Distribution of Legislative Powers – Indian Constitution

Distribution of Legislative Powers

Distribution of Legislative Powers

  • Article 245:Territoriality Clause
  • Article 246: Subject Matter of Laws made by Parliament and State Legislatures

State Of Bihar & Others v. Sm. Charusila Dasi

Bihar  Hindu  Religious Trusts Act,  1950

Section 3 of the Act says- “This Act shall apply to all religious trusts, whether created before or after the commencement of this Act, any part of the property of which is situated in the State of Bihar “. The argument before us on behalf of the respondent is this. Under Art. 245 of the Constitution, Parliament may make laws for the whole or any part of the territory of India and the legislature of a State may make laws for the whole or any part of the State. Clause (2) of the said Article further states that no law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation. Article 246 gives the distribution of legislative power; Parliament has exclusive power to make laws with respect to any of the matters enumerated in what has been called the Union List; Parliament as also the legislature of a State have power to make laws with respect to any of the matters enumerated in the Concurrent List; the legislature of a State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in the State List. Item 28 of the Concurrent List is “charities and charitable institutions, charitable and religious endowments and religious institutions “.

Learned counsel          for the respondent contends that by reason of the provisions in Arts. 245 and 246 of the Constitution read with item 28 of the Concurrent List, the Bihar legislature which passed the Act had no power to make a law which has operation outside the State of Bihar; he further contends that under s. 3 the Act is made applicable to all religious trusts, whether created before or after the commencement of the Act, any part of the property of which is situated in the State of Bihar; therefore, the Act will apply to a religious institution which is outside Bihar even though a small part of its property may lie in that State. It is contended that such a provision is ultra vires the power of the Bihar Legislature, and Parliament alone can make a  law which will apply to religious institutions having properties in different States. Alternatively, it is contended that even if the Act applies to a religious institution in Bihar, the provisions of the Act can have no application to such property of the institution as is outside Bihar…

  • “An Interpretation as will make it operative and not in-operative”

It is necessary first to determine the extent of the application of the Act with reference to ss. 1 (2) and 3 of the Act read with the preamble. The preamble states:- ” Whereas it is expedient to provide for the better administration of Hindu religious trusts in the State of Bihar and for the protection and preservation of properties appertaining to such trusts.” It is clear from the preamble that the Act is intended to provide for the better administration of Hindu religious trusts in the State of Bihar. Section 1 (2) states that the Act extends to the whole of the State of Bihar, and s. 3 we have quoted earlier. If these two provisions are read in the context of the preamble, they can only mean that the Act applies in cases in which (a) the religious trust or institution is in Bihar and (b) any part of the property of which institution is situated in the State of Bihar. In other words, the aforesaid two conditions must be fulfilled for the application of the Act. It is now well settled that there is a general presumption that the legislature does not intend to exceed its jurisdiction, and it is a sound principle of construction that the Act of a sovereign legislature should, if possible, receive such an interpretation as will make it operative and not in-operative…We accordingly hold that s. 3 makes the Act applicable to all public religious trusts, that is to say, all public religious and charitable institutions within  the meaning of the definition clause in s. 2 (1) of the Act, which are situated in the State of Bihar and any part of the property of which is in that State.

  • No Question of Extra-Territorial Operation

Undoubtedly, the Bihar Legislature has power to legislate in respect of, to use the phraseology of item 28 of the Concurrent List, ” charities, charitable institutions, charitable and religious endowments and religious institutions ” situate in the State of Bihar. The question, therefore, narrows down to, this: in so legislating,, has it power to affect trust property which may be outside Bihar but which appertains to the trust situated in Bihar ? In our opinion, the answer to the question must be in the affirmative. It is to be remembered that with regard, to an interest under a trust the beneficiaries’ only right is to have the trust duly administered according to its terms and this right can normally be enforced only at the place where the trust or religious institution is situated or at the trustees’ place of residence. The Act purports to do nothing more. Its aim., as recited    in the preamble, is to provide for the better administration      of Hindu religious trusts in the State of Bihar and for the protection        of properties appertaining thereto. This aim is sought to be achieved by exercising control over the trustees in personam. The trust being situate in Bihar the State has legislative power over it and also over its trustees or their servants and agents who must be in Bihar to administer, the trust. Therefore, there is really no question of the Act having extraterritorial operation.

  • Sufficiency of the Territorial Connection

A deed of trust was executed by the respondent on March  II, 1938,  when she was residing at D in the State of Bihar,  in respect of  the  properties  described in  the  Schedules referred to in the deed, some of which were situated  outside the State of Bihar…(the fact) that the temples where the deities are installed are situated in Bihar, that the hospital and charitable dispensary are to be established in Bihar for the benefit of the Hindu public in Bihar gives enough territorial connection to enable the legislature of Bihar to make a law with respect to such a trust… in the Tata Iron & Steel Co.’s case…it was pointed out that sufficiency of the territorial connection involved a consideration of two elements, namely, (a) the connection must be real and not illusory and (b) the liability sought to be imposed must be pertinent to that connection. It cannot be disputed that if the religious endowment is itself situated in Bihar and the trustees function there, the connection between the religious institution and the property appertaining thereto is real and not illusory ; indeed, the religious institution and the property appertaining thereto form one integrated whole and one cannot be dissociated from the other.

  • Judgment

We do  not see any reason why the principles which   were followed in The State of Bombay v. R. M. D. Chamarbaugwala  should not be followed in the present case. In R. M. D. Chamarbaugwala’s case it was found that the respondent who was the organiser of a prize competition was outside the State of Bombay; the paper through which the prize competition was conducted was printed and published outside the State of Bombay, but it had a wide circulation in the State of Bombay and it was found that ” all the activities which the gambler is ordinarily expected to undertake“ took place mostly, if not entirely, in the State of Bombay. These circumstances, it was held, constituted a sufficient territorial nexus which entitled the State of Bombay to impose a tax on the gambling that took place within its boundaries and the law could not be struck down on the ground of extra-territoriality. We are of the opinion that the same principles apply in the present case and the religious endowment itself being in Bihar and the trustees functioning there, the Act applies and the provisions of the Act cannot be struck down on the ground of extra- territoriality.

State Of A.P vs National Thermal Power Corpn

The High Court of Andhra Pradesh at Hyderabad has, by its impugned judgment dated April 11, 1990, allowed the writ petition filed by the respondent National Thermal Power Corporation Ltd. (hereinafter ‘NTPCL’, for short) and declared that the levy of duty by the State of Andhra Pradesh on the sales of electrical energy generated by the Corporation-respondent No.1 at its thermal power station set up at Ramagundam, within the State of Andhra Pradesh, and sold to the Electricity Boards of Karnataka, Kerala, Tamil Nadu and the State of Goa in pursuance of contracts of sales occasioning inter-State movement of electricity is incompetent and outside the power of State Legislature. Consequently, the tax levied and collected has also been held to be without authority of law, hence liable to be refunded in accordance with law. On a prayer made by the learned Advocate General on behalf of the State of Andhra Pradesh, the High Court certified that the case involves a substantial question of law as to the interpretation of Constitution under Article 132. The appeal has been filed pursuant to the certificate so granted by the High Court.   On 4.10.1991, a bench of two learned Judges directed the appeal to be placed for hearing before a Constitution Bench, as required by Clause (3) of Article 145 of the Constitution.

  • Inter-State Sale or Intra-State Sale

Andhra Pradesh Electricity Duty Act, 1939 provides for levy of duty on certain sales and consumption of electricity by licensees in the State of Andhra Pradesh. The definition of the term ‘licensee’ specifically includes the National Thermal Power Corporation (respondent No.1) or any other Corporation engaged in the business of supplying energy. Section 3 of the Act is the charging section…the limited question arising for our consideration is __ whether sales of energy by NTPCL, the respondent No.1, to several Electricity Boards situated outside the State of Andhra Pradesh and to the State of Goa, attract the incidence of taxation under Section 3 of the Act…The controversy centres mainly around the question as to under which entry Andhra Pradesh Electricity Duty Act, 1939 is covered and whether the sales of electricity by NTPCL, the respondent No.1, to the Electricity Boards situated outside the State of Andhra Pradesh and to the State of Goa, can be construed as inter-State sale or intra- State sale.

  • Section 3 of Central Sales Tax Act

When is a sale or purchase of goods said to take place in the course of inter-State trade or commerce.—A sale or purchase of goods shall be deemed to take place in the course of inter-State trade or commerce if the sale or purchase—

(a) occasions the movement of goods from one State to another; or

(b) is effected by a transfer of documents of title to the goods during their movement from one State to another. Explanation 1.—Where goods are delivered to a carrier or other bailee for transmission, the movement of the goods shall, for the purposes of clause (b), be deemed to commence at the time of such delivery and terminate at the time when delivery is taken from such carrier or bailee. Explanation 2.—Where the movement of goods commences and terminates in the same State it shall not be deemed to be a movement of goods from one State to another by reason merely of the fact that in the course of such movement the goods pass through the territory of any other State.

  • Creating A Fiction

Generally speaking, a legislation having extra territorial operation can be enacted only by Parliament and not by any State Legislature; possibly the only exception being one where extra territorial operation of a State legislation is sustainable on the ground of territorial nexus. Such territorial nexus, when pleaded, must be sufficient and real and not illusory. In Burmah Shell Oil Storage & Distributing Co.India Ltd.(supra), which we have noticed, it was held that sale for use or consumption would mean the goods being brought inside the area for sale to an ultimate consumer, i.e. the one who consumes. In Entry 53, ‘sale for consumption’ (the meaning which we have placed on the word ‘sale’) would mean a sale for consumption within the State so as to bring a State Legislation within the field of Entry 53. If sale and consumption were to take place in different States, territorial nexus for the State, where the sale takes place, would be lost. We have already noticed that in case of electricity the events of sale and consumption are inseparable. Any State legislation levying duty on sale of electricity, by artificially or fictionally assuming that the events of sale and consumption have taken place in two States, would be vitiated because of extra territorial operation of State legislation.

  • Judgment: Cannot tax an Inter-State Sale by Creating a Fictional Territorial Nexus

In 20th Century Finance Corporation’s case…The, majority has clearly opined that the State where the goods are delivered in the transaction of inter-State sale, cannot levy a tax on the basis that one of the events in the chain has taken place within the State; so also where the goods are in existence and available for the transfer of right to use, there also that State cannot exercise power to tax merely because the goods are located in that State…However, we are dealing with the case of electricity as goods, the property whereof, as we have already noted, is that the production (generation), transmission, delivery and consumption are simultaneous, almost instantaneous. Electricity as goods comes into existence and is consumed simultaneously; the event of sale in the sense of transferring property in the goods merely intervenes as a step between generation and consumption. In such a case when the generation takes place in one State wherefrom it is supplied and it is received in another State where it is consumed, the entire transaction is one and can be nothing else excepting an inter-State sale on account of instantaneous movement of goods from one State to another occasioned by the sale or purchase of goods…Though it may be permissible to fix the situs of sale either by appropriate State legislation or by Judge made law as held by the majority opinion in 20th Century Finance Corporation case, we would like to clarify that none of the two can artificially appoint a situs of sale so as to create territorial nexus attracting applicability of tax legislation enacted by any State Legislature and tax an inter-State sale in breach of Section 3 of the CST Act.

Plenary and Ancillary Powers of Legislation

In 1957, the U. P. Legislature passed the U. P. Large Land Holdings Tax Act …Entry 49 in List II of the 7th Schedule of the Constitution. This Entry relates to taxes to lands and buildings. The argument is that ‘Lands’ in the context does not include agricultural lands and so, the U. P. Legislature was not competent to levy the tax. In considering the merits of this argument, it is necessary to bear in mind that we are interpreting the words used in the Constitution and it is an elementary cardinal rule of interpretation that the words used in the Constitution which confer legislative power. must receive the most liberal construction and if they are words of wide amplitude, they must be interpreted so as to give effect to that amplitude. It would be out of place to put a narrow or restricted construction on words of wide amplitude in a Constitution. A general word used in an entry like the present one must be construed to extend to all ancillary or subsidiary matters which can fairly and reasonably be held to be included in it…It is, however, urged that since Entry 46 in list II refers to taxes on agricultural income, it follows that agricultural income is not included in Entry 49… But it must be remembered that both Entries 46 and 49 are in List II and it would make no difference whether the State legislation imposing taxes on agricultural income is sustained by reference to Entry 46 rather            than by reference to Entry 49.- Per Gajendragadkar J in Jagnnath Baksh Singh

Doctrine of Harmonious Construction:Gujarat University v. Madholkar

Shrikant son of Shri Krishna Madholkar appeared for the Secondary School Certificate examination held by  the State of Bombay in March, 1960, and was declared successful. He took instruction in the various subjects prescribed for the examination through the medium of Marathi (which is            his mother-tongue) and answered the questions at the examination also in the medium of Marathi. Shrikant joined the St. Xavier’s College affiliated to the University of Gujarat, in the First Year Arts class and was admitted in the section in which instructions were imparted through the medium of English. After successfully completing the First Year Arts course in March, 1961, Shrikant applied for admission to the classes preparing for the Intermediate Arts examination of the University through the medium of English. The Principal of the College informed Shrikant that in view of the provisions of      the Gujarat University Act, 1949, and the Statutes 207, 208 and 209 framed by the Senate of the University, as amended in 1961 he could not without the sanction of the University permit him to attend classes in which instructions were imparted through the medium of English. Shri Krishna, father of Shrikant then moved the Vice-Chancellor of the University for sanction to permit Shrikant to attend the “English medium classes” in the St. Xavier’s College. The Registrar of the University declined to grant the request, but by another letter Shrikant was “‘allowed to keep English as a medium of examination“ but not for instruction.

  • Legislation in Question

St. Xavier’s College was affiliated to the University of Bombay under Bombay Act 4 of 1928. The Legislature of    the Province of Bombay enacted the Gujarat University Act, 1949…By s. 5(3) of the Act, from the prescribed date all educational institutions admitted to the privileges of the University of Bombay and situate within the University area of Gujarat were deemed to be admitted to the privileges of the University of Gujarat…Section 4 of the Act enacted a provision which is not normally found in similar Acts constituting Universities. By that. section various powers of the University were enumerated. These powers were made exercisable by diverse authorities of the University set out in s. 15. We are concerned in these appeals with the Senate, the Syndicate and the Academic Council…In 1954, the Gujarat University framed certain Regulations dealing with the media of instruction…After the constitution of a separate State of’ Gujarat, Act 4 of 1961 was enacted by the Gujarat State Legislature.

  • Two Crucial Questions for Determination

A petition was then filed by Shri Krishna Madholkar on behalf of himself and his minor son Shrikant in the High Court of Gujarat for a writ or order in the nature of Mandamus or other writ, direction or order requiring the University of Gujarat to treat ss. 4(27), 18 (i) (xiv) and 38A of the Gujarat University Act, 1949 (as amended in 1961), and Statutes 207, 208 and 209 as void and inoperative…The High Court of Gujarat by order dated January 24, 1962, issued the writs prayed for. The University and the State of Gujarat have separately appealed to this Court with certificates of fitness granted by the High Court. Two substantial questions survive for determination-(1) whether under the Gujarat University Act, 1949, it is open to the University to prescribe Gujarati or Hindi or both as an exclusive medium or media of instruction and examination in the affiliated colleges, and (2) whether legislation authorising the University to impose such media would infringe Entry 66 of List I, Seventh Schedule to the Constitution.

  • Judgment on Question (i)

Therefore, neither under the Act as originally framed nor under the Act as amended by Act 4 of 1961 was there any power conferred on the University to impose Gujarati or Hindi or both as exclusive medium or media of instruction and examination and if no such power was conferred upon the University, the Senate could not exercise such a power. The Senate is a body acting on behalf of the University and its powers to enact Statutes must lie within the contour of the powers of the University conferred by the Act. On the view we have expressed, consideration of the question whether the State Government is competent to enact laws imposing Gujarati or Hindi or both as an exclusive medium or media of instruction in the Universities, may appear academic, But we have thought it necessary to consider the question because the High Court has declared certain provisions of Act 4 of 1961 relating to medium of instruction as ultra vires the State Legislature and on the question which was argued at considerable length we were invited by counsel for the appellants to express our view for their guidance in any future legislation which may be undertaken.

  • Question (ii)

By the Constitution a vital change has been made in the pattern of distribution of legislative powers relating to education between the Union Parliament and the State Legislatures. By item No. 11 of List II (Deleted by the 42nd Amendment) of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of “‘education including Universities subject to the provisions of items 63, 64, 65 and 66 of List I and 25 of List III“…(Item 63) Power to enact legislation with respect to the institutions known at the commencement of the Constitution as the Benaras Hindu University, the Aligarh Muslim University and the Delhi University and other institutions declared by Parliament by laws to be an institution of national importance is thereby granted exclusively to Parliament. Item 64 invests the Parliament with power to legislate in respect of “‘institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament, by law, to be institutions of national importance”. Item 65 vests in the Parliament power to legislate for “Union agencies and institutions for (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime”. By item 66 power is entrusted to Parliament to legislate on “co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions”.

  • “Subject to”

Item 25 of       the Concurrent List confers power upon the Union Parliament and the State Legislatures to enact legislation with respect to “vocational and technical training of labour”. It is manifest that the extensive power vested in the Provincial Legislature to legislate with respect to higher, scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List I and List III mentioned in item 11 of List II. Item 63 to 66 of List I are carved out of the subject of education  and in respect of these items the power to legislate is vested exclusively in           the Parliament. Use      of the expression “subject to” in item 11 of List II of the Seventh Schedule clearly        indicates that legislation in respect       of excluded matters cannot be undertaken by the State…  this Court in considering the import of the expression “subject to” used in an entry in List II, in relation to an entry in List I         observed that to the     extent of the restriction imposed          by the use of the expression “”subject to” in an entry in List II, the power is taken away from the State Legislature. Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by items 63 to 66 even if it otherwise falls within the larger field of “education including Universities” power to legislate on that subject must lie with the Parliament.

  • “Harmoniously Construed”

Item 11 of List II and item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by item 66 List I must prevail over the power of the State under item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour. The power to legislate in respect of primary or secondary education is exclusively vested in the States by item No. 11 of List II, and power to legislate on medium of instruction in institutions of primary or secondary education must therefore rest with the State Legislatures. Power to legislate in respect of medium of instruction is, however, not a distinct legislative head; it resides with the State Legislatures in which the power to legislate on education. is- vested, unless it is taken away by necessary intendment to the contrary. Under items 63 to 65 the power to legislate in respect of medium of instruction having regard to the width of those items, must be deemed to vest in the Union. Power to legislate in respect of medium of instruction, in so far it has a direct bearing and impact upon the legislative head of co-ordination and determination of’ standards in institutions of higher education or research and scientific and technical institutions, must also be deemed by item 66 List I to be vested in the Union.

  • A Degree of Overlapping is Inevitable

The State has the power to prescribe the syllabi and courses of study in the institutions named in Entry 66 (but not falling within entries 63 to 65) and as an incident thereof it has the power to indicate the medium in which instruction should be imparted. But the Union Parliament has an overriding legislative power to ensure that the syllabi and courses of study prescribed and the medium selected do not impair standards of education or render the co-ordination of such standards either on an All India or other basis impossible or even difficult. Thus, though the powers of the Union and of the State are in the Exclusive Lists, a degree of overlapping is inevitable…It does not, however, follow that even within the permitted relative fields there might not be legislative provisions in enactments made each in pursuance of separate exclusive and distinct powers which may conflict. Then would arise the question of repugnancy and paramountcy which may have to be resolved on the application of the “doctrine of pith and substance” of the impugned enactment. The validity of the State legislation on University education and as regards the education in technical and scientific institutions not falling within Entry 64 of List I would have to be judged having regard to whether            it impinges on the field reserved for the Union under Entry 66. In other words, the validity of State legislation would depend upon whether it prejudicially affects co-ordination and determination of standards, but not upon the existence of some definite Union legislation directed to achieve that purpose. If there be Union legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Art. 254(1) ; even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid.

  • Judgment

It is true that “medium of instruction”  is not an item in the legislative list.  It falls      within  item No. 11 as a necessary incident of the power to legislate on education : it also falls within items 63 to 66. In so far as it is a necessary incident of the powers under item 66 List I it must be deemed to be included in that item and therefore excluded from item 11 List II. How far State legislation relating to medium of instruction in institutions has impact upon co-ordination of higher education is a matter which is not susceptible, in the absence of any concrete challenge to a specific statute, of a categorical answer…We are unable, however, to agree with the High Court that Act 4           of 1961 in so far as it amended the proviso to s. 4(27) is invalid, because it is beyond the competence of the State Legislature.

By the amendment of the proviso to s. 4 (27), the Legislature purported to continue the use of English as the medium of instruction in subjects selected by the Senate beyond a period of ten years prescribed by the Gujarat University Act, 1949. Before the date on which the parent Act was enacted, English was the traditional medium of instruction in respect of all subjects at the University level. By enacting the proviso as it originally stood, the University was authorised to continue the use of English as an exclusive medium of instruction in respect of certain subjects to be selected by the Senate. By the amendment it is common ground that no power to provide an exclusive medium other than the pre-existing medium   is granted. Manifestly, imparting instruction through a common medium, which was before the Act the only medium of instruction all over the Country, cannot by          itself result in lowering standards and coordination and determination of standards cannot be affected thereby. By extending the provisions relating to imparting of instruction for a period longer than ten years through the medium of English in the, subjects selected by the University, no attempt was made to encroach upon the powers of the Union under item No. 66 List I.

Doctrine of Colourable Legislation

It is only when a legislature which has no power to legislate frames a legislation so camouflaging it as to appear to be within its competence when it knows it is not, it can be said that the legislation so enacted is colourable legislation. In K.C. Gajapati Narayan Deo v. State of Orissa, Mukherjea, J., who spoke for the Court observed as under: “It may be made clear at the outset that     the doctrine of colourable legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act          are really irrelevant. On the other hand, if the legislature lacks competency, the question       of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power.”

Thus the whole doctrine resolves itself into a question of competency of the concerned legislature to enact  the impugned legislation. If the legislature has transgressed the limits of its powers and   if such transgression is indirect, covert or disguised, such a legislation is described as colourable in legal parlance.     – Ashok Kumar v. Union of India

Doctrine of Pith and Substance

It must inevitably happen from time to time that legislation though purporting to deal with a subject in one list, touches also upon a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind observance to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its pith and substance or its “true nature and character,” for the purpose of determining whether it is legislation with respect to matters in this list or in that.- Sir Maurice Gwyer C.J. in Subramanyan Chettiar’s case

  • “Priority in what respect?”

…the question must be asked what in pith and substance is the effect of the enactment of which complaint is made and in what list is its true nature and character to be found. If these questions could not be asked, much beneficent legislation would be stifled at birth, and many of the subjects entrusted to Provincial Legislation could never effectively be dealt with…No doubt where they come in conflict List I has priority over Lists III and II and List III has priority over List II, but, the question still remains, priority in what respect? Does the priority of the Federal Legislature prevent the Provincial Legislature from dealing with any matter which may incidentally affect any item in its list or in each case has one to consider what the substance of an Act is and, whatever its ancillary effect, attribute it to the appropriate list according to its true character? In their Lordships’ opinion the latter is the true view.- Per Lord Porter in Prafulla Kumar Mukherjee vs The Bank Of Commerce

State Of Rajasthan vs Shri G. Chawla And Dr. Pohumal

This appeal was preferred by the State of Ajmer,        but after reorganisation the b of States, the State of Rajasthan stands substituted for the former State. It was filed against the decision of the Judicial Commissioner of Ajmer, who certified the case as fit for appeal to this Court under Art. 132 of the Constitution. The Ajmer Legislative Assembly enacted the Ajmer (Sound Amplifiers Control) Act, 1952, (hereinafter called the Act) which received the assent of the President on March 9, 1953. This Act was successfully impugned by the respondents before the learned Judicial Commissioner, who held that it was in excess of the powers conferred on the State Legislature under s. 21 of the Government of Part C States Act, 1951 and, therefore, ultra vires the State Legislature. The respondents (who were absent at the hearing) were prosecuted under S. 3 of the Act for breach of the first two conditions of the permit granted to the first respondent, to use sound amplifiers on May 15 and 16, 1954. These amplifiers, it was alleged against them, were so tuned as to be audible beyond 30 yards (condition No. 1) and were placed at a height of more than 6 feet from the ground (condition No. 2). The second respondent was at the time of the breach, operating the sound amplifiers for the Sammelan, for which permission was obtained.

  • Rival Entries

…the Judicial Commissioner of Ajmer held that the pith and substance of the Act fell within Entry No. 31 of the Union List and not within Entry No. 6 of the State List, as was claimed by the State…

Entry No. 31 of The Union List: Post and Telegraphs; Telephones, wireless, broadcasting and other like forms of communication.

Entry No. 6 of The State List: Public health and sanitation; hospitals and dispensaries.

The attention of the learned Judicial Commissioner was apparently not drawn to Entry No. 1 of the State List, which is to the following effect: Public order(but not including the use of naval, military or air forces of the Union in aid of civil power.)

  • Not Allowed
  • Judgment

There can be little doubt that the growing nuisance of blaring loud-speakers powered by amplifiers of great output needed control, and the short question is whether this salutary measure can be said to fall within one or more of the Entries in the State List. It must be admitted that amplifiers are instruments of broadcasting and even of communication,           and in that view of the matter, they fall within Entry 31 of the Union List. The manufacture, or the licensing of amplifiers or the control of their ownership or possession, including the regulating of the trade in            such apparatus is one matter, but the control of the ‘use’ of such apparatus though legitimately owned and possessed, to the detriment of tranquility, health and comfort of others is quite another. It cannot be said that public health does not demand control of the use of such apparatus by day or by night, or in the vicinity of hospitals or schools, or offices or habited localities.


  • Unfolding the Pith and Substance

The pith and substance of the impugned Act is the control of the use of amplifiers in the interests of health and also tranquility, and thus falls substantially (if not wholly) within the powers conferred to preserve, regulate and promote them and does not so fall within the Entry in the Union List, even though the amplifier, the use of which is regulated and controlled is an apparatus for broadcasting or communication.    As Latham, C. J., pointed out in Bank of New South Wales v. The Commonwealth (1): “ A power to make laws ‘with respect to’ a subject matter is a power to make laws which in reality and substance are laws upon the subject-matter. It is not enough that a law should refer to the subject-matter or apply to the subject-matter: for example, income tax laws apply to clergymen and to hotel-keepers as members of the public; but no one would describe an income-tax law as being, for that reason, a law with respect to clergymen or hotel-keepers. Building regulations apply to buildings erected for or by banks; but such regulations could not properly be described as laws with respect to banks or banking.”

On a view of the Act as a whole, we think that the substance of the legislation is within the powers conferred by Entry No. 6 and conceivably Entry No. 1 of the State List” and it does not -purport to encroach upon the field of Entry No. 31, though it incidentally touches upon a matter provided there. The end and purpose of the legislation furnishes the key to connect it with the State List. Our attention was not drawn to any enactment under Entry No. 31 of the Union List by which the ownership and possession of amplifiers was burdened with any such regulation or control, and there being thus no question of repugnancy or of an occupied field, we have no hesitation in holding that the Act is fully covered by the first cited Entry and conceivably the other in the State List. The Judicial Commissioner’s order, with respect, cannot be upheld, and it must be set aside. We allow the appeal and reverse the decision, and we declare the Act in all its parts to be intra vires the State Legislature.

  • Viswanathiah And Company And … Vs State Of Karnataka

The two appeals and the three writ petitions challenge the validity      of the provisions of the Mysore Silkworm Seed and Cocoon (Regulation of Production, Supply and Distributions) Act, 1959 (Act No. 5 of 1960), hereinafter referred to as ‘the impugned Act‘…the argument before us was limited to a single contention.            This was that the impugned provisions lack legislative competence after the enactment, by Parliament, of the Central      Silk Boards      Act (Act 61 of 1948), (hereinafter referred to as ‘the Central Act’) which contains a declaration contemplated under Entry 52 of List I in the Seventh Schedule to    the Constitution of India. We shall be addressing ourselves only to this argument.

  • Facts

The above Act, was amended by the Karnataka Act 33 of 1979. In the preamble, in addition to the ‘silk worm seed’ and ‘cocoon’, reference was added to silk yarn‘…The short point made on behalf of the petitioners is that any legislation in respect of ‘silk industry’ can be enacted only by Parliament and the State Legislature is incompetent to legislate on this matter. This is because Section 2 of the Central Silk Board Act, which reads as follows: “It is hereby declared that it is expedient in the public interest that the Union should take under its control the silk industry.”…In this context, it is emphasised that originally the Central Act and the declaration in S. 2 had been restricted to ‘raw           silk industry’ but, by an amendment of 1953 effective from 25.3.1954, their scope was widened to include the entire ‘silk industry’. The long title of the Central Act is that it is “an Act to provide for the development under Central control of the silk industry and for that purpose to establish a Central Silk Board”.

  • High Court’s Decision

It will at once be seen that the point raised by the petitioners/ appellants has been repelled by the High Court on the basis of a series of decisions of this Court regarding scope of Entry 52 of List I in the Seventh Schedule to the Constitution. The High Court has pointed out that when Entry 52 talks of control of industry it does not mean all aspects of the industry in question. An industry comprises of 3 important aspects: (i) raw materials (ii) the process of manufacture or production; and (iii)the distribution of the products of the industry. Legislation in regard to raw materials would be permissible under Entry 27 of List 2, notwithstanding a declaration of the industry under Entry 52 to be one within the purview of parliamentary legislation. The process of manufacture or production can be legislated on by States under Entry 24 of List 2 so long as the industry is not a controlled industry within the meaning of Entry 7 or Entry 52 of List I. So far as the third aspect viz. the distribution of the products of the industry are concerned, the State Legislature would be quite competent to legislate thereto in regard thereto under Entry 27 of List II. However, when the industry is also a controlled industry legislation in regard to the products of the industry would be permissible by both the Central and the State Legislatures by virtue of Entry 33 of List 3. This in short is the decision of the High Court (based on various SC decisions).

  • SC Judgment

In other words, though the production and manufacture of raw silk cannot be legislated upon by the State Legislature in view of the provisions of the Central Act and the declaration in section 2 thereof, that declaration and Entry 52 do not in any way limit the powers of the State Legislature to legislate in respect of the goods produced by the silk industry. To interpret Entry  52 otherwise would render Entry 33 in List 3 of the Seventh Schedule to the Constitution otiose and meaningless.    In this view of the matter         the limitation contained in Entry 52 does not affect    the validity of the present legislation…In view of our conclusion above, the State legislation would be quite valid unless it is repugnant to the provisions of          a Central legislation on the       subject. A persual of the Central Act makes it clear that the pith and substance of the legislation is the constitution of a silk Board for research into the scientific, technological and economic aspects of the industry. It does not have anything to do with the aspects covered by entry 33 in List         III. There is, therefore, no infirmity in the legislation under consideration.

The State Of Karnataka & Ors.  vs M/S. Drive-In Enterprises


The Drive-in-Theatre of the respondent with which we are concerned here is a cinema with an open-air-theatre into which admissions are given to persons desiring to see cinema while sitting in their motor cars taken inside the theatre. The Drive-in-Theatre has also an auditorium wherein other persons who are without cars, view the film exhibited therein either standing or sitting. The persons who      are admitted to view the film exhibited in the auditorium are required to pay Rs.3/- for admission therein. It is not disputed that the State Government has levied entertainment tax on such admission and the same is being realised. However, if any person desires to take his car inside the theatre with a view to see the exhibition of the films while sitting in his car in the auditorium, he is further required to pay a sum of Rs.2/- to the proprietor of the Drive-in-Theatre. The appellant-State in addition to charging entertainment tax on the persons being entertained, levied entertainment tax on admission of cars inside the theatre. This levy was challenged by the proprietors of the Drive-in-Theatres by means of writ petitions before the Karnataka High Court which were allowed and levy was struck down by a single Judge of the High Court. The said judgment was affirmed by a Division Bench of that Court. It was held, that the levy being not on a person entertained (i.e. Car/Motor vehicle), the same was ultra vires.

  • Karnataka Entertainment Tax Act

After the aforesaid decision, the Karnataka Legislature amended the Act by Act No.3 of 1985…After the aforesaid amendments, the appellant herein, again levied entertainment tax on admission of cars into Drive-in- Theatre. This levy was again challenged by means of a petition under Article 226 of the Constitution and the said writ petition was allowed, and as stated above , the High Court struck down (the amendments)…On    the arguments  of learned counsel of parties, the question arises as to whether the State Legislature is competent to enact law to levy tax under Entry 62 of List II of Seventh Schedule on admission of cars/motor vehicles inside the Drive-in-Theatre…when a levy is challenged, its validity has to be adjudged with reference to the competency of the State Legislature to enact such a law, and while adjudging the matter what is required to be found out is the real character and nature of levy.

  • Judgment

Entry 62 of List II of Seventh Schedule empowers the State Legislature to levy tax on luxuries, entertainment, amusements, betting and gambling. Under Entry 62, the State Legislature is competent to      enact law to levy tax on luxuries and entertainment. The incidence of tax is on entertainment. Since entertainment necessarily implies the persons entertained, therefore, the incidence of tax is on the person entertained. Coming to the question whether the State Legislature is competent to levy tax on admission of cars/motor vehicles inside the Drive-in-Theatre especially when it is argued that cars/motor vehicles are not the persons entertained. Section 3 which is charging provision, provides for levy of tax on each payment of admission. Thus, under the Act, the State is competent to levy tax on each admission inside the Drive-in-Theatre. The challenge to the levy is on the ground that the vehicle is not a person entertained and, therefore, the levy is ultra vires. It cannot be disputed that the car or motor vehicle does not go inside the Drive-in-Theatre of its own. It is driven inside the Theatre by the person entertained.

  • Quality of Entertainment

In other words the person entertained is admitted inside the Drive-in Theatre along with the car/motor vehicle. Thereafter the person entertained while sitting in his car         inside the auditorium views the film exhibited therein. This shows that the person entertained is admitted inside the Drive-in Theatre along with the car/motor vehicle. This further shows that the person entertained carries his car inside the Drive-in-Theatre in order to have better quality of entertainment. The quality of entertainment also depends on with what comfort the person entertained has viewed the cinema films. Thus, the quality of entertainment obtained by a person sitting in his car would be different from a squatter viewing the film show. The levy on entertainment varies with the quality of comfort with which a person enjoys the entertainment inside the Drive-in-Theatre.  In the present case, a person sitting in his car or motor vehicle has luxury of viewing cinema films in the auditorium. It is the variation in the comfort offered to the person entertained for which the State Government has levied entertainment tax on the person entertained.

  • Real Nature of Levy

The real nature and character of impugned levy is not on the admission of cars or motor vehicles, but the levy is on the person entertained who takes the car inside the theatre and watches the film while sitting in  his car. We are, therefore, of the view that in pith and substance the levy is on the person who is entertained. Whatever be the nomenclature of levy, in substance, the levy under heading admission of vehicle is a levy on entertainment and not on admission of vehicle inside the Drive-in-Theatre. As            long as in pith and substance the levy satisfies the character of levy, i.e. entertainment, it is wholly immaterial in what name and form it is imposed. The word entertainment is wide enough to comprehend in it, the luxury or comfort with which a person entertains himself. Once it is found there is a nexus between the legislative competence and subject of taxation, the levy is justified and valid…We accordingly hold that the impugned levy is valid.

  • Article 248:Residuary Powers of Legislation
  1. (1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.

 Union of India vs. H.S. Dhillon

Section 3 of the Wealth Tax Act, 1957, imposes a tax on the capital value of the net wealth of an assessee. Net wealth, under the Act, is the amount by which the aggregate value of all assets of the assessee, computed in the manner provided by the Act, is in excess of the aggregate value of all debts (subject to some exceptions) owed by the, assessee; and assets, under s. 2(e) as it originally stood, meant generally property of every description but not including agricultural land, growing crops, grass or standing trees on such land. Section 24 of the Finance Act, 1969, amended s. 2(e) of the Wealth Tax Act and included agricultural land etc., in the assessee’s assets for the purpose of computing his net wealth. The High Court held that the amendment was beyond the legislative competence of Parliament.

  • Submissions

The submissions of Mr. Setalvad, appearing on behalf of the Union in brief were these : That the impugned Act is not a law with respect to any entry (including entry 49) in List II; if this is so, it must necessarily fall within the legislative competence of Parliament under entry 86, read with entry 97, or entry 97 by itself read with Art. 248 of the Constitution; the words “exclusive of agricultural land” in entry 86 could not cut down the scope of either entry 97 List I, or Art. 248 of the Constitution.

The submissions of Mr. Palkiwala, who appeared on behalf of the respondent in the appeal, and the other counsel for the interveners, in brief, were these: It was the scheme of the Constitution to give States exclusive powers to legislate in respect of agricultural land, income on a agricultural land and taxes thereon; in this context the object and effect of specifically excluding agricultural land from the scope of entry 86 was also to take it out of the ambit of entry 97 List I and Art. 248; the High Court was wrong in holding that the impugned Act was not a law in respect of entry 49 List II.

  • Questions for Consideration

It seems to us that the best way of dealing with the question of the validity of the impugned Act and with the contentions of the parties is to ask ourselves two questions; first, is the impugned Act legislation with respect to entry 49 List II? and secondly, if it is not, is it beyond the legislative competence of Parliament? We have put these questions in this order and in this form because we are definitely of the opinion, as explained a little later, that the scheme of our Constitution and the actual terms of the relevant articles, namely, Art. 246, Art. 248 and entry 97 List I, show that any matter, including tax, which has not been allotted exclusively to the State Legislatures under List II or concurrently with Parliament under List III, falls within List I, including entry 97 of that list read with Art. 248.

It seems to us unthinkable that the Constitution-makers, while creating a sovereign democratic republic, withheld certain matters or taxes beyond the, legislative competency of the legislatures in this country either legislating singly or jointly.

  • Framers’ Intent

There does not seem to be any dispute that the Constitution makers wanted to give residuary. powers of legislation to the Union Parliament. Indeed, this is obvious from Art. 248 and entry 97 List I. But there is a serious dispute about the extent of the residuary power…For example, in entry 82, taxes on agricultural income have been excluded from the ambit of “taxes on income”;, in entry 84 there is exclusion of duties of excise on alcholic liquors for human consumption and on opium, Indian hemp and other narcotic drugs and narcotics; in entry 8-6, agricultural land has been excluded from the field of taxes on the capital value, of the assets; in entry 87, agricultural land has again been excluded’,from the Union Estate duty in respect of property; and in entry 88, agricultural land has been further excluded from the incidence of duties in respect of succession to property. It was urged that the object of these, exclusions was to completely deny Parliament competence to legislate on these excluded matters.

  • Content of the Residuary Power

It will be noticed that all the matters and taxes which have been excluded, except taxes on the capital value of agricultural land under entry 86 List I, fall specifically within one of the entries in List II. While taxes on agricultural income have been excluded from entry 82 List I, they form part of entry 46 List II. Duties of excise excluded in entry 84 List I have been included in entry 51 List II; agricultural land exempt in entry 87 List I has been incorporated as entry 48 List II; and, similarly, agricultural land exempted from the incidence of duties in respect of succession to property (Entry 88 List I) has been made the subject-matter of duties in respect of succession in entry 47 List II. It seems to us that from this scheme of distribution it cannot be legitimately inferred that taxes on the capital value of agricultural land were designedly excluded from entry 97 List I…If the residuary subjects had ultimately been assigned to the States could it have been seriously argued that vis-a- vis the States the matter of Taxes on “Capital value of agricultural land” would have been outside the powers of States? Obviously not, If so, there ,can be no reason for excluding it from the residuary powers ultimately conferred on Parliament. The content of the residuary power does not change with its conferment on Parliament.

  • Impossible to Limit the Width of Article 248

…if on a proper interpretation of entry 49 List II, read in the light of entry 86 List I, it is held that tax on the capital value of agricultural land, is not included within entry 49 List II or that the, tax imposed by the impugned statute does not fall either in entry 49 List II or entry 86 List I, it would be arbitrary to say that it does not fall within entry 97 List I. We find it impossible to limit the width of art. 248 and entry 97 List I by the words “exclusive of agricultural land” in entry 86 List I. We do- not read the words “any other matter” in entry 97 to mean–that it has any reference to topics excluded in entries 1-96 List I.’ It is, quite clear that the words “any other matter” have reference to matters on which the Parliament has been given power to legislate by the enumerated entries 1-96 List I and not to matters on which it has not been given power to legislate. The matter in entry 86 List I is the whole entry and not the entry without the, words “exclusive of agricultural land”. The matter in entry 86 List I again is not tax on capital value of assets but the whole entry…it would, we think, be erroneous to treat entry 82 List I (Taxes on income other than agricultural income) as containing two matters, one, tax on income, and the other, as “other than agricultural incomes.

  • Only Question to be Asked is…

It seems to us that the function of Art. 246 (1), read with entries 1-96 List I, is to give positive power to Parliament to legislate in respect, of these entries. Object is not to debar Parliament from legislating on a matter, even if other provisions of the Constitution enable it to do so. Accordingly, we do not interpret the words “any other matter” occurring in entry 97 List I to mean a topic mentioned by way of exclusion. These words really refer to the matters contained in each of the entries 1 to 96. The words “any other matters’ had to be used because entry 97 List I follows entries 1-96 List I. It is true that the field of legislation is demarcated by entries 1-96 List I, but demarcation does not mean that if entry 97 List I confers additional powers we should refuse to give effect to it. At any rate, whatever doubt there may be on the interpretation of entry 97 List I is removed by the wide terms of Art. 248. It is framed in the widest possible terms. On its terms the only question to be asked is : Is the matter sought to be legislated on included in List II or in List III or is the tax sought to be levied mentioned in List II or in List III ? No question has to be asked about List I. If the answer is in the negative, then it follows that Parliament has power to make laws with respect to that matter or tax.

  • Judgment

Although we have held that the impugned Act does not impose a tax mentioned in entry 49, List II, we would like to caution that in case the real effect of a Central Act, whether called a Wealth Tax Act or not, is to impose a tax mentioned in entry 49 List II the tax may be bad as encroaching upon the domain of State legislatures…it is (therefore) not necessary to decide the question whether the impugned Act falls within entry 86 List I, read with entry 97 List I, or entry 97 List I alone…

  • Article 254: Repugnancy

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:

Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.

Hoechst Pharmaceuticals Ltd. vs State Of Bihar

Art. 254 of the Constitution makes provision first, as to what would happen in the case of conflict between a Central and State law with regard to the subjects enumerated in the Concurrent List, and secondly, for resolving such conflict. Art. 254(1) enunciates the normal rule that in the event of a conflict between a Union and a State law in the concurrent field, the former prevails over the latter. Cl. (1) lays down that if a State law relating to a concurrent subject is ‘repugnant’ to a Union law relating to that subject, then, whether the Union law is prior or later in time, the Union law will prevail and the State law shall, to the extent of such repugnancy, be void…The question of repugnancy under Art. 254(1) between a law made by Parliament and a law made by the State Legislature arises only in case both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and there is direct conflict between the two laws. It is only when both these requirements are fulfilled that the State law will, to the extent of repugnancy become void.

  • (To be Read with Slide 23 Gujarat University Case)

Art. 254(1) has no application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III on the other. If such overlapping exists in any particular case, the State law will be ultra vires because of the non-obstante clause in Art. 246(1) read with the opening words “Subject to” in Art. 246(3). In such a case, the State law will fail not because of repugnance to the Union law but due to want of legislative competence. It is no doubt true that the expression “a law made by Parliament which Parliament is competent to enact” in Art. 254(1) is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place outside the concurrent sphere because Parliament is competent to enact law with respect to subjects included in List III as well as ‘List I“. But if Art. 254(1) is read as a whole, it will be seen that it is expressly made subject to cl. (2) which makes reference to repugnancy in the field of Concurrent List-in other words, if cl. (2) is to be the guide in the determination of scope of cl. (1), the repugnancy between Union and State law must be taken to refer only to the Concurrent field.

  • Clause 2: Exception to the General Rule

To the general rule laid down in cl.(1), cl.(2) engrafts an exception, viz., that if the President assents to a State law which has been reserved for his consideration, it will prevail notwithstanding its repugnancy to an earlier law of the Union, both laws dealing with a concurrent subject. In such a case, the Central Act will give way to the State Act only to the extent of inconsistency between the two, and no more. In short, the result of obtaining the assent of the President to a State Act which is inconsistent with a previous Union law relating to a concurrent subject would be that the State Act will prevail in that State and override the provisions of the Central Act in their applicability to that State only. The predominance of the State law may however be taken away if Parliament legislates under the proviso to cl. (2). The proviso to Art. 254(2) empowers the Union Parliament to repeal or amend a repugnant State law, either directly, or by itself enacting a law repugnant to the State law with respect to the ‘same matter’. Even though the subsequent law made by Parliament does not expressly repeal a State law, even then, the State law will become void as soon as the subsequent law of Parliament creating repugnancy is made.

Tests of Repugnancy (Deep Chand Case)

Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:

(1) Whether there is direct conflict between the two provisions

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and

(3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field.

  • Direct Conflict

A State law would be repugnant to the Union law when there is direct conflict between the two laws…We may briefly refer to the three Australian decisions relied upon. As stated above, the decision in Clyde Engineering Company’s case (supra), lays down that inconsistency is also created when one statute takes away rights conferred by the other. In Ex Parte McLean’s case, supra, Dixon J. laid down another test viz., two statutes could be said to be inconsistent if they, in respect of an identical subject-matter, imposed identical duty upon the subject, but provided for different sanctions for enforcing those duties. In Stock Motor Ploughs Limited’s case, supra, Evatt, J. held that even in respect of cases where two laws impose one and the same duty of obedience there may be inconsistency.

  • Intended Occupation

The Supreme Court noticed the conclusive test of inconsistency laid down by Isaacs J. in Clyde Engineering Co. Ltd. v. Cowburn, 1926-37 CLR 466. The said test was: “If however, a competent legislature expressly or implicitly evinces its intention to cover the whole field that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.” The Supreme Court also cited with approval the following principle stated by Dixon J. in Ex parte Mclean. 1930-43 CLR 472. “If it appeared that the Federal Law was intended to be supplementary to or cumulative upon State law, then no inconsistency would be exhibited in imposing the same duties or in inflicting different penalties. The inconsistency does not lie in the mere co-existence of two laws which are susceptible of simultaneous obedience. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal statute discloses such an intention, it is inconsistent with it for the law of a State, to govern the same conduct or matter.”

  • Occupied Field

The test of repugnancy was thus explained by Dixon J. in — ‘Victoria v. The Commonwealth’, 58 Com-W LR 618 (C):

“Substantially it amounts to this. When a State law, if valid, would alter, impair or detract from the operation of the law of the Commonwealth Parliament, then to that extent it is invalid. Moreover, if it appears from the terms, nature or the subject-matter of a Federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights or duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so is inconsistent.”

  • Illustration
  • State of Haryana enacts a law mandating that teachers in Universities in Haryana must be UGC NET qualified;
  • The Law does not apply to institutions mentioned in Entries 63, 64 and 65 in List I;
  • Union of India then enacts a law whereby teachers in private Universities in India need not be UGC NET qualified if they have a foreign degree;
  • Doctrine of pith and substance to be invoked to see if State law and Union Law is relatable to Entry 66 List I or Entry 25 List III; if pith and substance is “coordination and determination of standards in higher education”, State Law can only be challenged on grounds of legislative competence, not repugnancy; If both laws relatable to Entry 25 List III, test of repugnancy to be applied
  • Assuming both Laws are Relatable to Entry 25 List III
  • Direct conflict between two laws with respect to private Universities in Haryana;
  • State Law will not apply to private universities in Haryana as the Union Law “occupies the field” in this respect;
  • State Law will however continue to apply to non-private Universities in Haryana as the Union Law does not cover non-private Universities in Haryana;
  • Assuming that the State Law postdates the Union Law and is reserved for consideration of the President and assented to, then the State Law will prevail in Haryana over the Union Law [254(2)]
  • Power of Parliament to Legislate with respect to a Matter in the State List

Articles  246(4), 247,249-253,352,356

You can grab notes on other provisions of the Constitution and other law subjects from here.


Parliamentary privileges enable the members to discharge their functions without fear and are necessary for democratic functioning. Articles 105 and 194 are identical containing the privileges of Parliament and State legislatures respectively.

Article 105 (1) provides that there shall be freedom of speech in Parliament. This freedom is however subject to rules regulation the procedure of the House. For instance under Article 121/212 the conduct of a judge of the Supreme Court or High Courts cannot be discussed in Parliament or State Legislatures. Rules may forbid the use of un-parliamentary language

Article 105(2) provides that no Member of Parliament shall be liable to any proceedings in a court of law in respect of anything said or any vote given by him in Parliament or any committee thereof. Thus Article 105(2) provides absolute immunity to MP’s from any proceedings in a court of law

Article 105(3) does not grant any specific privilege. It give to Parliament and State Legislatures all the privileges enjoyed by British House of Commons as on 26 January 1950.

Article  105(3)/194(3) contain a clear mandate to the legislature to codify the privileges.

The Parliamentary privileges under clause 3 are not codified.

The key question is: does the power of judicial review extend to parliamentary privileges? Would fundamental rights override the privileges and privileges would be subservient to fundamental rights?

Article 122(212) of the Constitution reads

  • The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure
  • No officer or Member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.

In M S M Sharma v S K Sinha (AIR 1959) SC 393(  Searchlight Case)

The Supreme Court held that Parliamentary privileges shall not be subject to Article 19(1) (a) of the Constitution. In this case the editor of a newsletter Searchlight had published a report of the proceedings of Bihar Legislative Assembly which had been expunged by the Speaker. The editor was held guilty of contempt of the House. He sought injunction from the court against the contempt proceedings on the ground of his fundamental right to freedom of speech under Article 19 (1) (a) of the Constitution.

He argued that the intent of the Constituent Assembly was that the privileges should be codified eventually. Once codified they would be “law” under Article 13 (2) and therefore liable to be struck down if they violated any of the fundamental rights. Such a codified law would be subject to Article 19(1) (a).

He further argued that his right under Article 21 will be violated if he was produced before the Privileges Committee of the House which could order his imprisonment.

The State Legislature claimed its privilege to prohibit publication of proceedings as at the commencement of the Constitution the British House of Commons enjoyed the privilege to prohibit publication of debates and proceedings of the House. The Court accepted the claim of Bihar Legislature to take action for the breach of this privilege by MSM Sharma

On the question of the argument based on Article 19(1) (a) the Court held that freedom of speech in legislature contained in Article 194(1) (105(1) being specific as against the general freedom of speech under Article 19(1)(a), the general restriction that applied by Article 19(2) would not apply to freedom of speech under Article 194(1). The Supreme Court rejected the contention based upon Article 19(1) (a) and held that privileges under Article 194(3) would not be subject to Article 19(1) (a) and in case of conflict between Article 19(1)(a) and 194(3) the latter will prevail.

As regards Article 194(2) the Court held that it was not the intention of framers of the Constitution to make immunity for speeches given or vote given in legislature subject to fundamental rights guaranteed under constitution.

As regards the argument based on Article 21 the Court held that in case the Editor was produced before the Committee of Privileges in the Bihar Legislature the rules framed by the Assembly under Article 208 would constitute a procedure established by law and there would be no violation of Article 21

It is important to bear in mind that the Court in this case made no comment on whether Article 21 would override privileges.

P V Narsimha Rao v State ( 1998) 4 SCC 626

Bribe was given to some MP’s to vote against motion of no-confidence against Prime Minister P V Narsimha Rao. He was charged under IPC and Prevention of Corruption Act for entering into a conspiracy and bribing some MP’s to induce them to vote against motion of no-confidence at a time when he was the PM.

The Court’s majority held that under Article 105(2) the activity of bribe taking by an MP is in respect of anything said or any vote given by him in Parliament and anything would mean everything including accepting a bribe and so Rao could not be prosecuted in a court of law. In case after accepting bribe an MP did not actively cast his vote, he may be prosecuted because then there would be no nexus between vote and bribe.

This decision has been widely criticized for promoting corruption in political life.

In re Keshava Singh (1965) The UP Assembly Case

In 1964 Keshava Singh a private citizen was found guilty of contempt of UP Assembly as he had committed a breach of privilege of an M L A N N Pandey by printing and publishing certain contemptuous pamphlets against Pandey. Keshava Singh was summoned to Legislative Assembly. Then Keshava Singh wrote a disrespectful letter to the Speaker and acted in  an unruly manner when being reprimanded in the LA. The Speaker issued a warrant of arrest for the detention of  Keshava Singh for 7 days for contempt of the House.

.Keshava Singh moved to the High Court for a writ of Habeas Corpus. A Division Bench of High Court in Lucknow ordered his release on an interim bail pending the decision on Habeas Corpus petition.

UP Legislature issued a contempt notice against the 2 judges for having entertained the writ petition. The House passed a Resolution that the lawyers and the 2 judges be brought before the House in custody.

The Judges and advocates  filed a writ of mandamus before Allahabad High Court A Full Bench of the High Court consisting 28 Judges (except the 2 judges) made directions restraining the Speaker  from issuing warrants and restraining the Marshal of the House from executing the warrant if it had already been issued.

Taking note of a grave constitutional crisis the President of India sought advisory opinion of the Supreme Court under Article 143.

A bench of 7 judges delivered their opinion led by Justice Gajendragadkar.

Relying on Searchlight case Chief  Justice Gajendragadkar placed a radically different interpretation of parliamentary privileges, making them generally subject to fundamental rights and secured to the judiciary power to determine the legality or constitutionality of legislative privileges on case to case basis.

Broadly speaking the Court laid down the following propositions.

(a) The correct interpretation of Searchlight case would be that while Article 19(1) (a) would not override privileges. Article 21 may override privileges as in Searchlight case the Constitution bench did examine argument based on Article 21 on its merits. The Court further held that the general proposition that privileged would not be subservient to fundamental rights was incorrect.

(b) Whether a House possesses a particular privilege under 105(3) or 194(3) is for the court to decide on case to case basis. The Searchlight case did not preclude the application of all fundamental rights, it precluded the application of Article 19(1) (a) to privileges

(c ) In the matter of privilege the action of Parliament or any of its members is subject to judicial review on grounds of irrationality, illegality or unconstitutionality

(d) The House of Commons was a Superior Court and general warrants issued by it could not be reviewed by a court but Indian Parliament or legislatures are not a Court of Law. In India the courts can examine the legality of general warrant issued by a Legislature. High Court has power to issue a writ against any “authority” under Article 226 including legislature

(e) Under Article 211 the conduct of a judge can never be subject matter of any action taken by the House in exercise of powers and privileges. Therefore the action of UP legislature against the judges was improper.

(f) Article 212 is only concerned with regulation of procedure inside the House and is not a limitation on the power of the Court. This Article provides for ouster of court’s jurisdiction in respect of regulation of procedure inside the House.

(g) Article 194(3) refers to future laws defining powers and privileges of the legislature and such laws will always be subject to fundamental rights under Article 13(2) and the Courts would be competent to examine the validity of codified privileges.

Keshava Singh marked the beginning in the subservience of privileges to fundamental rights and the advisory opinion felt itself bound by the ruling of Searchlight case.\

The reasoning of Keshava Singh was adopted by a 5 judge bench in Raja Ram Pal

Raja Ram Pal v Speaker Lok Sabha (2007) 3 SCC 184

Aaj Tak a news channel conducted a sting operation “operation Duryodhan” in which 11 MP’s (10 from Lok Sabha and 1 from Rajya Sabha were caught on camera accepting bribes to ask certain questions in Parliament and thereby misusing their powers for illegal gratification and money gains. Video was telecast repeatedly leading to an uproar. The Committee of Privileges of Lok Sabha and Ethics Committee of Rajya Sabha heard the matter and found all the MP’s guilty and recommended their immediate disqualification. The recommendations were accepted and all the 11 MP’s were expelled.

The expelled MP’s approached the Supreme Court for relief and challenged their expulsion as unconstitutional. Sabharwal CJ, K G Balakrishnan, DK Jain and CK Thakkar JJ held that their expulsion was constitutional but Justice Ravindran gave a dissenting opinion holding that their expulsion was unconstitutional

Contentions of expelled MP’s

  1. Expulsion is a punitive measure. The House of Commons had power to punish for its contempt in its capacity as High Court of Parliament and since this status was not accorded to Indian Parliament the power to expel for contempt could not be claimed by Parliament under Article 105 (3).
  2. Article 105(3) could not be the basis of expulsion as it would come in conflict with other Articles 101 or 102 which deal with disqualification of MP’s.
  3. There was a denial of principles of natural justice in inquiry proceedings of Parliament which cannot be exempted from judicial review
  4. Supreme Court is the final arbiter on constitutional issues and can determine the legality of the action of Parliament. Parliament cannot determine the legality of its own actions

Speaker of Lok Sabha refused to appear before the Court viewing the matter as a political question and therefore non-justiciable and Union of India took the stand that action of expulsion was within the inherent privilege of Parliament over which the courts had no jurisdiction.

The Supreme Court cited the supremacy of the Constitution and held:

  1. The contention of the petitioners that Parliament did not inherit the power of expulsion rejected as in UP Assembly case (1965) where the Court had held that British Parliament was sovereign but in India sovereignty was distributed in a federal structure. Hence British Constitution could not be compared with Indian Constitution. Parliament in India possesses the power to expel its members.
  2. Provisions dealing with Disqualification did not clash with a power to expel under Article 105(3). Articles 101(dealing with vacancies) and 102 (disqualification of members) served a different purpose. While disqualification operates to prevent a candidate from re-election, expulsion occurs after the election of the member and there is no bar on re-election.
  3. Power of contempt is remedial and not punitive. Parliament cannot be denied power to expel a member for contempt of the House under Article 105(3). This power was available to House of Commons as on 26.01.1950
  4. Parliament is a co-ordinate organ and Supreme Court has power of judicial review under Article 13(2) which would extend to privileges on case to case basis.
  5. The Court gave wide interpretation to Article 122 (212) and held that while Article 122 precluded an inquiry into the proceedings of Parliament on ground of PROCEDURAL IRREGULARITY, this provision did not oust judicial review if the proceedings of Parliament were tainted on account of SUBSTANTIVE OR GROSS ILLEGALITY OR UNCONSTITUTIONALITY. An illegal or unconstitutional procedure could be a subject of judicial review. Article 122 was intended to prohibit cases of internal parliamentary proceedings on the ground of mere procedural irregularity.
  6. The Court’s majority held that privileges of parliament may be subject to fundamental rights on case to case basis. For this holding the Court drew support from Keshava Singh case.
  7. The Court rejected the doctrine of Exclusive Cognisance. The English doctrine of Exclusive Cognisance stipulates that Parliament has the exclusive power to deal with breach of privileges and the court have no jurisdiction to entertain a matter arising out of breach of privileges. This doctrine has been displaced in India by Articles 122/212.


The Supreme Court’s judgment in Raja Ram Pal prohibits judicial interference with respect to internal parliamentary proceedings on the ground of procedural irregularity. The Court gave a wide interpretation of Article 122 by holding that this provision did not preclude judicial review if the procedure was illegal or unconstitutional.

The strongest implication of Raja Ram Pal is that the court will now be able to exercise scrutiny over non-legislative proceedings, not just those proceedings dealing with parliamentary expulsions. Any proceeding which is tainted with gross illegality or substantive illegality will be subject to judicial review. Raja Ram Pal opens floodgates to challenge parliamentary proceedings. This judgment makes parliamentary privileges subservient to fundamental rights on case to case basis and heavily relies on Keshava Singh opinion for its conclusion.

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Ordinances – Indian Constitution

D.C. Wadhwa v. State of Bihar

  • These writ petitions have been filed by four petitioners challenging the practice of the State of Bihar in promulgating and repromulgating ordinances on a massive scale and in particular they have challenged the constitutional validity of three different ordinances issued by the Governor of Bihar, namely, (r) Bihar Forest Produce (Regulation of Trade) Third Ordinance, 1983, (ii) The Bihar Intermediate Education Council Third Ordinance, 1983, and (iii) The Bihar Bricks Supply (Control) Third Ordinance, 1983
  • Question is, can the Governor go on re-promulgating ordinances for an indefinite period of time and thus take over to himself the power of the Legislature to legislate though that power is conferred on him under Article 213 only for the purpose of enabling him to take immediate action at a time when the legislative assembly of the State is not in session or when in a case where there is a legislative council in the State, both Houses of Legislature are not in session
  • The object of this provision is that since the power conferred on the Governor to issue Ordinances is an emergent power exercisable when the Legislature is not in Session, an Ordinance promulgated by the Governor to deal with a situation which requires immediate action and which cannot wait until the legislature reassembles, must necessarily have a limited life. Since Article 174 enjoins that the Legislature shall meet at least twice in a year but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next Session and an Ordinance made by the Governor must cease to operate at the expiration of six weeks from the reassembly of the Legislature, it is obvious that the maximum life of an Ordinance cannot exceed seven and a half months unless it is replaced by an Act of the Legislature or disapproved by the resolution of the Legislature before the expiry of that period. The power to promulgate an Ordinance is essentially a power to be used to meet an extra-ordinary situation and it cannot be allowed to be perverted to serve political ends.
  • The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the law- making function of the Legislature. The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the            law- making function of the Legislature. That would   be clearly subverting the democratic process which lies at the core of our constitutional scheme…The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, repromulgate the Ordinance as soon as the Legislature is prorogued.
  • Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation…We must accordingly strike down the Bihar Intermediate Education Council Ordinance, 1983 which is still in opera- tion as unconstitutional and void.

AK Roy v. Union of India

  • CHANDRACHUD, C.J. This is a group of Writ Petitions under Article 32 of the Constitution challenging the validity of the National Security ordinance, 2 of 1980, and certain provisions of the National Security Act, 65 of 1980, which replaced the ordinance. Writ Petition No. 5724 of 1980 is by Shri A. K. Roy, a Marxist member of the Parliament, who was detained under the ordinance by an order passed by the District Magistrate, Dhanbad, on the ground that he was indulging in activities which were prejudicial to public order. Ten members of the Parliament, one an Independent and the others belonging to various political parties in opposition applied for permission to intervene in the Writ Petition on the ground that since the ordinance-making power of the President is destructive of the system of Parliamentary democracy, it is necessary to define the scope of that power. We allowed the intervention…The National Security ordinance, 1980, was passed in order “to provide for preventive detention in certain cases end for matters connected therewith”…The Parliament was not      in session when it was promulgated and its preamble recites that it was being issued because the “President is satisfied that circumstances exist which render it necessary for him to take immediate action”
  • …while setting out the petitioner s case, the thrust of his argument is that the power to issue an ordinance is Dan executive power, not a legislative power, and consequently, is not law. In view of the clear and specific provisions of the Constitution bearing upon this question, it is quite impossible to accept this argument. The heading of Chapter III of Part V is “Legislative Powers of the President”. Clause (2) of Article 123 provides that an ordinance promulgated under Article 123 “shall have the same force and effect as an Act of Parliament”. The only obligation on the Government is to lay the ordinance before both Houses of Parliament and the only distinction which the Constitution makes between a law made by the Parliament and an ordinance issued by the President is that whereas the life of a law made by the Parliament would depend upon the terms of that law, an ordinance, by reason of sub clause (a) of clause (2), ceases to operate at the expiration of six weeks from the reassembly of Parliament, unless resolutions disapproving it are passed by both Houses before the expiration of that period.
  • It is clear from this provision, if indeed there was any doubt about the true position, that the Constitution makes no distinction in principle between a law made by the legislature and an ordinance issued by the President. Both, equally, are products of the exercise of legislative power and, therefore, both are equally subject to the limitations which the Constitution has placed upon that power. It may sound strange at first blush that the executive should possess legislative powers, but a careful look at our Constitution will show that the scheme adopted by it envisages the exercise of legislative powers by the executive in stated circumstances. An ordinance can be issued by the President provided that both Houses of the Parliament are not in session and the President is satisfied that circumstances exist which render It necessary for him to take immediate action An ordinance which satisfies these pre-conditions has the same force and effect as an Act of Parliament.

R.K. Garg. v. Union of India

  • These writ petitions raise a common question of law relating to the constitutional validity of the Special Bearer Bonds (Immunities and Exemptions) Ordinance, 1981 (hereinafter referred to as the Ordinance)…we may now proceed to consider the challenge against the constitutional validity of the Ordinance on the ground that the President had no power to issue the Ordinance under Article 123 of the Constitution. There were two limbs of the argument under this head of challenge; one was that since the Ordinance had the effect of amending the tax laws, it was outside the competence of the President under Article 123 and the other was that the subject matter of the Ordinance was in the nature of a Money Bill which could be introduced only in the House of the People and passed according to the procedure provided in Articles 109 and 110 and the President had therefore no power under Article 123 to issue the Ordinance by-passing the special procedure provided in Articles 109 and 110 for the passing of a Money Bill. There is, as we shall presently point out, no force in either of these two contentions, but we may point out straightaway that both these contentions are academic, since the Act has been brought into force with effect from the date of promulgation of the Ordinance
  • It may be noted, and this was pointed out forcibly by Dr. Ambedkar while replying to the criticism against the introduction of Article 123 in the Constituent Assembly-that the legislative power conferred on the President under this Article is not a parallel power of legislation. It is a power exercisable only when both Houses of Parliament are not in session and it has been conferred ex-necessitate in order to enable the executive to meet an emergent situation. Moreover, the law made by the President by issuing an Ordinance is of strictly limited duration. It ceases to operate at the expiration of six weeks from the reassembly of Parliament or if before the expiration of this period, resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions. This also affords the clearest indication that the President is invested with this legislative power only in order to enable the executive to tide over an emergent situation which may arise whilst the Houses of Parliament are not in session. Further more, this power to promulgate an Ordinance conferred on the President is co-extensive with the power of Parliament to make laws and the President cannot issue an Ordinance which Parliament cannot enact into a law. It will therefore be seen that legislative power has been conferred on the executive by the Constitution makers for a necessary purpose and it is hedged in by limitations and conditions. The conferment of such power may appear to be undemocratic but it is not so, because the executive is clearly answerable to the legislature and if the President, on the aid and advice of the executive, promulgates an Ordinance in misuse or abuse of this power, the legislature cannot only pass a resolution disapproving the Ordinance but can also pass a vote of no confidence in the executive.

Now once it is accepted that the President has legislative power under Article 123 to promulgate an ordinance and this legislative power is co-extensive with the power of the Parliament to make laws, it is difficult to see how any limitation can be read into this legislative power of the President so as to make it ineffective to alter or amend tax laws. If Parliament can by enacting legislation alter or amend tax laws, equally can the President do so by issuing an Ordinance under Article 123. There have been, in fact, numerous instances where the President has issued an Ordinance replacing with retrospective effect a tax law declared void by the High Court or this Court. Even offences have been created by Ordinance issued by the President under Article 123 and such offences committed during the life of the Ordinance have been held to be punishable despite the expiry of the Ordinance.

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Parliament and State Legislature – Indian Constitution

B. R. Kapoor v. State Of Tamil Nadu

  • Jayalalithaa, was convicted in two criminal cases by the trial court. On appeal, High Court suspended her sentences but her application for stay of judgment was rejected. She then contested elections and her nomination was rejected due to criminal convictions. Her party came into the majority and she became the Chief Minister. This was challenged in appeal.
  • Har Sharan Verma v. Tribhuvan Narain Singh,Chief Minister, U.P. – Person was not a member of either house of legislature of the state and was made Chief minister. Court held that Article 164(1) does not provide any qualification for person to be selected as Chief Minister. Accordingly, court held that it sees no reason as to why 164(4) be restricted to only cases where a Minister loses for some reaso11 his seat in the Legislature of the State.
  • Har Sharan Verma Union of IndiaCourt considered the question in the context of membership of Parliament and Article 75(5), which is similar in terms to Article 164( 4). The Court said that a person who was not a member of either House of Parliament could be a Minister for not more than· six months; though lie would not have any right to vote, he would be entitled, by virtue of Article 88, to participate in the proceedings of Parliament.
  • P. Anand v. H.D. Deve Gowda – parity of reasoning if a person who is not a member of the State Legislature can be appointed a Chief Minister of a State under Article 164(4) for six months, a person who is not a member of either House of Parliament can be appointed Prime Minister for the same duration.
  • R. Chaudhuri v. State of Punjab – Using Article 164(4) same person was being made minister again and again during the same term without fighting the election which was not allowed by the court.
  • To answer the question before us, three sub-Articles of Article 164 need, in our view, to be read together, namely, sub-Articles (1),(2) and (4)…Necessarily implicit in sub-Article (4) read with sub- Articles (1) and (2) is the requirement that a Minister who is not a member of the legislature must seek election to the legislature and, in the event of his failing to secure a seat in the legislature within six months, he must cease to be a Minister. The requirement of sub- Article (4) being such, it follows as the night the day that a person who is appointed a Minister though he is not a member of the legislature shall be one who can stand for election to the legislature and satisfy the requirement of sub-Article (4). In other words, he must be one who satisfies the qualifications for membership of the legislature contained in the Constitution (Article 173) and is not disqualified from seeking that membership by reason of any of the provisions therein (Article 191) on the date of his appointment

Re Gujarat Assembly Election Matter

  • The dissolved Legislative Assembly of the State of Gujarat was constituted in March 1998 and its five-year term was to expire on 18.3.2003. On 19.7.2002 on the advice of the Chief Minister, the Governor of Gujarat dissolved the Legislative Assembly. The last sitting of the dissolved Legislative Assembly was held on 3rd April 2002. Immediately after dissolution of the Assembly, the Election Commission of India took steps for holding fresh elections for constituting the new Legislative Assembly. However, the Election Commission by its order dated 16th August, 2002 while acknowledging that Article 174(1) is mandatory and applicable to an Assembly which is dissolved and further that the elections for constituting new Legislative Assembly must be held within six months of the last session of the dissolved Assembly, was of the view that it was not in a position to a conduct elections before 3rd of October, 2002 which was the last date of expiry of six months from last sitting of the dissolved Legislative Assembly. It is in this context the President of India in exercise of powers conferred upon him by virtue of Clause (1) of Article 143 of the Constitution of India referred three questions for the opinion of the Supreme Court by this order dated 19th August, 2002 which run as under…
  • the first question that arises for consideration is whether Article 174(1) is applicable to a dissolved Assembly?… A plain reading of Article 174 shows that it stipulates that six months shall not intervene between the last sitting in one session and the date appointed for its first sitting in the next session. It does not provide for any period of limitation for holding fresh election in the event a Legislative Assembly is prematurely dissolved. It is true that after commencement of the Constitution, the practice has been that whenever either Parliament or Legislative Assembly were prematurely dissolved, the election for constituting fresh Assembly or Parliament, as the case may be, were held within six months from the date of the last sitting of the dissolved Parliament or Assembly…Article 174 deals with a live legislature. The purpose and object of the said provision is to ensure that an existing legislature meets at least every six months, as it is only an existing legislature that can be prorogued or dissolved.
  • Holding:-
  • Article 174(1) of the Constitution relates to an existing, live and functional Legislative Assembly and not to a dissolved Assembly.
  • The provision in Article 174(1) that six months shall not intervene between its last sitting in one session and the date appointed for its sitting in the next session is mandatory and relates to the frequencies of the sessions of a live and existing Legislative Assembly and does not provide for any period of limitation for holding fresh elections for constituting Legislative Assembly on premature dissolution of the Assembly.
  • The expressions “the House”, “either House” is synonymous with Legislative Assembly or Legislative Council and they do not refer to different bodies other than the Legislative Assembly or the Legislative Council, as the case may be.
  • Neither under the Constitution nor under the Representation of the People Act, any period of limitation has been prescribed for holding election for constituting Legislative Assembly after premature dissolution of the existing one. However, in view of the scheme of the Constitution and the Representation of the People Act, the elections should be held within six months for constituting Legislative Assembly from the date of dissolution of the Legislative Assembly.
  • Under the Constitution, the power to frame the calendar or schedule for elections for constituting Legislative Assembly is within the exclusive domain of the Election Commission and such a power is not subject to any law either made by Parliament or State Legislature.

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Union and State Executive – Indian Constitution

Union and State Executive

Ram Jawaya Kapur v. State Of Punjab

Writ petition under Article 32 of the Constitution, was filed by six persons who carried on the business of preparing, printing, publishing and selling text books for different classes in the schools of Punjab, particularly for the primary and middle classes, under the name and style “Uttar Chand Kapur & Sons”, It was alleged that the Education Department of the Punjab Government pursuant to their “so-called policy of nationalisation of text books”, issued a series of notifications since 1950 regarding the printing, publication and sale of these books which not only placed unwarranted restrictions upon the rights of the petitioners to carry on their business but also practically ousted them and other traders from the business altogether and this was a violation of their fundamental under Article 19(1)(g), It was contended that the restrictions were being imposed without the authority of law and therefore not saved by clause (6) of Article 19.

Mukherjea, C.J. –

Petitioner’s Contentions:-

Contention 1 – The executive Government of a State is wholly incompetent, without any legislative sanction, lo engage in any trade or business activity and that the acts of the Government in carrying out their policy of establishing monopoly in the business of printing and publishing text books for school students is wholly without jurisdiction and illegal

Contention 2 -assuming that the State could create a monopoly in its favour in respect of a particular trade or business, that could be done not by any executive act but by means of a proper legislation which should conform to the requirements of Article 19(6) of the Constitution

Contention 3 – it was not open to the Government lo deprive the petitioners of their interest in any business or undertaking which amounts to property without authority of law and without payment of compensation as is required under Article 31 of the Constitution

Contention 1 – Constitution clearly recognises a division of governmental functions into three categories viz, the legislative, the judicial and the executive, the function of the executive cannot but be to execute the laws passed by the legislature or to supervise the enforcement of the same. The legislature must first enact a measure which the executive can then carry out. (Used Article 73 & 162 and Australian Case)

Court’s reasoning – Article 73 provides that the executive powers of the Union shall extend to matters with respect to which Parliament has power to make laws and to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or any agreement.

Article 73 & 162 does not contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as petitioner seems to suggest, that it is only when Parliament or the State Legislature has legislated on certain items appertaining to their respective lists that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Article 172 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution.

One Australian case discarded on the basis that the provision upon which it was based was not present in Indian constitution.

Motilal v. Government of the State of Uttar Pradesh – The point canvassed there was whether the Government of a State has power under the Constitution to carry on the trade or business of running a bus service in the absence of a legislative enactment authorising the State Government to do so. Chief Justice Malik was of opinion that in a written Constitution like ours the executive power may be such as is given lo the executive or is implied, ancillary or inherent. It must include all powers that may be needed to carry into effect the aims and objects of the Constitution. It must mean more than merely executing the laws. According to the Chief Justice the State has a right to hold and manage its own property and carry on such trade or business as a citizen has the right to carry on, so long as such activity does not encroach upon the rights of others or is not contrary lo law. An act would be within the executive power of the State if it is not an act which has been assigned by the Constitution of India to other authorities or bodies and is not contrary to the provisions of any law and does not encroach upon the legal rights of any member of the public.

Our Constitution, though federal in its structure, is modelled on the British parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is its retaining the confidence of the legislative branch of the State. The executive function comprises both the determination of the policy as well as carrying it into execution. This evidently includes the initiation of legislation, the maintenance of order, the promotion of social and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general administration of the State.

The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions; and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. Suppose now that the Ministry or the executive Government of a State formulates a particular policy in furtherance of which they want to start a trade or business. Is it necessary that there must be a specific legislation legalising such trade activities before they could be embarked upon? We cannot say that such legislation is always necessary. If the trade or business involves expenditure of funds, it is certainly required that Parliament should authorise such expenditure either directly or under the provisions of a statute. What is generally done in such cases is, that the sums required for carrying on the business are entered in the annual financial statement which the Ministry has to lay before the house or houses of legislature in respect of every financial year under Article 202 of the Constitution. So much of the estimates as relate to expenditure other than those charged on the consolidated fund are submitted in the form of demands for grants to the legislature and the legislature has the power to assent or refuse to assent to any such demand or assent to a demand subject to reduction of the amount (Article 203). After the grant is sanctioned, rule appropriation bill is introduced to provide for the appropriation out of the consolidated fund of the State of all moneys required to meet the grants thus made by the assembly (Article 204). As soon as the appropriation Act is passed, the expenditure made under the heads covered by it would be deemed to be properly authorised by law under Article 266(3) of the Constitution.

It is true that the appropriation Acts cannot be said to give a direct legislative sanction to the trade activities themselves. But so long as the trade activities are carried on in pursuance of the policy which the executive Government has formulated with the tacit support of the majority in the legislature, no objection on the score of their not being sanctioned by specific legislative provision can possibly be raised. Objections could be raised only in regard to the expenditure of public funds for carrying on of the trade or business and to these the appropriation Acts would afford a complete answer. Specific legislation may indeed be necessary if the Government require certain powers in addition to what they possess under ordinary law in order’ to carry on the particular trade or business. Thus when it is necessary to encroach upon private. rights in order to enable the Government to carry on their business, a specific legislation sanctioning such course would have to be passed.

Petitioner’s fundamental rights are not violated as there is a no fundamental right in the publishers that any of the books printed and published by them should be prescribed as text books by the school authorities. So the utmost that could be said is that there was merely a chance or prospect of any or some of their books being approved as text books by the Government. Such chances are incidental to all trades and businesses and there is no fundamental right guaranteeing them. Petitioner’s right to publish books is not taken away and since there is no fundamental right to be approved by the government or be prescribed in schools, there is no violation of any fundamental right.

S.P. Anand v. H.D. Deve Gowda

H.D. Deve Gowda, not being a member of either House of Parliament, was appointed as the Prime Minister of India. The petitioner contended that he was not eligible to be appointed as the Prime Minister of India and President of India committed a grave and serious constitutional error in swearing him in as the Prime Minister. This action of the President according to the petitioner, was violative of Articles 14, 21 and 75 of the Constitution and, therefore, void ab initio and deserved to be quashed by an appropriate writ, which may be issued under Article 32 of the Constitution.

Har Sharan Verma v. Tribltuvan Narain Singh, Chief Minister, U.P. – Interpreting the said clause in the context of Article 163 and other clauses of Article 164, this Court held that clause 4 of Article 164 had an ancient lineage and there was no reason to whittle down the plain thrust of the said provision by confining it to cases where a person being a member of the legislature and a Minister, for some reason, loses his seat in the State. The Court, therefore, on a combined reading of the aforesaid two provisions held that a person not being a member of either House of Parliament can be appointed a Minister up to a period of six months.

When we compare Articles 74 and 75 with Articles 163 and 164, the first point of difference is that while the former deal with the President and the Prime Minister, the latter deal with the Governor and the Chief Minister. Article 74(1) and Article 163(1) are substantially the same except that the sentence beginning with ‘except’ and ending with ‘discretion’, special to the Governor’s function, is not to be found in Article 74(1). The proviso to Article 74(1) which grants a special privilege to the President is not to be found in Article 163(1) whereas clause (2) of Article 163 is not to be found in Article 74. Clause (2) to Article 163 is a corollary to the exception clause in Article 163( l) and has no relevance to the issue on hand. Article 74(2) and Article 163(3) are verbatim.

Articles 75(1) and 75(2) are identical to Article 164(1) except that in the case of the latter, the two clauses have been combined into one. The proviso to Article 164(1) which is special to States, is not to be found in Article 75. The rest of the clauses of the two articles are identical except for consequential changes.

On a plain reading of Article 75(5) it is obvious that the Constitution-makers desired to permit a person who was not a member of either House of Parliament to be appointed a Minister for a period of six consecutive months and if during the said period he was not elected to either House of Parliament, he would cease to be a Minister. This becomes clear if one were to read the debates of the Constituent Assembly (the draft Articles were 62 and 144 for the present Articles 75 and 164). Precisely on the ground that permitting such persons to be appointed Ministers at the Union or State levels would “cut at the very root of democracy”, an amendment was moved to provide: “No person should be appointed a Minister unless at the time of his appointment, he is elected member of the House:” which amendment was spurned by Dr. Ambedkar

The Council of Ministers is made collectively responsible to the House of the People. The form of the oath prescribed in the Third Schedule under Article 75( 4) is the same for the Prime Minister as well as a Minister. In other words, the Constitution does not draw any distinction between the Prime Minister and any .other Minister in this behalf. This is not to say that the Prime Minister does not enjoy a special status; he does as the head of the Council of Ministers but the responsibility of the Council of Ministers to the House of the People is collective. Besides, the caption of Article 75 as a whole is “Other provisions as to Ministers”. No separate provision is to be found dealing with the appointment of the Prime Minister as such. Therefore, even though the Prime Minister is appointed by the President after he is chosen by such number of members of the House of the People as would ensure that he has the confidence of the House and would be able to command the support of the majority, and the Ministers are appointed on the advice of the Prime Minister, the entire Council of Ministers is made collectively responsible to the House and that ensures the smooth functioning of the democratic machinery.

U.N.R. Rao v. Indira Gandhi

During dissolution of the House of the People, there can be no Prime Minister The appellant contended that under the Constitution as soon as the House of the People was dissolved under Article 85(2), the Council of Ministers, i.e. the Prime Minister and other Ministers, ceased to hold office. This argument was based on the wording of Article 75(3), which provides that “the Council of Ministers shall be collectively responsible to the House of the People”. How can the Council .of Ministers be responsible to the House of the People when it has been dissolved under Article 85(2)? It was contended that it was not void in the carrying out of Governmental function will be created because the President can exercise the executive power of the Union either directly or through officers subordinate to him in accordance with Article 53(1) of the Constitution

It will be noticed that Article 74(1) is mandatory in form. We are unable to agree with the appellant that in the context the word ‘shall’ should be read as ‘may’. Article 52 is mandatory. In other words “there shall be a President of India’. So is Article 74(1). The Constituent Assembly did not choose the Presidential system of Government. If we were to give effect to this contention of the appellant we would be changing the whole concept of the Executive. It would mean that the President need not have a Prime Minister and Ministers to aid and advise in the exercise of his functions. As there would be no ‘Council of Ministers, nobody would be responsible to the House of the People. With the aid of advisers he would be able to rule the country at least till he is impeached under Article 61.

Now comes the crucial clause three of Article 75. The appellant urges that the House of People having been dissolved this clause cannot be complied with. According to him it follows from the provisions of this clause that it is was contemplated that on the dissolution of the House of People the Prime Minister and the other ministers must resign or be dismissed by the President and the President must carry on the Government .as best as he can with the aid of the Services. As we have shown above. Article 74(1) is mandatory and, therefore, the President cannot exercise the executive power without the aid and advice of the Council of Ministers We must then harmonise the provisions of Article 75(3) with Article 74(1) and Article 75(2). Article 75(3) brings into existence what is usually ·called “Responsible Government”. In other words the Council of Ministers must enjoy the confidence of the House of People. While the House of People is not dissolved under Article 85(2)(a), Article 75(3) has full operation. But when it is dissolved the Council of Ministers cannot naturally enjoy the confidence of the House of People. Nobody has said that the Council of Ministers does not enjoy the confidence of the House of People when it is prorogued. In the context, therefore, this clause must be read as meaning that Article 75(3) only applies when the House of People does not stand dissolved or prorogued. We are not concerned with the case where dissolution of the House of People takes place under Article 83(2) on the expiration of the period of five years prescribed therein, for Parliament has provided for that contingency in Section 14 of the Representation of Peoples Act, 1951.

Shamsher Singh v. State Of Punjab

Two freshers in the State Judiciary (the appellants), were on probation. Before the expiry of the period, the High Court having discovered unsavoury conduct of the appellants, as controlling authority, considered it fit to terminate their services on grounds of unsuitability. The Council of Ministers, on a consideration of the High Court’s report, acted on it and ended the probation of the appellants, although the Governor’s personal satisfaction about this step was neither sought nor secured. TI1e orders terminating probation were challenged primarily on the ground that the power of appointment being with the Governor (or the President, in the case of Central Services), the removal must be by him alone. Wherever the Constitution vests power in the Governor or President, it has to be exercised by him, applying his own mind to the materials. He can neither surrender the power to his Ministers nor delegate to his officers

First, there are several constitutional functions, powers and duties of the Governor. These are conferred on him eo nomine the Governor. The Governor, is, by and under the Constitution, required to act in his discretion in several matters. These constitutional functions and powers of the Governor eo nonmine as well as these in the discretion of the Governor are not executive powers of the State within the meaning of Article 154 read with Article 162.

Second, the Governor under Article 163 of the Constitution can take aid and advice of his Council of Ministers when he is exercising executive power of the State. The Governor can exercise powers and functions without the aid and advice of his Council of Ministers when he is required by or under the Constitution to act in his discretion, where he is required to exercise his constitutional functions conferred on him eo nomine as the Governor.

Third, the aid and advice of the Council of Ministers under Article 163 is different from the allocation of business of the government of the State by the Governor to the Council of Ministers under Article 166(3) of the Constitution. The allocation of business of government under Article 166(3) is an instance of exercise of executive power by the Governor through his Council by allocating or delegating his functions. The aid and advice is a constitutional restriction on the exercise of executive powers of the State by the Governor. The Governor will not be constitutionally competent to exercise these executive powers of the State without the aid and advice of the Council of Ministers.

Fourth, the executive powers of the State are vested in the Governor under Article 154(1). The powers of appointment and removal of Subordinate Judges under Article 234 have not been allocated to the Ministers under the Rules of Business of the State of Punjab. Rule 18 of the Rules of Business states that except as otherwise provided by any other rule cases shall ordinarily be disposed of by or under the authority of the Minister-in-charge who may, by means of Standing Orders, give such directions as he thinks fit for the disposal of cases in his department. Rule 7(2) in Part D of the Punjab Civil Service Rules which states that the Governor of Punjab may on the recommendation of the High Court remove from service without assigning any cause any Subordinate Judge-or revert him to his substantive post during the period of probation is incapable of allocation to a Minister. Rule 18 of the Rules of Business is subject to exceptions and Rule 7(2) of the Service Rules is such an exception. Therefore, the appellants contend that the power of the Governor to remove Subordinate Judges wider Article 234 read with the aforesaid Rule 7(2) of the Service Rules cannot be allocated to a Minister.

It is noticeable that though in Article 74 it is stated that there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President in the exercise of is functions, there is no provision in Article 74 comparable to Article I 63 ·that the aid and advice is except in so far as he is required to exercise his functions or any of them in his discretion. It is necessary to find out as to why the words ‘in his discretion’ are used in relation to some powers of the Governor and not in the case of the President.

State of U.P. v. Babu Ram Upadltya held that the power of the Governor to dismiss at pleasure, subject to the provisions of Article 311, is not an executive power under Article 154 but a constitutional power and is not capable of being delegated to officers subordinate to him. The Governor could not delegate his pleasure to any officer nor could any law provide for the exercise of that pleasure by an officer with the result that statutory rules governing dismissal were binding on every officer though they were subject to the overriding pleasure of the Governor. This would mean that the officer was bound by the rules but the Governor was not.

Moti Ram Deka ‘s case and this Court restated that proposition No. 2 must be read along with the subsequent propositions specified as propositions Nos. 3, 4, 5 and 6. The ruling in Moti Ram Deka’s case is that a law can be framed prescribing the procedure by which and the authority by whom the said pleasure can be exercised. The pleasure of the President or the Governor to dismiss can therefore not only be delegated but is also subject to Article 311. The true position as laid down in Moti Ram Deka ‘s case is that Articles 310 and 311 must no doubt be read together but once the true scope and effect of Article 311 is determined the scope of Article 310(1) must be limited in the sense that in regard to cases falling under Article 311 (2) the pleasure mentioned in Article 310(2) must be exercised in accordance with the requirements of Article 311.

The majority view in Babu Ram Upadltya’s case is no longer good law after the decision in Moti Ram Deka’s case

In making a report under Article 356 the Governor will be justified in exercising his discretion even against the aid and advice of his Council of Ministers. The reason is that the failure of the constitutional machinery may be because of the conduct of the Council of Ministers. This discretionary power is given to the Governor to enable him to report to the President who, however, must act on the advice of his Council of Ministers in all matters. In this context Article 163(2) is explicable that the decision of the Governor in his discretion shall be final and the validity shall not be called in question. The action taken by the President on such a report is a different matter. The President acts on the advice of his Council of Ministers. In all other matters where the Governor acts in his discretion he will act in harmony with his Council of Ministers. The Constitution does not aim at providing a parallel administration within the State by allowing the Governor to go against the advice of the Council of Ministers.

For the foregoing reasons we hold that the President as well as the Governor acts on the aid and advice of the Council of Ministers in executive action and is not required by the Constitution to act personally without the aid and advice of the Council of Ministers or against the aid and advice of the Council of Ministers. Where the Governor has any discretion the Governor acts on his own judgment. The Governor exercises his discretion in harmony with his Council of Ministers. The appointment as well as removal of the members of the Subordinate Judicial Service is an executive action of the Governor to be exercised on the aid and advice of the Council of Ministers in accordance with the provisions, of the Constitution. Appointments and removals of persons are made by the President and the Governor as the constitutional head of the Executive on the aid and advice of the Council of Ministers. That is why any action by any servant of the Union or the State in regard to appointment or dismissal is brought against the Union or the State and not against the President or the Governor.

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Union & Its Territory – Indian Constitution

In Re Berubari Union and Exchange of Enclaves

An agreement was entered between India and Pakistan to resolve the boundary dispute. Certain questions of law emerged with regard to implementation of agreement and President of India, in exercise of the powers under Article 143( I) of the Constitution, referred three questions to the Supreme Court for its advice:

Is any legislative action necessary for the implementation of the Agreement relating to Berubari Union?

If so, is a law of Parliament relatable to Article 3 of the Constitution sufficient for the purpose or is an a1nend1nent of the Constitution in accordance with Artic1e 368 of the Constitution necessary, in addition or in the alternative?

Is a law of Parliament relatable to Article 3 of the Constitution sufficient for implementation of the agreement relating to Exchange of Enclaves or is an amendment of the Constitution in accordance with Article 368 of the Constitution necessary for the purpose, in addition or ill the alternative?

Attorney General contended that the said Agreement is merely the recognition or ascertainment of the boundary which had already been fixed and in no sense is it a substitution of a new boundary or the alteration of the boundary implying any alteration of the territorial limits of India. He emphasises that the ascertainment or the settlement of the boundary in the light of the award by which both Governments were bound, is not an alienation or cession of the territory of India, and according to him, if, as a result of the ascertainment of the true boundary in the light of the award, possession of some land has had to be yielded to Pakistan it does not amount to cession of territory; it is merely a mode of settling the boundary.

In view of this factual position there should be no difficulty in holding that it falls within the territories which immediately before the commencement of the Constitution were comprised in the Province of West Bengal. Therefore, as a result of the implementation of this Agreement the boundaries of West Bengal would be altered and the content of Entry 13 in the First Schedule to the Constitution would be affected.

Mr. Chaterjee raises contention that Parliament has no power to cede territory and agreement must be declared void as:-

Framers were determined to keep the entire territory of India as inviolable and sacred. The very first sentence in the preamble, which declares that “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic republic”, says Mr Chatterjee, irrevocably postulates that India geographically and territorially must always continue to be democratic and republican.

it is argued that whereas the Constitution has expressly given to the country the power to acquire other territories it has made no provision for ceding any part of its territory; and in such a case the rule of construction viz. expressio unius est exclusio alterius must apply.

Court held that the preamble is not a part of the Constitution, and, “it has never been regarded as the source of any substantive power conferred on the Govenm1ent of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”.

On a true construction of Article 1(3) (c) it is erroneous to assume that it confers specific powers to acquire foreign territories.

There can be no doubt that a sovereign State can exercise its right to cede a part of its territory to a foreign State.

In the Indian Constitution, the emphasis on the preservation of the territorial integrity of the constituent States is absent.

It may, therefore, be assumed that in construing Article 3 we should take into account the fact that the Constitution contemplated changes of the territorial limits of the constituent States and there was no guarantee about their territorial integrity.

The acquisition of foreign territory by India in exercise of its inherent right as a sovereign State automatically makes the said territory a part of the territory of India. After such territory is thus acquired and factually made a part of the territory of India the process of law may assimilate it either under Article 2 or under Article 3(a) or (b).

Can Parliament legislate in regard to the agreement under Article 3? Broadly stated Article 3 deals with the internal adjustment inter se of the territories of the constituent States of India. Article 3(a) enables Parliament to form a new State and this can be done either by the separation of the territory from any State, or by uniting two or more States or parts of States, or by uniting any territory to a part of any State. There can be no doubt that foreign territory which after acquisition becomes a part of the territory of India under Article 1(3) (c) is included in the last clause of Article 3(a) and that such territory may, after its acquisition, be absorbed in the new State which may be formed under Article 3(a). Thus Article 3(a) deals with the problem of the formation of a new State and indicates the modes by which a new State can be formed.

Article 3(c) deals with the problem of the diminution of the area of any State. Such · diminution may occur, where the part of the area of a State is taken out and added to another · State, and in that sense Articles 3(b) and 3(c) may in some cases be said to be correlated; but does Article 3(c) refer to a case where a part of the area of a State is taken out of that State and is not added to any other -State but is handed over to a foreign State? If the power to acquire foreign territory which is an essential attribute of sovereignty is not expressly conferred by the Constitution there is no reason why the power to cede a part of the national territory which is also an essential attribute of sovereignty should have been provided for by the Constitution. Both of these essential attributes of sovereignty are outside the Constitution and can be exercised by India as a sovereign State. Therefore, even if Article 3(c) receives the widest interpretation it would be difficult to accept the argument that it covers a case of cession of a part of national territory in favour of a foreign State. The diminution of the area of any State to which it refers postulates that the area diminished from the State in question should and must continue to be a part of the territory of India; it may increase the. area of any other State or may be dealt with in any other manner authorised either by Ai1icle 3 or other relevant provisions of the Constitution, but it would not cease to be a part of the territory of India. It would be unduly straining the language of Article 3(c) to hold that by implication it provides for cases of cession of a part of national territory. Therefore, we feel no hesitation in holding that the power to cede national territory cannot be read in Article 3(c) by implication.

It would not be competent to Parliament to make a law relatable to Article 3 of the Constitution for the purpose of implementing the Agreement. This· conclusion must inevitably mean that the law necessary to implement the Agreement has to be passed under Article 368.

The Agreement amounts to a cession of a part of the territory of India in favour of Pakistan; and so its implementation would naturally involve the alteration of the content of and the consequent amendment of Article I and of the relevant part of the First Schedule to the Constitution, because such implementation would necessarily lead to the diminution of the territory of the Union of India. Such an amendment can be made under Article 368. Parliament may, however, if it so chooses, pass a law amending Article 3 of the Constitution so as to cover cases of cession of the territory of India in favour of a foreign State.

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Federalism under Indian Constitution


SR Bommai v. Union of India (Federalism)

The court examined issues such as the nature of Indian Constitution, certain aspects of the Centre-State relations.

Chief Minister, Bommai claimed he had the majority in the house and was willing to prove it on the floor of the house but the President exercised its power under Article 356 of the constitution issued Proclamation dissolving Bommai Government and the Assembly and assumed the administration of the State of Karnataka.

Sri Ram Janmabhoomi-Babjri Masjid Issue

After the demolition of Babri Masjid, UP government resigned and President took control of the state. Violent communal clashes soon followed across India and President dismissed the State Governments and dissolved the Legislative Assemblies of Rajasthan, Madhya Pradesh and Himachal Pradesh and assumed administration of the respective States In all of these states BJP was in power.


In order to maintain the unity and integrity of the nation our Founding Fathers appear to have leaned in favour of a strong Centre while distributing the powers and functions between the Centre and the States.

Dicey – Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity, the essence of a federation is the existence of the Union and the States and the distribution of powers between them, Federalism, therefore, essentially implies demarcation of powers in a federal compact.

On a conjoint reading of these articles, it becomes clear that Parliament has the right to form new States, alter the 1ireas of existing States, or the name of any existing State. Thus the Constitution permits changes in the territorial limits of the States and does not guarantee their territorial integrity. Even names can be changed. In doing so, it has not to seek the concurrence of the State whose area, boundary or name is likely to be affected by the proposal.

Post-independence, some of the subjects of common interest were, however, transferred to the Union List, thereby enlarging the powers of the Union to enable speedy and planned economic development of the nation.

States depend for financial assistance upon the Union since their power to raise resources is limited.

Article 368 confers powers on Parliament to amend the Constitution, albeit by a specified majority. The power extends to amending matters pertaining to the executive as well as legislative powers of the States if the amendments are ratified by the legislatures of not less than one-half of the States. This provision empowers Parliament.to so amend the Constitution as to curtail the powers of the States. A strong Central Government may not find it difficult to secure the requisite majority as well as ratification by one half of the legislatures if one goes by past experience. These limitations taken together indicate that the Constitution of India cannot be said to be truly federal in character as understood by lawyers in the United States of America.

Under our Constitution the State as such has no inherent sovereign power or autonomous power which cannot be encroached upon by the Centre.

Constitution of India is differently described, more appropriately as ‘quasi-federal’ because it is a mixture of the federal and unitary elements, leaning more towards· the latter but then what is there in a name, what is important to bear in mind is the thrust and implications of the various provisions of the Constitution bearing on the controversy in regard to scope and ambit of the Presidential power under Article 356 and related provisions.


Article 1 of the Constitution states that India shall be a Union of States. Thus the States are constitutionally recognised units and not mere convenient administrative divisions.

HM Seervai in defence of federalism:-

It is no objection to our Constitution being federal that the States were not independent States before they became parts of a Federation. A federal situation existed, first, when the British Parliament adopted a federal solution in the G.O.I. Act, 1935, and secondly; when the Constituent Assembly adopted a federal solution in our Constitution;

Parliament’s power to alter the boundaries of States without their consent is a breach of the federal principle, but in fact it is not Parliament which has, on its own, altered the boundaries of States. By extra-constitutional agitation, the States have forced Parliament to alter the boundaries of States. In practice; therefore, the federal principle has not been violated;

The allocation of the residuary power off legislation to Parliament (i.e. the Federation) is irrelevant for determining the federal nature of a Constitution. The U.S. and the Australian Constitutions do not confer the residuary power on the Federation but on the States, yet those Constitutions are indisputably federal;

External sovereignty is not relevant to the federal feature of a Constitution, for such sovereignty must belong to the country as a whole. But the division of internal sovereignty by a distribution of legislative powers is an essential feature of federalism, and our Constitution possesses that feature.

The enactment in Article 352 of the emergency power arising from war or external aggression which threatens the security of India merely recognises de jure what happens de facto in great federal countries like the U.S., Canada and Australia in times of war, or imminent threat of war, because in war, these federal countries act as though they were unitary.

The power to proclaim an emergency originally on the ground of internal disturbance, but now only on the ground of armed rebellion, does not detract from the principle of federalism because such a power, as we have seen exists in indisputably federal constitutions.

The provisions of Article 355 imposing a duty on the Union to protect a State against external aggression and internal disorder are not inconsistent with the federal principle. The war power belongs to the Union in all Federal Governments.

both federal and State laws operate on the same individual, it must follow that in case of conflict of a valid federal law and a valid State law, the federal law must prevail and our Constitution so provides in Article 254.

Our Constitution has adopted the method of empowering the Union Government to give directions to the States to give effect to the Union law and to prevent obstruction in the working of the Union law. Such a power, though different in form, is in substance the same as the power of the Federal Government in the U.S. to enforce its laws, if necessary by force. Therefore, the power to give directions to the State Governments does not violate the federal principle;

Article 356 (read with Article 355) which provides for the failure of constitutional machinery was based on Article 4, Section 4 of the U.S. Constitution and Article 356, like Article 4, Section 4, is not inconsistent with the federal principle. As stated earlier, these provisions were meant to be the last resort, but have been gravely abused and can therefore be said to affect the working of the Constitution as a Federal Government. But the recent amendment of Article 356 by the 44th Amendment, and the submission to be made hereafter that the doctrine of the political question does not apply in India, show that the courts can now take a more active part in preventing a mala fide or improper exercise of the power to impose a President’s rule, unfettered by the American doctrine of the political question;

The view that unimpo1tant matters were assigned to the States cannot be sustained in face of the very important subjects assigned to the States in List II, and the same applies to taxing powers of the States, which are made mutually exclusive of the taxing powers of the Union so that ordinarily the States have independent source of revenue of their own. In addition to the exclusive taxing powers of the States, the States become entitled either to appropriate taxes collected by the Union or to’ a share in the taxes collected by the Union.

The fact that during emergency and in certain other eventualities their powers are overridden or invaded by the Centre is not destructive of the essential federal nature of our Constitution. The invasion of power in such circumstances is not a normal feature· of the Constitution. They are exceptions and have to be resorted to only occasionally to meet the exigencies of the special situations. The exceptions are not a rule.

Whatever the bias in favour of the Centre, it cannot be argued that merely because (and assuming it is correct) the Constitution is labelled unitary or qm1si-federal or a mixture of federal and unitary structure, the President has unrestricted power of issuing Proclamation under Article 356(1).


Indian Constitution federalism is not based on any agreement between federating units but one of integrated whole as pleaded with vision by Dr. B.R. Ambedkar on the floor of the Constituent Assembly at the very inception of the deliberations and the Constituent Assembly unanimously approved the resolution of federal structure.

the organic federalism designed by the Founding Fathers is to suit the parliamentary form of Government to suit the Indian conditions with the objective of promoting mutuality and common purpose rendering social, economic and political justice, equality of status and opportunity; dignity of person to all its citizens transcending regional, religious, sectional or linguistic barriers as complimentary units in working the Constitution without confrontation.


The fact that under the scheme of our Constitution, greater power is conferred upon the Centre vis-a-vis the States does not mean that States are mere appendages of the Centre. Within the sphere allotted to them, States are supreme. The Centre cannot tamper with their powers. More particularly, the courts should not adopt an approach, an interpretation, which has the effect of or tends to have the effect of whittling down the powers reserved to the States.

Federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle – the outcome of our own historical process and recognition of the ground realities.

State Of West Bengal v. Union of India

The Political sovereignty of India is distributed between the Union of India and the States with greater weightage in favour of the Union.

Characteristics of Federalism:-

A truly federal form of Government envisages a compact or agreement between independent and sovereign units to surrender partially their authority in their common interest and vesting it in a Union and retaining the residue of the authority in the constituent units. Ordinarily each constituent unit has its separate Constitution by which it is governed in all matters except those surrendered to the Union, and the Constitution of, the Union primarily operates upon the administration of the units. Our Constitution was not the result of any such compact or agreement: Units constituting a unitary State which were non-sovereign were transformed by abdication of power into a Union,

Supremacy of the Constitution which cannot be altered except by the component units. Our Constitution is undoubtedly supreme, but it is liable to be altered by the Union Parliament alone and the units have no power to alter it. Distribution of powers between the Union and the regional units each in its sphere coordinate and independent of the other. The basis of such distribution of power is that in matters of national importance in which a uniform policy is desirable in the interest of the units authority is entrusted to the Union, and matters of local concern remain with the States.

Supreme authority of the courts to interpret the Constitution and to invalidate action violative of the Constitution. A federal Constitution, by its very nature, consists of checks and balances and must contain provisions for resolving conflicts between the executive and legislative authority of the Union and the regional units. Supreme authority of the courts to interpret the Constitution and to invalidate action violative of the Constitution. A federal Constitution, by its very nature, consists of checks and balances and must contain provisions for resolving conflicts between the executive and legislative authority of the Union and the regional units.

Therefore the power of the Union to legislate in respect of property situate in the States even if the States are regarded qua the Union as Sovereign, remains unrestricted, and the State property is not immune from its operation. Exercising powers under the diverse entries which have been referred to earlier, the Union Parliament could legislate so as to trench upon the rights of the States in the property vested in them. If exclusion of a State property from the purview of Union legislation is regarded as implicit in those entries in List I, it would be difficult if not impossible for the Union Government to carry out its obligations in respect of matters of national importance. No positive interdict against its exercise is perceptible in the Constitution: and the implication of such an interdict assumes a degree of sovereignty in the States of such plenitude as transcends the express legislative power of the Union. The Constitution which makes a division of legislative and executive powers between the Union and the States is not founded on such a postulate, and the concept of superiority of the Union over the States in the manifold aspects already examined negatives it.

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Constitution – II (Federalism and Government)

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Agency – Law of Contracts II – Notes

  • A person is an agent only when he acts as a representative of the other in business negotiations, that is to say, in the creation, modification or termination of contractual obligations between that and other person. – Krishna v. Ganpathi
  • Parties have called their relationship as an agency is not conclusive enough to say it’s an agency and contradicting fact may prove otherwise.
  • A contract of minor by his agent is valid if minor himself is bound by contract.
  • Minor can become an agent but will not be liable to the principal.
  • Banker asked to keep goods and give to customer on payment. Held banker is a bailee and not an agent.
  • Factor – Agent entrusted with goods for purpose of selling them.
  • Broker – Agent appointed to negotiate and make contract to sale or purchase of goods on behalf of his principal.
  • Del Credere Agent – Agent undertaking on payment of extra commission to be liable to principal for failure of third party to perform contract. Not liable to buyer for default of principal. Not liable for dispute between buyer and principal relating to contract or sum due.
  • If a person authorises another to assume the apparent right of disposing of trade in the ordinary course of trade, it must be presumed that the apparent authority is the real authority. The agent may bind the principal within the limits of authority with which he has been clothed by the principal.
  • Wife is an agent of husband if she is buying things of necessity, and has a domestic establishment with husband.
  • Agencies of necessity – Such as selling of goods by carrier if perishable and delivery delayed due to some reason is valid.
  • A pre-existing agency is necessary to invoke agency of necessity. So finder of goods if spend money on property of other then it’s not agency.
  • Condition for invoking agency of necessity:-
    • Inability to communicate with principal
    • Act should be reasonable necessary
    • Bona fide in the interest of party concerned
  • Duties of Agent:-
    • Duty to Execute Mandate – E.g. Agent is asked to insure goods and he charges the premium but doesn’t insure the good then agent will be liable for any subsequent loss.
    • Duty to Follow Instructions or Customs – Agent instructed to store goods at a warehouse, agent stored goods at another equally safer warehouse. Agent held liable. Liley v. Doubleday
    • Duty of reasonable care and skill – Agent liable only for direct consequences of his act.
    • Duty to communicate with principal
    • Duty to avoid conflict of interest – If agent acts without principal’s consent or may conceal fact from principal or act in a manner disadvantageous to principal, then the principal may repudiate the transaction.
    • Principal has right to benefit gained by agent dealing on his own account in business of agency.
    • Duty not to make secret profit – If an agent sells his own stock to the principal without telling the same to the principal then he must hand over the commission even if he had sold the stock at prevailing market price.
    • Duty to remit sums
    • Duty to maintain accounts
    • Duty not to delegate – Permissible in following:-
      • Nature of Work – Agent employ auctioneer
      • Trade Custom – Architect appointing surveyor
      • Ministerial Action – Authority to sign
      • Principal’s contest
  • Sub agent if properly appointed as if principal’s agent only.
  • §192 – Sub agent is responsible to agent but not to principal except in case of fraud or wilful wrong.
  • Remedies of principal against agent:-
    • To ask for an account and also demand payment of secret & illicit profits
    • To seek damages for disregard of terms of agency as also want of care & skill
    • To resist the claims of the agent for commission and indemnity by the plea that the agent had acted for himself i.e. as a principal
  • Rights of agent against principal:-
    • Right to remuneration – Agent held auction, person takes information and directly approaches principal to buy house. Held agent entitled to commission. – Green v. Bartlett
    • Right to lien – Property held by agent for special purpose cannot be liened.
    • Right to indemnity – Agent be indemnified in all lawful contract even in wagering transaction where contract is void but not unlawful.
    • Right to compensation
  • Agent if having authority act even with improper motives can bind principal.
  • An agent placed in a certain position say manager has implied authority to do all the acts a person in that position ordinarily does.
  • §188 – An agent has authority to do necessary act like agent asked to sell manure without warranty sold manure without warranty and this warranty was usual in such transactions so agent was held not liable. – Dingle v. Hare
  • Apparent authority is real authority.
  • Possession of agent is possession of principal for all purposes.
  • If employer collect premium from wages and doesn’t pay, employer is an agent of insurance company and insurance company is bound to pay.
  • Principal liable for unauthorised act of agent falling under apparent authority.
  • So knowledge gained by the agent in course of business is considered to be with the principal.
  • In cases of fraud and misrepresentation exaggerated statements by agent are acceptable as long as they weren’t sanctioned by principal.
  • Principal whose name & existence is not made by the agent could only intervene subject to certain qualifications.
  • In case of undisclosed principal, principal would be bound by the terms between agent and other party.
  • Third party could repudiate a contract in case of undisclosed principal if third party shows that had him/her known who the principal he/she wouldn’t have contracted.
  • Principal is also liable to third party and if agent goes bankrupt principal needs to pay.
  • Agent not liable for principal’s contract even if getting commission.
  • If agent excludes personal liability from contract with foreign then agent’s liability is dissolved.
  • To make agent liable it is essential to show that principal cannot be sued.
  • Either agent or principal or both could be sued when agent is personally liable.
  • Agent gives warranty and not guarantees that if contract within his authority then principal would not breach contract.
  • For ratification:-
    • On Behalf of Another – If agent doesn’t mention of agency no ratification can take place.
    • Competence of Principal –
  • Only lawful acts could be ratified.
  • Doctrine Relation Back – Offer made to unauthorised agent later ratified then if party revoke offer also prior to ratification then also offer doesn’t get revoked.
  • If agent’s interest is merely incidental to arrangement say commission or pay out of rent then that could be revoked.
  • Agency gets over after sale is completed but some courts have held that it extend till proceeds of sale are being paid.

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Bailment – Law of Contracts II – Notes

  • Essentials of Bailment
    • Delivery of Possession
    • Delivery should be upon contract
    • Delivery should be upon some purpose
  • Delivery of Possession – Custody without possession is not bailment. Waiter takes coat at restaurant and then coat is missing. Here possession hence bailment. – Ultzen v. Nicolls
  • Lady kept jewellery in a box at defendant’s place but kept the key of the box with her possession not given no bailment. – Kaliaperumal v. Vishalakshi  Similarly bank lockers also do not fall within the ambit of bailment.
  • Actual possession is physical transfer of goods. Constructive possession is when there is no change in physical delivery but something is done by the bailor so as to put the goods in possession of bailee.
  • Case involving insurance claim, where in case of an accident car had to be delivered to nearest garage for repairs. Later on car caught fire and this delivery was held sufficient to constitute insurance company as bailee and the garage keeper as sub bailee. – N.R. Srinivasa Iyer v. New India Insurance Co.
  • Delivery should be upon contract – Person’s ornament got stolen later on police recover it and it gets stolen from them. Held no bailment as there was no contract. – Ram Gulam v. Govt. of U.P.
  • The above stated view has been changed later on and it has been held that bailment can arise without an enforceable contract. –  State of Gujarat v. Memon Mahomed
  • Delivery should be upon some purpose – Bailment is to be for some purpose and is subject to the condition that when purpose is accomplished goods will be returned to bailor or disposed of as per his mandate. – R. v. Ashwel
  • Plaintiff gave several promissory notes and asked defendant’s servants to consolidate them into one single note. The servants lost the notes and he sued them as bailee. Court held since notes were not to be retuned no bailment. – Secy. of State v. Sheo Singh Rai
  • Similarly deposit with bank is not bailment as not same note and coins are to be returned. – U.O.I. v. K.V. Venugopalan
  • In sale ownership is transferred and buyer is not compelled to return good. In case of soft drink bottle where terms stipulates that  buyer will get money back on return of bottle then it is sale as buyer may not return the bottle.
  • Bailor has duty to tell bailee of any possible condition which put him at risk.  If goods damage then even if he is unaware he is liable however he is not liable for all damages but which could care and skill can guard against.
  • The burden of proof is on bailee to show that he was not negligent.
  • If bailee’s own goods are lost along with that of bailor then its not a valid excuse for showing reasonable care except when bailor knows of bailee’s negligent conduct. – Lakshmidas v. Megh Raj
  • Involuntary bailee is a person who comes into possession of something without his consent. He is not liable for any loss if he has taken reasonable care of goods.
  • Even if a clause in contract absolve bailee from his liability even if he has not taken reasonable care then that clause is valid as per §151 and §152 could only mean to take even higher duty of care and not below.
  • §154  – Provides that bailee must only use goods for purpose allowed to him by the bailor and if he uses them in other way then he is liable absolutely and even act of god won’t be a defence.
  • §155 -157 – Bailee must not mix his goods with that of bailor and if he does so and if the goods are separable then he must separate them and bear the expense of separating them or otherwise compensate the bailor.
  • §161 – If goods are not returned by bailee after completion of bailment then any loss to goods even due to act of god will be incurred by bailee. – Prakash Road Lines v. Oriental Fire and General Insurance Co.
  • §159 – If bailor take back good lend in gratuitous bailment then if bailee suffer any loss due to such pre-pone of bailment then bailor must pay for the same.
  • §162 – Bailment is terminated either by death of bailor or bailee.
  • Bailee is not entitled to keep goods even if bailor is not the true owner of the goods. He is liable to return the goods to bailor and he will not be liable for conversion while doing so.
  • If bailee return good to third person he need to show that third person had better claim over the goods. Seizure of goods from bailee by authority of law is permissible.
  • Finder of good is a bailee having only right to lien.
  • §170 – Particular lien could only be exercised when it improves good such as horse trainer and not merely maintaining good such as keeping and feeding horse a stable.
  • General lien could not be applied to deposit of money as then there is no bailment. It also does not apply to paper, security if they are kept for purpose of security or some other purpose.
  • Money could be considered as good and lien could be used. – Mercantile Bank of India Ltd. v. Rochaldas Gidumal
  • Bank could exercise lien on joint accounts. – Syndicate Bank v. Vijay Kumar
  • If security is deposited for one loan then it could not be used for another loan.
  • Factor or agent could only lien good that come in their possession in capacity of agency and also they could not lien good that come in their possession for specific purpose.
  • Solicitor forfeit their right to lien the moment they discharge themselves by misconduct or decide not to act for client or cannot represent client such as in a case where firm of lawyer got dissolved individual lawyer cannot lien.
  • If bailor wants to sue sub bailee then he is bound to the terms between bailee and sub bailee.

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