Constitutional Law – I

Court: Supreme Court of India — 13-Judge Constitutional Bench
Majority: 7:6 (Sikri CJ, Shelat, Grover, Hegde, Mukherjea, Jaganmohan Reddy, Khanna JJ.)

Facts: Swami Kesavananda Bharati, the head of a mutt in Kerala, challenged the Kerala Land Reforms Act, 1963 as violating his fundamental rights under Articles 25, 26, 14, 19(1)(f), and 31. More significantly, this case became the occasion for the Supreme Court to overrule Golak Nath v. State of Punjab (1967) and to re-examine the scope of Parliament's amending power under Article 368.

Issues: (1) Is Parliament's power to amend the Constitution unlimited? (2) Can Parliament use Article 368 to abridge or abolish fundamental rights? (3) What is the relationship between Articles 31A, 31B, 31C and fundamental rights?

Held: By a majority of 7:6, the Court held:

1. Parliament can amend any part of the Constitution, including fundamental rights (overruling Golak Nath)
2. BUT Parliament cannot amend the Constitution so as to damage or destroy its basic structure or essential features
3. Article 31C as amended by the 25th Amendment (which gave precedence to Articles 39(b) and (c) Directive Principles over Articles 14, 19, 31) was valid only to the extent that it did not destroy the basic structure
4. The test of every amendment is: does it damage or destroy the identity of the Constitution?

Key Judicial Observations:

• Justice H.R. Khanna: "A Constitution is not a mere legal document to be read as a will or agreement… it is the vehicle of the life of a nation."
• Justice K.K. Mathew: "A living Constitution must be Darwinian in structure and practice."
• CJI Sikri: The basic structure includes the supremacy of the Constitution, republican and democratic form of government, secular character, separation of powers, and federal character.

Principle: Parliament has constituent power to amend any provision of the Constitution, but cannot use that power to abrogate or destroy the basic structure or essential features of the Constitution.

Court: Supreme Court of India — 9-Judge Constitutional Bench

Facts: The question was whether laws placed in the Ninth Schedule after 24 April 1973 (the date of Kesavananda Bharati) are immune from judicial review. The Ninth Schedule, inserted by the 1st Amendment (1951), provides that laws included in it cannot be challenged on the ground of violating fundamental rights.

Issue: Can Parliament use the Ninth Schedule to immunise laws from judicial review if they violate fundamental rights that form part of the basic structure?

Held: Laws inserted in the Ninth Schedule after 24 April 1973 are NOT immune from judicial review if they damage or destroy the basic structure. If the laws in the Ninth Schedule abridge rights under Articles 14, 19, 20, 21 or 25 to 28 in a manner that causes damage to the basic structure, they can be judicially reviewed. The rights test and the essence of rights test must be applied.

Principle: The Ninth Schedule does not provide blanket immunity from judicial review; laws that violate fundamental rights which are part of the basic structure can be struck down.

Court: Supreme Court of India — 9-Judge Bench

Facts: Multiple cases arising from imposition of President's Rule (Article 356) in Karnataka (1989), Nagaland (1988), Meghalaya (1991), and BJP-ruled states after the Babri Masjid demolition (December 1992). The question was: what are the limits on the exercise of power under Article 356? Can the courts review the President's satisfaction?

Issue: What are the circumstances justifying Article 356? What is the scope of judicial review of the President's proclamation?

Held (9-Judge Bench):

1. Federalism is a basic feature of the Constitution — the relationship between the Centre and States is one of coordination, not subordination
2. The President's power under Article 356 is not absolute or immune from judicial review
3. The floor of the legislature is the proper place to test the majority — the Governor should not rush to recommend President's Rule without giving the government an opportunity of floor-test
4. The Supreme Court/High Court can examine whether material before the President was relevant; a proclamation based on irrelevant or mala fide grounds is void
5. Once the proclamation is held unconstitutional, the dismissed government can be reinstated
6. Secularism is part of the basic structure — a state government that acts against the secular fabric of the Constitution can be dismissed under Article 356
7. The dissolution of the State Assembly should be held in abeyance till Parliament approves the proclamation; dissolved assembly cannot be revived but the President should not dissolve it until Parliament's approval

Principle: Article 356 is justiciable; its exercise is subject to judicial review; federalism and secularism are part of the basic structure; floor test is the proper method to test majority.

Court: Supreme Court of India (7-Judge Bench)

Facts: West Bengal challenged the Coal Bearing Areas (Acquisition and Development) Act, 1957, by which the Central Government acquired coal-bearing land in West Bengal. The State argued that it had sovereign rights over the land within its territory and Parliament could not acquire state property.

Held: Indian States are not sovereign entities — the Constitution does not create coordinate sovereignties. Parliament is supreme and has power to legislate on State matters subject to Constitutional provisions. The powers of States are not co-ordinate with the Union and are not in many respects independent. Parliament can acquire state property by legislation. The Indian federation is not a compact of sovereign States.

Principle: Indian States are not sovereign; they were created by the Constitution which grants them limited powers subject to Union supremacy.

Court: Supreme Court of India

Held: The Indian Constitution, while not strictly federal, is predominantly federal in form with certain unitary features. It has established a parliamentary form of government where executive power is exercised by the Council of Ministers collectively responsible to the legislature. The Cabinet system requires that the President/Governor act on the aid and advice of the Council of Ministers.

Principle: India has a parliamentary executive; the President acts on the aid and advice of the Council of Ministers collectively responsible to the House of the People.

Court: Supreme Court of India (8-Judge Bench, Advisory Jurisdiction)

Facts: Under the Nehru-Noon Pact (1958), India agreed to cede Berubari Union (a part of West Bengal) to Pakistan. The question arose whether Parliament had the power to cede Indian territory to a foreign nation, and if so, what procedure was required.

Held: (1) Cession of Indian territory to a foreign State is not covered by Article 3 (which deals only with reorganisation among existing States). Cession requires a constitutional amendment under Article 368. (2) Power to acquire foreign territory is implicit in the sovereign powers of the Union; however, cession requires the full amendment procedure. (3) The Preamble cannot be used to expand legislative power.

Principle: Cession of Indian territory to a foreign nation requires a constitutional amendment under Article 368, not just parliamentary legislation under Article 3.

Held: After the 9th Constitutional Amendment implementing the Berubari decision, Parliament can cede territory. The procedure of constitutional amendment is sufficient; no further ratification by affected state required beyond what Article 368 mandates.

Principle: Once the Constitutional Amendment is validly made, territory can be ceded without further reference to affected States.

Held: Parliament's power under Article 3 is absolute in matters of reorganisation of States; the views expressed by the State legislature are only advisory. Parliament is not bound by the state's views. The constitutional provision for consulting the State Legislature before altering its territory/name is merely procedural — it is consultation, not consent.

Principle: Under Article 3, Parliament need only consult (refer the Bill to) the State Legislature; it is not bound by the State's views or required to obtain its consent.

Court: Supreme Court of India

Facts: After the UPA government came to power in 2004, several Governors appointed by the NDA government were asked to resign. They challenged their removal.

Held: (1) The Governor holds office during the pleasure of the President, which means at the pleasure of the Central Government. (2) The power to remove a Governor is not absolute — it cannot be exercised arbitrarily, capriciously, or for political reasons. (3) The reason for removal need not be disclosed, but the removal must not be capricious. (4) Governors cannot be removed just because there is a change in the government at the Centre.

Principle: While Governors hold office at the President's pleasure, they cannot be removed arbitrarily or solely on political grounds.

Court: Supreme Court of India (7-Judge Bench)

Facts: Question arose whether the Governor must act on the aid and advice of the Council of Ministers when exercising all his functions, including those relating to appointment and dismissal of judges of the subordinate judiciary.

Held: The President and Governor are constitutional heads who must act on the aid and advice of the Council of Ministers in all matters EXCEPT where the Constitution expressly or by necessary implication requires them to act in their own discretion. India has a cabinet system — the President and Governor are figureheads; real executive power vests in the Cabinet. This is the basic postulate of constitutional government in India. Exceptions: situations where the Governor acts in personal discretion include appointment of CM when no majority is clear, dismissal of government that has lost majority, dissolution of Assembly, etc.

Principle: In India's parliamentary democracy, the President and Governor must always act on Cabinet advice except in the limited areas of personal discretion expressly provided.

Court: Supreme Court of India — 5-Judge Constitutional Bench

Facts: Conflict arose between the elected Government of Delhi and the Lieutenant Governor (LG) appointed by the Centre over various governance issues including postings and transfers of IAS officers, prosecution sanction, and other matters. The question was the nature of Delhi's special status under Article 239AA and the powers of the elected government vis-à-vis the LG.

Held: (1) The LG of Delhi is bound by the aid and advice of the Council of Ministers of Delhi on all matters except land, police, and public order. (2) The elected government of Delhi has real executive powers in its designated areas; the LG cannot act independently. (3) Collaborative federalism — even Union Territories with legislatures deserve democratic governance. (4) Constitutional morality requires that constitutional authorities function within their prescribed domains. (5) The LG does not have independent decision-making power; differences must be referred to the President, not resolved unilaterally by the LG.

Principle: Elected government of Delhi has genuine executive authority; the LG is not a governor with overriding powers but must act on the advice of the Council of Ministers in most matters.

Held: The pardoning power under Articles 72 and 161 is executive power but subject to judicial review. It cannot be exercised arbitrarily, mala fide, or on wholly irrelevant grounds. Pardon cannot be granted for political reasons or personal favouritism. The Governor's pardoning power (Article 161) is confined to offences against State law — there is no power to pardon death sentences.

Principle: Pardoning power is justiciable; exercise on irrelevant, capricious, or mala fide grounds is subject to judicial review.

Held: Section 8(4) of the Representation of the People Act, 1951, which allowed convicted MPs/MLAs to continue in office during the period of appeal, is unconstitutional. Article 102(1)(e) read with Article 101(3)(a) mandates that a sitting member of Parliament who is convicted and sentenced to imprisonment for 2 or more years shall be immediately disqualified, without any grace period pending appeal. Parliament cannot by law override the constitutional mandate.

Principle: Conviction and sentence of 2+ years immediately disqualifies a sitting MP under Article 102; Parliament cannot provide a grace period during appeal.

Held: A person convicted of an offence involving moral turpitude and sentenced to more than 2 years cannot be appointed as Chief Minister. The Governor was wrong to swear in J. Jayalalithaa (convicted in a corruption case) as Chief Minister. A disqualified person cannot be appointed CM; constitutional morality requires that public offices be held by persons who meet constitutional qualifications.

Principle: A person who is disqualified from being a member of the legislature cannot be appointed as Chief Minister — constitutional morality prevails over political convenience.

Court: Supreme Court of India (7-Judge Bench)

Facts: Keshav Singh, a non-member, was committed for contempt by the UP Legislative Assembly. He obtained a habeas corpus from a Single Judge of the Allahabad High Court. The Assembly then summoned the Judge and his advocates for breach of privilege. The matter was referred to the Supreme Court under Article 143.

Held: (1) The privileges of the legislature under Article 194 are subject to the fundamental right to personal liberty under Article 21. (2) High Courts have power to issue writs including habeas corpus even against the orders of the legislature when personal liberty is at stake. (3) The legislature cannot punish a judge for issuing a writ — that would amount to contempt of the court's jurisdiction. (4) Parliamentary privilege is not absolute; it is subject to judicial review when fundamental rights are violated.

Principle: Legislative privilege is not absolute; the High Court has jurisdiction to issue habeas corpus even against the legislature's orders when personal liberty is infringed.

Court: Supreme Court of India (5-Judge Bench)

Facts: Several MPs were expelled from Parliament following the "cash for questions" sting operation. They challenged their expulsion before the Supreme Court.

Held: (1) The expulsion of MPs by the House is a matter of Parliamentary privilege and the exercise of that privilege is generally not subject to judicial review. (2) However, judicial review is available in exceptional circumstances — e.g., when fundamental rights are violated, or when the action is wholly perverse. (3) Parliament is the appropriate body to decide on matters of its privilege; courts should exercise restraint. (4) The power to expel a member is an essential attribute of legislative privilege but must not be exercised arbitrarily.

Principle: Expulsion of MPs is generally within Parliamentary privilege and not subject to judicial review, except when fundamental rights are violated.

Court: Supreme Court of India

Facts: The Bihar Government had been re-promulgating Ordinances repeatedly without placing them before the State Legislature. Some Ordinances had been re-promulgated for as many as 14 years. Dr. D.C. Wadhwa, a professor of political science, filed a PIL challenging this practice.

Held: (1) The power to promulgate Ordinances is an exceptional power to be used when Parliament/Legislature is not in session and immediate action is necessary. (2) Re-promulgation of the same Ordinance repeatedly to bypass the legislature is a fraud on the Constitution and subversive of the democratic process. (3) The legislature's power to pass or reject a law cannot be bypassed by the executive through re-promulgation. (4) Such re-promulgation is unconstitutional and can be struck down by courts.

Principle: Re-promulgation of ordinances to avoid legislative scrutiny is a fraud on the Constitution and unconstitutional — executive cannot bypass the legislature by this device.

Court: Supreme Court of India — 7-Judge Bench

Facts: The Bihar government repeatedly re-promulgated ordinances relating to takeover of Sanskrit schools. The courts were asked whether an Ordinance promulgated and then lapsed without being placed before the legislature has the status of law for the period it operated.

Held (7-Judge Bench): (1) An Ordinance is primary legislation with the same force as an Act of Parliament, but it is not permanent — it has a temporary life. (2) An Ordinance that has ceased to operate (expired without being laid before Parliament) does not revive rights/liabilities that arose under it — unless it has been saved by saving provisions. (3) Re-promulgation is constitutionally impermissible — it is an abuse of power, a fraud on the Constitution. (4) The satisfaction of the President/Governor must be real and genuine; courts can examine whether satisfaction is based on relevant material. (5) An Ordinance under Article 123 is subject to judicial review on grounds of mala fides or absence of relevant material.

Principle: An expired Ordinance does not confer vested rights; re-promulgation is unconstitutional; judicial review of Presidential satisfaction is available on grounds of mala fides.

Held: An Ordinance is subject to the same constitutional limitations as an Act of Parliament — it cannot violate fundamental rights. The President's satisfaction is justiciable to a limited extent — courts can examine if the President acted on relevant and adequate grounds. An Ordinance promulgated during a legislative session of one House (when only one House is not in session) is valid — both Houses need not be in recess simultaneously if only one is in recess and immediate action is needed.

Principle: An Ordinance cannot abridge fundamental rights and is subject to limited judicial review; Presidential satisfaction must be based on relevant material.

Court: Supreme Court of India (7-Judge Bench)

Issue: What is the meaning of "consultation" in Articles 124(2) and 217(1)? Is the opinion of the Chief Justice of India binding on the government?

Held: "Consultation" in Articles 124(2) and 217(1) does not mean "concurrence". The Government is not bound by the views of the CJI. The executive has the final say in appointments. Doctrine of non-justiciability of transfer of judges was also laid down.

Principle (First Judges Case): The executive (Government of India) has primacy in judicial appointments; CJI's opinion is consultative, not binding.

Court: Supreme Court of India (9-Judge Bench)

Held: Overruled the First Judges Case. "Consultation" with the CJI under Articles 124(2), 217(1), and 222(1) means concurrence. The CJI's opinion has primacy in judicial appointments. The CJI must consult a collegium of the 2 senior-most judges of the Supreme Court before making a recommendation. The executive cannot appoint a judge without the CJI's concurrence. If the CJI does not consult his senior colleagues, the appointment would be invalid.

Principle (Second Judges Case): CJI has primacy in judicial appointments; "consultation" means "concurrence"; Collegium of CJI + 2 senior judges makes recommendations.

Court: Supreme Court of India (9-Judge Bench, Advisory Jurisdiction)

Facts: President referred questions to the Supreme Court under Article 143 to clarify the Second Judges Case — specifically regarding the size of the Collegium and process for appointments.

Held (Third Judges Case): The Collegium for Supreme Court appointments consists of the CJI + 4 senior-most judges of the Supreme Court. For High Court appointments, the CJI consults 2 senior-most judges. Seniority of High Court judges should be considered for SC appointments. Government can return a recommendation once, but if the Collegium reiterates, the Government is bound to appoint. The CJI's opinion must reflect the consensus of the collegium, not just his individual view.

Principle (Third Judges Case): Collegium of CJI + 4 senior judges recommends SC appointments; Government can return once but must appoint if Collegium reiterates.

Court: Supreme Court of India — 5-Judge Bench

Facts: The 99th Constitutional Amendment (2014) and the National Judicial Appointments Commission (NJAC) Act, 2014 sought to replace the collegium system with a 6-member NJAC (CJI, 2 senior SC judges, Law Minister, 2 eminent persons). This was challenged as violating the independence of judiciary — a basic structure element.

Held: By 4:1 majority, the 99th Constitutional Amendment and NJAC Act were struck down as unconstitutional. Independence of judiciary is part of the basic structure of the Constitution. The NJAC gave the executive (Law Minister) and lay persons a veto over judicial appointments, which violated judicial independence. The collegium system was restored.

Principle: Independence of judiciary is a basic structure element; legislation giving the executive a role in judicial appointments that compromises judicial independence is unconstitutional.

Held: Even after review petitions are dismissed, in exceptional circumstances a "curative petition" can be filed before the Supreme Court. A curative petition will be entertained only when: (1) it is certified by a senior advocate; (2) there has been a violation of principles of natural justice — the petitioner was not heard despite being a party; or (3) a judge who participated in the judgment had a conflict of interest. The curative petition is heard by the 3 senior-most judges of the SC and the judges who passed the impugned judgment. This is the final remedy.

Principle: A curative petition is the final recourse after review is dismissed — available only for serious natural justice violations or judicial conflict of interest.

Court: Supreme Court of India (Justice P.N. Bhagwati)

Facts: Bandhua Mukti Morcha (an NGO) filed a writ petition on behalf of bonded labourers in stone quarries in Haryana, through a letter to the Supreme Court. The petitioner had conducted a survey but could not physically produce all bonded labourers.

Held: (1) A letter written to a judge can be treated as a writ petition. (2) Any member of the public can approach the court for enforcement of constitutional rights of persons who cannot do so themselves. (3) In a PIL, the court can appoint commissioners to investigate facts. (4) Article 21 includes the right to live with dignity — the right against bonded labour is a fundamental right. (5) The state is under a constitutional obligation to abolish bonded labour.

Principle: PIL relaxes locus standi; courts can treat letters as writ petitions; the right to live with dignity and against bonded labour is part of Article 21.

Held: The Supreme Court, while exercising jurisdiction under Article 32, can award monetary compensation for violation of fundamental rights. Rudul Sah was illegally detained for 14 years after his acquittal. The Court awarded compensation — establishing that Article 32 is not merely a declaratory remedy; it is a complete remedy including compensation.

Principle: The Supreme Court can award monetary compensation under Article 32 for violation of fundamental rights — Article 32 is a complete remedy.

Held: The power of judicial review vested in the High Courts under Article 226 and in the Supreme Court under Article 32 is a part of the basic structure of the Constitution. Parliament cannot exclude this jurisdiction by creating tribunals. The judicial review power of constitutional courts (SC and HCs) cannot be taken away even by constitutional amendment. All tribunals must be subject to superintendence of High Courts under Article 227 and appellate jurisdiction of High Courts.

Principle: Judicial review under Articles 32 and 226 is a basic structure element and cannot be abridged; all tribunals are subject to HC superintendence.

Held: The Bihar Sales Tax Act, which imposed sales tax on sales that had a situs partly outside Bihar, was valid. The doctrine of territorial nexus requires only that there be a real and sufficient connection between the State and the subject matter/person — it need not be the only connection. A law made by a State is not invalid merely because it has some impact on persons or property outside the State, as long as the nexus is real.

Principle: The test for territorial nexus is whether there is a real and substantial connection between the State and the subject matter — not whether all elements are within the State.

Held: Parliament's law-making power under Article 245(1) extends to extra-territorial matters if they have a real and proximate nexus with India. However, Parliament cannot make laws with respect to a foreign country without any connection to India. The test is whether the subject matter of the law has a sufficient nexus with India.

Principle: Parliament's extra-territorial legislation must have a real and proximate nexus with India; it cannot regulate purely foreign matters with no Indian connection.

Court: Privy Council

Facts: The Bengal Money-Lenders Act, 1940, limited the amount recoverable by a money-lender. Banks holding promissory notes challenged it as being in the domain of Federal legislative power (bills of exchange, banking).

Held: All courts had found that in pith and substance the Bengal Money-Lenders Act was a law relating to money-lenders and money-lending — a provincial subject. Even though it incidentally touched upon promissory notes and banking (federal subjects), the Act was valid because its true nature and character was regulation of money-lenders. A law may incidentally encroach on another list without being ultra vires if its pith and substance is within the legislature's competence.

Principle: Pith and substance test — look at the true nature and character of the legislation; incidental encroachment on another list does not invalidate the law.

Held: The doctrine of pith and substance applies when determining which list a law belongs to. One must look at its true nature and effect — not merely its form or title. A law regulating loudspeakers for health reasons was upheld as being in pith and substance a law about public health (State List), not about broadcasting (Union List).

Principle: The true nature of a law is determined by its dominant purpose and effect, not its label or incidental effects.

Court: Federal Court of India

Held: When two legislative entries appear to overlap, the proper approach is first to try harmonious construction — to read them as covering different aspects of the same subject. The enumerated subjects in the legislative lists must be given their fullest possible meaning (plenary power). Ancillary or incidental powers are implied in each legislative entry.

Principle: Legislative entries must be construed broadly; plenary and ancillary powers are inherent; harmonious construction should be preferred to avoid conflict.

Held: "Education" is in the Concurrent List (Entry 25). Matters relating to "coordination and determination of standards in institutions for higher education" are in the Union List (Entry 66). The court applied harmonious construction to hold that medium of instruction in universities falls partly under Entry 66 (Union) when it affects standards of higher education, and partly under Entry 11 (State) for general university administration. State legislation imposing Gujarati/Hindi as exclusive medium was invalid to the extent it encroached on Entry 66's domain.

Principle: Where two entries overlap, courts must harmoniously read them — one entry may limit another; medium of instruction can fall under both Union and State competence depending on its impact on educational standards.

Facts: The Orissa Agricultural Income Tax (Amendment) Act, 1950 was challenged. It was argued that the actual effect of the Act was to confiscate property — which the State could not do directly — under the guise of an amendment to agricultural income tax legislation.

Held: If a legislature lacks power to legislate on a subject, it cannot achieve the same result by legislating on a different subject that achieves the same effect — this is colourable legislation. However, the court must look at the true nature and character of the legislation. If the legislation is genuinely on a permitted subject, the fact that it causes hardship or achieves some indirect effect does not make it colourable. The test is the intent of the legislature: is it trying to achieve indirectly what it cannot do directly?

Principle: Colourable legislation — what cannot be done directly cannot be done indirectly; courts look at true intent and substance, not form.

Held: The method for determining whether residuary power under Article 248 has been properly invoked is: (1) Is the subject matter of the law in List II (if yes, Parliament has no competence)? (2) Is it in List III (if yes, Parliament has concurrent competence)? (3) If it is not in either List II or III, Parliament has residuary competence under Article 248. There is no need to see whether the matter falls in List I — if it's not in List II or III, residuary power covers it.

Principle: Residuary power test — if the subject is not in List II or List III, it is in Parliament's residuary power; there is no residuary power with States.

Held: On a question under Article 254(1) whether a Parliamentary law prevails over a State law, no question of repeal arises. The repugnant State law is merely void to the extent of repugnancy. Under Article 254(2), if the State law received Presidential assent, it prevails — but Parliament may subsequently re-enter the field. If Parliament's later law covers the same matter, the principle that a later law supersedes an earlier one in the same subject applies.

Principle: Repugnancy under Article 254 renders State law void to the extent of conflict; Article 254(2) is a limited exception requiring Presidential assent.

Held: The surcharge levied under the Bihar Finance Act on sales tax was a State law under Entry 54 of List II. The Essential Commodities Act (Parliament) operated in a different field (regulation of prices of essential commodities under Entry 33 of List III). Since both laws could operate in their respective fields without conflict, there was no repugnancy. The existence of a non-obstante clause in the Central law does not create repugnancy unless there is actual inconsistency. Harmonious operation of Central and State laws is preferred.

Principle: Repugnancy requires an actual, real conflict between Centre and State laws — parallel operation in different fields does not create repugnancy.