the U nion and th e states, if P arliam ent
by law so provides.®® Also to m eet the increasing dem ands o f the
U nion Parliam ent is em pow ered to impose a surcharge on taxes
classified in (ii) and (iii) for purposes o f th e Union.®’ It m ay thus be
seen th a t certain taxes, though w ithin the jurisdiction of th e U nion,
a re eith er to be shared or intended fo r the benefit o f the states. H ow
ever, taxes intended fo r the benefit o f the states m ay either be collected
by th e U n io n or in some cases, be entrusted to the states themselves.
In the form er case, th e net proceeds are assigned to the states by the
President after considering the recom m endation o f the F inance
Com m ission (The Finance Com m ission is constituted by the President
every five years o r earlier, if necessary, under article 280). I t is the
duty o f the Finance Comm ission to m ake recom m endations to the
President as to (a) the distribution betw een th e U nion and the states
o f the net proceeds o f taxes which are to be divided between them and
the allocation o f th e respective shares o f such proceeds; (b) the principles
which should govern the grants-in-aid of the revenue of th e states
o u t o f th e Consolidated F und o f India; or (c) any other m atter referred
to the com m ission by the President in th e interests o f sound finance.
64. Article 269.

65. Article 270.
66. A rticle 272.
67. Article 271.
Experience o f other leading federations such as C anada and

A ustralia shows th a t even after provisions have been m ade for
distribution o f the proceeds o f certain taxes between the union and
the constituent units, th e union was still in a position to com m and
more financial resources than the constituent units, and it becam e
necessary to make grants to the latter. U n d er the C onstitution article
275 thus provides for grants-in-aid being made to the states in need
of assistance, to be determ ined by Parliam ent by law and different
sums m ay be fixed fo r different state. The principles which should
govern the grants-in-aid o f the revenue o f the states are determ ined by
the Finance Com mission as recom m endations to the President by
virtue o f article 280.
A rticle 282 empowers the U nion or a state to make any g ran t fo r

any public purpose, notw ithstanding th a t the purpose is not one with
respect to which Parliam ent or the legislature o f a state, as th e case
may be, m ay m ake laws. This being a m iscellaneous provision is
apparently intended to m eet a situation n o t otherwise provided. H ow
ever, capital grants to the states to m eet com m itm ents under the five-
year plans have been m ade under this provision as falling w ithin the
scope o f ‘public purpose.’
Trade, commerce and intercourse within the territory o f India
F o r a federal state to be effective and stable, the constituent units

should n o t be allowed to impose custom s duties and create trade
barriers at their borders and any tendency to encourage econom ic
rivalry am ong the constituent units should be elim inated. The entire
state should operate as a free com m on m arket thereby exploiting,
harnessing and pooling the resources o f the various regions to the
advantage of all. T o a great extent the preservation o f national political
nnity is dependent upon the preservation o f national economic fabric
which transcends the boundaries o f th e constituent units and prevent
the emergence of regional or local barriers through economic activity.
To achieve these objects, the C onstitution provides a separate p a rt
dealing with trade, commerce and intercourse w ithin the territory o f
India.®® The provisions of this p art have been drafted keeping in view
the A m erican and A ustralian experience in this m atter.
Article 301 provides th at trade, com m erce an d intercourse shall be

free throughout th e territory of India.®® The freedom so guaranteed
68. Part XIII, articles 301-307.

69. Article 301.
is free from all restrictions except those which are provided in P a rt X III
itself. B ut the general trend in th e exceptions is to stress the subordi
n ation o f th e state to the U nion o r to give predom inant position to
the U nion in this m atter. Thus P arliam ent is em powered to im pose
such restrictions on the freedom o f trade, com m erce and intercourse,
between one state and another o r w ithin any p a rt o f the te rrito ry o f
India as m ay be required in public interest.’” ‘Public interest’ is an
expression o f wide connotation, and a law m ade by P arliam ent in
‘public interest’ tones down considerably the rigours o f the restrictions
envisaged in article 301. Besides, P arliam ent’s determ ination of
‘public in terest’ is prim a fa d e n o t questionable in a court. O n the
o th er hand, though the legislature o f a state is empowed to im pose
reasonable restrictions on the freedom o f trade, com m erce and inter
course w ith or w ithin th a t state as m ay be required in public interest,
such a Bill should obtain previous sanction of the President before its
introduction in the legislature.’^ M oreover, th e restrictions so im posed
by the state law m ust be ‘reasonable’ and th e ‘reasonableness’ o f the
restrictions can be questioned in a cou rt o f law. F urther, b o th P arlia
m ent and th e legislature o f a state are prohibited from giving, o r
authorising the giving of, any preference to one state over an o ther, or
making, or authorising the m aking of, any discrim ination between one
state and another, by virtue o f any entry relating to trade and
com m erce.’® B ut this prohibition is lifted only in the case o f Parliam ent
if it is necessary to do so for the purpose o f dealing with a situation
arising from scarcity o f goods in any p a rt o f In dia.’® Parliam ent has
also been em pow ered to appoint an au th o rity for carrying o u t the
purposes o f th e above-m entioned provisions and confer on this
authority such pow ers and duties as m ay be necessary.’**
W hat is protected by article 301 is the freedom o f ‘trade, commerce

and intercourse’. T h e scope of th e expression ‘trade, com m erce and
intercourse’ is very wide and com prehends all kinds of trading and
com m ercial activities and all the instrum ents by which such activities
are conducted. It is n o t confined to the m ovem ent aspect o f an
activity but extends to other things otherwise including com m ercial and
financial transactions. A law prohibiting forw ard contracts in a
com m odity would come w ithin th e purview o f article 301.’® However,
70. Article 302.

7L Article 304(6),
72. A rticle 303(1).
73. Article 303(2),
74. Article 307,
75. Koteswar v. K .R .B . & Co., A .l.R . 1969 S.C. 504.
only those activities are protected which are regarded as law ful trading
activities. T hus betting or gam bhng w ould not be regarded as a
trading activity but res extra commercium.'^^ B ut this is n o t so with an
activity w hich is opposed to public policy. D ealing in liq u o r is
legitimate tra d e .” T he inclusion of the word ‘in terco u rse’ along w ith
‘trade and com m erce’ has its own significance and suggests th a t n o n
trading or non-com m ercial dealings fo r personal use w ould also be
covered by th e expression ‘trade, com m erce an d in tercourse.’’®
The freedom guaranteed by article 301 operates as a general

limitation o n th e legislative pow er and is appHcable to P arliam en t as
well as th e legislature o f a state. A rticle 301 does n o t exclude w ithin
its purview ta x laws which m ay and do am ount to restrictions on the
freedom o f tra d e , com m erce and intercourse. T hough the pow er to
impose tax is essential for the very existence o f the state, it has to be
exercised w ithin the fram ew ork of the C onstitution, and is, therefore,
controlled by the relevant constitutional provisions including those in
P a rt X III. Non obstante clause in article 304(a) o f which tax atio n form s
the subject-m atter also lends support to th e sam e view.
F o r the purpose o f examining the validity o f a law by reference to

article 301, it has to be considered w hether the law im poses a restriction
o r burden w hich interferes w ith, ham pers o r im pedes trade, com m erce
and intercourse directly and imm ediately. F o r exam ple, a restriction
on a person n o t to move goods from one place to an o th er is one w hich
is direct and im m ediate, whereas a restriction on a person to prescribe
minim um wages to his employees is one w hich is indirect and rem ote;
the form er is violative of th e guarantee o f the freedom o f trade,
commerce an d intercourse, whereas the latter is indirect and rem ote.
However, even if a law imposes a restriction or burden w hich operates
on trade, com m erce and intercourse directly and im m ediately, it m ay
still escape th e rigours o f article 301 if the restriction is regulatory o r
com pensatory. A working test for deciding w hether th e restriction is
regulatory o r com pensatory is to inquire w hether th e m easure facilitates,
instead o f interfering with, ham pering or im peding, the free flow o f tra d e ,
commerce and intercourse. F o r example, m easures such as traffic
regulations o r licensing of vehicles are im posed so th a t the traiHc on
roads runs sm ooth and unham pered an d , are therefore, regulatory.
Similarly, m easures in the form o f taxes w hich are im posed for th e
76- State o f Bombay v. R .M .D .C , A .I.R. 1957 S.C. 609.

77- Krishna Kumar v. State o f Jammu and Kashmir, A .I.R . 1957 S.C. 1368.
78. Chobe v. Palnitkar, A .I.R . 1954 Hyd. 207.
CONSTITUTIONAL LAW — II 97
p u rpose o f providing facilities fo r b e tte r co n d u ct o f business, e.g.,

m aintenance o f roads, bridges, etc., are com pensatory.
T ho u g h article 302 em pow ers P arliam en t to im pose restrictio n s on

freedom o f trad e, com m erce and intercourse in the public interest,
article 303(1) p ro h ib its it from giving preference o r m aking d iscrim in a
tion betw een one state and an o th er by v irtue o f any en try relatin g to
trade a n d com m erce. It is w o rth noticin g th a t n o t all differences in
trea tm en t a m o u n t to preferences a n d discrim inations between th e states.
A U nion law applied uniform ly m ay in effect result in differential
tre atm e n t o f th e states owing to differing econom ic conditions prevail
ing in th em and yet it m ay n o t com e w ithin th e p ro h ib itio n s o f
article 303(1). F o r exam ple, a law fo r the p u rp o se o f im posing on
inter-state sales a tax which is to be assessed, collected and reta iae d by
the states fro m w hich the m ovem ent o f goods com m enced, does n o t
violate article 303(1) merely because o f varying rates o f tax prevailing
in the states. This is so because (1) the flow o f tra d e does n o t depend
solely on differing ra te s o f tax in th e states b u t on several o ther factors,
(2) discrim ination n o t dependent on n a tu ra l or business factors is no
discrim ination and (3) by leaving the assessm ent to the states fro m
which th e m ovem ent o f goods com m enced discrim ination is n o t likely
to be practised.®"
By virtue o f article 304(a) the states a re em pow ered to im pose on

goods im p o rted from o th e r states any tax to w hich sim ilar goods
m anufactured or produced in th a t sta te are subject, so, how ever, as
n o t to d iscrim inate betw een goods so im p o rted an d goods so m an u fa c
tured o r produced.®^ Thus the states are allow ed to im pose c o u n te r
vailing ta x so th a t th e econom y o f o n e state is n o t handicapped by th e
free flow o f goods from another state. In o th e r w ords, th ere is a
provision for th e equalisation of b urden by the im p osition of a tax on
goods m an u factu red or produced irrespective o f w hether th e goods
are m an u factu red o r produced in one sta te o r an o th er. F o r exam ple,
if sales ta x im posed on goods im p o rted from outside is higher as
com pared to sales tax on sim ilar goods m an u factu red o r produced in
a state th e ta x is discrim inatory and violative o f the concession given
to the state.®® T h e im position o f tax will still be bad if th e goods
m anufactured or prod u ced in the sta te are n o t subjected to any tax a t
79. See generally, Atiabarl T ea Co. v. State o f Assam , A .I.R . 1961 S.C. 232;
Autom obile Transport v. State o f Rajasthan, A .I.R . 1962 S.C. 1406.
80. State o f M adras v. N ataraja M udaliar, A .I.R . 1969 S.C. 147.
81. A rticle 304(a).
82. M ehtab M ajid V. State o f M adras, A . l . K . 1 9 6 i S.C . 92^,
all, b u t this tim e it will be violative of th e freedom o f trade, com m erce

and intercourse u n d er the general provisions.
Corresponding to article 302 authorising P arliam ent to im pose

restrictions in the public interest, article 304(b) authorises the legislature
o f a state to im pose such reasonable restrictions on the freedom o f
trade, commerce and intercourse as may be in public interest provided
p rio r sanction has been obtained before a Bill is introduced in th e
legislature fo r this purpose. This provision lets a safety valve fo r a
state lavs' which does not comply with th e requirem ents o f P resident’s
p rio r approval o f a Bill before its in tro d u ctio n and is an additional
control mechanism which is aim ed a t ensuring uniform ity o f policy in
all the states.
Emergency provisions
U nder a federal constitution there is division o f pow ers between

the central an d regional governm ents. Any division o f au thority is a
sign o f weakness and this becomes ap p aren t in tim es o f emergency
which require imm ediate action and m obilization o f all the resources
available in th e country. U n d er such circum stances it is likely th a t
neither authority, central or regional, acting singly is in a position to
m eet the situation effectively, and the central governm ent may have to
be vested with extraordinary powers uninhibited by division o f auth o rity
under norm al conditions. Consequently, a federation m ay be transferred
into a unitary state, so th a t obstacles o r hindrances in the way o f
meeting the exigencies o f emergency are removed. In A m erica and
A ustralia, th e ernergency arising from th e tw o w orld wars was m et by
giving an expansive interp retatio n to the w ar or ‘defence’ pow er o f th e
centre giving it a w ider area o f operation th a n its peace tim e am bit an d
enabling the centre to take steps for the effective prosecution o f the war.
Similarly in C anada ‘th^ peace, order and good governm ent’ clause was
so interpreted as to confer adequate power o n th e centre to deal w ith
emergency such as war, pestilence etc. T he fram ers o f the In d ian
C onstitution did n o t adopt this course o f judicial in terpretation fo r
making necessary adjustm ents in center-state pow er balance in response
to an emergency situation, but rather sought to achieve th e same result
by expressly em pow ering the U nion executive to issue an em ergency
proclam ation and providing fo r the necessary Incidents flowing th ere
from . This approach is in line with the general trend running th ro u g h
o u t the C onstitution m aking detailed provisions best suited to meet the
83. State o f M adras v. BhPilal Bhai, A .I.R . 1964 S.C. 1006.

CONSTITUTIONAL L A W ~ I I 99
needs o f th e co u n try an d thereby red u cin g th e scope o f ju d ic ia lja w /

m aking. T h e C o n stitu tio n provides fo r th ree kinds o f em ergency :
(1) em ergency affecting th e security o f th e w hole o f India;

(2) em ergency due to failure o f co n stitu tio n a l m achinery in states;
and
(3) financial em ergency.
Emergency affecting the security of India
If th e P resident is satisfied th a t a grave em ergency exists w hereby

the security o f In d ia o r o f any p a rt o f its territo ry is th reaten ed , w hether
by w ar o r external aggression o r intern al d isturbance, he m ay by
proclam atio n m ake a declaration to th a t effect. T he President can issue
proclam atio n n o t only when th ere is actu al occurrence o f w ar o r ex tern al
aggression o r intern al d isturbance b u t also w hen th ere is an im m inent
danger t h e r e o f . A n o t h e r notable featu re o f th e p ro c la m a tio n is th a t
it can be issued when th ere is a th re a t to th e security o f In d ia by
internal d isturbances in the states. I t m ay, however, be em phasised th a t
the m aintenance o f law and order is prim arily a responsibility o f th e
states, an d cen tre’s intervention could be justified if in tern a l disturbances
are com p arab le in gravity to m eeting o f external aggression. In this
respect, th e p ro clam atio n o f em ergency a t the initiative o f the U nion
executive is a d ep artu re from th e corresponding provisions in th e
A m erican an d A ustralian C onstitu tio n s w hich p erm it federal intervention
only at th e initiative o f th e states, th o u g h in A m erica on a few occasions
federal interv en tio n has been justified o n th e g round th a t th e re was
interference w ith certain federal functions.®*
The decision o f th e President to issue a p ro clam atio n o f em ergency

is n o t justiciable. Y e t the p ro clam atio n m ust n o t be continued fo r any
period beyond w hat is absolutely necessary.
It is provided th a t if th e p ro clam atio n o f em ergency is to be

continued beyond a period o f two m onths, approval o f P a rliam e n t has
to be o btained ultimately.®® I f so approved, the p roclam ation continues
to be in force till it is revoked by th e President by a subsequent
proclam ation.
83a. By virtue o f clause 48 o f the Forty-second Am endm ent, the declaration o f

em ergency m ay operate in respect o f the whole o f India or o f sucli part o f the
territory o f India a s m ay be specified in the proclam ation.
84. In re D ebs (1894) 1584 U .S. 564.
85. Article 352 (2).
Consequences o f proclam ation o f emergency
W hen a proclarnation o f emergency is in operation, various conse

quences ensue. First, th e executive au thority of the U nion extends to
th e giving of directions to any state as to the m anner in which the
executive pow er th ereo f is to be e x e r c i s e d . S e c o n d l y , the pow er o f
P arham ent to make laws is enlarged so as to extend to the m atters
falling w ithin the jurisdiction o f the states.®’ A lthough the law making
pow er o f a state legislature is not suspended during the continuance o f
a proclam ation, a law m ade by it is subject to the overriding pow er o f
P arliam ent. T hirdly, the financial arrangem ents betw een the U nion
and the States may be altered with a view to securing adequate revenue
to the U nion to meet the situation created by emergency.®®
D uring the period o f emergency, measures m ay have to be tak en

affecting adversely the fundam ental rights o f citizens guaranteed by the
C onstitution. The very existence o f these rights depends upon the
stability o f th e state itself and any sacrifice to m eet the crisis is called
for. Besides these rights m ay becom e hindrances in taking m easures
which becom e necessary to deal w ith the situation effectively. The
C onstitution thus provides fo r the suspension o f article 19, during the
period o f emergency, and removes fetters on the pow ers o f the state
to m ake any law or to tak e any executive action w hich the state would
b u t fo r the provisions contained in th a t article be com petent to m ake or
to take, As soon as emergency is lifted, article 19 is autom atically
revived an d begins to operate w ith th e result th at th e executive action
taken or th e legislative enactm ents passed become inoperative to the
extent to which they a re inconsistent w ith the provisions o f article 19.
W hen th e p roclam ation o f em ergency is in operation, the President

may by order declare th a t the rig h t to move any co u rt for the enforce
m ent o f fundam ental rights as may be m entioned in th e order, and all
proceedings pending in any co u rt fo r the enforcem ent o f rights so
m entioned rem ain suspended for th e period during which the procla
m ation is in force, o r for a sh o rter period, as m ay be specified in the
order. Such an order may extend to th e whole o r any p a rt o f the
territo ry o f India.®® T he only effect o f this o rd e r is to suspend the
86. Article 353 (1). By virtue of clause 48 of the Forty-second Amendment,

where a proclamation o f emergency is in Operation only in a part o f the
territory o f India, the executive power o f the U nion m ay not necessarily be
confined to that part only.
87. Article 353 (2).
88. Article 354.
89. Article 359.
enforcem ent o f the right, and not th e right itself, m entioned therein in
any court and it applies to proceedings under articles 32 and 226.
However, a person can m ove the cou rt for a w rit on th e ground th a t th e
authorities have acted mala fid e or th ere has been excessive delegation.
A fter the emergency is lifted, all things done or laws m ade in contraven
tion o f the fundam ental rights m ay perhaps be challenged in a co urt by
appropriate proceedings.
Failure o f constitutional machinery in states
In a federal state, auth o rity is divided betw een th e centre and the
constituent units, an d they operate independently in their respective
jurisdictions. However, the constituent units should n o t be perm itted
to abuse th e ir a u th o rity or subvert the provisions o f the constitution.
It is, therefore, essential th a t the centre should be sufficiently equipped
w ith pow er to overcom e such situations. The P resident is em pow ered
to issue a p roclam ation on receipt of a rep o rt from the G overnor o f a
state or otherw ise, (1) to assum e to him self all o r any o f the executive
functions o f the governm ent in th a t state, an d (2) to declare th a t the
powers o f the legislature o f th a t state be vested in Parliam ent, if he is
satisfied th a t th e governm ent o f the state cannot be carried on in accord
ance w ith th e provisions o f the Constitution.®” The decision o f the
President to issue a pro clam atio n is n o t justiciable. Such a proclam ation
operates fo r a period o f two m onths unless approved by Parliam ent
before th e expiratio n o f th a t period. Its m axim um life is three years
subject to approving its continuance by P arliam ent every six months.®'-
W ith the issue o f a proclam ation, th e state legislature does not stand
dissolved im m ediately. It m ay be suspended an d allow ed to continue
to exist so th a t it com es to life as soon as th e p roclam ation is lifted o r
ceases to operate. G enerally, a pro clam atio n is issued if there is a
collapse o f th e existing m inistry o r th e fo rm atio n o f a stable m inistry is
n o t found possible in a state. However, th is provision may be invoked
even w hen a m inistry enjoys th e confidence o f th e legislature o f a state,
as was th e case in K erala in 1959, if th e re is unrest am ong the people
and the m aintenance o f law and o rd e r has becom e a serious problem
because o f p artisan and discrim inatory policies pursued by the govern
m ent tending to destroy dem ocratic rights o f the people. This provision
has also been found handy by th e P resident fo r adm inistrative
convenience, such as, in 1956 in P u n jab as a consequence o f the
90. Article 356 (1).

91. A rticle 356(3). By virtue o f clause 50 o f the Forty-second Amendment,
approval o f its continuance is required every year instead o f every six
m onths.
re-organisation o f the state, or in 1966 in G oa for the purpose of holding

an opinion poll. F rom th e past experience it m ay be said th at the
insertion o f this provision has been amply justified by its use in the
peculiar political conditions in India.
Financial emergency
I f the President is satisfied th a t a situation has arisen whereby the

financial stability or credit o f India o r any p art th ereo f is threatened, he
may by proclam ation declare a financial emergency. D uring the period
o f proclam ation of this emergency, th e existing financial arrangem ents
between th e centre and the states m ay be altered by the President. Besides
the executive au thority o f the U nion extends to the giving o f directions
to any state to observe such canons o f financial propriety as may be
specified in the directions, and to the giving of such o th er directions as
the President may deem it necessary fo r m aintaining financial stability
and cred it o f the state. Such directions may include reduction of
salaries and allowances of public servants of the state or o f the Union,
including judges of th e Suprem e C o u rt and the H igh C ourts and
reservation o f all financial and m oney Bills for the consideration o f the
President after they are passed by the legislature o f a state.®^
Suggested readings
1. C. H . Alexandrowicz, Constitutional Developments in India,

2 . GranviJJe Austin, The Indian Constitution ; Cornerstone o f a Nation.
3. D . D . Basil, Commentary on the Constitution o f India (6th ed.).
4. A lice Jacob (ed.), Constitutional Developments since Independence (I.L .L
publication).
5. M . P. Jain, Indian Constitutional Law.
6. M . C. J. K agzi, The Constitution of India.
7. M. V. Pylee, Constitutional Government in India.
8. H , M . Seervai, Constitutional Law o f India (2nd ed. 1975-76).
9. D . K . Sen, A Comparative Study o f the Indian Constitution.
10. V . N . Shukla, The Constitution o f India (6th ed. by D .K . Singh).
11. T. K . Tope, The Constitution o f India (3rd ed. 1971).
12. P . K . Tripathi, Spotlights on Constitutional Interpretation.
92. Article 360.

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Constitutional Law— II

(Excluding Political and Civil Rights)

Tlie present C onstitution was adopted by the Constituent Assembly

Being an infant democracy, the fram ers o f the Constitution w ere

necessary to prevent the spirit o f the Constitution from being perverted.

The basic structure o f the C onstitution is similar to the one

1. See note SOa/rt/ra.

o f international peace and security have been incorporated into th e

The pream ble to the Constitution declares India to be a sovereign

The dem ocratic Republic of India is declared to be a sovereign

2. The Constitution (Forty-second Amendment)Act, 1976 added the words-

w ork envisaged in it. ‘The unity of the n ation’ as a declaration in the

The C onstitution stands for a secular state, and it is opposed to any

The C onstitution operates as a fundam ental law. The govern­

4. The preamble is a part o f the Constitution ; See Kesavamnda Bharati v. The

The Indian Union

4a. VII Constituent Assembly Debates 43.

structure of the country,'’ supremacy of Pai'liam ent over state legislatures

In a federation the central £ind the regional governm ents enjoy

The territory of India

U nder the C onstitution the territory o f India comprises (i) the

13. Article l(3)(c).

Cession o f a p art of the territo ry of India to a foreign state can be

Parliam ent is empowered to reorganise the boundaries of the

17. In re Indo-Pakistan Agreement, supra note 14.

20. Proviso to article 3.

fiirst^^ an d fourth^^ schedules of the C onstitution, in order to give

The Union executive

23. It Specifics ihe slates and Union territories.

governm ent. It appears to be anom alous to make the Council o f

34. Article 78(o).

nation. H e is the sym'bol of ihe nation. His place in th e

The structure o f the U nion executive closely resembles the B ritish

The President o f In d ia holds office for a term o f five years from th e

The President has hardly any discretion in the m atter o f appoint­

38. VII Cotistituent Assembly Debates, 32.

party in the H ouse o f the People. However, if no single party is able

The rule of collective responsibility o f the Council o f M inisters to

T he executive pow er o f the U nion extends to m atters with rcspcct

45. Article 15 (2).

The Constitution provides for Parliam ent fo r the Union which

The Council of States is a contin-uing body, one-third of its

30. Article 79,

T he H ouse o f the People is elected directly by the people on th e

The Houses o f Parliam ent shall be sum m oned by the President to

60. Article 64(1).

A situation may arise during the recess o f P arliam ent in which an

66. E.g., see article I, section 4 of the U .S.A. Constitution.

expiry o f th a t period. It m ay, o f course, be vvithdrawa a t any time by

Detailed procedure is laid dow n in th e C onstitution fo r P arliam ent

In financial m atters, the powers o f the Council o f States a re limited

68. Article 123.

atioD S and th e Council o f States s h a ll within a peiiod of fourteen days

In a parham enlary form of governm ent a legislature should be

The freedom of speech as a privilege of Parliam ent and its m em bers

72. Article UO.

In addition, clause (3) of article 105 lays dow n th a t in o th e r res­

75. Opening words of clause (1), article 105.

In a federal state, disputes between the centre and the constituent

84. Supra aote 77.

The law declared by the Supreme C o u rt shall be binding on all

88. Article 145.

Prasad v. Union o f India^'^ and Sajjan Singh v. S la te o f Rajaslhan,^^ and

The C onstitution operates as a fundam ental law. The govern

The President has hardly any discretion in the m atter o f appoint

In addition, clause (3) of article 105 lays dow n th a t in o th e r res

The Suprem e C ourt has also an advisory or consuhative jurisdic

In th e process o f allocating m atters to P arliam ent and the legisla