CONSTITUTIONAL LAW II

FEDERALISM – Comes from the Latin foedus which means a treaty or agreement
and denotes a single, new political entity created by a contractual union of previously
separate units; these constituent units may be styled states (United States), cantons
(Switzerland), provinces (Canada) or republics (Russia). Federations arise in two principal
ways: by integration, where several independent but often weak or small polities voluntarily
unite to form a stronger federal whole (the classic example being the United States after the
Revolution), and by disintegration, where a formerly unitary polity devolves authority to its
provinces or regions to accommodate regional aspirations and thus becomes a federation
(Canada being a paradigmatic case). Federalism as a system of government therefore
describes a constitutional arrangement in which sovereign authority is divided between a
central government and constituent governments, each level possessing independently
exercisable powers where the centre typically retains subjects of national concern while
provinces or states manage local, day-to-day administration. Key legal features implied by
this description are a written constitution that entrenches the allocation of powers, dual levels
of government with constitutionally guaranteed autonomy, and institutional mechanisms
(often an independent judiciary and inter-governmental forums) to resolve conflicts of
competence all of which distinguish a federation from a unitary or simply decentralized state.
The United States (federal Constitution of 1787, model federation) and Canada
(Confederation of 1867) are historically important exemplars.

Dr. B.R. Ambedkar’s Speech in the Constitution

• Dr. B.R. Ambedkar began his final speech to the Constituent Assembly by reflecting on
the monumental journey of Constitution-making. The Assembly, which had its first
session on 9th December 1946, worked tirelessly for 2 years, 11 months, and 17 days,
convening 11 sessions, of which 114 days were devoted solely to the Draft Constitution.
The Drafting Committee, elected on 29th August 1947, worked for 141 days. From the
initial 243 articles and 13 schedules in the draft prepared by the Constitutional Adviser,
the final Constitution ballooned to 395 articles and 8 schedules, and had to grapple with a
staggering 7,635 proposed amendments, 2,473 of which were actually debated and
moved. Ambedkar’s response to allegations that the process had been too slow and
wasteful, likened by critics to “Nero fiddling while Rome burned.” He sharply rebutted
such claims by comparing India's task with other countries Australia took 9 years, Canada
over 2 years, while others like the U.S. and South Africa had much smaller Constitutions
with far fewer amendments. He defended the Assembly’s diligence, stating that India’s
complex diversity and unique challenges required such an exhaustive process.
• He then responded to personal and ideological criticisms most notably those from
Naziruddin Ahmed, who ridiculed the Drafting Committee, calling it the “Drifting
Committee.” Ambedkar clarified that even when the Committee changed course, it did so
 with “mastery,” not confusion. True drafting, he insisted, is not stubbornness but the
ability to evolve. He credited his colleagues like Sir Alladi Krishnaswami Ayyar and S.N.
Mukherjee, the Chief Draftsman, and the Congress Party for maintaining internal
discipline and political coherence during the debates. However, he also appreciated
members who challenged the Constitution ideologically, such as Dr P.S. Deshmukh and
Prof. K.T. Shah, as it allowed for a deeper examination of fundamental principles.
• The most vocal critics, he said, were the Communist and Socialist Parties. The
communists condemned the Constitution because it did not embody the “dictatorship of
the proletariat,” i.e., the working class as the ruling class. In their view, the parliamentary
democratic model was inadequate to achieve true class emancipation. The socialists,
meanwhile, objected on two counts: first, that the Constitution did not allow for
nationalisation or socialisation of private property without compensation; and second, that
fundamental rights were not absolute and unrestricted, which they felt limited their
capacity to overthrow or radically challenge the system if they were not in power.
Ambedkar acknowledged these critiques, but pointed out that a Constitution must reflect
the will of the present generation, not the aspirations of fringe ideologies. He argued that
this was not the Constitution of the Drafting Committee, but of the Constituent Assembly
wholly, considering all ideological position before settling on a balanced framework.
• He quotes Thomas Jefferson, asserting that each generation has the right to remake its
laws and institutions, and no generation should bind the next. The Indian Constitution,
unlike that of America or Australia, did not make itself rigid or sacred. Instead, it included
a facile and straightforward amendment process, allowing any future political majority to
reshape the document as needed. He challenged critics to muster just a two-thirds
majority a simple enough task in a parliamentary democracy to amend anything they
disliked. Over 100 amendments, even before India had become a republic, stood as proof
that the Constitution was not immutable or authoritarian. With a two-thirds parliamentary
majority, any group dissatisfied with the Constitution could modify it.
• On the question of federalism, Ambedkar tackled head-on the critique that the Indian
Constitution was too “centralized” and that states were reduced to municipalities. He
clarified that, by definition, federalism means a constitutional division of legislative and
executive powers, not one based on ordinary legislation. In India, states derive their
powers directly from the Constitution, not from the mercy of the Union Parliament.
Hence, they are co-equal in origin. However, he admitted that the Constitution does grant
overriding powers to the Union in emergencies, and that residuary powers rest with the
Centre which were deliberate choices made for India’s specific historical and
administrative context. He emphasized that the overriding powers were not the norm but
the exception, applicable only during emergencies, and even then were justified to ensure
the integrity and unity of the nation. He cited the Round Table Journal to argue that in
times of crisis, ultimate allegiance must lie with a single sovereign authority in India’s
case, the Centre.
• In a subtle critique of Gandhi’s ideal of rural self-governance, Ambedkar made a striking
statement villages were not the future, but the past, and they were bastions of caste
 oppression, patriarchy, and inequality. He rejected the notion that rural panchayats were
inherently democratic; instead, they entrenched traditional hierarchies. His vision for
India was not to preserve antiquated village systems, but to build a modern, egalitarian,
democratic society rooted in the rule of law and constitutional morality.
• As India prepared to become a Republic on 26th January 1950, he asked, Will India
maintain her independence, or lose it again? He cautioned against a recurrence of past
betrayals, pointing to how Indian rulers had historically aided foreign invaders from
Jaichand inviting Ghori to Rajputs siding against Shivaji. Castes, regional loyalties, and
political parties, he warned, could once again fracture national unity. Creed and caste, he
feared, often overpowered the idea of India. And if political parties prioritised ideology
over nationhood, India’s independence could vanish overnight.
• Ambedkar then raised a second and equally terrifying possibility: what if democracy itself
did not survive? He reminded the Assembly that India had once known republican forms
ancient sanghas and assemblies observed rules of parliamentary procedure, including
quorums, motions, and voting. Democracy was not foreign to India, but had long died
out. He feared it might die again. The Constitution may ensure one person, one vote, but
India lacked the social foundation to support democracy. A mere political democracy,
without social and economic democracy, was a contradiction he found intolerable.
• He thus laid out three urgent prescriptions. First, abandon unconstitutional methods like
satyagraha, civil disobedience, and revolution. These methods, once valid under colonial
rule, were now anarchic in a democracy. He called them the “grammar of anarchy” and
insisted that constitutional methods must now be the only recourse. Second, he warned
against Bhakti and hero worship, especially in politics. India, he said, was uniquely
vulnerable to this, and while Bhakti in religion may lead to salvation, in politics it leads
only to dictatorship. Liberty must never be sacrificed at the altar of loyalty. Third, he
urged that India must transform political democracy into social democracy. That means
creating a society based on liberty, equality, and fraternity not as separate values, but as
an indivisible trinity. Liberty without equality breeds oligarchy; equality without liberty
kills freedom; and without fraternity, both are hollow shells.
• Ambedkar pointed out that India, in 1950, will live a life of contradiction. Politically, it
will be equal one man, one vote, one value. But socially and economically, inequality will
persist a society of “graded inequality” and concentration of wealth eventually exploding
the very structure of democracy. He further lamented India’s lack of fraternity, asserting
that caste has divided Indians too deeply to make them feel like one people. India is not
yet a nation, and only when castes are dismantled, can fraternity emerge. Without
fraternity, equality and liberty will remain cosmetic. Now that we are independent, he
warned, we can no longer blame the British. If the new system fails, the fault will be ours.
With rising ideologies and waning public faith in democracy, he feared people might opt
for government for the people, rather than by the people. That shift would spell the end of
democracy. The only way to prevent this, he said, was to be vigilant, recognise the social
evils that weaken the system, and act courageously to reform them. That is how, we serve
the country best.
THE FEDERAL SCHEME – Mahendra Pal Singh
• India’s federal structure, while often labelled as quasi-federal or centrally tilted, is built
on the foundational idea of power-sharing between two levels of government: the Union
and the States. Unlike a pure unitary system, where the central authority is supreme and
regional units are merely administrative conveniences, a federal structure presupposes
dual sovereignty, autonomy, and a constitutionally enshrined distribution of powers.
However, as the framers of the Indian Constitution grappled with India's historical
fragmentation, colonial legacy, and need for national unity, they adopted a framework that
was neither strictly federal nor completely unitary.
• Dr. B.R. Ambedkar, in his final Constituent Assembly speech, directly acknowledged that
India’s Constitution is federal in structure but includes provisions that allow the Union to
override the States, especially in emergencies. He did not deny that there is too much
centralisation, but rather justified it as a necessary feature for India’s survival as a plural,
post-partition democracy. He clearly stated that this is not a universal feature of
federalism, but one deliberately built into Indian federalism.
• To understand this further, we begin with the basic distinction between central and
regional governments. In India, both Union and State governments derive their authority
directly from the Constitution and not from one another so both are co-equal in
constitutional origin. However, Conrad’s classic observation, that “the Indian Constitution
creates a unitary state with subsidiary federal features,” still rings true for many. The
Union is not merely a coordinating agency but the dominant player, particularly during
crises. Ambedkar’s federalism was one where the Union prevails, a design born of
distrust in regional elites and the urgent need to maintain integrity after Partition. Unlike
in the U.S., where states are prior and the Union was created by their compact, in India,
the Union is prior, and the states are its creation.
• Distribution of Legislative Powers begins with Article 245, which affirms that Parliament
may legislate for the entire territory of India while State legislatures can make laws for
the whole or part of the State. This principle of territoriality affirms a clear spatial
boundary to legislative powers, but these boundaries are quickly complicated by Article
246, which distributes subjects into the Union List (List I), State List (List II), and
Concurrent List (List III). In practice, however, Article 246 lacks clarity when conflicts
arise. The Union List contains 97 subjects, including critical areas such as defence,
foreign affairs, and atomic energy, whereas the State List has 66 subjects like public
order, police, and agriculture.
• The Concurrent List, which both Centre and States can legislate on, further dilutes
federalism because Article 254 gives overriding power to the Union in case of conflict.
Moreover, the Centre retains residuary legislative powers under Article 248, which
empowers it to legislate on any matter not mentioned in any of the lists is an inversion of
classical federal logic where such powers typically belong to the States. These exceptions
mean that the doctrine of pith and substance, though meant to maintain legislative
boundaries, often results in courts siding with the Centre, as seen in cases like State of
 West Bengal v. Union of India (1963), where the Court affirmed that the Centre can
acquire state property for Union purposes, again affirming the supremacy of the Union.
• On executive powers, Article 73 vests executive power in the Union coextensive with its
legislative power. Article 162 does the same for States. But in practice, Union executive
power often seeps into State domains. Through Articles 256 and 257, the Union can direct
State governments to implement Union laws, and can even give directions for how State
executive power should be exercised in certain situations. In particular, Article 257(2)
allows the Union to give directions on the construction and maintenance of means of
communication again showcasing the creeping nature of central authority.
• Judicial powers reinforce this centralisation. The Supreme Court acts as the ultimate
interpreter of the Constitution, and its jurisdiction includes not only the Union but also
disputes between States and the Centre under Article 131. High Courts, though
independent, exist under a unitary judiciary. There is no dual system of courts, unlike in
the U.S. Hence, India has a single integrated judicial hierarchy, which again reduces the
structural autonomy of States. Furthermore, when constitutional interpretation is
involved, centralised judicial review often results in federal questions being decided from
a Union perspective.
• Financial powers represent perhaps the most centralised domain. The Union collects the
bulk of taxes, and States remain largely dependent on grants and devolution
recommended by the Finance Commission. Although Article 280 constitutionally
mandates the Finance Commission, its recommendations are not binding. Earlier, the
Planning Commission, which had no constitutional basis, played a powerful role in
shaping state development through centrally funded schemes. In recent years, the NITI
Aayog has replaced the Planning Commission, but the same asymmetry continues. Even
after the 14th Finance Commission raised the states’ share in central taxes to 42%, States
continue to demand greater fiscal autonomy. The shift from plan-based transfers to
market-linked mechanisms has pushed CMs to bargain directly with the Centre or through
inter-state councils a sign of emerging “bargaining federalism.”
• In this context, the Supremacy of the Constitution becomes a crucial anchor. Ambedkar
warned against hero worship, arguing that constitutional morality must always override
personal charisma. He feared that blind devotion to leaders, especially in a country with
traditions of bhakti, would weaken democracy and hollow out constitutional structures.
His critique applies just as much to religious fundamentalism and populist nationalism as
to legal formalism. Constitutional supremacy must not become legal idolatry but should
be grounded in democratic ideals and continuous public engagement. There’s an ongoing
tension between formalism (viewing the Constitution as static, sacred text) and realism
(seeing it as a living document subject to interpretation, politics, and social movement).
• Dispute Resolution Mechanism is addressed through Article 131, which allows States to
sue the Union over disputes of law and fact, though this is used rarely. In the past, cases
such as State of Rajasthan v. Union of India (1977) demonstrated the limitations of this
mechanism, as the judiciary often sided with the Centre. The resolution mechanism
remains procedural, not political.
• Now turning to the centralised character of Indian federalism, the identity of States has
been repeatedly reshaped by Parliament. The State Reorganisation Act, 1956,
fundamentally altered state boundaries based on linguistic lines. Since then, India has
seen the creation of new states like Chhattisgarh, Jharkhand, Telangana, and Uttarakhand.
Under Article 3, the Union Parliament can create, dissolve, or alter state boundaries with
only the State Assembly’s recommendation, not consent. This reflects the absence of
equal constitutional status for States, unlike the U.S., where each state enjoys structural
inviolability. Moreover, while India grants single citizenship, and the Rajya Sabha
provides states representation, this does not amount to state nationality—a conceptual
marker of federal balance.
• Legislative Competence and Property Rights remain contested. The Supreme Court in
Kesavananda Bharati confirmed Parliament’s power to amend the Constitution, including
federal features, but not to destroy the basic structure. Yet, the Court has often upheld
Central laws encroaching upon state subjects, especially under the doctrine of national
interest. During emergencies (Article 352, 356, 360), Parliament can legislate on state
subjects and even suspend state governments a drastic erosion of federal principles. In the
case of S.R. Bommai v. Union of India (1994), the Court laid down safeguards against the
misuse of President’s Rule, marking a rare moment of judicial pushback.
• Regional Emergencies, under Article 356, have been used extensively in India’s early
post-Independence period, especially during the Nehru and Indira Gandhi eras. Over 100
instances of President’s Rule prior to the 1990s have marred the federal character of the
polity. States ruled by opposition parties were routinely dismissed on the pretext of
breakdown of constitutional machinery. Though the Bommai judgment brought some
discipline, the provision continues to be a sword hanging over the head of state
governments. It reflects pragmatic federalism, designed to hold together a vast, diverse
nation, but at the cost of true autonomy. The model has often prioritised unity over
diversity, nation-building over decentralisation. Yet, this balance is not fixed.
• Supplementary critiques show that post-1989, Indian federalism has undergone a
transformation. The decline of the Congress monopoly, emergence of regional parties,
and coalition governments have given Chief Ministers unprecedented bargaining power.
The marketisation of the economy reduced the need for planned funding and increased
state demands for revenue autonomy and policy discretion. States like Tamil Nadu,
Gujarat, and West Bengal have increasingly taken bold positions on economic, cultural,
and linguistic grounds. The GST Council, while a model of cooperative federalism, has
also led to new intergovernmental frictions.
• Hence, we are witnessing the evolution of post-liberalisation federalism, where the earlier
model of centralised, planned, Congress-dominated federalism is giving way to a more
asymmetric, multi-party, and competitive model. This shift is marked not only by
institutional changes, but by a deepening of political negotiation and federal contestation.
Whether this strengthens or weakens India’s unity remains to be seen, but it undoubtedly
reclaims some lost space for the States in the constitutional conversation.
ASYMMETRIC FEDERALISM – LOUISE TILLIN
• The Constitution imparts differential rights to certain states and regions, recognising their
unique historical, cultural, political, and geographical contexts. These differential rights
are not merely symbolic they are embedded in substantive constitutional provisions that
grant certain units greater autonomy in legislative, executive, and sometimes judicial
spheres compared to others. This results in an asymmetrical distribution of powers,
creating distinctions in how the Union interacts with different states. The aim is to
accommodate diversity, integrate politically sensitive regions, and address historical
agreements, while maintaining the overarching unity of the Republic.
• This brings us to the significance of asymmetric federalism in India. In contrast to
symmetrical federalism, where all constituent units possess identical powers and status
under the Constitution, asymmetric federalism deliberately grants varying degrees of
autonomy to different units. This model, while maintaining the principle of unity,
recognises that some regions require special arrangements due to historical treaties, socio-
political movements, ethnic diversity, or security concerns. In India, asymmetric
federalism is manifested in special constitutional provisions for Jammu & Kashmir
(earlier under Article 370), the Sixth Schedule’s autonomous councils in the Northeast,
and other state-specific arrangements under Articles 371–371J.
• One important feature of asymmetric federalism is centre–region bargaining. This is not a
one-time grant of powers, but an ongoing process where states and the Centre negotiate
over the scope and implementation of autonomy. For example, Nagaland’s autonomy
under Article 371A was the outcome of extended negotiations between the Union and
Naga political leadership, while Mizoram’s special provisions emerged from the Mizo
National Front (MNF) Accord after years of insurgency. Such bargaining reflects a
political compact autonomy is both a constitutional promise and a political tool to secure
integration and peace.
• However, asymmetry inevitably creates tension. It can generate resentment among other
states that lack similar privileges, or dissatisfaction within the special-status states if they
perceive erosion of their powers. In India, such tensions have appeared in debates over
resource sharing, demands for greater devolution, and accusations that the Centre has
unilaterally diluted constitutional guarantees—most dramatically seen in the abrogation
of Article 370 in 2019. These tensions underline that asymmetric federalism is inherently
dynamic, contested, and politically fragile.
• The powers imparted under asymmetrical arrangements vary: they may include control
over land and natural resources, exemption from certain central laws, protection of
customary laws, and the ability to maintain distinct administrative structures. In some
cases, such as the Sixth Schedule, the units also exercise quasi-legislative and quasi-
judicial functions. Importantly, autonomous units have representation and voting rights in
Parliament, meaning they are part of national decision-making even while retaining
distinct constitutional privileges reinforcing that asymmetry exists within the overarching
Union framework.
• Among constitutional provisions, the most famous (and now contentious) is Article 370,
which granted special status to Jammu & Kashmir. Adopted due to the unique
circumstances of the state’s accession to India, Article 370 allowed J&K its own
Constitution and substantial autonomy, with the Union’s legislative power limited to
defence, foreign affairs, and communications unless extended with the state’s
concurrence. The provision was intended to be temporary, but persisted for decades,
becoming a symbol of both federal accommodation and political dispute. Its legal status
was affirmed repeatedly by courts, including in Sampat Prakash v. State of J&K (1969),
which held that Article 370 could not be abrogated without the state’s Constituent
Assembly’s recommendation a body that ceased to exist in 1957. However, in August
2019, the Union effectively abrogated Article 370 through a reinterpretation of the
“Constituent Assembly” requirement, replacing it with the State Legislative Assembly
(then under President’s Rule) and reorganising J&K into two Union Territories. This
move is under constitutional challenge before the Supreme Court, raising fundamental
questions about whether asymmetry can be unilaterally removed.
• Fifth Schedule governs the administration of Scheduled Areas in states other than the
Northeast, providing for Tribal Advisory Councils and restrictions on the transfer of tribal
lands. The Sixth Schedule, applicable to certain areas in Assam, Meghalaya, Tripura, and
Mizoram, creates Autonomous District Councils (ADCs) with powers to make laws on
land, forests, water, and customary practices. These councils have substantial legislative
and judicial authority, even to the extent of overriding state laws in their domains. Yet,
political disagreements have emerged, for instance, the Nagas have historically resisted
inclusion under the Sixth Schedule, viewing it as incompatible with their demand for full
sovereignty and the terms of the 1952 agreement.
• Judicial interpretations have also been contentious. In T. R. Coelho v. State of Tamil Nadu
(2007), though not directly about the schedules, the Court reaffirmed that no
constitutional provision even those granting special powers can be beyond the reach of
the basic structure doctrine. In the context of the Sixth Schedule, cases like State of
Assam v. Ranga Muhammad (1967) have tested the limits of ADC powers versus state
authority. Courts have tended to uphold Union supremacy while recognising the
legitimacy of the councils’ autonomy.
• Beyond these, Articles 371 to 371J lay down special provisions for individual states.
These include intra-state equity provisions, such as Article 371D for Andhra Pradesh (and
Telangana), ensuring equitable opportunities in public employment and education across
different regions of the state. The legal standing of such provisions has been upheld by
courts, though always balanced against fundamental rights. In the Northeast, autonomy
arrangements have often been part of peace accords Mizoram’s Article 371G, for
example, resulted from the 1986 MNF Accord brokered by Laldenga, guaranteeing
protection of Mizo customary law and land rights. These arrangements serve as tools of
ethnic conflict resolution, embedding political settlements into constitutional text.
• The frontiers of asymmetry extend to land and natural resource governance. Article 371A
for Nagaland, for instance, provides that no act of Parliament relating to religious or
 social practices of the Nagas, customary law, administration of civil and criminal justice,
or ownership and transfer of land and resources will apply unless the state assembly so
decides. This has created friction, especially over petroleum and mining laws, with the
Union asserting control under central legislation and Nagaland insisting on its
constitutional right to self-govern resource use.
• Asymmetric federalism in India is both a constitutional innovation and a political
necessity. It has enabled the integration of diverse territories and the resolution of long-
standing conflicts, but it also sits uneasily with the ideals of uniform citizenship and state
equality. The current scenario is marked by competing trends: the abrogation of Article
370 represents a decisive centralisation, while ongoing demands from regions like
Bodoland, Gorkhaland, and Ladakh indicate that asymmetry remains a living issue. Post-
2019, the balance appears to be shifting towards greater central control, but the
underlying drivers of asymmetry ethnic identity, resource autonomy, and regional history
are far from resolved. The challenge for Indian federalism is whether it can sustain these
arrangements without either diluting them into irrelevance or allowing them to destabilise
the unity of the Union.
• ARTICLE 3 – Empowers Parliament to: (a) create a new State by separating territory
from an existing State, merging two or more States or parts of States, or combining any
territory with a part of a State; (b) increase a State’s area; (c) reduce a State’s area; (d)
change State boundaries; and (e) change a State’s name. However, under the proviso, no
Bill for these purposes can be introduced in either House of Parliament unless it is
recommended by the President, and if it affects the area, boundaries, or name of any
State, the President must first send it to that State’s Legislature for its opinion within a set
time (though Parliament is not bound by the opinion). Explanation I clarifies that “State”
in clauses (a)–(e) also covers Union territories, but in the proviso “State” excludes Union
territories. Explanation II adds that under clause (a), Parliament can also form a new State
or Union territory by merging part of a State or UT with another State or UT.
• Babulal Parate v State of Bombay & Anr (1959) - The appellant challenged Section 8 of
the States Reorganisation Act, 1956 after Parliament amended the original States
Reorganisation Bill so that instead of creating three separate units it constituted a
composite State of Bombay. A Union reorganisation commission had reported, the Bill
was introduced on the President’s recommendation, referred to a Joint Select Committee,
debated, amended in both Houses and enacted on August 31, 1956. The petitioner filed a
writ under Article 226 in the Bombay High Court in which he alleged that the formation
of the composite State as one unit contravened Article 3 of the Constitution because the
Legislature of the State of Bombay had no opportunity of expressing its views on the
formation of such a composite unit; the High Court dismissed the petition and a certificate
under Article 132(1) brought the matter to the Supreme Court. The sole question before
the Supreme Court concerned the proper construction of Article 3 as amended by the
Constitution (Fifth Amendment) Act, 1955. Article 3 empowers Parliament to form,
increase, diminish, alter the boundaries of or alter the name of any State. Its proviso lays
down two conditions: no Bill for the purpose shall be introduced in either House except
on the recommendation of the President; and where the proposal contained in the Bill
affects the area, boundaries or name of any of the States the Bill has to be referred by the
President to the Legislature of that State for expressing its views thereon within such
period as may be specified or allowed. The Court emphasised that what is to be referred is
the proposal contained in the Bill. Learned counsel advanced three principal arguments.
First, he urged that the term “State” in Article 3 should be given a broader connotation so
as to embrace not merely the geographical entity but the people and democratic will of
the State, thereby importing into Article 3 a doctrine of participatory democratic consent.
Second, he contended that the word “Bill” should be construed to include any
amendment, at least any substantial amendment, to the proposal contained in the Bill so
that a material modification would require a fresh reference to the State Legislature.
Third, he argued that the formation of a composite single State instead of the three units
originally proposed was so radically different that it was a new proposal and not simply
an amendment, hence requiring a fresh Bill and reference. The judges adopted a plain
textual construction of Article 3 and refused to import foreign constitutional doctrines,
noting that Article IV of the American Constitution which requires state consent was
materially different and inapposite. The Court observed that the States in India are not
antecedent sovereign units and that Parliament, representing the sovereign people of
India, has been confided with the exclusive power to admit or establish new States or alter
existing ones. The proviso, read in ordinary language, requires referral of the proposal
contained in the Bill as introduced; it does not contemplate a fresh reference on every
parliamentary amendment to the Bill. The President’s specification of a period for reply
and his power to extend it are meaningful; failure of the State Legislature to communicate
views within the period does not invalidate the introduction of the Bill, and Parliament is
not bound to accept the views of the State Legislature. The Court examined Article 118
and Rule 80 of parliamentary procedure governing admissibility and relevance of
amendments, and invoked Article 122(1) which limits collateral attacks on parliamentary
proceedings. It applied the germane test: an amendment must be germane to the subject-
matter and must not be a direct negative of the original proposition. On the facts the Court
found that the one-unit composite scheme was within the scope of the original proposal; it
was germane and relevant rather than an entirely new proposition, and the State
Legislature had in fact debated and had opportunities to express views, including
expressions in favour of a composite unit. The Supreme Court dismissed the appeal with
costs. The ratio decidendi is that the proviso to Article 3 requires only referral of the
proposal contained in the Bill as introduced and does not mandate a fresh presidential
reference for subsequent parliamentary amendments so long as those amendments remain
germane and within parliamentary procedural scope; the word “Bill” is not to be
expansively construed to include every amendment. The Court’s relied on textual fidelity,
deference to parliamentary procedure, avoidance of impracticable and interminable
referral cycles, respect for Article 122’s protection of parliamentary proceedings, and an
affirmation of Parliament’s constitutional competence to reorganise States.
• In Re- Article 370 of the Constitution (2023) - The controversy arose from constitutional
steps taken on 5–6 August 2019 while Jammu and Kashmir was under President’s Rule:
first, C.O. 272 applied “all provisions of the Constitution of India” to Jammu and
Kashmir under Article 370(1)(d) and, through a new Article 367(4), purported to treat
references to the “Constituent Assembly” in Article 370 as references to the “Legislative
Assembly”; next, C.O. 273, invoking Article 370(3), declared that Article 370 “shall
cease to exist.” Parliament also enacted the Jammu and Kashmir Reorganisation Act,
2019, splitting the former State into the Union Territories of Jammu & Kashmir and
Ladakh with effect from 31 October 2019. Multiple petitions challenged the measures,
raising, inter alia, whether the President could act under Article 370(3) without a
recommendation from the Jammu and Kashmir Constituent Assembly and whether the
Reorganisation Act validly bifurcated a State into Union Territories under Articles 3 and
4. On the first issue, the Court rejected the premise that Jammu and Kashmir retained
“internal sovereignty,” emphasising that the special arrangements under Article 370
reflected asymmetric federalism, not sovereign authority distinct in kind from other
States. The Bench read the historical materials, the structure of the Constitution, and the
text of Article 370 together to conclude that Jammu and Kashmir acceded to India like
other princely States and that Article 370 did not constitutionalise a dual sovereignty. The
“temporary” placement and the nature of the mechanism in Article 370(3) confirmed the
transitional character of the provision, intended to facilitate full constitutional integration
as circumstances permitted. Thus, the special status was a feature of asymmetric
federalism; it did not elevate the State to a sovereign peer of the Union. Turning to the
mechanics of Article 370(3), the Court held that the proviso’s requirement of a
Constituent Assembly “recommendation” was not a perpetual veto. When the Constituent
Assembly dissolved, only its capacity to recommend lapsed; the President’s power under
the main clause endured. Interpreting the proviso as a condition precedent even after the
Assembly ceased to exist would invert the design of a temporary arrangement by making
abrogation impossible. Accordingly, once the Constituent Assembly became functus
officio, the President could unilaterally notify that Article 370 ceased to operate,
consistent with the purpose of ensuring full constitutional application in Jammu and
Kashmir. The Court, however, scrutinised the route chosen in August 2019. It found C.O.
272 valid to the extent that, under Article 370(1)(d), it applied the entire Constitution of
India to Jammu and Kashmir; that exercise was neither mala fide nor dependent on the
concurrence of a non-existent State government. But the Court declared invalid the
specific use of Article 367(4) in C.O. 272 to substitute “Legislative Assembly” for
“Constituent Assembly” in the proviso to Article 370(3), because an interpretive clause
cannot be deployed to amend another constitutional provision by bypassing the
amendment procedure. That said, the invalidity of this substitution did not undermine the
independent existence of the President’s power under Article 370(3) to issue C.O. 273;
the President’s declaration that Article 370 ceased to exist was sustained on its own
constitutional footing. Because the State was under President’s Rule, the Bench also
addressed the scope of Parliament’s powers under Article 356. It held that when a
Proclamation is in force, Parliament is not confined to enacting statutes; it steps into the
shoes of the State Legislature and may also perform the latter’s non-legislative and
executive functions. Two consequences followed. First, any “views” of the State
Legislature required by the Constitution could be furnished by Parliament acting in its
place. Second, measures taken under President’s Rule were not ultra vires merely because
they were not in the form of a statute. This understanding framed both the Article 370(3)
process and the reorganisation question under Article 3. On Articles 3 and 4, the Court
reaffirmed that the President’s reference for “views” under the first proviso to Article 3 is
consultative; the Legislature’s opinion is recommendatory, not determinative.
Historically, a second proviso to Article 3 operated in relation to Jammu and Kashmir,
imposing a more exacting requirement. But once C.O. 272 validly extended the entire
Constitution to Jammu and Kashmir, that second proviso ceased to exist in its J&K-
specific form; from that point, the ordinary Article 3 framework governed. In short,
neither the absence of a sitting State Legislature (because of President’s Rule) nor the
earlier J&K-specific proviso barred the Union from proceeding with reorganisation after
August 2019, provided the constitutional steps were taken and the President’s reference
requirement was satisfied through Parliament acting as the State Legislature. Applying
those principles, the Court addressed the Jammu and Kashmir Reorganisation Act, 2019.
It recognised a key distinction: the validity of carving out Ladakh as a separate Union
Territory, and the distinct question whether Parliament may convert the remainder of a
State into a Union Territory. The Bench held that creating the Union Territory of Ladakh
was squarely within Parliament’s Article 3 power, read with Explanation I, which
expressly contemplates the formation of a Union Territory by separation of territory from
a State. It therefore upheld the Reorganisation Act to that extent. As to the “demotion” of
Jammu and Kashmir from State to Union Territory, the Court noted the Solicitor
General’s submission that statehood would be restored and, in view of that assurance, it
declined to render a definitive pronouncement on whether converting an entire State into
a Union Territory was constitutionally permissible. The pending restoration did not affect
the validity of Ladakh’s separation. In shaping relief, the Court issued directions anchored
in the reorganisation context. It ordered that the Election Commission conduct elections
to the Jammu and Kashmir Legislative Assembly by 30 September 2024, underscoring
that electoral restoration need not await the formal revival of statehood. It also directed
that statehood be restored at the earliest, thereby aligning constitutional structure with the
Union’s assurance and the federal principle. These directions were framed as binding
components of the judgment, not mere observations, and were intended to ensure forward
movement from the transitional Article 356 posture to representative governance under
Part VI. The Bench’s treatment of the August 2019 presidential and parliamentary acts
was accordingly calibrated. It upheld the President’s unilateral power under Article 370(3)
to declare that Article 370 ceased to operate, clarified that C.O. 272 validly applied the
Constitution in its entirety to Jammu and Kashmir while disallowing the Article 367(4)
device that purported to replace the Constituent Assembly with the Legislative Assembly,
and sustained C.O. 273 as a lawful exercise of Article 370(3). On the reorganisation axis,
 it reiterated that the Article 3 consultative step is recommendatory, held that Parliament
under President’s Rule could furnish the requisite “views,” treated the J&K-specific
second proviso as inapplicable after August 2019, and upheld the creation of Ladakh as a
Union Territory, reserving judgment on the permanent status of Jammu and Kashmir but
mandating timely elections and expeditious restoration of statehood. A substantial
concurring opinion added two strands of significance. First, while agreeing with the
result, it articulated that Article 370 had recognised a measure of internal sovereignty
during a limited transitional phase which, by design, could be derecognised through
Article 370(3); thus, abrogation aligned with the Constitution’s architecture once the
transitional purpose had run its course. Second, it urged the Union to establish an
impartial Truth and Reconciliation Commission for Jammu and Kashmir, inspired by
comparative experiences such as South Africa, to document violations by State and non-
State actors since at least the 1980s and recommend steps toward reconciliation. The
separate opinion stressed that such a body should be humane, dialogic, and time-bound,
an instrument of reparative justice rather than a criminal court thereby leaving its precise
design to the executive while locating the recommendation within transformative
constitutionalism.
• ARTICLE 4 - (1) any law made under Articles 2 or 3 (for creating new states, changing
boundaries, or names of states) must also include the necessary changes in the First
Schedule (which lists states and union territories) and the Fourth Schedule (which
allocates Rajya Sabha seats). Such a law can also include any additional, incidental, or
consequential provisions Parliament thinks necessary—for example, deciding how the
affected states or new states will be represented in Parliament or their own legislatures.
(2) Importantly, a law passed under Articles 2 or 3 is not considered a constitutional
amendment under Article 368, meaning Parliament can pass it through the ordinary
legislative process, without the special amendment procedure.
• N Mastan Sahib v Chief Commissioner, Pondicherry and Anr (1962) – After the Indo–
French Agreement of 21 October 1954 transferred only administration to India, the Union
extended the Indian Motor Vehicles Act to Pondicherry under the Foreign Jurisdiction
Act, 1947. The Chief Commissioner, acting as the State Transport Appellate Authority,
decided permit disputes, and two aggrieved operators approached the Supreme Court by
civil appeals with special leave under Article 136 and by writ petitions under Article 32
against his quasi‑judicial orders. They urged that Pondicherry’s functional integration and
the use of an Indian statute made the authority amenable to appellate and supervisory
jurisdiction. The Court therefore first examined the constitutional status of Pondicherry
before reaching any merits. To anchor the answer, the Bench sought the Union
Government’s assistance and asked two questions: whether Pondicherry fell within India
under Article 1(3), and, if not, what jurisdictions the Union and France respectively
exercised. The Government replied that the 1954 Agreement effected a de facto transfer
only; a de jure cession awaited ratification of a Treaty of Cession signed on 28 May 1956,
which had not been ratified under French law or Article 31 of the Treaty. Meanwhile,
India administered Pondicherry under the Foreign Jurisdiction Act, extended Indian laws,
assumed defence and external affairs, and France exercised no authority. On jurisdiction,
the Court read Article 136 as conferring special‑leave power only over decisions of courts
or tribunals “in the territory of India,” treating that phrase as a condition precedent. It
paired this with Article 142, which renders Supreme Court decrees enforceable
“throughout the territory of India,” and reasoned that it should not embark on appeals that
would culminate in decrees incapable of execution against an authority situated beyond
that territory. Effective Union control could not replace the Constitution’s territorial limits
on both appellate competence and remedial enforceability. Addressing status, the Court
gave respectful weight to the Government’s statement in the accepted practice of seeking
executive aid on international arrangements, while noting it would not accept such a
statement if contradicted by patent facts showing constitutional inclusion. Here the
instruments settled the point: the 1954 Agreement provided only for a de facto transfer;
the 1956 Treaty contemplated de jure cession only upon ratification; and, until
ratification, there could legally be no transfer of territory and no “acquisition” under
Article 1(3)(c). From that premise, the Court held that Pondicherry was outside the
“territory of India,” and two consequences followed. First, the civil appeals were
incompetent because the impugned orders did not emanate from a court or tribunal in
India within Article 136. Second, the writ petitions would not be entertained, since Article
142 confined enforceability of Supreme Court orders to the territory of India; issuing
writs that could not run there would stultify the Court. The phrase “territory of India”
must have a consistent meaning across the Constitution; arguments from practical control
could not expand Article 142 beyond Article 1(3). Yet the Bench candidly flagged a
remedial gap. In practice, administration in Pondicherry mirrored India’s, yet residents
lacked the appellate and supervisory safety‑nets of Indian superior courts. To prevent
injustice while de jure cession was awaited, the Court suggested that Parliament or the
Union consider interim measures such as creating appellate or revisional channels under
the Foreign Jurisdiction Act or otherwise enlarging oversight so that decisions would not
go without correction. It flagged that comparable anomalies can arise whenever India
temporarily governs an external enclave; indeed, judicial safety‑valves were plainly
desirable. Justice A.K. Sarkar wrote separately. He concurred that, on the Government’s
answers and the unratified treaty, the civil appeals under Article 136 were not
maintainable because the tribunal functioned in foreign territory. He was cautious,
however, about treating Article 142 as a categorical bar to writs under Article 32 directed
to authorities outside India, preferring not to pronounce broadly on that point when
narrower grounds sufficed. His concurrence aligned on result while counselling restraint
about the enforceability rationale. Although Articles 3 and 4 did not directly arise, the
judgment implicitly delineates their field: the constitutional machinery for admission,
establishment, or alteration of areas and the supplemental, incidental, and consequential
provisions, including adjustments to the First and Fourth Schedules presupposes prior
inclusion within Article 1(3). Because Pondicherry had not been de jure acquired,
Parliament’s Articles 3–4 powers could not be engaged; administration therefore
proceeded under the Foreign Jurisdiction Act.
• In re Berubari Union (1960) - The Berubari reference arose out of the Nehru–Noon
Agreement (1958), which proposed two relevant steps: splitting Berubari Union No. 12 so
that half would go to Pakistan, and exchanging the old Cooch-Behar enclaves between
India and Pakistan. The territory in and around Berubari had been under Indian
possession and administered as part of West Bengal after the Cooch-Behar merger; the
enclave problem on both sides of the border had long produced friction, prompting a
negotiated settlement. These background facts set the stage for a constitutional puzzle
once the Union Government sought to implement the deal. Invoking Article 143(1), the
President referred three questions to the Supreme Court: whether legislation was needed
to implement (1) the Berubari split, and (2) the enclave exchange; and, if so, whether
Article 3 sufficed, or an Article 368 amendment was necessary (alone or along with
Article 3). The controversy mattered because West Bengal’s boundaries and India’s First
Schedule description would be affected if any part of Indian territory passed to Pakistan.
The Union, through the Attorney-General, contended that the agreement merely
ascertained or delineated a pre-existing boundary under the Radcliffe Award; if some land
changed hands, that was an incident of boundary settlement, not cession. On this view, no
legislation was needed; alternatively, even if legislation were required, Article 3(c)’s
power to “diminish the area of any State” was wide enough. These submissions framed
the core doctrinal choice: is the agreement (and enclave exchange) boundary
ascertainment, or is it a cession of Indian territory? The Court rejected the “mere
ascertainment” thesis. It emphasized that the agreement did not purport to interpret the
award’s line based on evidence or principles embedded in the award; indeed, its
“horizontal” division clause was itself poorly worded and not derived from any award
logic. The arrangement therefore operated as a fresh political settlement transferring
territory, i.e., a cession, not a technical demarcation. Consequently, any implementation
would alter India’s territory and West Bengal’s First Schedule entry. Turning to Part I, the
Court read Article 1(3)(c) narrowly. It does not confer a power on India to acquire
territory; it merely records that territory acquired by India by virtue of its inherent
sovereignty will, upon acquisition, be part of “the territory of India.” Parliament then uses
Article 2 (admission/establishment of new States) and Article 3(a)–(b) to assimilate such
acquisitions into the constitutional structure, as illustrated by the Chandernagore
absorption and subsequent merger with West Bengal under an Article 3 law that modified
the First Schedule. Article 3, the Court held, is about internal adjustments inter se among
Indian States which lead to forming new States, increasing or diminishing a State’s area,
and altering State boundaries or names. Its “diminish the area” clause presupposes that
the shaved-off area continues within India, whether added to another State or otherwise
dealt with under the Constitution; it cannot be read to authorize handing Indian territory
to a foreign State. This reading is reinforced by Article 3’s inapplicability to Union
Territories: if cession of a Union Territory would need Article 368, it would be illogical to
allow cession of State territory under Article 3. The Court therefore refused to imply a
cession power into Article 3(c). Article 4 clarifies that laws under Articles 2 and 3 may
amend the First and Fourth Schedules and include supplemental, incidental and
 consequential provisions, yet are “not deemed” constitutional amendments for Article 368
purposes. That deeming clause bites only if Article 3 is substantively available; when it is
not (as with cession), Article 368 “inevitably” applies. Since implementing the agreement
would diminish the Union’s territory, it necessarily entails amending Article 1 and the
First Schedule; Parliament must therefore proceed under Article 368, either directly, or by
first amending Article 3 to add a cession power and then legislating under the amended
Article 3. Applying the same reasoning to the enclave exchange, the Court said the
exchange equally effects a cession of Indian territory and therefore demands Article 368
action; it is not a mere rectification corollary of a larger settlement. The State-consultation
proviso to Article 3 would not be triggered because Article 3 is inapplicable; the Court
acknowledged that this deprives West Bengal’s legislature of an opportunity to express
views but noted that Article 368 supplies a different, weighty safeguard of special
majorities in both Houses. Nor does the Article 368 proviso’s state-ratification
requirement apply: Articles 1 and 3 are not among the entrenched provisions listed there.
The Court’s answers were: (1) legislation is necessary; (2)(a) an Article 3 law is
incompetent for cession, (b) an Article 368 law is competent and necessary, (c) a
combined route arises only if Parliament first amends Article 3 via Article 368; and (3)
the same answers govern enclave exchange. The ratio decidendi is twofold: first, cession
of Indian territory whether by division of Berubari or exchange of enclaves is not an
“internal” reorganisation and lies beyond Article 3; secondly, because implementation
alters “the territory of India” and the First Schedule, Parliament must amend the
Constitution under Article 368 (with Article 1(3)(c) functioning only as a post-acquisition
assimilation clause, not a source of acquisition/cession power).
• Mangal Singh v Union of India (1967) - The case arose from challenges to the Punjab
Reorganisation Act, 1966, which split the old State of Punjab into the new State of Punjab
and the State of Haryana, transferred the eastern hill areas to the Union Territory of
Himachal Pradesh, and carved Chandigarh into a separate Union Territory. The old
Punjab had a bicameral legislature with 154 MLAs and 51 MLCs. Section 13(1)
provisionally allocated 54 sitting MLAs to constitute the first Haryana Legislative
Assembly as of November 1, 1966, while Section 24 fixed the regular strength of the
Haryana Assembly at 81 “to be constituted at any time after the appointed day” by direct
elections of making Section 13(1) an expressly temporary arrangement. Simultaneously,
Sections 20 and 22 reconstituted the Punjab Legislative Council at 40 and unseated 16
specified sitting MLCs named in the Seventh Schedule; the remaining continued as MLCs
of the new Punjab. Fourteen of the 16 unseated were from the Haryana area; eight
members from the Chandigarh area continued as MLCs of Punjab. The High Court
rejected a writ by two residents; they appealed. Before the Supreme Court, the issues
turned on Articles 3 and 4 and the scope of Parliament’s power to enact “supplemental,
incidental and consequential provisions” when reorganising States, and whether the
transitional provisions derogated impermissibly from Article 170(1) (minimum Assembly
strength) and Article 14 (equality). The appellants argued, first, that constituting the
Haryana Assembly with only 54 members violated the constitutional minimum of sixty in
Article 170(1); second, that allowing MLCs from the Chandigarh area to continue while
unseating MLCs from the Haryana area denied equality; third, that Parliament had no
authority under Articles 3–4 to depart from Article 170(1) or to effect the selective
unseating; and fourth, by implication, that rearrangements affecting composition and
representation were constitutional “amendments” requiring Article 368 procedure, not
mere Article 3–4 legislation. The Court framed Article 3 as conferring plenary power to
form new States, increase or diminish a State’s area, and alter boundaries and names, and
Article 4(1) as requiring First and Fourth Schedule changes while authorising all
“supplemental, incidental and consequential” provisions, including representation in
Parliament and State legislatures, necessary to give effect to such reorganisation.
Crucially, Article 4(2) declares that a law under Articles 2–3 “shall not be deemed to be
an amendment” for Article 368. On the plain text, said the Court, Article 4 authorises not
only schedule amendments but also the full suite of consequential arrangements
indispensable to effective state administration i.e., legislative, executive, judicial organs;
finance; apportionment of assets and liabilities; service matters; and legal adaptations so
long as Parliament does not override the basic constitutional scheme (e.g., it cannot
abolish the State’s organs altogether). Applying those propositions, the Court held that a
temporary reduction of an Assembly’s strength below the Article 170(1) floor is implicit
in Article 4 power when necessitated by the mechanics of reorganisation and pending
fresh elections. Though in substance such a clause “amends” the constitutional position,
Article 4(2) expressly treats it as not an Article 368 amendment; Parliament may, in a
transitional law under Articles 2–3, make such incidental adjustments to “tide over a
temporary difficulty.” The Court contrasted this implied Article 4 power with instances
like Article 371A(2)(h) (Nagaland), where the Constitution itself fixed a specific number
for a period thereby observing that Parliament could also reduce numbers by express
constitutional amendment when it chooses, but need not resort to Article 368 for
transitional adjustments embedded in a reorganisation statute. Section 13(1) was therefore
valid notwithstanding the Article 170(1) minimum. On the Legislative Council, the Court
stressed that Article 171(3) constituents (local bodies, graduates, teachers, Assembly-
elected, Governor’s nominees) are not territorial constituencies. After division, strict
conformity with Article 171(3) without fresh elections was impossible. Parliament
reasonably adopted an ad hoc test by unseating MLCs who were residents of territories
now outside Punjab (Haryana/Himachal) while allowing those from the Chandigarh area
designated as Punjab’s capital to continue. Whether that classification could be justified
on capital-centric grounds was left open as unnecessary, because the appellants were not
sitting MLCs and therefore not “persons aggrieved”; no personal or representative right of
residents of Haryana to sit in the Punjab Council existed, and no right of the residents of
Haryana was invaded by allowing Chandigarh members to continue. The equality
challenge thus failed for want of standing and on substance. The appeal was dismissed
with costs. The Court declared that (i) Article 4 authorises supplemental, incidental, and
consequential provisions beyond mere Schedule amendments; (ii) temporary reduction
below Article 170(1)’s minimum to constitute a new Assembly is within Article 4 power
 and is not an Article 368 amendment by virtue of Article 4(2); (iii) transitional
adjustments to a Legislative Council’s composition may be made ad hoc where strict
Article 171(3) compliance would require fresh elections; and (iv) the equality claim
against selective unseating failed, both because the appellants lacked an enforceable
personal right and because continuation of Chandigarh members did not violate any right
of Haryana residents.
• Maganbhai Ishwarbhai Patel v Union of India (1970) - This case arose from an
international arbitration award determining the boundary in the Rann of Kutch and
whether implementation of that Award would effect a cession of Indian territory requiring
amendment of the Constitution. Petitioners challenged the Government of India’s
acceptance of the Tribunal’s majority alignment (Map C), which allocated features such
as Kanjarkot, Dharabanni, Chhadbet and two deep inlets near Nagar Parkar to Pakistan.
They maintained these tracts were indisputably part of India and contended that any
transfer would therefore amount to cession of territory protected by Article 1 and the First
Schedule and could be made only by constitutional amendment under Article 368. The
Supreme Court first addressed locus standi and the appropriateness of remedies under
Article 32. Many petitioners relied on speculative fears of infringement of Article 19
freedoms (to move, reside, acquire property); the Court found most claims too remote
given the marshy, seasonally inundated nature of the disputed area and the absence of
settled private rights. Only one petitioner, Madhu Limaye, had an arguable though slender
factual connection. Even so, the Court proceeded to decide the substantive constitutional
issues because executive acceptance and implementation of an international award
implicated national interest and the division of constitutional powers between executive
and Parliament. The Bench undertook comparative and doctrinal analysis to frame legal
principles. It surveyed foreign practice (United States, United Kingdom, France) showing
divergent rules on whether executive treaties or territorial adjustments require legislative
sanction. The Court reviewed Indian precedents including the Berubari advisory opinion
and Damodar Gordhan v Deoram Kanjii. It analysed Articles 1, 3, 73 and 253 and List I
entries 14–15 in Schedule VII. Article 253 was recognised as vesting Parliament with
power to enact laws for implementing treaties where subjects fall within state
competence, while Article 73 confers executive authority to exercise rights and
jurisdiction derived from treaties; the Court stressed those provisions must be read
together and in context. Turning to the factual record, the Court examined memorials,
counter-memorials, maps and extensive oral evidence before the Tribunal. The Tribunal’s
proceedings were exhaustive and the majority’s alignment was set out on Map C after
considering a mosaic of earlier maps and historical materials. The region’s physical
character, shifting sands, tidal marshes, lack of permanent settlement and scant evidence
of sustained civil administration, was central. The Court found that episodic watch-and-
ward posts and intermittent policing did not establish incontrovertible de jure possession
or plenum dominium by India over the contested tracts; historical documents and prior
administrative orders did not yield a clear, settled boundary. On the crucial legal question,
the Court distinguished between two species of international action: (a) cession of
 territory known to be clearly part of a State’s domain, and (b) settlement and demarcation
of an uncertain or disputed boundary between two competing claims. It held that where
the subject matter is a genuine boundary dispute (an alignment problem where neither
party proves an existing, undisputed title) the arbitration’s function is to determine and
demarcate, not to effect a gratuitous cession of indisputable home territory. An award
which merely fixes a contested alignment therefore ordinarily produces an obligation to
implement the demarcation; if accepted by the government it becomes a binding
international obligation. Applying those principles to the Award, the Court concluded that
the Tribunal had adjusted an historically indeterminate line rather than ceded territory that
India indisputably owned. India had accepted the Award and thereby incurred an
international obligation to implement its determinations. Because the Award’s operative
effect was to delineate the boundary in a zone that had lacked clear de jure possession and
because implementation would not extinguish proven private rights or require altering
domestic statutes in a way that would impair citizens’ rights, the Court held the executive
could give effect to the Award by on-the-ground demarcation and diplomatic exchanges
without prior constitutional amendment. The petitions were dismissed. The ratio
decidendi is that an arbitral award resolving a boundary dispute and accepted by the State
is binding and ordinarily implementable by executive action as a process of demarcation
rather than as cession; conversely, where implementation would amount to cession of
territory that indisputably forms part of India under Article 1 and the First Schedule, a
constitutional amendment under Article 368 is required. The Court emphasised Article
253’s role when legislative intervention is necessary to implement a treaty affecting state
subjects, but recognised that routine demarcations which do not affect domestic legal
rights can be effected by the executive.

NIRAJA GOPAL JAYAL – CITIZENSHIP

• The legacy of Indian citizenship is inseparable from the turbulence of Partition and its
afterlives. The breakup of Pakistan in 1971 and the influx of immigrants across the
eastern border resurrected unresolved anxieties from 1947, when citizenship had to be
defined against a background of mass migrations, communal violence, and fractured
loyalties. Citizenship is not a neutral status—it is the gateway to fundamental rights. To
understand who can claim those rights, we must first ask who counts as a citizen. At the
heart of this lies the classic dichotomy between jus soli (citizenship by birth in territory)
and jus sanguinis (citizenship by blood or descent). The framers of the Constitution
wrestled with these two principles, each laden with racial and political baggage. Jus soli
represented civic nationalism and inclusivity, while jus sanguinis carried associations of
racial purity and exclusion. This tension shaped Articles 5, 6, and 7 of the Constitution,
and the later evolution of Indian citizenship law shows a steady dilution of jus soli in
favor of jus sanguinis, with profound consequences for democracy and rights.
• To situate the problem, it is useful to recall Dred Scott v. Sandford (1857), a U.S.
Supreme Court decision that infamously denied citizenship to African Americans,
illustrating how citizenship definitions can be manipulated to exclude whole populations
from rights. The racial logic of that judgment mirrors, in many ways, the dangers inherent
in privileging jus sanguinis: belonging becomes tethered to descent rather than civic
membership. The Indian framers, acutely aware of the dangers of ethnonationalism after
Partition, initially favored jus soli as a counter. Article 5 granted citizenship to those
domiciled in India at commencement, thereby rooting citizenship in residence and birth
rather than descent alone. This was meant to embrace those uprooted by Partition, and it
reflected a civic conception of belonging. Yet, the framers immediately confronted the
refugee problem, forcing them to address migration explicitly through Articles 6 and 7.
• Article 6 provided citizenship rights to those migrating from Pakistan, provided they
fulfilled certain residence and registration conditions. Article 7, however, denied
citizenship to those who migrated to Pakistan but sought to return. The drafting of Article
7 revealed deep fissures in the Assembly. Many members criticized it as the “obnoxious
clause,” a phrase that captured its stigmatizing effect. It presumed disloyalty from
returnees and created an exclusionary category of people tainted by migration, regardless
of circumstance. This encoded language, reflecting suspicion of Muslim returnees, was
sharply debated. Opponents argued it undermined the secular promise of the Constitution.
Proponents defended it on grounds of national security and loyalty. Ultimately, Article 7
was retained, but it left a troubling precedent: citizenship could be denied on the basis of
presumed allegiance rather than individual choice.
• The Supreme Court soon had to interpret these provisions. In Central Bank of India v.
Ram Narain (1955), Justice Mahajan acknowledged the tension between constitutional
inclusivity and the statutory frameworks that sought to restrict it. Later, in Louis de Raedt
v. Union of India (1991), the Court reinforced the plenary power of the state to expel
foreigners, emphasizing that non-citizens had no right to fundamental freedoms under
Articles 19 or 21 in the same way citizens did. These decisions underscored the centrality
of citizenship to rights and also signaled the judiciary’s deference to the executive in
matters of nationality and migration. Citizenship was not just a legal formality; it was the
boundary between rights and rightlessness.
• These debates took on explosive form in Assam. The Nellie Massacre of 1983, when
thousands of Bengali Muslims were killed amidst anti-immigrant agitations, revealed the
deadly consequences of the failure to resolve citizenship questions. The Assam Accord of
1985 sought to address this by fixing March 24, 1971, as the cut-off date for detection and
deportation of foreigners, effectively creating a distinct regional regime of citizenship.
This was embodied in the Illegal Migrants (Determination by Tribunals) Act, 1983
(IMDT Act), which placed the burden of proof on the state rather than individuals. The
Act was controversial, with critics arguing it made detection of illegal migrants nearly
impossible, thereby diluting national integrity.
• The Supreme Court intervened decisively in Sarbananda Sonowal v. Union of India
(2005), striking down the IMDT Act as unconstitutional. The Court invoked Article 355,
 which obliges the Union to protect states from external aggression and internal
disturbance, holding that large-scale migration amounted to external aggression. It also
emphasized Article 14, noting that the IMDT regime discriminated between Assam and
the rest of India. Strikingly, the Court cast migration not merely as a demographic
concern but as a national security threat. The judgment marked a profound shift: jus soli’s
inclusive promise gave way to a securitized jus sanguinis, where descent and “authentic”
belonging outweighed residence or birth. Migration was recast as aggression, and
citizenship as a defensive boundary.
• This trajectory was further reinforced by legislative action. The 2004 Citizenship
Amendment Act diluted jus soli in a decisive way. Until then, anyone born in India was a
citizen, reflecting a broad jus soli principle consistent with Article 5. Post-2004, children
born in India were citizens only if at least one parent was a citizen and the other not an
illegal migrant. This fundamentally altered the balance: being born in India was no longer
sufficient; descent and parental status now mattered. In effect, jus sanguinis eclipsed jus
soli. The irony is stark. Article 7, condemned in the Constituent Assembly as an
“obnoxious clause” for stigmatizing returnees, had its logic resurrected in 2004, this time
targeting “illegal migrants.” The exclusionary impulse once rejected was re-entrenched in
statutory law.
• The dilution of jus soli has profound implications. Citizenship, which began as an
inclusive category designed to heal Partition’s wounds, is now a weaponized tool to
police borders and identities. The shift reflects deeper anxieties: demographic fears in
Assam, national security rhetoric post-Sonowal, and communalized politics of migration.
It also reveals the Constitution’s dual legacy. On one hand, the framers embraced civic
belonging through jus soli; on the other, they institutionalized suspicion through Article 7.
Later legislations and judgments have amplified the latter at the cost of the former.
• Critically, the Supreme Court’s reasoning in Sonowal raises questions about constitutional
morality. By framing migration as aggression, the Court transformed a humanitarian issue
into a security problem. This mirrors the racial logic of Dred Scott, where citizenship was
denied on grounds of descent. Jus sanguinis, once rejected for its exclusionary
connotations, now dominates Indian citizenship law. The 2004 amendment entrenches
this, foreclosing the inclusive vision of Article 5. Moreover, it highlights a contradiction:
while the framers condemned Article 7’s stigmatizing effect, contemporary law embraces
similar exclusionary practices with renewed vigor.
• The story of Indian citizenship, then, is one of progressive narrowing. Beginning with jus
soli and Articles 5–6, framed against Partition’s chaos, the law shifted steadily toward jus
sanguinis. Article 7 planted the seed of exclusion, which later blossomed through judicial
deference (Louis de Raedt), violent exclusion (Nellie massacre), regional exceptionalism
(Assam Accord, IMDT Act), judicial securitization (Sonowal), and statutory dilution
(2004 amendment). Citizenship has become less about belonging through birth and more
about proving descent, loyalty, and bloodlines. In this sense, the early debates of the
Constituent Assembly echo uncannily today: what was once an “obnoxious clause” has
become the governing logic of citizenship.
• Article 5 - Explains who was considered an Indian citizen at the very start of the
Constitution in 1950. To put it simply, the Article says: if at the time the Constitution
came into force, a person was living in India and had their domicile here (that means
India was their permanent home and they intended to stay), they would be treated as an
Indian citizen if they met any one of three conditions. Clause (a) says they qualify if they
were born in India; clause (b) says they qualify if at least one of their parents was born in
India; and clause (c) says they qualify if they had been living continuously in India for at
least five years right before 1950. So the idea was that citizenship at the commencement
of the Constitution was based on a mix of connection to India through birth, parentage, or
long-term residence, but all of this had to be combined with domicile in India.
• In Re: Section 6A of the Citizenship Act 1955 (2024) – Arose from the Assam Accord and
the insertion of Section 6A, which created a special regime for citizenship in Assam by
distinguishing between different groups of immigrants from East Pakistan (later
Bangladesh). The central problem was whether this regime was constitutionally valid
given India’s constitutional framework on citizenship under Articles 5 to 11, as well as
fundamental rights provisions. The facts revolved around large-scale illegal immigration
from East Pakistan after Partition, particularly following the 1971 Bangladesh Liberation
War, which led to significant demographic changes in Assam. The Assam Accord of 1985
was signed to resolve tensions by creating cut-off dates for immigrants: those who
entered Assam before 1 January 1966 were deemed citizens; those who entered between 1
January 1966 and 24 March 1971 were allowed citizenship after registering and a waiting
period of ten years; those who entered after 24 March 1971 were treated as illegal
migrants. Section 6A of the Citizenship Act, 1955 embodied this compromise. The
petitioners, however, argued that this arrangement violated Articles 5 to 11, especially
because it created a differential scheme of citizenship only for Assam. The issues before
the Court were multifold. First, whether Parliament had legislative competence to enact
Section 6A when Articles 5 to 11 exhaustively dealt with citizenship at the
commencement of the Constitution, and whether any post-commencement citizenship
arrangements had to strictly adhere to that framework. Second, whether Section 6A
violated Article 14 by discriminating between immigrants to Assam and those to the rest
of India, given that different yardsticks were applied. Third, whether the provision
undermined Article 355, which imposes a duty on the Union to protect states against
external aggression and internal disturbance, since Assam faced a unique burden of illegal
immigration. Fourth, whether the cultural rights guaranteed under Article 29(1) were
infringed by altering the demographic and cultural composition of Assam. Fifth, whether
Section 6A, by relaxing the definition of “illegal migrant” in Section 2 of the Citizenship
Act, 1955, created internal contradictions, especially when compared to the Citizenship
Amendment Act, 2019, which again shifted the regime. In reasoning through these
questions, the Court paid close attention to Chandrachud J.’s observations on legislative
competence. He acknowledged that Articles 5 and 6 set the initial constitutional
framework of citizenship, but Article 11 expressly vested in Parliament the power to
make any provision with respect to the acquisition and termination of citizenship and all
other matters relating to it. Therefore, Parliament was competent to enact Section 6A,
since this fell within its power to regulate citizenship even after commencement.
Chandrachud clarified that the Constitution envisaged Parliament as the sole authority to
decide future citizenship policy, and thus the argument that Section 6A violated the
scheme of Articles 5 and 6 was rejected. This preserved Parliament’s flexibility to address
unique historical contexts such as Assam’s influx. On Article 14, however, the Court
recognized the petitioners’ argument that two yardsticks were being applied: for the rest
of India, immigrants after 1947 were treated under the general citizenship law, while in
Assam, Section 6A allowed those entering up to 1971 to eventually become citizens. This
raised concerns of discriminatory treatment. But the reasoning balanced this by holding
that Assam’s situation was sui generis, given the Assam Accord as a political settlement
and the massive influx that had no parallel elsewhere in India. Thus, the classification was
not arbitrary but based on intelligible differentia with a rational nexus to the object of
restoring peace and addressing Assam’s unique demographic realities. Article 355 was
also invoked by the petitioners, who argued that instead of protecting Assam from
“external aggression” in the form of illegal immigration, the Union had legitimized it
through Section 6A. The Court engaged with this contention by examining the scope of
Article 355. It noted that Article 355 imposes a constitutional duty but its enforcement
was not justiciable in the same manner as fundamental rights. Still, it acknowledged that
unchecked migration did amount to an internal disturbance and potential external
aggression. Article 29(1) was also considered. Petitioners claimed that Section 6A
violated the cultural rights of Assamese people by altering their demographic
composition. The Court noted that while Article 29(1) protects the right of any section of
citizens to conserve their distinct language, script, or culture, the provision does not
necessarily guarantee freedom from demographic change. Still, the judgment emphasized
that the cultural implications of immigration could not be ignored, and thus Section 6A
had to be read alongside affirmative measures to protect Assamese cultural identity.
Before amendment, it defined “illegal migrant” broadly, excluding those without valid
travel documents. But Section 6A carved out exceptions in Assam, effectively diluting
this definition. After the 2019 Amendment, Parliament again altered the definition by
excluding certain religious communities from Afghanistan, Bangladesh, and Pakistan.
The Court highlighted this shift as evidence of Parliament’s continuing power under
Article 11 but also underscored the tensions created by constant alterations in the legal
regime, which risked undermining the coherence of citizenship law. Ultimately, the
judgment upheld Section 6A, emphasizing that Parliament was within its rights under
Article 11 to enact special provisions for Assam. The ratio decidendi was that Section 6A,
though creating asymmetry in citizenship rules, was valid because Parliament had plenary
power under Article 11, the classification had a rational nexus under Article 14, and
neither Article 355 nor Article 29(1) was violated in a manner that rendered it
unconstitutional. Chandrachud’s reasoning reinforced the principle that citizenship after
commencement was a matter for Parliament’s policy judgment, not judicial second-
guessing, though the Court recognized the deep cultural and security concerns at play.
• Article 245 - Extent of legislative powers of Parliament and State legislatures. Clause
(1) says that, as long as they act within the limits of the Constitution, Parliament can
make laws for the whole of India or just for any part of it, while a State legislature can
make laws for the entire State or just for a part of it. Clause (2) then adds an important
clarification: even if a law made by Parliament has extra-territorial operation (that is, it
applies to people, things, or actions outside India), it will not be considered invalid for
that reason. This means Parliament can pass laws that regulate or affect matters beyond
India’s borders if they have a connection or impact on India, while State legislatures’
powers remain confined within their State’s territory.
• Article 246 – Explains how law-making authority is divided between Parliament and
the State legislatures using the Union List, State List, and Concurrent List in the Seventh
Schedule. Clause (1) gives Parliament exclusive power to make laws on subjects in the
Union List, and this supremacy applies “notwithstanding” clauses (2) and (3), meaning
Union powers always override. Clause (2) deals with the Concurrent List: both
Parliament and State legislatures can make laws on these subjects, but Parliament’s power
is wider because it is “notwithstanding clause (3),” so even if States can legislate,
Parliament still has an upper hand, subject only to Union List matters. Clause (3) grants
State legislatures exclusive power to make laws on matters in the State List, but this
exclusivity is limited by clauses (1) and (2), which means that Parliament’s Union and
Concurrent List powers can still cut into the State List. Finally, clause (4) says Parliament
can even make laws on State List subjects in areas that are not part of a State, such as
Union Territories, showing that Parliament’s power stretches wherever States have no
legislature of their own. In short, Article 246 establishes a hierarchy: Union List powers
of Parliament are supreme, Concurrent List powers are shared but tilted in favour of
Parliament, and State List powers exist but remain subordinate, with Parliament still able
to legislate in non-State territories even on State subjects.
• Article 254 - When a State law conflicts with a Parliamentary law on matters in the
Concurrent List. Clause (1) makes it clear that if a State law clashes with a law made by
Parliament (which Parliament is competent to enact), or with an existing law on the same
subject, then the Parliament’s law will prevail and the State law will be void, but only to
the extent of the conflict. Clause (2) creates an exception: if the State makes a law on a
Concurrent List matter that contradicts an earlier Parliamentary law or an existing law,
and that State law is reserved for the President’s consideration and receives his assent,
then the State law will prevail, but only within that State. However, the proviso to clause
(2) safeguards Parliament’s supremacy as it allows Parliament, at any time, to pass a new
law on the same subject, even changing, amending, or repealing the State law that had
Presidential assent. So, while States can temporarily protect their conflicting law with
Presidential approval, Parliament always retains the final word.
LEGISLATIVE COMPETENCE – V. NIRANAJAN
• The allocation of powers between Union and States in India rests on the idea of dividing
legislative authority into three lists, with residuary powers lying with the Union. This
framework is rooted in the GOI Act, 1935, which itself was influenced by federal models
such as Australia and Canada but also differed significantly. The Canadian model
concentrated residuary powers with the Dominion, emphasizing central supremacy,
whereas the Australian federation leaned more towards the States. The 1935 Act placed
residuary powers with the Governor-General, reflecting distrust in provincial autonomy.
Unlike Canada, where residuary powers meant vast central competence, in India the
scheme was more cautious and had to accommodate a quasi-federal experiment under
colonial rule. This tension laid the ground for later constitutional disputes over the vires
of legislative action of whether a law was “in respect to” a subject within the legislature’s
domain. Importantly, courts clarified that vires is to be judged with respect to a statute as
a whole, not by isolating provisions. The earliest tests of this allocation came in money
lending litigation, where state legislatures tried to regulate exploitative moneylending
practices. In Nagaratnam v. Seshayya, the Madras Act scaling down debts was challenged
by moneylenders as ultra vires, on the ground that it trenched upon promissory notes, a
Union subject. The court, however, upheld the law as intra vires, reasoning that its pith
and substance lay within “moneylending,” a provincial matter, even if it incidentally
touched negotiable instruments. It accepted incidental encroachment so long as the
statute’s dominant purpose lay within competence. The arguments of moneylenders that
negotiable instruments were destroyed in value failed because the court refused to
disaggregate incidental impacts from the law’s main aim.
• The matter resurfaced in Subramanyam Chettiar v. Muttuswami Goundan, where the
validity of Nagaratnam was questioned. Here, reliance was placed on Section 107 of the
1935 Act concerning repugnancy between Provincial and Federal laws. But the Privy
Council avoided ruling on it, holding the issue unnecessary since the Negotiable
Instruments Act of 1881, being unaffected, did not conflict with the Madras Act. This
narrow approach shows how vires was preserved only because there was no direct
inconsistency, foreshadowing later debates on repugnancy.
• The landmark came in Prafulla Kumar Mukherjee v. Bank of Commerce, where the Privy
Council crystallized the doctrine of “pith and substance.” The Bengal Moneylenders Act
was challenged as trespassing into promissory notes and banking. The Privy Council held
that even though the law incidentally affected Union subjects, its true character was
regulation of moneylending, a provincial field. Incidental encroachment was permissible
so long as the trespass was not excessive. This ruling became central to federal
adjudication in India. It also dismissed the “repugnancy fallacy”, the idea that any overlap
automatically invalidated a state law. The Court clarified that only when two laws were
directly inconsistent would repugnancy arise.
• The Supreme Court later expanded this reasoning in Gujarat University v. Shri Krishna
Ranganath Mudholkar. The issue was whether the State could legislate on the medium of
 instruction in higher education. The majority held that the State law was repugnant to the
Union law under the Concurrent List, but Justice Mudholkar in dissent emphasized the
importance of federal balance, warning against excessive centralisation. This case
underscored the evolving jurisprudence on repugnancy and federal distribution. The
author critiques this, noting that the Court often conflated incidental encroachment with
true repugnancy, thereby weakening the autonomy of States.
• Th author develops five propositions. First, legislative fields must be interpreted broadly
but harmoniously. Second, the doctrine of pith and substance safeguards validity despite
incidental encroachment. Third, repugnancy arises only from clear conflict, not mere
overlap. Fourth, the “aspect theory” suggests that the same transaction can have multiple
aspects, each subject to different legislative competence. Fifth, incidental encroachment is
not repugnancy. The “so-called aspect theory,” adopted in Federation of Hotel &
Restaurant Association v. Union of India, held that service tax on hotels could be
legislated by Parliament under Union List entries despite overlap with State power on
luxury tax. The Court reasoned that different aspects such as luxury and service which
could justify distinct laws. This marked a shift away from pure pith and substance.
• However, the aspect theory is controversial. While pith and substance tolerates incidental
overlap, aspect theory allows two legislatures to regulate the same subject from different
angles, which may dilute federal clarity. The author argues that incidental encroachment
cannot be equated with aspect theory; they are conceptually distinct. Incidental
encroachment tolerates minor overlap, while aspect theory legitimises parallel regulation
of the same activity. This distinction is vital to understand Indian federalism’s unique
trajectory.
• Article 254 of the Constitution addresses repugnancy in the Concurrent List. The author
raises the critical question: does repugnancy require actual conflict, or can a State law be
ousted merely by occupying the field? The prevailing interpretation is that actual conflict
is necessary; mere coexistence does not invalidate a State law unless it contradicts the
Union law in operation. Yet, judicial practice sometimes slides into field-occupation
doctrine, undermining State autonomy. This brings into focus whether Article 245, which
defines territorial limits of legislative power, extends to conflicts across the three lists or
only within the Concurrent List. The author argues convincingly that Article 245 deals
only with territorial extent and does not affect subject-matter distribution, which must be
governed by Articles 246 and 254.
• Finally, six propositions are offered: (1) legislative competence must be read broadly, (2)
incidental encroachment is valid, (3) pith and substance remains the touchstone, (4)
repugnancy requires actual conflict, (5) aspect theory must not replace pith and substance,
and (6) cooperative federalism requires courts to avoid centralising bias. Each of these is
backed by precedent but also open to critique. For instance, in Damodar Gardhan v.
Deoram Kanji, the Bombay High Court reiterated that laws must be judged as a whole,
not by dissecting provisions, underscoring the principle that pith and substance governs.
Similarly, comparative references to Canada and Australia highlight how India diverged
by blending central control with state autonomy under a quasi-federal design.
• Poppatlal Shah v State of Maharashtra (1953) – Madras sought to levy sales tax on a
Madras firm that took orders in Madras, bought the goods locally, and consigned them by
rail or steamer to Calcutta buyers against documents routed through Calcutta bankers; it
was common ground that property in the goods passed to purchasers in Calcutta. For the
period 1 April–31 December 1947 the firm was assessed, and a partner was convicted
under Section 15 of the Madras General Sales Tax Act, 1939. The High Court affirmed by
treating “sale” in a popular, transactional sense rather than by the Sale of Goods Act
standard. The appellant contended that any imposition of sales tax on this turnover was
unconstitutional and ultra vires because the sales were completed outside the Province:
under the Sale of Goods Act the situs of a sale is the place where property passes; here
that was Calcutta. Alternatively, if the Act were construed to reach such transactions, it
would be extra-territorial and beyond provincial competence. The State replied that for a
sales tax the unit is the “transaction” of sale as a whole; the contracts were made,
accounts kept, goods procured, and delivery to a common carrier effected in Madras,
furnishing a sufficient connection to sustain the levy. B. K. Mukherjea, J., first addressed
legislative competence. Reading Section 100(3) of the Government of India Act, 1935
(the predecessor to Article 246(3)) with Provincial List Entry 48 (“taxes on the sale of
goods”), he held that while a Province cannot legislate to bind other territories, it may tax
even sales completed outside its limits if there is a real and sufficient territorial nexus, an
approach consistent with the Privy Council in Wallace Bros. and this Court’s Bombay
Sales Tax ruling. Put in Article 245 terms, a law’s validity turns on territorial connection,
not merely the formal situs of title. The competency question, therefore, could be
answered in the Province’s favour if the statute adopted a nexus basis. The crucial issue,
however, was one of construction. Vires must be judged against the Act’s true intendment
as a whole. The title and preamble “a general tax on the sale of goods in the Province of
Madras” showed that, as it then stood, the Act taxed only sales “in” Madras. The Court
emphasised that “sale of goods” is a composite expression: contract, consideration,
delivery to the carrier, and the passing of property are all relevant ingredients; yet no sale
is concluded until the buyer becomes owner. Section 2(h) defined “sale” as a transfer of
the property in goods for cash or deferred payment or other valuable consideration,
anchoring meaning to the Sale of Goods Act conception rather than to a loose popular
usage. Explanation 2, introduced later by Madras Act 25 of 1947, created an explicit
deeming rule: a sale would be treated as having taken place “in this Province,”
notwithstanding the Sale of Goods Act, (i) where the goods were actually in Madras at the
time of the contract, or (ii) in the case of future goods by description, where they were
subsequently produced in Madras. The very need for this legal fiction showed that,
without it, such transactions lay outside the pre-existing definition; and it confirmed that
the legislature itself understood the charge to turn on sales “in” Madras, not merely on
fragments of the transaction occurring there. Applied to the facts, the levy failed. Neither
making the contract in Madras nor handing goods to a common carrier there converted a
transaction completed by transfer of property in Calcutta into a sale “within the Province”
for the charge under Section 3, which taxed “turnover” derived from sales as defined in
 Section 2(h). The High Court’s resort to a supposed “popular” meaning could not displace
the statute’s own Sale of Goods Act-based definition. Because Explanation 2 was not then
operative for the relevant months of 1947, there was no deeming hook to bring these sales
within Madras. On that footing, any imposition of sales tax on the disputed turnover was
unconstitutional and ultra vires. On territorial nexus i.e., the Article 245-style inquiry, the
Court reaffirmed the doctrine in principle: a Province may adopt a nexus resting on local
ingredients of the bargain or on the location or subsequent production of the goods, and,
had the Act done so for the period in question, competence would not have been wanting.
But competence cannot supply a charge the text does not impose. For 1 April–31
December 1947, the Act did not extend beyond sales where property passed within
Madras. The Supreme Court therefore allowed the appeal, set aside the conviction and
sentence, and directed that both the fine and the assessed sales tax be refunded, while
making clear that a properly framed nexus-based levy would be within power.
• State of Bihar v Charusila Dasi (1959) – a trust-deed of 11 March 1938 transferring
properties in Deoghar (Bihar) and several houses in Calcutta to trustees for construction
of two temples, the installation and maintenance of deities, and the later establishment of
a female hospital and an outdoor charitable dispensary. The High Court had held the
endowment to be a private family trust and quashed proceedings under the Bihar Hindu
Religious Trusts Act, 1950. The central questions for this Court were whether, on true
construction, the Charusila Trust was private or public, and if public, whether Section 3 of
the Bihar Act by applying the Act to “all religious trusts … any part of the property of
which is situated in the State of Bihar” ran afoul of Articles 245 and 246 by having extra-
territorial operation. S.K. Das J. framed the interpretive approach with immediate
deference to legislative competence: statutes should where possible be read to make them
operative rather than inoperative, and there is a presumption against legislative overreach.
The Court first scrutinised the deed as a whole rather than isolated clauses. It emphasised
that the deed did not merely preserve family worship but expressly provided for large-
scale festivals, free distributions (“bhandara”), “pronamis” and perquisites to the deities
forming part of the trust estate, mandatory temple-committee composition requiring
residents of Deoghar and Bengali members, and trustees including non-family persons
and disciples, all indicia that the settlor intended public benefit beyond a narrow family
circle. The express trust to establish a hospital for Hindu females and an outdoor
dispensary for outpatients “of any religion or creed whatsoever” was held to be an
independent, non-ancillary public trust obligation: the hospital trust was not merely
incidental to family worship but a discrete charitable object, albeit to be implemented
after temple construction. In reaching this conclusion the Court placed weight on earlier
authorities: Deoki Nandan v. Murlidhar formulated the correct test of whether the settlor
intended the right of worship to be confined to family or extended to the general body of
worshippers and the Calcutta income-tax reference (In re Charusila Dasi) which had
earlier characterised parts of the trust as public for tax purposes, was considered but not
treated as determinative. The Court explained that an offering (“pronami”) does not leave
a right in the donor; rather, the public’s right is to worship and participate in the
ceremonies and distributions, and that collective right supports a finding of public
endowment. On this basis the trust’s dominant purpose was found to be public religious
and charitable trust. Turning to Section 3 and the question of territorial reach, the Court
construed Section 3 in light of the preamble and Section 1(2) of the Act. The preamble
declared the statute’s aim “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.” Reading Sections 1(2) and 3 with that aim, the Court held
both conditions implicit: (a) the religious trust or institution must be situate in Bihar; and
(b) any part of its property must be situated in Bihar. This reading meant Section 3 did not
purport to operate extra-territorially as a general law binding institutions headquartered
wholly outside Bihar; rather, the Act governs trusts situated in Bihar and, in consequence
of that situs, may regulate trustees and their administration even when some trust property
lies beyond State borders. On the territorial-nexus doctrine the Court invoked and applied
Tata Iron & Steel Co. v. State of Bihar and R.M.D. Chamarbaugwala v. Union of India
principles. Two elements were emphasised: first, the connection between the State and the
subject-matter must be real and not illusory; second, the liability imposed must be
pertinent to that connection. Applying those tests, the Court found a substantial and real
nexus: the temples and the proposed hospital were physically situate in Deoghar, trustees
functioned in Bihar, festivals and distributions would benefit worshippers in Bihar, and
administration would necessarily be carried on within the State. These facts furnished a
non-illusory territorial link sufficient to permit Bihar to legislate for the trust’s
administration and to subject trustees to in personam obligations enforceable within the
State. The judgment also rejected the contention that Section 3 operated as an
impermissible extra-territorial imposition upon property lying outside Bihar. The Court
explained that the Act’s mechanism is essentially personal: it affects trustees and their
duties where the trust is administered. Because enforcement and administration occur in
Bihar, the imposition on trust property outside Bihar is incidental and does not amount to
an exercise of legislative power outside territorial competence. The Court distinguished
cases where legislation attempted to bind persons or property entirely beyond territorial
reach, stressing that here the locus of the trust and the exercise of managerial functions
was squarely within Bihar. On judicial review standards the Court underlined a restrained
approach: where a reasonable construction avoids invalidity, courts should prefer it; the
legislative purpose in the preamble and the practical realities of trust administration
support the statute’s application. By so construing Section 3, the Court avoided striking
down bona fide local regulatory efforts as ultra vires and preserved the State’s power
under Item 28 of the Concurrent List “charities and charitable institutions, charitable and
religious endowments and religious institutions” to regulate trusts sited within its
territory. Finally, applying these principles to the Charusila Trust the Court found the
endowment to be public and the Bihar Act applicable. The presence of Calcutta properties
did not defeat application since the trust’s situs and administrative nexus were in Bihar
and the liabilities the Act imposed were pertinent to that nexus.
• Karulkar v State of Gujarat (1994) – Challenges to Section 6(3-A) of the Gujarat
Agricultural Lands Ceiling Act, 1960, which was introduced by the 1972 amendment.
The provision directed that in computing the permissible ceiling area of agricultural land
a person could hold in Gujarat, the land owned by that individual in other parts of India
must also be considered. If such outside land already exceeded the permissible ceiling,
then the person would not be entitled to hold any land within Gujarat. The appellants,
owners of agricultural land both inside Gujarat and in other states, contended that this
provision was unconstitutional because it was extraterritorial in nature and beyond the
competence of the Gujarat Legislature under Article 245(1) of the Constitution. They
argued that a state legislature cannot legislate regarding lands outside its territorial limits,
and tying the ceiling in Gujarat to holdings elsewhere amounted to extraterritorial
legislation. Notices were issued under the amended provision reopening ceiling cases, and
in some instances, final orders were passed. The appellants thus approached the Supreme
Court challenging the provision as ultra vires. The issues revolved around legislative
competence and whether the impugned provision suffered from extraterritorial operation.
The central constitutional provisions in question were Articles 245 and 246, which limit
state legislative power to laws for the state or any part of it, and the Seventh Schedule,
particularly Entry 18 of List II, relating to land, and Entry 42 of List III, relating to
acquisition and requisitioning of property. The argument of the appellants, advanced by
eminent counsel like G. Ramaswamy and R.F. Nariman, was that the provision effectively
legislated about land situated outside Gujarat, thus transgressing the constitutional
prohibition. They insisted that in substance, the law penalized ownership of land in other
states by reducing or eliminating permissible holding in Gujarat, which was
impermissible. They contended that extraterritoriality must be assessed not just formally
but also by the effect of a law on citizens’ rights. The respondents, represented by S.K.
Dholakia, countered by relying on the doctrines of pith and substance and territorial
nexus. They argued that the Act was directed squarely at fixing ceilings on agricultural
land in Gujarat and did not purport to regulate land outside the state. The reference to
outside holdings was only an incidental factor for determining the permissible ceiling
within Gujarat. The ceiling could not be regarded in isolation; otherwise, it would allow a
person with extensive holdings elsewhere to accumulate more land in Gujarat, defeating
the distributive justice aims of the Act. Thus, the legislative competence was intact
because the subject matter remained land within Gujarat, supported by Entry 18, List II.
The Court, speaking through Kuldip Singh J., upheld the validity of the provision,
dismissing the appeals. It began by reiterating that under Articles 245 and 246, a state
legislature cannot make laws with extraterritorial operation, but clarified that this
prohibition applies only when laws affect persons or property wholly outside the state.
The doctrine of territorial nexus, well-established in constitutional jurisprudence, allows a
state law to have implications beyond its borders if the nexus between the law and the
state is real and not illusory, and the liability imposed is relevant to that nexus. Applying
this principle, the Court found the necessary connection present. The Act applied only to
land situated within Gujarat and to persons holding land there. The fact that landholdings
 outside the state were taken into account did not transform the Act into extraterritorial
legislation. Rather, such consideration was relevant to the equitable distribution of land
within Gujarat. The sine qua non for the application of the Act was possession of land
within Gujarat. If a person held no land there, the Act simply did not apply to him. In
terms of pith and substance, the legislation was held to fall under Entry 18, List II,
supported by Entry 42, List III. The Court emphasized that legislative entries specify
broad fields of lawmaking, not narrow subjects, and incidental considerations outside the
state do not negate legislative competence. The Court also referred to its earlier ruling in
Hasmukhlal Dahayabhai v. State of Gujarat, which had upheld the general validity of the
Act, though legislative competence was not argued there. It clarified that the provision’s
objective, as declared in the Amendment Act, was to implement Directive Principles
under Article 39(b) and (c), ensuring distribution of agricultural resources for the
common good and preventing concentration of wealth. Inclusion of the Act in the Ninth
Schedule further reflected its role in advancing agrarian reform, insulating it from
challenge on fundamental rights grounds, though here the issue was legislative
competence. The Court concluded that the territorial connection was clear and sufficient:
the land in Gujarat and its holders formed the core nexus. Even though outside holdings
were considered, the law remained in substance a ceiling law confined to Gujarat’s
territory. The appellants’ contention of extraterritoriality was thus rejected. The legislative
competence of the Gujarat Assembly was affirmed, and the provision was held valid. The
appeals were dismissed, with the Court reiterating that mere consideration of factors
outside a state to legislate within its proper field does not amount to extraterritorial
operation. This reasoning clarified the scope of Articles 245 and 246 and reinforced the
doctrines of territorial nexus and pith and substance, showing that competence is judged
by the subject and field of legislation, not incidental external references.
• Governer-General in Council v. Province of Madra (1958) – The dispute in this case
revolved around the competence of the Madras Legislature to impose a duty described as
an excise on tobacco. The Governor-General in Council challenged the Madras Act as
unconstitutional, arguing that the power to levy duties of excise was exclusively within
the domain of the Centre under Entry 45 of List I of the Government of India Act, 1935,
and that the State’s attempt to disguise such a duty as a tax on the first sale of tobacco was
beyond its legislative authority. The Madras Government, however, maintained that the
levy was not an excise duty but a tax on sales, which fell under Entry 48 of List II, thus
squarely within its legislative competence. The central question was whether the duty was
in pith and substance an excise or a sales tax, and how to draw the line between these two
categories. The Court examined the doctrine of pith and substance, a principle used to
determine the true nature of legislation when there is overlap between federal and state
powers. It acknowledged that while incidental encroachment on another entry is
permissible, the legislation must still be characterized according to its substance. In this
case, the Governor-General in Council stressed that excise is a duty levied at the point of
production or manufacture, and any levy linked to goods before reaching the consumer
market bears the essential character of an excise. The Madras Act, by taxing the first sale,
was essentially targeting the article itself rather than the transaction, and thus constituted
a disguised excise, which the State had no competence to levy. The Court relied heavily
on the nature of excise as explained in English and Indian jurisprudence. Excise is not
defined by where it is imposed but by what it is imposed on. A duty on manufacture,
production, or even the earliest point of sale is excise in substance. On the other hand, a
sales tax under Entry 48 relates to the act of sale as a taxable event, irrespective of the
goods involved. The challenge was to determine at what point a levy crosses from being a
tax on a transaction to being an excise on goods. This boundary question was
fundamental to the adjudication. The Madras Legislature argued that since the Act taxed
only sales, it was plainly a sales tax. But the Court noted that the preamble and the
recitals of the Act, as well as the scheme of taxation, revealed that the real aim was to
raise revenue from tobacco as a commodity, and by fastening the levy on the first sale, the
State was encroaching on the Union’s exclusive field. To test this, the Court applied two
standards: first, whether the levy attaches itself primarily to the goods or to the
transaction; and second, whether the incidence of taxation can survive in the absence of
sale. If the levy is inseparably linked to the commodity, then it is excise; if it arises purely
from the transaction of sale, then it is a sales tax. Applying these tests, the Court
concluded that the Madras duty was imposed on the goods themselves under the guise of
a sales tax, making it an unconstitutional encroachment. The doctrine of pith and
substance, therefore, required looking beyond the form of the Act to its substance, and in
doing so, the Court found it to be a duty of excise. The Court also emphasized that when
Entries in List I and List II are irreconcilable, the federal entry must prevail. This
principle ensures the supremacy of central legislation in matters of national importance
like excise. Entry 45 of List I could not be diluted by creative legislative drafting by the
provinces. The Madras Government’s attempt to categorize the impost as a sales tax did
violence to the meaning of Entry 48 in List II. The Court noted that while overlapping
fields exist, the integrity of the division of powers must be preserved, and the State cannot
stretch its powers to trench upon the exclusive competence of Parliament. Additionally,
the Court discussed that the legislative history of the Government of India Act, 1935,
clearly showed that excise duties were meant to be central revenues, leaving sales tax to
the provinces. Allowing provinces to impose disguised excise duties would undermine
this financial arrangement. The revenue-sharing design of the Act had to be respected to
maintain the federal balance. The imposition of excise by provinces would distort the
fiscal structure and go against the intended scheme. In its judgment, the Court held that
the Madras Act, though framed as a tax on the first sale of tobacco, was in substance an
excise duty and therefore ultra vires the State Legislature. By invoking the doctrine of
pith and substance, the Court concluded that substance must prevail over form, and the
Madras Legislature lacked competence to enact the law. The levy, being in essence a duty
on goods manufactured or produced, fell exclusively within the ambit of Entry 45 of List
I. As List I and List II could not be reconciled in this context, the Union’s power had to
prevail, and the impugned Act was struck down as unconstitutional.
• Prafulla Kumar Mukherjee v Bank of Commerce, Khulna (1947) - Validity of the Bengal
Money Lenders Act, 1940, and whether the Act fell within the legislative competence of
the Provincial Legislature under the Government of India Act, 1935. The facts began with
money-lending transactions carried out by the Khulna Loan Bank and its successor, the
respondent Bank of Commerce. The appellants were borrowers who had executed
promissory notes contemporaneously with loans advanced. The Bengal Act imposed
restrictions on the amounts recoverable by money lenders, limiting both principal and
interest payable. Borrowers invoked its provisions to seek relief, while the respondent
bank argued that the Act was ultra vires since it directly impacted promissory notes and
banking, both falling within the Federal Legislative List. The Subordinate Judge granted
relief under the Act, the High Court affirmed, but the Federal Court reversed, holding that
insofar as the Act dealt with promissory notes, it was beyond provincial competence. This
led to the appeal before the Judicial Committee of the Privy Council. The key issue was
whether the Bengal Act, in its true character, was legislation “in respect of” money-
lending and money lenders, a subject under entry 27 of List II (Provincial List), or
whether it encroached upon matters reserved exclusively for the Federal Legislature, such
as promissory notes (entry 28, List I) and banking (entry 38, List I). The appellants
argued that money-lending inherently included the right to regulate instruments used in
such transactions, including promissory notes between lender and borrower. They
maintained that the Act was in “pith and substance” about money lending, and any
incidental effect on promissory notes or banking was constitutionally permissible. The
respondents countered that the Act was essentially curtailing rights under promissory
notes, thus trenching upon a Federal subject and rendering it unconstitutional. The
Federal Court had agreed with this view, applying a test of “substantial effect” on Federal
subjects to conclude that the Act trespassed into Federal fields. The Privy Council
approached the issue through the doctrine of pith and substance, holding that in cases of
division of legislative power, overlap is inevitable, and what matters is the true nature of
the impugned legislation. Their Lordships stressed that one cannot dissect each provision
of a statute in isolation; instead, the statute must be looked at as a whole to determine its
dominant character. If its substance is within the legislature’s competence, incidental
encroachment upon another list would not invalidate it. They dismissed the Federal
Court’s “substantial versus insubstantial” distinction as unsound, clarifying that the focus
must be on the true subject matter, not the degree of overlap. On examining the Bengal
Act, the Privy Council found that its core purpose was to protect borrowers from
exploitation by regulating money lenders, capping recoverable sums, and reopening harsh
transactions. These objectives aligned squarely with entry 27 of List II. The references to
promissory notes were incidental, because promissory notes were often used to evidence
loans, but the Act did not purport to regulate negotiability or the legal character of
promissory notes as instruments. Similarly, banking was not its target; the Act was
directed at money-lending activities, even if banks engaged in them incidentally. Thus,
the Act did not in substance legislate upon promissory notes or banking, which remained
Federal subjects. By applying pith and substance, the Privy Council held the Act intra
 vires the Provincial Legislature. The appellants also argued that even if the Act touched
upon promissory notes, the scope of entry 28 of List I should be confined to aspects
relating to the negotiability of such instruments, not to the contractual rights between
immediate parties. In this reading, the contractual incidents of promissory notes fell
within the concurrent field of contracts or the provincial field of money-lending. The
Privy Council appeared to endorse this interpretation, emphasizing that List I entries
should not be construed so broadly as to denude Provincial powers of meaningful
operation. This reconciled entries 27 of List II and 28 of List I, ensuring that the
provincial power over money-lending was effective even where promissory notes were
involved. The respondents’ reliance on possible repugnancy with the Negotiable
Instruments Act, 1881, was also rejected. The Privy Council held there was no direct
conflict between the Bengal Act and the federal statute. The Negotiable Instruments Act
governed negotiability, transferability, and the formalities of such instruments, while the
Bengal Act addressed the substantive rights and liabilities of parties in the context of
money-lending. Even if a conflict were assumed, section 107 of the Government of India
Act, 1935, allowed provincial laws, when reserved for and assented to by the Governor-
General, to prevail within the Province. Thus, repugnancy did not render the Act void.
The judgment drew upon Canadian precedents such as Attorney-General for Ontario v.
Attorney-General for Canada and Great West Saddlery Co. v. The King, where courts
stressed reconciling overlapping fields through the doctrine of pith and substance. The
Privy Council also referred to Indian precedents like Subramanyan Chettiar v.
Muttuswami Goundan and Bank of Commerce v. Amulya Krishna Basu, but departed from
the Federal Court’s restrictive approach. Lord Wright, delivering the judgment, observed
that in a federal scheme, it is inevitable that legislative powers will sometimes appear to
conflict, but the task of courts is to ascertain the dominant purpose of the legislation and
uphold it if it is within the enacting body’s sphere. The Privy Council held that the Bengal
Money Lenders Act, 1940, was intra vires the Provincial Legislature. In pith and
substance, it dealt with money-lending and money lenders under entry 27 of List II. Its
incidental effect on promissory notes or banking did not alter its essential character. The
Federal Court’s contrary view was reversed
• Hoechst Pharmaceauticals v State of Bihar (1983) - Validity of Section 5 of the Bihar
Finance Act, 1981, which levied a surcharge on dealers with an annual gross turnover
exceeding Rs. 5 lakhs and further prohibited them from passing on this surcharge to
consumers. The challenge primarily came from large pharmaceutical companies like
Hoechst and Glaxo, who argued that since almost all their medicines were subject to
controlled prices under the Drugs (Price Control) Order, 1979, issued under the Essential
Commodities Act, 1955, they were prevented from recovering the additional surcharge
through their pricing mechanism. They contended this created a direct conflict between
central and state legislation, raising questions of legislative competence, repugnancy, and
violation of fundamental rights. The appellants argued that under Article 246(3), state
powers in List II were expressly subject to Union powers under Lists I and III. Since the
field of price fixation of essential commodities was already occupied by the Union under
the Essential Commodities Act and the Drugs Price Control Orders, Bihar’s Section 5(3),
which prevented passing the surcharge to consumers, trespassed into an occupied field.
By virtue of Section 6 of the Essential Commodities Act, central orders had overriding
effect, meaning that the state law was void to the extent of inconsistency. They relied on
the doctrine of occupied field and federal supremacy, asserting that state laws in conflict
with central laws must yield. Further, they claimed that the provision was discriminatory
under Article 14, since it treated differently situated classes of dealers those free to adjust
prices and those bound by controlled prices identically. The burden fell disproportionately
on controlled-price industries like pharmaceuticals, effectively confiscating profits and
violating the freedom to trade under Article 19(1)(g). Another subsidiary argument was
that “gross turnover” in Section 2(j) of the Act included interstate and foreign trade,
which under Article 286 was beyond state competence, making the surcharge ultra vires.
The State of Bihar, represented by the Solicitor General, argued that the doctrine of
repugnancy under Article 254(1) arises only when both Union and State laws occupy the
same subject in the Concurrent List and are irreconcilably inconsistent. Here, the
surcharge was levied under Entry 54 of List II, which empowers states to tax sales of
goods. The Drugs Price Control Order, by contrast, was traceable to Entry 33 of List III
(essential commodities). Since they were derived from different sources and operated in
distinct fields, the rule of pith and substance required the Court to uphold the state law.
Furthermore, the Solicitor General pointed out that under paragraph 24 of the Drugs
(Price Control) Order, manufacturers sell to wholesalers at an inclusive price, not at the
controlled retail price under paragraph 21. Thus, the surcharge merely reduced their profit
margins but did not create a conflict with central orders. Moreover, controlled prices fixed
by the Centre represented maximum prices, not compulsory ones, leaving flexibility for
companies. Therefore, Section 5(3) was not inconsistent. As to Article 14, he argued that
the surcharge was imposed uniformly at 10% on all dealers above the turnover threshold,
which was a valid classification. No material showed the levy to be confiscatory or
disproportionate. On the point of gross turnover including interstate sales, the Court was
urged to treat it as only a measure of liability, not the subject of taxation, so Article 286
was not violated. The Court first clarified the scope of pith and substance. Section 5(3)
was squarely within Entry 54 of List II, empowering states to impose a tax on sales or
purchases of goods. Merely because it incidentally touched upon drugs subject to
controlled prices under a concurrent field did not invalidate it. Referring to Prafulla
Kumar Mukherjee v. Bank of Commerce and Governor-General in Council v. Province of
Madras, the Court reiterated that incidental encroachment on another list is permissible if
the true nature of the law falls within the legislature’s competence. On the repugnancy
argument, it stressed that Article 254 applies only where both laws fall under the
Concurrent List. Since the surcharge stemmed from the exclusive State List, no question
of repugnancy arose. Federal supremacy under Article 246 is not a carte blanche for
striking down state laws absent direct overlap. The doctrine of occupied field was rejected
because the Centre’s law operated in price control, while the surcharge operated in
taxation. Addressing Article 14, the Court cited Kodar v. State of Kerala, which upheld a
 similar additional sales tax. There, it was held that the inability of dealers to pass on the
tax did not change its nature as a sales tax. Here too, the surcharge was uniformly applied
to all dealers above a turnover threshold, which was a valid and non-arbitrary
classification. Treating manufacturers of controlled commodities on par with others did
not amount to hostile discrimination. As for Article 19(1)(g), the Court held that the
surcharge did not constitute an unreasonable restriction; at best, it reduced profit margins
but did not render business impossible. No evidence showed the surcharge to be
confiscatory. The challenge based on Article 286 was also dismissed. The Court
emphasized that including interstate and foreign sales in “gross turnover” was only for
determining the incidence of liability. The tax itself was imposed only on intra-state sales.
Therefore, there was no extra-territorial overreach. The Court referred to the settled
principle that the measure of tax and the subject of tax are distinct. The inclusion of
turnover beyond state power for computation purposes did not invalidate the levy.
Ultimately, the Supreme Court upheld Section 5(1) and 5(3) of the Bihar Finance Act,
1981. It held that the surcharge was a valid sales tax under Entry 54 of List II, there was
no repugnancy with central laws under Article 254, and no violation of Articles 14 or 19.
• Calcutta Gas Company Ltd v State of West Bengal (1962) - The appellant, Calcutta Gas
Company, challenged the West Bengal Oriental Gas Company Act, 1960, which
authorized the State to take over management and control of the Oriental Gas undertaking
for five years and later to acquire it. The company managed and operated the gas works in
Calcutta under a long-standing arrangement; the State invoked the statute to increase
production and ensure supply. The High Court dismissed the company’s writ petition, and
the matter reached the Supreme Court where the central contest was whether the State
legislature had constitutional competence to enact the impugned statute in the shadow of
the Central Industries (Development and Regulation) Act, 1951. The appellant argued that
the Union, through Entry 52 and the Central Act, occupied the field of industries like fuel
gases and that State entries could not be read to trench on Parliament’s exclusive domain;
the State defended the Act under Entries 24 and 25 of List II and also by resort to Entries
33 and 42 of List III. The Court framed the dispute as one of harmonious construction of
competing entries in the Seventh Schedule read with Article 246. It recalled the classic
approach in In re Central Provinces and Berar Act (Gwyer C.J.) where apparently
conflicting entries, duties of excise (Entry 45 List I) and taxes on sale of goods (Entry 18
List II under the 1935 Act), were reconciled by contextual reading so that a general
federal head should not swallow a particular provincial head. The Court emphasized that
this canon requires reading entries together to give effect to both, and that the non
obstante or federal supremacy clause operates only if reconciliation is impossible.
Applying that logic, the Court proposed three possible constructions for Entries 24
(industry generally) and 25 (gas and gas-works): (1) treat Entry 24 as wide enough to
include gas industry leaving Entry 25 for other aspects; (2) construe Entry 25 as carving
out the whole gas industry from Entry 24; or (3) accept an overlap where both entries
operate in their spheres. The Court rejected the appellant’s push to interpret Entry 24 so
widely that Entry 25 becomes redundant. It reasoned that such a reading would render
 Entry 25 nugatory and produce tautology: the framers deliberately gave special treatment
to gas and gas-works, likely because of its limited geographic spread or policy sensitivity.
The accepted course was the harmonizing construction that preserves the fullest content
of both entries: Entry 24 remains a broad industry head generally, while Entry 25
functions as a specific head for the gas industry within the State. This reading accords
with the principle that specific or local concerns deliberately carved out by the
Constitution should not be eaten up by a general entry. On the meaning of “industry,” the
Court noted prior jurisprudence which tended to confine “industry” to production or
manufacture but observed it was unnecessary to define the term exhaustively for the case.
What mattered was that gas and gas-works could plausibly fall within both entries;
therefore, the interpretive duty is to adopt the construction that enables both entries to
operate rather than annul one. The Court emphasized that this harmonious approach is
consistent with Article 246 which grants exclusive state power over List II items subject
to exceptions created by Parliament through specific clauses like Articles 249–252 or
emergency provisions. In extraordinary national contingencies Parliament can legislate on
state subjects, but absent such a step the State’s competence stands. The Court rejected
the appellant’s submission that Section 20 of the Central Act (which bars State takeover
of industrial undertakings) rendered the State Act invalid. If, as the Court concluded, the
gas industry is outside the legislative field of Parliament’s scheduled industries, then the
Central Act’s purported reach into the gas industry must itself be unconstitutional;
consequently ancillary provisions like Section 20 could not save the appellant’s argument.
The judgment also declined to decide alternative contentions based on Entries 33 and 42
of List III, since the accepted construction made them unnecessary. In its reasoning the
Court reaffirmed the Gwyer principle that the character of entries must be reconciled: a
broad federal head should not be read down only to destroy a carefully chosen specific or
local head. Only when reconciliation is impossible does federal supremacy (the non
obstante effect) prevail. Applying that canon, and having found a real, ordinary situs of
gas industry within State legislative competence under Entry 25 (harmonized with Entry
24), the Court held the impugned Act intra vires the West Bengal Legislature.
• Article 248 - Grants residuary powers of legislation exclusively to Parliament,
meaning that if a subject is not listed in either the State List or the Concurrent List of the
Seventh Schedule, only Parliament can make laws on it. Clause (1) makes this clear by
saying Parliament alone has power to legislate on matters not covered in those two lists,
ensuring there is no legislative vacuum in the constitutional scheme. Clause (2) further
clarifies that this residuary power also includes the authority to impose taxes that are not
mentioned in either the State List or the Concurrent List. In short, Parliament is given the
ultimate flexibility to handle new, unforeseen, or unlisted subjects including new types of
taxation, so that the Union always has the ability to respond to emerging situations, such
as technological advancements or novel forms of economic activity, without being
blocked by the absence of such subjects in the constitutional lists.
• Union of India v H.S. Dhillon (1972) - the challenge to the constitutionality of the
Taxation Laws (Amendment) Act, 1969, particularly focusing on whether Parliament had
the legislative competence to enact it. The impugned Act brought the capital value of
agricultural land within the scope of wealth tax, which raised questions about the proper
allocation of legislative powers between the Union and the States under the Seventh
Schedule. The factual background saw the Union imposing wealth tax on agricultural
land through amendments, and the respondents challenged this, arguing that the power to
tax agricultural land fell exclusively within the States’ domain under Entry 49 of List II.
The litigation centered around determining whether Parliament was empowered under
Entry 86 of List I, which relates to taxes on capital value of assets (excluding agricultural
land), read with Article 248 and Entry 97 of List I (residuary powers), to legislate on this
matter, and whether the impugned Act was in pith and substance a wealth tax under Entry
86 or a tax on land under Entry 49 of List II. The primary issues before the Court were
whether Entry 86 could be interpreted to include agricultural land despite its explicit
exclusion, whether Entry 97 read with Article 248 empowered Parliament to legislate on
matters not enumerated in List II or III, and whether the entire Act fell within
Parliament’s competence. Petitioners argued that Entry 49 of List II deals with taxes on
lands and buildings and gives the States exclusive power to levy such taxes, including on
agricultural land based on capital value. They contended that wealth tax on agricultural
land was, in substance, a tax on land, and hence outside Parliament’s legislative reach.
The respondents further argued that the Act violated the federal distribution of powers
and that legislative competence under Entry 86 was limited to non-agricultural assets, so
Parliament could not bypass this limitation by resorting to residuary power. They also
argued that the Union was exercising executive power over a matter reserved for the
States, violating the scheme of separation of legislative fields under the Constitution. The
Union’s arguments, in contrast, focused on the doctrine of pith and substance and the
principle that legislative entries must be given a broad and liberal interpretation. The
Attorney General argued that Entry 86 of List I is not cut down by Entry 49 of List II, and
that even if there is overlap, Parliament retains residuary competence under Article 248
and Entry 97 to legislate on matters not specifically covered in List II or List III. The
Union relied on the scheme of the Seventh Schedule, pointing out that agricultural land is
specifically excluded from Entry 86, but that exclusion does not transfer power to the
States; instead, it merely means that such tax does not fall under Entry 86, leaving
Parliament free to legislate under its residuary powers. It was argued that Entry 86 taxes
the capital value of assets, which is distinct from a tax on land under Entry 49, as the
former taxes the ownership of wealth as a whole rather than the land per se. The test of
constitutional validity, they urged, must focus on the true nature and character of the
legislation, not merely the subject matter’s connection to land. The Court, led by Chief
Justice Sikri, applied the test of legislative competence, emphasizing that Parliament can
legislate on any subject in List I, List III, and on residuary matters under Entry 97 so long
as they are not covered by List II. The majority stressed that the scope of residuary power
under Article 248 is wide and intended to cover new, unforeseen, or unenumerated
 subjects, including taxation. The Court drew a distinction between the basis of taxation
and its incidence, noting that wealth tax is not a tax on land merely because land forms
part of one’s wealth. The majority opinion held that Entry 49 is limited to taxes whose
incidence is directly on land and buildings, whereas wealth tax under Entry 86 is a tax on
the capital value of net wealth as a whole. They clarified that Entry 86 specifically
excludes agricultural land, but this exclusion cannot be interpreted as granting exclusive
power to States; it merely means Parliament must rely on its residuary power if it wants to
tax agricultural land. This reasoning upheld the competence of Parliament to enact the
impugned Act. The judgment also explored the historical context, referring to Sardar
Hukam Singh’s amendment to highlight that the framers were aware of the need to clearly
demarcate taxation powers and deliberately excluded agricultural land from Entry 86 to
maintain the federal balance, entrusting taxation on agricultural land to States under
Entries 47, 48, and 49. Yet, the majority emphasized that residuary power was
intentionally left with Parliament, unlike the Government of India Act, 1935, where
residuary power rested with the Governor-General. This shift underlined the supremacy
of Parliament in legislating on unenumerated matters, reinforcing the view that
Parliament could enact a wealth tax on agricultural land under Entry 97. Justice J.M.
Shelat delivered a powerful dissent, agreeing with the respondents that including
agricultural land within the purview of wealth tax effectively imposed a tax on land,
encroaching upon Entry 49. He argued that the pith and substance of the impugned Act
was a tax on the capital value of agricultural land, which should remain within the States’
exclusive domain. Justice Shelat warned that allowing Parliament to use residuary power
in this way would upset the federal distribution of powers and erode State autonomy. He
maintained that Entry 97 should be interpreted narrowly so as not to undermine specific
entries in List II, and that taxation on agricultural land was deliberately kept with the
States to preserve federalism. Ultimately, despite an initial split in judicial opinion (3-3),
the majority judgment prevailed with the casting vote mechanism under Article 145(5).
The Court held that the Taxation Laws (Amendment) Act, 1969 was valid and within the
legislative competence of Parliament. It was held that the Act fell under Entry 97 read
with Article 248 and not under Entry 49 of List II. The Court clarified that the Act
imposed a wealth tax, not a direct tax on land, and therefore could not be invalidated on
grounds of lack of competence. The majority reiterated that the residuary power under
Article 248 is plenary and cannot be curtailed by implication or by reference to exclusions
in other entries. In defending this conclusion, the Court relied on the doctrine of pith and
substance, pointing out that even if agricultural land formed a part of the taxable wealth,
the nature of the tax remained on net wealth as a whole and not on land itself.
• State of Kerala v Mar Apparem Kuri Company (2012) - The dispute concerned whether
and when a Central statute on chit funds ousts pre-existing State legislation, and what
legal consequences follow. Kerala had enacted the Kerala Chitties Act, 1975 (assented 18
July 1975) to regulate chits operating in the State; later Parliament enacted the Chit Funds
Act, 1982 which received Presidential assent on 19 August 1982 but contemplated
staggered commencement by notification under section 1(3). Kerala amended its statute
in 2002 by inserting section 4(1)(a) to bring within the State’s net chits registered outside
Kerala but having substantial subscriber presence in the State; private chitty firms
challenged that amendment as repugnant to the Central code. The Single Judge below
took the view that absent notification under section 1(3) the Central Act had not come
into force and therefore could not displace the State law, whereas a Division Bench later
held repugnancy and invalidated the State amendment. The Constitution Bench addressed
the conflicting views and referred core constitutional questions for determination. The
Court’s holding began with a textual insistence: the Constitution repeatedly employs the
verb “make” in Articles 245, 246, 250, 251 and 254, and “make” denotes the act of law-
making accomplished by observance of the legislative process and assent. Consequently a
statute is properly regarded as “made” when the legislative process culminates in
presidential assent and publication, even if its operation is postponed by a commencement
clause. A conditional commencement clause (section 1(3) in the Central Act) does not
mean the law was not “made”; it remains a law on the statute book and the moment of
making is decisive for questions of repugnancy. On doctrine the Court explained two
modalities by which repugnancy can arise. First, where Union and State enactments
enacted within their formal spheres overlap and are irreconcilably inconsistent, the non-
obstante principle in Article 246(1) accords primacy to Union law in matters falling under
List I. Second, where both laws relate to a subject in the Concurrent List, Article 254(1)
applies so that a repugnant State enactment is void to the extent of inconsistency. The
Court stressed that repugnancy requires an actual, irreconcilable conflict; mere overlap or
incidental encroachment does not suffice to render a State provision void. Turning to
Entry 7 of List III and the subject-matter of chits, the Court held that chits are a species of
special contract and that Parliament’s scheme in the 1982 Act was intended to be a
comprehensive national code. The architecture of the Central statute—comprehensive
definitions, detailed regulatory machinery, a non obstante clause in section 3 designed to
override contrary laws, and section 90 expressly providing for repeal and transitional
savings, manifested Parliament’s legislative intent to occupy the entire field, to prevent
interstate exploitation by firms registering outside States, and to ensure uniformity in
protection of subscribers. Applying these principles, the Court concluded that on 19
August 1982, the date of Presidential assent, the Chit Funds Act, 1982 was a law “made”
which, by occupying the field under Entry 7, pro tanto displaced inconsistent State
enactments. The Kerala Chitties Act, 1975 therefore stood impliedly repealed and ceased
to operate in so far as its provisions were repugnant to the Central code from that date.
The Court explained the legal mechanics of such implied repeal: by operation of Article
367 and section 6 of the General Clauses Act, 1897, prior transactions, rights, privileges
and liabilities arising under the State law are saved to the extent provided; thus vested
rights and completed acts under the State Act are protected even though the State law is
rendered inoperative for future regulation of chits falling within the Central Act. The
bench reconciled prior discord: a Single Judge had required notification under section
1(3) for displacement, but a Division Bench found repugnancy on enactment. Relying on
Pt. Rishikesh and constitutional text, the Court held that presidential assent marks the
 decisive moment. The judgment stressed Parliament enacted the 1982 Act to preempt
interstate evasions and to provide a uniform national code; it therefore intended pro tanto
to override inconsistent state laws. Furthermore, the Court held that the Kerala Finance
Act, 2002 amendment was void insofar as it purported to legislate in the field already
occupied by Parliament because the State had not followed the Article 254(2) procedure
of reserving the amendment for Presidential assent to validate inconsistency; absent such
assent the State law could not prevail. The Court observed that Parliament’s power under
the proviso to Article 254(2) to repeal, amend or vary any State law exists irrespective of
the later law’s commencement, and that Parliament need not await executive notification
of a State law’s operation before legislating to override it. It reiterated that laws may be
void not only for lack of competence but for transgressing constitutional limitations:
repugnancy arises on making where reconciliation is impossible, and in that situation the
Union enactment prevails and the State enactment is pro tanto wiped off in law.

• Article 368 - Amendment procedure and explains how Parliament can change the
Constitution using its “constituent power.” Clause (1) says that Parliament, despite
anything else in the Constitution, can amend any provision by adding, changing, or
repealing it, but must follow the special procedure in this Article. Clause (2) says that an
amendment can only start with a Bill introduced in either House of Parliament. This Bill
must be passed in both Houses by a special majority – that is, by a majority of the total
membership of each House and by at least two-thirds of the members present and voting.
After this, the Bill is sent to the President, who must give his assent, and then the
Constitution stands amended. However, the proviso to clause (2) lays down a stricter
procedure for certain sensitive provisions, like those affecting the President’s election
(Articles 54, 55), the distribution of powers between the Union and the States (Chapter IV
of Part V, Chapter V of Part VI, Chapter I of Part XI, the Seventh Schedule Lists),
representation of States in Parliament, and Article 368 itself. For these, after the Bill
passes in Parliament, it must also be ratified by at least half of the State legislatures
before being sent to the President. . Clause (3) clarifies that Article 13, which deals with
invalidity of laws violating fundamental rights, does not apply to constitutional
amendments under Article 368, meaning Parliament can amend even Part III
(Fundamental Rights). Clause (4) goes further and says that no constitutional amendment,
including those affecting fundamental rights, can be challenged in any court on any
ground, whether made before or after the 42nd Amendment. Clause (5) declares that there
is no limitation whatsoever on Parliament’s power to amend the Constitution under this
Article. Together, these clauses were meant to give Parliament full and unlimited power
to amend the Constitution. However, it is important to remember that the Supreme Court
in the Kesavananda Bharati case read in the basic structure doctrine, meaning that while
Parliament can amend almost anything, it cannot destroy or damage the basic structure of
the Constitution.
 CONSTITUTIONAL AMENDMENT – MADHAV KHOSLA
• Constitutional amendments lie at the very heart of India’s constitutional identity, and
Article 368 provides the formal gateway for altering the text of the Constitution. Article
368(1) explicitly empowers Parliament, in exercise of its constituent power, to amend any
part of the Constitution by way of addition, variation, or repeal, provided it follows the
special procedure laid down in the Article. Clause (2) prescribes that an amendment must
originate as a Bill in either House of Parliament, must be passed by a majority of the total
membership of that House and not less than two-thirds of the members present and
voting, and then receive Presidential assent. Certain provisions, those affecting the
distribution of powers, representation of States, or Article 368 itself, require an additional
step of ratification by at least half of the State legislatures, preserving the federal balance.
Clauses (3), (4), and (5) reinforce Parliament’s supremacy by exempting amendments
from Article 13’s “law” test, barring judicial review of amendments, and declaring there
to be no limitation on Parliament’s amending power. The text of Article 368 thus seems to
offer Parliament nearly plenary constituent authority. But this textual picture was soon
contested in courtrooms, and it is through a long line of cases that the true meaning and
limits of constitutional amendment power emerged, culminating in the famous basic
structure doctrine.
• The Indian Constitution, unlike some rigid constitutions, was designed as a “living
document” that could evolve with changing needs. Its essential characteristics, however,
include its supremacy, the distribution of powers between Union and States, a catalogue
of fundamental rights, and an independent judiciary. These features form the foundation
of constitutionalism in India. A central tension lies between Parliament’s role as a
democratic law-maker and the Constitution’s status as a higher law that even Parliament
must respect. The judiciary’s assertion of its own position as the final interpreter of the
Constitution has been compared to a constitutional coup d’état, where the Court, by
assuming the authority to invalidate constitutional amendments, elevated itself to a near-
sovereign position. But sovereignty in India is not located in a single organ; it is diffused
across Parliament, the executive, judiciary, and ultimately the people. The concept of
popular sovereignty was embedded through the Preamble’s opening words “We, the
People,” suggesting that constituent power ultimately flows from the people and not from
Parliament alone. The philosophical debate over whether courts exercise this power well
often invokes metaphors such as the “Ship of Theseus,” asking whether a Constitution
that has been amended many times, more than 100 in India’s case, remains the same
Constitution or becomes something entirely new.
• The story of constitutional amendment in India is also the story of the emergence of the
basic structure doctrine. The first challenge came in Shankari Prasad v. Union of India
(1951), where the Supreme Court upheld the First Amendment, which curtailed the right
to property, holding that Article 368 conferred unlimited power on Parliament to amend
the Constitution, including Part III. The Court drew a sharp distinction between ordinary
legislation (which is subject to Article 13’s prohibition if it violates fundamental rights)

This case was filed due to the passing of Zamindari Abolition Act with a view to end all litigation. Whether the process of Amending was ultravires and unconstitutional
and was it a legislative process. Argument was that 13(2) prohibited such amendments. It was held that 13 talked about ordinary legislative power and not amendments
to the constitution in exercise of constituent powers. It also does not affect Article 226 writ jurisdiction.
powers.
Validity of Seventeenth Amendment. Argument that since power of 226 was to be affected by this amendment, then special procedure laid down under 368 should be
followed. The court held that if the amendment made on powers of 226 is indirect, incidental or insignifanct, proviso does not apply via pith and substance.
Fundamental rights cannot be intended to inviolate beyond 368. Mere mention in ninth schedule does not mean that the Legislature have lost the competence to
repeal or amend them.
and constitutional amendments, which it said were not “law” for the purposes of Article
13. This decision was reaffirmed in Sajjan Singh v. State of Rajasthan (1965), where the
FR cannot be
abridged or Court upheld the Seventeenth Amendment. The majority again maintained that all
taken away provisions of the Constitution were amendable. However, Justice Hidayatullah and
by amending
procedures in Justice Mudholkar dissented, offering two seeds that would later grow into the basic
368. structure doctrine. Justice Hidayatullah questioned whether there was a difference
Amendments
to the between constituent and legislative power and warned that unrestricted amendment power
Constitution could allow Parliament to destroy fundamental rights completely. Justice Mudholkar
are
considered raised the idea that the Constitution may have “basic features” which cannot be
"law" under abrogated, referencing the concept of constitutional identity as a limitation.
Article 245,
as • The turning point came in I.C. Golak Nath v. State of Punjab (1967), where by a narrow
constitutional
6:5 majority the Supreme Court reversed Shankari Prasad and Sajjan Singh, holding that
law is
included Parliament could not amend Part III at all. Chief Justice Subba Rao, writing for the
within the
majority, relied on Article 13 to hold that constitutional amendments are included in the
broad
definition of definition of “law” and thus cannot infringe fundamental rights. This decision sparked
law in Article
intense political backlash as it threatened Parliament’s ability to pursue social and
13(2). Article
368 outlines economic reforms, including land redistribution. In response, Parliament enacted the
the legislative
Twenty-fourth Amendment (1971), amending Article 368 to make it clear that
process for
such Parliament’s power to amend the Constitution extends to all parts of it, including Part III,
amendments,
and that an amendment is not “law” under Article 13. The Twenty-fifth Amendment
reinforcing
their status as followed, introducing Article 31C to give primacy to certain Directive Principles over
constitutional
fundamental rights. These amendments set the stage for a constitutional confrontation.
law.
• This confrontation reached its zenith in Kesavananda Bharati v. State of Kerala (1973),
the most celebrated constitutional case in Indian history. A thirteen-judge bench, the
largest ever, considered whether there were any substantive limits on Parliament’s power
to amend the Constitution. The Court by a slender majority of 7:6 held that Parliament’s
power under Article 368 was wide but not unlimited, it could amend any part of the
Constitution, including fundamental rights, but could not alter or destroy its basic
structure. The majority opinion, authored by C.J. Sikri and supported by six other judges,
identified certain elements, such as the supremacy of the Constitution, republican and
democratic form of government, secular character, separation of powers, and federalism
as forming part of the Constitution’s basic structure. Parliament could not damage or
destroy these features. This doctrine reconciled the supremacy of Parliament in amending
the Constitution with the supremacy of the Constitution itself, preserving constitutional
identity. The dissenters, led by Justice A.N. Ray, argued that no such implied limitations
could be read into Article 368 and that the will of Parliament should prevail.
• The basic structure doctrine became the cornerstone of Indian constitutional law and has
been applied in numerous subsequent cases. In Indira Nehru Gandhi v. Raj Narain
(1975), the Court struck down Clause (4) of Article 329A, inserted by the 39th
Amendment, which sought to immunise the Prime Minister’s election from judicial
review. The Court held that free and fair elections and judicial review were part of the
basic structure. Similarly, in Minerva Mills v. Union of India (1980), the Court struck
 down parts of the 42nd Amendment which had attempted to give unlimited amending
power to Parliament and excluded judicial review of amendments. The Court reaffirmed
that limited amending power and judicial review are themselves part of the basic
structure. This case balanced Directive Principles with fundamental rights, holding that
harmony between the two is essential to the Constitution’s identity. Later, in L. Chandra
Kumar v. Union of India (1997), the Court applied the doctrine to strike down the
exclusion of High Court jurisdiction over service matters, holding judicial review of
legislative and administrative action to be part of the basic structure.
• From a critical perspective, the basic structure doctrine is both praised and criticised. It is
praised because it protects the Constitution from majoritarian excesses and ensures that
core principles like democracy, secularism, and rights cannot be legislated away. It
provides a powerful check on parliamentary sovereignty and preserves constitutional
identity, fulfilling the ideal of popular sovereignty by protecting the people’s fundamental
values from transient political majorities. But critics argue that it gives unelected judges
the power to veto the will of the legislature, effectively making the judiciary a super-
legislature. The metaphor of a constitutional coup d’état is often invoked to suggest that
the judiciary arrogated to itself a constituent power that was meant to reside in
Parliament. Whether courts exercise this power wisely is an ongoing debate. They have
sometimes been activist, using the basic structure doctrine expansively to strike down
amendments, yet they have also shown restraint, rarely invalidating amendments except
where truly egregious violations of constitutional identity are perceived.
• The philosophical underpinnings of the doctrine resonate with the “Ship of Theseus”
paradox: how many amendments can a constitution undergo before it ceases to be the
same constitution? The Indian Supreme Court’s answer is that as long as the basic
structure remains intact, the Constitution remains the same ship, even if its planks are
replaced over time. The doctrine thus serves as a guardian of continuity amid change,
allowing the Constitution to evolve while preserving its essential character.
• Kesavananda Bharati v. State of Kerala (1973) - His Holiness Kesavananda Bharati, the
head of a religious mutt in Kerala, filed a petition in 1970 challenging the Kerala Land
Reforms Acts of 1969 and 1971, which imposed restrictions on the management and
ownership of his institution’s property. At its heart, he feared that the sweeping provisions
of the reforms, which limited ownership and curtailed his rights, violated his rights under
Articles 14, 19(1)(f), 25, 26, and 31 of the Constitution. While the petition began as a
property rights challenge, during its pendency Parliament passed the Twenty-fourth,
Twenty-fifth, and Twenty-ninth Amendments to the Constitution, fundamentally altering
the constitutional landscape. Thus, the real question shifted: could Parliament amend the
Constitution in such a way that even fundamental rights could be abrogated? Could it,
through Article 368, grant itself unlimited amending power, even to the point of
destroying the essence of the Constitution? To understand this properly, the Court had to
confront its own earlier precedents. In Shankari Prasad (1951), the Court had held that the
word “law” in Article 13(2) referred only to ordinary laws, not constitutional
amendments, and thus Parliament could amend fundamental rights. In Sajjan Singh
(1965), the majority followed the same view, though doubts were raised in dissent about
whether fundamental rights were meant to be permanent guarantees. Then came
Golaknath (1967), where by a 6:5 majority, the Court took the opposite view, holding that
constitutional amendments were indeed “law” under Article 13(2) and that Parliament had
no power to amend or abridge fundamental rights. Although it applied the doctrine of
prospective overruling to save past amendments, Golaknath tied Parliament’s hands for
the future. This tug-of-war between the judiciary and Parliament set the stage for
Kesavananda. The Union of India argued forcefully that Parliament’s amending power
was unlimited. According to them, Article 368, especially after the Twenty-fourth
Amendment, gave Parliament constituent power distinct from legislative power. This
power, they claimed, was plenary and included the ability to amend any provision,
including Part III on Fundamental Rights, short of a total repeal of the Constitution. They
pointed to the fact that a Constitution must evolve, and that no generation could tie the
hands of future legislatures by treating rights as eternal. The Union pressed that there was
no such thing as natural or inalienable rights under the Indian framework; rights existed
because the Constitution conferred them, and what the Constitution conferred, Parliament
could alter. The government’s lawyers maintained that Article 13 could not limit Article
368, because the Twenty-fourth Amendment had clarified that amendments were not
subject to Article 13. They also argued that the preamble was not a source of substantive
limitations but only a guiding star and that it could be amended like any other provision.
On the other hand, the petitioners, representing Kesavananda Bharati, countered this with
a vision of the Constitution as a permanent charter of freedom designed to protect citizens
from the potential tyranny of the state. They insisted that Parliament’s amending power,
though wide, was not unlimited. The Constitution, they argued, created a system in which
fundamental rights were meant to be inalienable guarantees, reflective of the aspirations
expressed in the Preamble. The Preamble promised justice, liberty, equality, and
fraternity, and to allow Parliament to abrogate fundamental rights would defeat this
vision. The petitioners leaned on the idea that certain freedoms were meant to last forever,
free from political expediency, and that the amending power could not extend to
destroying the very soul of the Constitution. They also pointed to international
instruments such as the Universal Declaration of Human Rights, which recognized
inalienability of basic freedoms, to argue that India could not allow its Parliament to strip
away such core rights. The issues before the Court were thus vast: what was the true
scope of Article 368? Did it only provide a procedure or also confer substantive power?
Could fundamental rights in Part III be amended, curtailed, or taken away entirely? Could
the Preamble be amended, and if so, to what extent? Were there implied or inherent
limitations on Parliament’s power of amendment? And what exactly was the relationship
between Part III rights and Part IV Directive Principles, especially given the newly
introduced Article 31C, which shielded laws implementing certain Directive Principles
from being challenged on the grounds of violating Articles 14, 19, or 31? The Court,
sitting in a massive thirteen-judge bench, wrestled with these issues at length. Chief
Justice Sikri emphasized that the word “amendment” in Article 368 had to be read in the
context of the Constitution as a whole. It could not mean total abrogation or destruction of
the document. He reasoned that while Parliament could amend every provision, it could
not alter the basic foundation and structure of the Constitution. To interpret otherwise
would allow Parliament to rewrite the Constitution entirely, even to the point of
abolishing its republican or democratic character, which would be absurd. The Preamble
played a crucial role in the Court’s reasoning. Sikri noted that the Preamble was not just a
decorative flourish but an integral part of the Constitution, embodying its ideals and
objectives. Contrary to the earlier Berubari case, he held that the Preamble was indeed
part of the Constitution and must guide interpretation. Thus, any amendment had to be
consistent with the noble vision it articulated. A Parliament amending the Constitution
could not wipe away liberty, equality, or justice, as those values formed part of the
essential identity of the constitutional order. In this sense, the Preamble imposed
substantive limits on the amending power. Justice Shelat and Justice Grover agreed,
stressing that fundamental rights were not mere gifts of the State but part of the basic
scheme. They argued that while reasonable abridgement of rights was permitted in the
public interest, complete abrogation was not. They drew from comparative constitutional
law, including American and Australian precedents, to highlight that constitutions
worldwide recognized implied limitations. Justices Hegde and Mukherjea too emphasized
that Parliament, being a creature of the Constitution, could not enlarge its own powers
beyond the Constitution’s limits. To allow otherwise would be to permit Parliament to act
as sovereign, rather than as a constitutional body bound by the document. Justice Khanna,
often remembered as the pivotal vote, took a middle path. He rejected the idea of natural
or inalienable rights existing outside the Constitution, affirming that all rights in India
were creatures of the Constitution. However, he maintained that the amending power
under Article 368 could not destroy the Constitution’s basic structure. In his view, every
provision could be amended, but the essential features, supremacy of the Constitution,
republican and democratic form of government, secular character, separation of powers,
and federalism, were beyond Parliament’s reach. These features were not mere details but
the bedrock upon which the entire document rested. On the specific amendments under
challenge, the Court upheld the Twenty-fourth Amendment, holding that it validly
clarified Parliament’s amending power. It also upheld Section 2 of the Twenty-fifth
Amendment, which replaced “compensation” with “amount” for property acquisition,
though it insisted that the adequacy of the amount remained open to judicial review.
However, the Court struck down the second part of Article 31C, which insulated laws
from judicial review even where they did not genuinely implement Article 39(b) or (c).
The Court was clear that while giving primacy to Directive Principles was valid,
excluding judicial review altogether went too far. The Twenty-ninth Amendment, which
added Kerala’s land reform laws to the Ninth Schedule, was upheld in principle, but with
the caveat that laws inserted in the Ninth Schedule could not violate the basic structure.
Ultimately, the Court’s judgment, by a narrow 7:6 majority, established the doctrine of
basic structure. Parliament’s amending power was held to be plenary but not unlimited. It
could amend, add, or repeal any provision, including those relating to fundamental rights,
 so long as it did not damage or destroy the basic structure of the Constitution. This meant
that every future amendment would be tested against whether it preserved or destroyed
the Constitution’s essential features. Supremacy of the Constitution, republican and
democratic form of government, secularism, separation of powers, federalism, judicial
review, and fundamental rights (subject to reasonable restrictions) were identified as part
of this inviolable core. The Court was unanimous in rejecting the argument that
Parliament had sovereign power to abrogate rights at will. The claim that rights were not
inalienable and that Parliament could extinguish them wholesale was dismissed. Instead,
while there was agreement that rights were not “natural” but constitutional creations, the
Court held that their protection formed part of the basic framework. In particular, Articles
19 and 25 were noted as central to the scheme, where abridgement was permissible only
in the name of reasonable restrictions or public interest, but annihilation was impossible.
The Court also clarified the relationship between fundamental rights and Directive
Principles. Though Directive Principles were important in guiding state policy, they could
not be used as a weapon to wipe out fundamental rights. Both had to be harmonized, and
while Parliament could tilt the balance, it could not destroy one to promote the other.
Thus, the reasoning that emerged was layered: Parliament had wide powers but not
untrammeled authority. The Constitution could grow and adapt, but its identity had to
remain intact. The Preamble, history of its making, and the scheme of Part III were all
used to show that rights and freedoms were not temporary bargains but enduring
guarantees against tyranny. The judgment was a rejection of both extremes: it rejected the
rigidity of Golaknath which froze amendments entirely, and also rejected the Union’s
claim of unlimited supremacy. Instead, it carved out a middle ground that became the
cornerstone of Indian constitutionalism. In sum, the Court declared that every provision
of the Constitution was open to amendment, but subject to the preservation of its basic
structure. No Article, not even those on fundamental rights, was immune from change,
but none could be repealed or abrogated in a way that destroyed the identity of the
document. The supremacy of the Constitution, its republican and democratic character, its
secularism, the separation of powers, and the guarantee of judicial review were affirmed
as eternal features. The creature of the Constitution, Parliament, could not overstep and
rewrite the Constitution itself. Article 368 conferred great power, but not absolute power.
• Indira Gandhi v Raj Narain (1975) – The Allahabad High Court had declared the election
of the sitting Prime Minister, Indira Gandhi, to the Lok Sabha void on grounds of corrupt
electoral practices under the Representation of the People Act, 1951. While her appeal
was pending, Parliament, dominated by her party, enacted the Thirty-ninth Constitutional
Amendment, inserting Article 329A. This amendment was clearly tailored to her
predicament: it provided that the election of a person holding the office of Prime Minister
or Speaker could not be questioned except by a forum designated by Parliament, and even
went further to retrospectively validate her election, notwithstanding any High Court
judgment to the contrary. The case thus presented a collision between political expediency
and the integrity of the constitutional structure, raising once again the central question
from Kesavananda Bharati: was Parliament’s amending power truly unlimited, or was it
subject to substantive limits under the basic structure doctrine? The facts unfolded against
the backdrop of the Emergency of 1975, during which several opposition leaders and
members of Parliament were detained, preventing them from participating in legislative
debates. Raj Narain, who had challenged Indira Gandhi’s election in Allahabad,
responded before the Supreme Court that the Thirty-ninth Amendment was
unconstitutional on multiple grounds. First, he argued that the amendment destroyed the
principle of equality because it singled out the Prime Minister and Speaker for special
treatment, while ordinary Members of Parliament continued to face judicial scrutiny over
their elections. There was, he contended, no rational basis for this differentiation. Second,
he pointed out that the amendment had been passed in tainted circumstances, with many
MPs detained under preventive detention laws, thereby undermining the legitimacy of
Parliament’s deliberations. Third, he relied heavily on Kesavananda Bharati to argue that
Article 329A violated the basic structure of the Constitution by excluding judicial review
and upsetting the balance of free and fair elections, a cornerstone of democracy. The
Union of India, on the other hand, argued that Article 368 conferred plenary power to
amend, and that Parliament could validly insert Article 329A to regulate election disputes
concerning high constitutional offices. They defended the retrospective validation of
Indira Gandhi’s election, pointing out that retrospective laws were not per se
unconstitutional. They claimed that the amendment merely adjusted the forum and
procedure for adjudicating disputes and did not violate democracy, since elections
themselves continued to exist. The issues before the Court were thus stark: did the Thirty-
ninth Amendment and specifically Article 329A(4) damage or destroy the basic structure
of the Constitution? Was the special treatment given to the Prime Minister’s election
compatible with equality and democracy? Could Parliament validate a void election by
constitutional amendment? And could the Court inquire into the circumstances of the
amendment’s passage, given that several members were detained during the Emergency?
Chief Justice A.N. Ray began by noting that although in Kesavananda Bharati he had
dissented from the majority, he was bound by the basic structure doctrine as law declared
by the Court. He therefore proceeded on the footing that Parliament could not amend the
Constitution in a manner that damaged its basic features. Examining Article 329A, he
held that clause (4), which retrospectively validated Indira Gandhi’s election and nullified
the High Court judgment, was unconstitutional because it damaged the principle of free
and fair elections and equality before law. By placing the election of the Prime Minister
beyond judicial scrutiny, clause (4) created a privileged class and undermined the
democratic character of the Constitution. The supremacy of the rule of law required that
even the highest office-holders be subject to legal processes. Justice Khanna, whose
opinion once again proved decisive, reasoned that free and fair elections were an essential
feature of democracy, which itself was part of the Constitution’s basic structure. He
carefully distinguished between Parliament’s power to change election laws prospectively
and its attempt to validate a specific election retrospectively. While retrospective laws
could in general be valid, they could not be employed to nullify judicial decisions and
bestow immunity on particular individuals. By insulating the Prime Minister’s election
from judicial review, clause (4) violated the principle of equality and the separation of
powers, since it converted Parliament into the final judge of disputes concerning its own
leader’s election. Khanna rejected the argument that fundamental rights were natural or
inalienable, reiterating his stance from Kesavananda, but he insisted that the basic
features of the Constitution could not be destroyed. Justice Chandrachud emphasized that
Article 329A(4) destroyed the principle of equality enshrined in Article 14. By carving
out an exception for the Prime Minister and Speaker, it set them above the law applicable
to all other representatives. Such a classification had no rational nexus with the object of
free and fair elections. He also underscored that judicial review of elections was part of
the constitutional scheme, and removing it in this manner violated the basic structure. He
stressed that the amendment’s effect was to nullify a judicial decision in favor of one
individual, which was incompatible with constitutionalism. Justice Mathew reasoned that
while Parliament could certainly amend the law relating to elections, including altering
forums for adjudication, it could not obliterate judicial review altogether. To do so was to
strike at the very root of democracy. He rejected the contention that the amendment was
merely procedural, holding instead that it destroyed substantive values of equality and fair
play. Justice Beg too concurred that Article 329A(4) damaged the basic structure, pointing
to the fact that the provision ousted all courts, validated an election already declared void,
and created unequal treatment. The Constitution could not permit a situation where one
office-bearer was immune from election laws applicable to all others. The Court also
considered the argument advanced by Raj Narain’s counsel, Shanti Bhushan, that the
amendment was invalid because it was passed while many MPs were detained, thereby
preventing their participation. The judges, however, unanimously rejected this contention.
They reasoned that under Article 122, the validity of parliamentary proceedings could not
be questioned on grounds of procedural irregularity. Preventive detention of members,
even if unjustified, did not make the sittings of Parliament illegal or render the
amendment void. Questions about the legality of detention could be raised in habeas
corpus proceedings, but not collaterally in a challenge to a constitutional amendment.
Moreover, the number of detained MPs was not so large as to affect the requisite special
majority under Article 368. Turning to the retrospective element of the amendment, the
judges clarified that retrospective laws were not invalid per se. Legislatures often enacted
laws with retrospective effect, including in the field of elections. However, what Article
329A(4) attempted was not merely retrospective adjustment of legal standards but
retrospective validation of a specific election already adjudicated upon. This was
impermissible because it conferred an extraordinary privilege on one individual,
undermining the rule of law. Justice Khanna pointed out that democracy required that
those who held the highest offices be accountable under the same legal framework as
others, not shielded from it. The Court therefore struck down clause (4) of Article 329A
as unconstitutional, holding that it damaged the basic structure of the Constitution by
violating the principles of equality, democracy, and judicial review. However, the Court
upheld Indira Gandhi’s election by applying amended election laws retrospectively to her
case. It reasoned that while Parliament could not validate a void election through
 constitutional amendment, it could alter the underlying election law and apply it
retrospectively, provided the amendment itself did not violate the basic structure.
Accordingly, the Court saved her election but struck down the constitutional device that
had been employed to protect it. Thus, the judgment reaffirmed Kesavananda Bharati and
extended the basic structure doctrine to strike down a constitutional amendment. The
decision made clear that while Parliament’s amending power was wide, it could not be
exercised to immunize individuals from the rule of law or to destroy the principles of free
and fair elections. The supremacy of the Constitution, the principle of equality, and
judicial review were reaffirmed as integral parts of the basic structure.

CONSITUTIONAL CHANGE – SARBANI SEN AND ANUJAY

SRIVASTAVA
• The doctrine of basic structure, birthed in Kesavananda Bharati, was initially understood
as a restraint on Parliament’s power to amend the Constitution under Article 368. It was
not intended, at least in its early articulation, to extend to ordinary legislation passed by
Parliament or state legislatures. The dividing line lay in the nature of constituent power
versus ordinary law-making power. A constitutional amendment, though formally an
exercise of constituent power, could still be judicially reviewed if it damaged or destroyed
features constituting the Constitution’s identity. Ordinary legislation, by contrast, was a
product of legislative power conferred under Articles 245 and 246. The tension emerged
in Indira Gandhi v. Raj Narain, where the Court directly addressed whether the basic
structure doctrine applied to ordinary laws.
• In Indira Gandhi v. Raj Narain, the majority held that ordinary laws could not be tested
against the basic structure doctrine. Chief Justice Ray, Justice Mathew, and Justice
Chandrachud all took the view that once a legislature was competent to enact a law under
the constitutional scheme, the law could only be tested against fundamental rights and not
against the broader, somewhat amorphous principles of democracy or republicanism
which underlay the basic structure. Justice Mathew, in particular, underscored that the
character of ordinary legislation did not change even if such a law was placed in the Ninth
Schedule. In his reasoning, ordinary laws had to be judged on the touchstone of Part III. If
such laws were immunized from fundamental rights review by placement in the Ninth
Schedule, then the Court could test them for violation of the basic structure. But absent
that special circumstance, extending the basic structure doctrine to ordinary laws would
be to trench upon legislative power itself. Justice Beg added a note that in theory, even
ordinary laws could not “go beyond the range of constituent power,” though he stopped
short of applying the doctrine to any specific law, focusing instead on constitutional
amendments under challenge. Thus, the general consensus in Raj Narain was that basic
structure review was reserved for amendments and not for everyday statutes.
• First, legislatures act under powers granted by the Constitution and are bound by the
limits of legislative competence under the distribution of powers. Second, their laws
 remain subject to fundamental rights and can be struck down for violating Part III. Third,
ordinary legislation is qualitatively different from a constitutional amendment and cannot
be measured against the vague yardsticks of democracy or secularism that define the
basic structure. And fourth, to apply the doctrine to ordinary legislation would upset the
separation of powers by intruding into the legislative domain. Mentioned later in State of
Karnataka v. Union of India (1977), Kuldip Nayar v. Union of India (2006), and Ashoka
Kumar Thakur v. Union of India (2008), which followed Raj Narain in rejecting basic
structure challenges to ordinary statutes.
• Yet this position has been anything but stable. In R.C. Poudyal v. Union of India (1993), a
three-judge bench applied the basic structure doctrine in relation to a law made under
Article 4 that provided special representation to Sikkim. The majority opinion appeared to
ignore the binding ratio of Raj Narain and its larger bench authority. Scholars and
subsequent judgments have criticized Poudyal as per incuriam, since a smaller bench
cannot disregard the principle established by a larger one. Still, Poudyal reflected a
judicial unease with drawing rigid boundaries between constitutional amendments and
certain classes of ordinary laws that effected profound constitutional changes.
• The real doctrinal crack, however, emerged in Madras Bar Association v. Union of India
(2014). For the first time, a Constitution Bench held that even ordinary legislations could
be struck down for violating the basic structure. Justice Khehar, writing for a unanimous
bench, stated that the doctrine “would apply to all other legislations as well, even though
the legislation had been enacted by following the prescribed procedure and was within the
domain of the enacting legislature.” His reasoning was that the basic structure is not
merely a limitation on the form of amendment but a substantive guarantee that no law,
ordinary or constitutional, can transgress. This expanded the scope of the doctrine beyond
what Raj Narain had contemplated.
• The position was reiterated in Supreme Court Advocates-on-Record Association v. Union
of India (2016), popularly known as the Fourth Judges Case. Justice Khehar again
endorsed the application of the basic structure doctrine to ordinary laws, holding that if a
statute undermined a basic feature such as judicial independence, it could be struck down.
Justice Lokur, however, strongly disagreed, insisting that ordinary laws could not be
tested on basic structure grounds and that Raj Narain still represented binding precedent.
Justices Goel and Joseph expressed caution, while Justice Chelameswar took a more
deferential approach to both statutes and amendments. Thus, no clear consensus emerged,
leaving the law in a state of uncertainty.
• More recently, in Anjum Kadari v. Union of India (2024), a three-judge bench considered
the validity of the Uttar Pradesh Madrasa Education Act. The Court acknowledged the
conflicting authorities of Raj Narain and Madras Bar Association, but expressed
preference for the former. It emphasized that as a smaller bench, it could not formally
overrule Madras Bar Association, but nonetheless observed that subjecting ordinary
statutes to basic structure review was incorrect. The opinion thus reflects the current
judicial preference for limiting the doctrine to constitutional amendments, while leaving
unresolved the anomaly created by Madras Bar Association.
• The one consistent exception has been laws placed in the Ninth Schedule. In I.R. Coelho
v. Union of India (2007), a nine-judge bench clarified that when ordinary laws are
shielded from fundamental rights review through their insertion into the Ninth Schedule,
they can still be tested against the basic structure. The Court adopted the “direct effect
and impact” test, holding that where the violation of fundamental rights by such a law is
so severe as to damage the basic structure, the law would be unconstitutional. This ruling
preserved the distinction made by Justice Mathew in Raj Narain while also ensuring that
the Ninth Schedule could not become a graveyard of fundamental rights.
• From a doctrinal standpoint, then, the correct legal position remains that ordinary statutes
are not subject to basic structure review, except when they are placed in the Ninth
Schedule to shield them from Part III scrutiny. Madras Bar Association and Justice
Khehar’s statements in the Fourth Judges Case are persuasive, but they are per incuriam
as they ignored larger bench precedents and binding authority. Unless a larger bench of
the Supreme Court explicitly endorses Khehar’s expansive view, the law as it stands is
that ordinary laws can be challenged only for legislative competence and fundamental
rights violations, not for damaging the basic structure.
• This debate connects with a deeper question: can the amending power itself be used to
create a new Constitution? If Parliament were to act as a CA or authorize the drafting of a
new charter, would that be valid under Article 368? The Supreme Court has implicitly
ruled out this possibility. In Kesavananda, Justice Khanna acknowledged that Article 368
contained no express limitations, but he still held that the amending power did not include
the power to repeal the Constitution or replace it with an entirely new one. Roznai’s
theoretical distinction between “primary” and “secondary” constituent power helps here.
Primary power belongs to the people, exercised in framing the Constitution in 1949.
Secondary power is delegated to Parliament under Article 368. As a delegated power, it is
inherently limited and cannot be used to dismember or wholly replace the existing order.
Richard Albert’s idea of “dismemberment” complements this, showing that
transformative changes may amount to unmaking the Constitution, which requires
legitimacy from processes akin to the original CA. Thus, while amendments may reshape
structures and rights, they cannot produce an altogether new Constitution.
• From my perspective, the reluctance to extend the basic structure doctrine to ordinary
laws is justified. Ordinary legislation is inherently transient, subject to repeal by future
majorities, and constrained by competence and fundamental rights. To allow every statute
to be measured against vague abstractions of democracy or secularism would blur the line
between judicial review and judicial supremacy. Yet the carve-out for the Ninth Schedule
and the creeping expansion in Madras Bar Association highlight that when statutes
effectively alter constitutional arrangements, such as restructuring tribunals or
undermining judicial independence, they approach the domain of constituent power. In
such cases, I find Justice Khehar’s reasoning appealing in theory, but dangerous in
practice, because it erodes the discipline of precedent and risks judicializing every
legislative choice.
• Minerva Mills v Union of India (1980) - It reaffirmed and clarified the basic structure
doctrine, while also striking down parts of the 42nd Constitutional Amendment which had
sought to give Parliament virtually unlimited amending power. The story begins with the
background of Minerva Mills, a sick textile undertaking taken over by the Central
Government under the Sick Textile Undertakings (Nationalisation) Act, 1974. Petitioners,
including shareholders and creditors, challenged not only provisions of the
Nationalisation Act but more importantly the constitutional validity of Sections 4 and 55
of the 42nd Amendment Act, 1976. Section 4 had drastically expanded Article 31C,
giving Directive Principles sweeping primacy over fundamental rights, and Section 55
had inserted clauses (4) and (5) into Article 368, which sought to oust judicial review of
constitutional amendments and declare Parliament’s amending power to be unlimited.
The petitioners argued that these provisions violated the limits on Parliament’s amending
power as laid down in Kesavananda Bharati and destroyed the balance of the
Constitution’s basic structure. The issues before the Court were framed broadly: first,
whether Section 4 of the 42nd Amendment, which amended Article 31C to protect any
law implementing “all or any” Directive Principles from challenge under Articles 14 and
19, was valid; and second, whether clauses (4) and (5) of Article 368, introduced by
Section 55, which ousted judicial review and conferred unlimited amending power on
Parliament, were valid. The challenge rested on the majority in Kesavananda Bharati,
which had already held that Parliament’s power to amend is limited and cannot damage or
destroy the Constitution’s basic structure. The petitioners emphasised that judicial review,
fundamental rights, and the balance between Parts III and IV were essential features of
the basic structure, and that the 42nd Amendment attempted to destroy this equilibrium.
The Court began its reasoning by reiterating the essential holding of Kesavananda
Bharati. Chief Justice Y.V. Chandrachud, writing for the majority, recalled that the
expression “amendment of this Constitution” in Article 368 meant that Parliament could
indeed make far-reaching changes, but only within the broad contours of the
Constitution’s fundamental identity. The Court quoted Sikri C.J. and Shelat and Grover
JJ. from Kesavananda to stress that the Preamble provides the guiding light to the
Constitution’s objectives and limitations. It was underscored that Parts III (Fundamental
Rights) and IV (Directive Principles) are intended to operate in harmony, not to obliterate
one another. A balance between the rights of individuals and the goals of social
transformation was seen as a basic structural feature, a “nice balance of the three organs
of the State” and a balance between freedom and obligation. When examining Section 4
of the 42nd Amendment, the Court noted how Article 31C was originally inserted by the
25th Amendment to protect laws giving effect to Article 39(b) and (c) from being struck
down under Articles 14 and 19. Section 4 of the 42nd Amendment, however, went much
further by extending this immunity to all Directive Principles, thereby subordinating
Fundamental Rights en masse to Part IV. The Court held this to be unconstitutional
because it destroyed the basic structure. While Directive Principles are vital, they are not
intended to annihilate Fundamental Rights. As the judgment put it, “to destroy the
guarantees given by Part III in order to achieve the goals of Part IV is plainly to subvert
the Constitution.” Rights without remedies, the Court observed, are like “writs without
water” they lose all meaning if individuals cannot enforce them against the State. A
controlled Constitution, where Parliament decides unilaterally that rights may be
abrogated for Directive Principles, would itself become unconstitutional. Thus, Section 4
was struck down. Next came the attack on Section 55 of the 42nd Amendment, which had
introduced Article 368(4) and 368(5). Clause (4) declared that no amendment could be
questioned in any court, and clause (5) declared there shall be no limitation whatsoever
on Parliament’s amending power. The Court found these clauses to be an attempt to
overrule Kesavananda Bharati by fiat. Article 368(4) was held unconstitutional because it
took away judicial review, which is itself a basic feature. As the Court noted, “Our
Constitution is founded on the bedrock of the balance between Parts III and IV. To
remove the means of enforcing Fundamental Rights is to remove one of the pillars of the
Constitution itself.” Judicial review was called the “heart and soul” of the Constitution,
and without it, Parliament could turn itself into an authoritarian body immune from
checks. Similarly, Article 368(5), which purported to give Parliament unlimited power to
amend, was held unconstitutional because “the donee of a limited power cannot convert
that power into an unlimited one.” The Court memorably observed that “the power to
destroy is not a power to amend.” Parliament could not, by amending Article 368, make
itself sovereign in a way that contradicted the Constitution’s supremacy. The Court’s
holding placed emphasis on the basic structure doctrine as a safeguard of democracy and
constitutionalism. It reaffirmed that while Parliament has wide power to amend, this
power is not absolute, and the Constitution remains supreme over Parliament. Judicial
review, the guarantee of fundamental rights, the harmony between Parts III and IV, and
the limited nature of amending power are all essential features. The judgment also
emphasised the Preamble’s role in capturing the Constitution’s soul: justice, liberty,
equality, and fraternity cannot be amended out of existence. Destroying a pillar of this
structure would be destroying the Constitution itself. The Court also discussed how the
intention of the framers was not to create a Constitution that could be mutilated by
transient majorities. Dr. Ambedkar himself had said that the Preamble embodies the
Constitution’s ideals and that the amendment power is subject to the scheme and spirit of
the Constitution. The Court highlighted that Article 368 is not a charter of unlimited
authority but one that works within boundaries set by the Constitution’s own structure. To
deny this is to transform a “controlled Constitution” into an uncontrolled one, which
would be the antithesis of constitutionalism. Ultimately, the Court struck down Sections 4
and 55 of the 42nd Amendment. By doing so, it preserved the doctrine of basic structure,
reaffirmed judicial review as its central pillar, restored the balance between Parts III and
IV, and rejected Parliament’s claim to unlimited amending power. It reminded that rights
without enforceable remedies are meaningless, and a Constitution that allows its own
destruction is no Constitution at all. The ruling kept faith with Kesavananda Bharati but
went further in insisting that any clause that attempts to insulate Parliament from
constitutional limits is itself invalid.
• Kihoto Hollohan Vs. Zachillhu and Ors. (1991) - Arose from the introduction of the Tenth
Schedule to the Constitution through the Fifty-second Amendment Act, 1985. This
amendment was enacted to curb the growing menace of political defections which,
according to the Statement of Objects and Reasons, had become a matter of “national
concern,” undermining the foundations of democracy and the stability of governments.
The Tenth Schedule, popularly known as the Anti-Defection Law, contained provisions
for disqualifying legislators who defected from their parties. Paragraphs 2 to 7 dealt with
the grounds for disqualification, the authority to decide disputes, and the bar on
jurisdiction of courts. Shortly after its enactment, petitions were filed challenging the
constitutional validity of the Tenth Schedule, particularly Paragraph 7, which excluded
judicial review of the Speaker’s decisions and required amendment ratification by the
states if treated as altering the powers of High Courts and the Supreme Court. The facts
were rooted in a spate of defections in several State Legislatures and Parliament. The
petitioners, including legislators and concerned citizens, argued that the Fifty-second
Amendment infringed upon the basic features of democracy, freedom of speech and
conscience of legislators, and judicial review. They contended that Paragraph 2, which
disqualified members for voluntarily giving up party membership or defying party whips,
violated the core of representative democracy by suppressing dissent and constraining
legislators’ freedom to vote according to their conscience. Paragraphs 3 and 4, which
provided exceptions for splits and mergers, were criticized as arbitrary and encouraging
group defections instead of principled dissent. Paragraph 6 vested adjudicatory power in
the Speaker or Chairman, raising fears of bias since the Speaker, being a political actor,
could be partial in disqualification proceedings. Paragraph 7, which barred jurisdiction of
courts under Articles 136, 226, and 227, was claimed to be in breach of the Constitution’s
distribution of powers, as it curtailed the judicial review powers of the Supreme Court
and High Courts without obtaining the ratification of half the States as required under
Article 368(2). The respondents, the Union of India and others, defended the amendment
by asserting that defections posed a grave threat to parliamentary democracy, producing
unprincipled floor-crossing, instability, and corruption. They invoked Articles 105(2) and
194(2) to argue that legislators’ freedom of speech in the House was never absolute and
was subject to constitutional regulation. The Tenth Schedule, they maintained, merely
imposed discipline essential for the survival of the Westminster model in India. They
relied on Shankari Prasad and Sajjan Singh to contend that the amending power of
Parliament under Article 368 was plenary, and any change to the Constitution, even if it
incidentally touched judicial review, did not require ratification unless it altered the
distribution of powers in a manner specified in the proviso to Article 368. As for
Paragraph 7, the respondents argued that it was merely procedural and incidental, not
affecting the basic structure or substantially altering the jurisdiction of courts. They also
urged that under Articles 122 and 212, the validity of legislative proceedings could not be
questioned on grounds of alleged bias or procedural irregularity, and therefore the
Speaker’s role was immune from judicial interference. They rejected the claim that
judicial review was part of the basic structure in the context of disqualification, arguing
instead that Paragraph 6 decisions were akin to internal legislative matters. The issues
framed by the Court centred on three clusters: (A) the validity of the Tenth Schedule’s
substantive provisions, especially Paragraphs 2 to 6, in light of democracy, freedom of
conscience, and equality; (B) whether Paragraph 7, by excluding the jurisdiction of
courts, required ratification by half of the States and, if not ratified, whether only
Paragraph 7 or the entire Tenth Schedule was invalid; and (C) the scope of judicial review
over the Speaker’s decisions and whether vesting such power in a political authority was
constitutionally permissible. Delivering the majority opinion, Justices Venkatachaliah,
Ray, Pandian, and others upheld the Tenth Schedule in part. On the rationale behind the
anti-defection law, they drew on the Statement of Objects and Reasons, emphasizing that
defections had reached “epidemic proportions,” destroying the values of political morality
and threatening the stability of governments. The law’s purpose was to curb the evil of
defection while maintaining a balance with the rights of legislators. Applying the doctrine
of pith and substance, the Court held that the Tenth Schedule dealt with disqualification of
members, a topic squarely falling under Articles 102 and 191, which empower Parliament
and State Legislatures to lay down grounds for disqualification. The pith and substance of
the amendment was thus within the competence of Parliament, and the incidental
curtailment of freedom of speech or conscience of legislators did not invalidate the law.
On Paragraphs 2 to 6, the Court reasoned that loyalty to political parties was inherent in
the parliamentary system. The freedom of legislators was not absolute but subject to the
discipline that sustains collective responsibility. Paragraph 2 was upheld as a reasonable
measure to prevent corruption and opportunism. Paragraph 3, which created an exception
for splits, was examined carefully. The Court acknowledged the potential for misuse but
viewed it as a pragmatic compromise to accommodate genuine group dissent. Paragraph
4, permitting mergers, was found to be consistent with the object of maintaining stability.
Paragraph 6, which designated the Speaker or Chairman as the authority to decide
disputes, was justified on grounds of convenience and the Speaker’s familiarity with
legislative practices. However, the Court stressed that the Speaker’s decisions were not
beyond scrutiny altogether; judicial review under Articles 136, 226, and 227 remained
available after the Speaker’s decision, ensuring fairness while preserving legislative
autonomy. The critical question concerned Paragraph 7, which barred the jurisdiction of
courts over disqualification matters. The Court examined whether Paragraph 7 required
ratification by half the States under the proviso to Article 368(2), as it curtailed the
powers of the Supreme Court and High Courts. Applying the “purpose and effect” test,
the Court found that Paragraph 7 directly impacted Articles 136, 226, and 227, which
form part of the Constitution’s basic framework of judicial review. Since the effect of
Paragraph 7 was to exclude these powers, it squarely attracted the proviso to Article 368.
As no ratification had been obtained, Paragraph 7 was held invalid. The Court then
addressed the question of severability: whether the invalidity of Paragraph 7 vitiated the
entire Tenth Schedule. Drawing from precedent, it held that Paragraph 7 was distinct and
severable. The absence of ratification did not affect the validity of the rest of the
Schedule, which could operate independently. The majority thus struck down Paragraph 7
 alone, leaving the substantive provisions intact. The majority also clarified the scope of
judicial review over disqualification decisions. They rejected the respondents’ contention
that the Speaker’s determinations were immune under Articles 122 and 212, holding
instead that these Articles protected legislative proceedings only from review for
procedural irregularity, not from substantive illegality or mala fides. While recognizing
that the Speaker is a high constitutional functionary, the Court warned that the possibility
of partiality could not oust the jurisdiction of courts. Judicial review was therefore
preserved as an essential feature of the Constitution, available after the Speaker rendered
a decision but not at an interlocutory stage. Justices J.S. Verma and Lalit Mohan Sharma
delivered separate opinions dissenting in part. Justice Verma took a stricter view on the
Tenth Schedule’s impact on democracy. He argued that Paragraph 2 unduly stifled
legitimate dissent and violated freedom of speech and conscience of legislators. He
considered vesting adjudicatory power in the Speaker problematic, given the potential for
political bias. On Paragraph 7, Verma agreed with the majority that ratification was
necessary but expressed concern that the law’s overall thrust undermined deliberative
democracy. Justice Lalit Mohan Sharma went further, questioning the wisdom of
judicially tolerating any concentration of disqualification powers in a partisan Speaker
and warning that the scheme risked undermining democratic accountability. The
respondents’ reliance on Shankari Prasad and Sajjan Singh was considered but
distinguished. Those cases, which upheld the plenary nature of Parliament’s amending
power, did not address the specific problem of an amendment altering the jurisdiction of
constitutional courts without ratification. The Court emphasized that the validity of a
constitutional amendment depends not just on legislative competence but also on
compliance with procedural requirements under Article 368. Non-compliance with
ratification invalidates only the offending provision, not the whole amendment, if the two
are separable. By weaving these strands, the judgment established that while the anti-
defection law was a necessary response to a national problem, its provisions had to
conform to the Constitution’s structural principles. The Tenth Schedule, barring Paragraph
7, was upheld as a valid constitutional device to curb unprincipled floor-crossing without
compromising judicial review or the core values of parliamentary democracy.
• I.R. Coelho (Dead) by [Link]. Vs. State of Tamil Nadu and Ors. (2007) - Arose from a
reference to a nine-judge bench to determine whether laws inserted into the Ninth
Schedule after the decision in Kesavananda Bharati could be granted absolute immunity
from judicial review. The petitioner challenged provisions of the Tamil Nadu Land
Reforms (Fixation of Ceiling on Land) Act, which had been placed in the Ninth Schedule
by a series of constitutional amendments. He argued that these provisions violated
fundamental rights under Articles 14, 19, and 21, and that their inclusion in the Ninth
Schedule could not shield them from scrutiny if they damaged the Constitution’s basic
structure. The reference became a vehicle to clarify the interplay between Articles 31A,
31B, and the doctrine of basic structure, and to settle the apparent inconsistencies in
earlier precedents. The historical backdrop stretched from Shankari Prasad (1951) and
Sajjan Singh (1965), where the Supreme Court held that constitutional amendments were
not “law” under Article 13(2) and hence could amend or abridge fundamental rights, to
Golak Nath (1967), where a narrow majority held that Parliament could not amend
fundamental rights at all. The conflict was resolved in Kesavananda Bharati (1973),
where a thirteen-judge bench ruled by 7:6 that Parliament’s power under Article 368 was
wide but not unlimited; it could not alter the “basic structure” of the Constitution.
Subsequently, in Indira Gandhi v. Raj Narain (1975), the Court applied the basic structure
doctrine to strike down clause (4) of Article 329A, which retrospectively validated the
Prime Minister’s election. Justice Khanna, whose vote in Kesavananda had been decisive,
later clarified in Indira Gandhi that while rights were not natural or inalienable, their
protection formed part of the basic structure, and judicial review was essential to preserve
it. This evolution formed the foundation for the questions in I.R. Coelho. The core issue
was whether amendments inserting laws into the Ninth Schedule after Kesavananda could
confer total immunity from challenge, even if such laws violated fundamental rights or
the basic structure. The petitioner contended that the intent behind Articles 31A and 31B
was to protect agrarian reform laws from invalidation, not to create a parallel
Constitution. Article 31B, by declaring that laws placed in the Ninth Schedule “shall not
be deemed to be void” for infringing fundamental rights, was never meant to be absolute.
The petitioner urged that post-Kesavananda additions had to be tested against the basic
structure, using the “intent and effect” or “direct impact” tests. The determinative factor
was the effect of the impugned law on rights and structural principles, not merely its form
or placement in a schedule. He pointed to the danger of immunizing any legislation, no
matter how arbitrary or oppressive, by simply adding it to the Ninth Schedule,
undermining democracy, equality, and liberty. The respondents, relying on Parliament’s
plenary power and earlier rulings, argued that Article 31B created a protective umbrella
over Ninth Schedule laws, insulating them from Part III challenges. They cited Shankari
Prasad and Sajjan Singh to claim that constitutional amendments inserting laws into the
Ninth Schedule could not be questioned for violating fundamental rights. They further
contended that Kesavananda did not expressly apply the basic structure to Article 31B
and that six of the thirteen judges in Kesavananda had rejected the basic structure
limitation, with Justice Khanna’s position being ambiguous. They also urged that judicial
review itself was not a basic feature in relation to laws placed in the Ninth Schedule, and
that agrarian reform was a legitimate aim justifying wide latitude to Parliament. The nine-
judge bench, led by Chief Justice Sabharwal, traced the history of property and agrarian
reform jurisprudence. It noted that Articles 31A, 31B, and 31C were enacted to protect
socio-economic legislation from challenges based on Articles 14, 19, and 31. However,
with the deletion of Article 31 and the expansion of Article 21 jurisprudence, the Ninth
Schedule’s scope had grown far beyond its original purpose. The Court adopted the
principle from Kesavananda that constitutional amendments could not destroy the basic
structure, and reasoned that there was no rational basis to exempt Ninth Schedule
insertions from this scrutiny after April 24, 1973, the date of Kesavananda. The bench
emphasized that the form of an amendment could not determine its validity; its content,
intent, and effect were decisive. Whether an amendment took the form of adding laws to
 the Ninth Schedule or directly altering Part III, the Court would examine if the
amendment damaged or destroyed essential features such as equality, liberty, or judicial
review. This approach drew on the “effect and impact” doctrine articulated in Indira
Gandhi v. Raj Narain and Justice Khanna’s clarifications on basic structure. The judges
also invoked the maxim mala fide non apparent, curb apparent (related to the Mar
Apparem Kuri principle in prior land reform cases), underscoring that substance and
effect, not labels, governed constitutional adjudication. The Court held that after
Kesavananda, every addition to the Ninth Schedule was subject to a two-fold test: first,
whether the constitutional amendment inserting the law violated the basic structure; and
second, whether the law, even if validly inserted, had a direct and damaging impact on
rights and principles forming part of that structure. Laws added before April 24, 1973,
enjoyed blanket immunity; those added thereafter did not. Fundamental rights under
Articles 14, 19, 21, and 15 were recognized as core to the basic structure, as were
democracy, rule of law, secularism, and judicial review. Addressing retrospective
applicability, the Court held that its ruling would apply prospectively but would govern
all pending cases where validity of Ninth Schedule laws was under challenge. It clarified
that no distinction existed between laws already in the schedule and those to be added in
the future; the determinative factor was the date of the amendment inserting them. The
bench noted that the judiciary’s power to review was itself part of the basic structure, and
Parliament could not, through Article 31B, nullify that role. In elaborating the basic
structure, the Court referred to its gradual evolution: from Kesavananda’s focus on
constitutional supremacy, democracy, secularism, and fundamental rights; to Indira
Gandhi, which extended it to free and fair elections and judicial review; and to later
decisions which included rule of law, federalism, and separation of powers. The bench
reaffirmed that basic structure review was a substantive check on constitutional
amendments, ensuring that no device, whether direct repeal or indirect immunization,
could destroy the Constitution’s core identity. Finally, the Court stressed that Ninth
Schedule immunity was not a carte blanche. Even if an amendment passed the procedural
threshold of Article 368, it remained vulnerable if, by its intent or effect, it damaged the
essence of the Constitution. Judicial review under Articles 32 and 226 was indispensable
to enforce this safeguard. The judgment underscored that constitutional supremacy
demanded that the power to amend could not be used to place laws beyond the reach of
fundamental rights, particularly Articles 14, 19, and 21, which lay at the heart of
individual liberty and equality.
• Article 163 - 163(1) basically says that in a state, the Governor is not some free-
roaming authority but is expected to work with a Council of Ministers headed by the
Chief Minister. This Council’s role is to “aid and advise” him, meaning the Governor
normally acts on the advice of the elected government, except in situations where the
Constitution itself clearly gives him discretionary powers (like reserving a Bill for the
President, deciding on Chief Minister when no party has a clear majority, etc.). Clause (2)
makes things stronger: if a dispute arises about whether a matter is one where the
Governor has to act on his own or on the advice of ministers, the Governor’s word is final
 and cannot be legally challenged just because someone thinks he shouldn’t have used
discretion. In other words, the Constitution trusts the Governor’s judgment in those
special cases. Clause (3) seals it further by saying that courts cannot dig into what advice
was given by ministers to the Governor—so no judge can summon cabinet papers to ask,
“What did the CM tell the Governor?” This creates a protective wall around cabinet
confidentiality and the Governor’s limited discretionary role.
• Shamsher Singh v State of Punjab (1974) - constitutional position of the Governor and the
President in India’s parliamentary democracy and the true scope of Article 163(1) and (2).
The petitioners were two probationary judicial officers of the Punjab Civil Service
(Judicial Branch) whose services were terminated during probation under Rule 9 of the
Punjab Civil Services (Judicial Branch) Rules, 1951. They challenged the termination
orders on the ground that they were passed on the personal satisfaction of the Governor
without consulting the High Court under Article 234, violating the Constitution. The
central issue thus expanded into a much larger constitutional question: whether the
Governor exercises independent discretion or is bound by the aid and advice of the
Council of Ministers under Article 163, and whether the Governor’s powers are similar to
the President’s under Article 74. The Court framed issues relating to the scope of Article
163(1), which says there shall be a Council of Ministers with the Chief Minister at the
head to aid and advise the Governor, and the Governor shall, in the exercise of his
functions, act in accordance with such advice except in so far as he is required by or
under the Constitution to exercise his functions in his discretion. Clause (2) declares that
if any question arises whether any matter is one in which the Governor is required to act
in his discretion, the decision of the Governor shall be final, and this cannot be questioned
in court. The respondents argued that the Governor was not bound by ministerial advice
in matters relating to appointments, dismissals, or terminations of members of the judicial
service. Petitioners contended that the Governor had to act on ministerial advice and, in
matters relating to judicial services, also consult the High Court as required by Article
234. The Court embarked on a detailed reasoning, drawing parallels with Article 74
which governs the President. The majority held that there is no substantive difference
between the position of the Governor under Article 163 and the President under Article
74. India has adopted a parliamentary and not a presidential system of government, which
means that the real executive power rests with the Council of Ministers collectively
responsible to the legislature, and both the President and Governor are constitutional
heads who act on aid and advice. The Court rejected the argument that the Governor had
personal discretion in all matters. It held that the Governor’s discretionary power is
confined to those functions where the Constitution expressly so provides, such as under
Articles 200 (reservation of Bills for the President’s consideration), 239(2), 371A(1)(d),
371A(2)(b) and (f), and in situations arising under Article 356 where he sends a report
recommending President’s Rule. Outside these limited spheres, the Governor must act on
the aid and advice of the Council of Ministers. The judgment emphasised that Article
163(2) does not enlarge the discretionary field but merely makes the Governor’s decision
final in the few cases where discretion is explicitly provided. The Court referred to Article
371A, which gives special powers to the Governor of Nagaland to determine questions
relating to religious and social practices of Nagas, administration of civil and criminal
justice involving customary law, and ownership and transfer of land and its resources.
These provisions, the Court observed, are examples of asymmetric federalism where
special responsibility is cast upon the Governor. Likewise, under Article 200, the
Governor may reserve a Bill for the President’s consideration; and under Article 356, he
may report breakdown of constitutional machinery. But even in these situations, the
Governor is expected to act judiciously and not arbitrarily. The Court relied on U.N. Rao
v. Indira Gandhi, where it was held that the President can exercise his functions only on
the aid and advice of ministers, and that even where no Council of Ministers exists (for
example, immediately after dissolution), he can act only in the expectation that a Council
will be constituted. Applying that reasoning, the Court held that the Governor too is
bound by ministerial advice and has no independent power of decision except in the small
compass of discretionary areas. The majority clarified that the satisfaction required by the
Constitution in various Articles like Article 123 (ordinances) or Article 356 is not the
personal satisfaction of the President or Governor but the satisfaction of the Council of
Ministers, which is constitutionally imputable to the head of the State. The Court then
turned to the impugned termination orders. It held that since these orders were passed
without consulting the High Court as mandated by Article 234, they were invalid. The
Court emphasised that independence of the judiciary is part of the basic constitutional
scheme, and therefore any decision affecting the subordinate judiciary must be taken after
consultation with the High Court. Justice V.R. Krishna Iyer delivered a separate
concurring opinion with a powerful discussion on constitutional morality. He reiterated
that the President and Governor are not personal rulers but “constitutional or formal
heads.” He warned that to allow them personal discretion beyond constitutional limits
would be to convert India into a quasi-presidential system. Justice Bhagwati also
concurred, adding that the Governor is bound to act on the advice of ministers even when
exercising powers of appointment, removal, or disciplinary control over members of the
subordinate judiciary, except where the Constitution expressly allows discretion. Both
judges stressed that gubernatorial discretion is an exception, not the rule, and that a literal
reading enlarging Article 163 discretion would damage democratic governance. Finally,
the Court laid down important constitutional holdings: (1) the President and Governor
must act in accordance with the advice of their Council of Ministers except in a narrow
area where the Constitution expressly provides for discretion; (2) in the choice of Prime
Minister or Chief Minister when no party commands a clear majority, in the dismissal of a
government which has lost its majority, and in the dissolution of a House, the Governor
may exercise discretion, but even then the discretion must be exercised constitutionally
and not arbitrarily; (3) the Governor’s personal satisfaction is not distinct from the
satisfaction of the Council of Ministers. The judgment thus reinforced that India’s system
is parliamentary, with the Council of Ministers wielding real power, and that
gubernatorial authority is primarily formal and limited by constitutional design.
• M.P. Special Police Establishment v State of M.P. (2005) - Arose in the political context
of Arunachal Pradesh but involved a more fundamental constitutional question: could the
Governor act on his own discretion when granting sanction for prosecution of ministers,
or was he bound by the aid and advice of the Council of Ministers? The case reached the
Supreme Court after the Gauhati High Court had upheld the Governor’s decision,
rejecting arguments that it was unconstitutional. The matter required the Court to revisit
Article 163 and precedents like Shamsher Singh, to balance the Governor’s discretionary
powers against the principle of responsible government. The facts centered on allegations
of corruption against certain ministers in Arunachal Pradesh. Complaints were lodged
before the Lokayukta, and questions of prosecution sanction soon emerged. The Governor
granted sanction for prosecution, bypassing the Council of Ministers, raising sharp
questions about the validity of his discretion. The High Court held that such discretion
was permissible, particularly in matters of corruption, since allowing the Council of
Ministers to decide might result in bias or conflict of interest. The appellants, led by Soli
J. Sorabjee, challenged this on the ground that the Governor was never intended to be an
independent authority except where expressly mentioned in the Constitution, and that
sanction for prosecution was not one of those exceptions. The issues before the Supreme
Court were: whether the Governor could exercise discretion in granting sanction for
prosecution of ministers; whether bypassing the Council of Ministers in such cases was
consistent with Article 163; and whether the High Court had erred in treating the
Governor as an appellate or supervisory authority over the Council of Ministers. Soli
Sorabjee, for the appellants, emphasized that the Governor could only act in accordance
with the Constitution, relying heavily on Shamsher Singh v. State of Punjab (1974). In
that case, Justice Krishna Iyer had held that the Governor was generally bound by the aid
and advice of the Council of Ministers, except in narrowly defined exceptions like Article
200 (reserving bills for the President) or in cases of constitutional breakdown under
Article 356. Sorabjee argued that prosecution sanctions were not one of these exceptions.
To allow the Governor discretion here would, in effect, create a parallel executive,
violating the spirit of parliamentary democracy. He also referred to Ramdas Shrinivas
Nayak v. Union of India, where the Court noted that sanctioning authority must act free of
bias. If the Governor were to assume this power on his own, it would undermine the
elected executive and inject arbitrariness into the process. Sorabjee stressed that the
Governor was not meant to be a rival power center but only a constitutional head acting
through ministers. The respondents countered that the Governor’s action was justified to
prevent situations of bias and conflict of interest. They argued that when allegations are
directed against ministers themselves, expecting the Council of Ministers to grant
sanction was unrealistic, since it amounted to judges deciding their own cause. They
invoked V.C. Shukla v. State to highlight that corruption cases involving public officials
required an impartial approach, and State of Punjab v. V.K. Khanna to stress that
executive power should not be manipulated for partisan gains. They also referred to
Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant on the test of bias, noting that
decisions must not even give an impression of partiality. In such cases, they argued, the
 Governor could and must step in to protect public interest. The respondents insisted that
the Governor was not acting as an appellate authority over the Council of Ministers, but
as a constitutional safeguard where the interests of ministers conflicted with their duties.
Justice S.N. Variava, speaking for the bench, analyzed the Governor’s role under Article
163. He emphasized that Article 163(1) confined the Governor to act on aid and advice,
except in areas where the Constitution expressly conferred discretion. The High Court, in
his view, had erred in reading into the Constitution an additional discretionary power for
sanction of prosecution. Variava reiterated Shamsher Singh, where it was made clear that
the Governor was not a “parallel administration” and had no independent powers beyond
those mentioned in the Constitution. Justice Krishna Iyer’s words were recalled: that the
Governor is “not an all-pervading super-constitutional authority” but an ornamental head
bound by cabinet responsibility. At the same time, the Court addressed the respondents’
concern of bias. Justice Variava recognized that ministers deciding on their own
prosecution raised troubling questions, but bias alone could not justify expanding the
Governor’s powers. Instead, remedies lay in institutional mechanisms like the office of
the Lokayukta, which could investigate complaints independently, or in judicial review.
The Court clarified that the Governor could not be turned into an anti-corruption
watchdog or a substitute for prosecution sanctioning authorities. The existence of
potential bias did not authorize the Governor to bypass constitutional limits. The Court
also discussed the doctrine of malice. It found no evidence that the Council of Ministers
had acted with malice or that the Governor’s intervention was constitutionally mandated.
The Governor’s discretion, the Court said, could not be equated with a general
supervisory power to ensure integrity in governance. Rather, the office of the Lokayukta
and the courts were better suited to address such concerns. In effect, the High Court’s
attempt to treat the Governor as an appellate body over ministerial decisions was rejected.
On the respondents’ reliance on V.C. Shukla, V.K. Khanna, and Kumaon Mandal Vikas
Nigam, the Court distinguished those precedents. While they highlighted the need for
fairness and absence of bias, they did not alter the constitutional framework of the
Governor’s role. Judicially evolved tests for bias applied to adjudicatory bodies, not to a
constitutional head like the Governor, whose powers were strictly defined by the
Constitution. The Court further stressed that even in corruption cases, the Governor could
not usurp executive authority not granted to him. Finally, the Court’s holding was clear:
the Governor had no discretionary power to grant sanction for prosecution of ministers.
The Constitution did not provide for such discretion, and allowing it would distort the
principle of collective responsibility. The High Court’s decision was overturned, with the
Supreme Court affirming that the Governor must act on the aid and advice of the Council
of Ministers, and that checks against bias or malice must come from independent
institutions and judicial review, not from enlarging gubernatorial discretion.
• Nabam Rebia v Deputy Speaker (2016) - Arose in the political context of Arunachal
Pradesh but involved a more fundamental constitutional question: could the Governor act
on his own discretion when granting sanction for prosecution of ministers, or was he
bound by the aid and advice of the Council of Ministers? The case reached the Supreme
Court after the Gauhati High Court had upheld the Governor’s decision, rejecting
arguments that it was unconstitutional. The matter required the Court to revisit Article
163 and precedents like Shamsher Singh, to balance the Governor’s discretionary powers
against the principle of responsible government. The facts centered on allegations of
corruption against certain ministers in Arunachal Pradesh. Complaints were lodged before
the Lokayukta, and questions of prosecution sanction soon emerged. The Governor
granted sanction for prosecution, bypassing the Council of Ministers, raising sharp
questions about the validity of his discretion. The High Court held that such discretion
was permissible, particularly in matters of corruption, since allowing the Council of
Ministers to decide might result in bias or conflict of interest. The appellants, led by Soli
J. Sorabjee, challenged this on the ground that the Governor was never intended to be an
independent authority except where expressly mentioned in the Constitution, and that
sanction for prosecution was not one of those exceptions. The issues before the Supreme
Court were: whether the Governor could exercise discretion in granting sanction for
prosecution of ministers; whether bypassing the Council of Ministers in such cases was
consistent with Article 163; and whether the High Court had erred in treating the
Governor as an appellate or supervisory authority over the Council of Ministers. Soli
Sorabjee, for the appellants, emphasized that the Governor could only act in accordance
with the Constitution, relying heavily on Shamsher Singh v. State of Punjab (1974). In
that case, Justice Krishna Iyer had held that the Governor was generally bound by the aid
and advice of the Council of Ministers, except in narrowly defined exceptions like Article
200 (reserving bills for the President) or in cases of constitutional breakdown under
Article 356. Sorabjee argued that prosecution sanctions were not one of these exceptions.
To allow the Governor discretion here would, in effect, create a parallel executive,
violating the spirit of parliamentary democracy. He also referred to Ramdas Shrinivas
Nayak v. Union of India, where the Court noted that sanctioning authority must act free of
bias. If the Governor were to assume this power on his own, it would undermine the
elected executive and inject arbitrariness into the process. Sorabjee stressed that the
Governor was not meant to be a rival power center but only a constitutional head acting
through ministers. The respondents countered that the Governor’s action was justified to
prevent situations of bias and conflict of interest. They argued that when allegations are
directed against ministers themselves, expecting the Council of Ministers to grant
sanction was unrealistic, since it amounted to judges deciding their own cause. They
invoked V.C. Shukla v. State to highlight that corruption cases involving public officials
required an impartial approach, and State of Punjab v. V.K. Khanna to stress that
executive power should not be manipulated for partisan gains. They also referred to
Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant on the test of bias, noting that
decisions must not even give an impression of partiality. In such cases, they argued, the
Governor could and must step in to protect public interest. The respondents insisted that
the Governor was not acting as an appellate authority over the Council of Ministers, but
as a constitutional safeguard where the interests of ministers conflicted with their duties.
Justice S.N. Variava, speaking for the bench, analyzed the Governor’s role under Article
 163. He emphasized that Article 163(1) confined the Governor to act on aid and advice,
except in areas where the Constitution expressly conferred discretion. The High Court, in
his view, had erred in reading into the Constitution an additional discretionary power for
sanction of prosecution. Variava reiterated Shamsher Singh, where it was made clear that
the Governor was not a “parallel administration” and had no independent powers beyond
those mentioned in the Constitution. Justice Krishna Iyer’s words were recalled: that the
Governor is “not an all-pervading super-constitutional authority” but an ornamental head
bound by cabinet responsibility. At the same time, the Court addressed the respondents’
concern of bias. Justice Variava recognized that ministers deciding on their own
prosecution raised troubling questions, but bias alone could not justify expanding the
Governor’s powers. Instead, remedies lay in institutional mechanisms like the office of
the Lokayukta, which could investigate complaints independently, or in judicial review.
The Court clarified that the Governor could not be turned into an anti-corruption
watchdog or a substitute for prosecution sanctioning authorities. The existence of
potential bias did not authorize the Governor to bypass constitutional limits. The Court
also discussed the doctrine of malice. It found no evidence that the Council of Ministers
had acted with malice or that the Governor’s intervention was constitutionally mandated.
The Governor’s discretion, the Court said, could not be equated with a general
supervisory power to ensure integrity in governance. Rather, the office of the Lokayukta
and the courts were better suited to address such concerns. In effect, the High Court’s
attempt to treat the Governor as an appellate body over ministerial decisions was rejected.
On the respondents’ reliance on V.C. Shukla, V.K. Khanna, and Kumaon Mandal Vikas
Nigam, the Court distinguished those precedents. While they highlighted the need for
fairness and absence of bias, they did not alter the constitutional framework of the
Governor’s role. Judicially evolved tests for bias applied to adjudicatory bodies, not to a
constitutional head like the Governor, whose powers were strictly defined by the
Constitution. The Court further stressed that even in corruption cases, the Governor could
not usurp executive authority not granted to him. Finally, the Court’s holding was clear:
the Governor had no discretionary power to grant sanction for prosecution of ministers.
The Constitution did not provide for such discretion, and allowing it would distort the
principle of collective responsibility. The High Court’s decision was overturned, with the
Supreme Court affirming that the Governor must act on the aid and advice of the Council
of Ministers, and that checks against bias or malice must come from independent
institutions and judicial review, not from enlarging gubernatorial discretion..
• Government of NCT of Delhi v Union of India (2018) - Revolved around the
constitutional status of Delhi and the distribution of powers between its elected
government and the Lieutenant Governor (LG). The core issue was whether the LG, as
the Union’s representative, possessed independent decision-making authority or was
bound by the “aid and advice” of the Council of Ministers of Delhi in matters within the
domain of the Legislative Assembly. This question drew the Court into a deep exploration
of constitutional principles such as federalism, separation of powers, constitutional
morality, and representative democracy, as they relate to the governance of a Union
Territory endowed with partial statehood. The factual background traces to administrative
paralysis between the elected Delhi Government and the LG, each asserting supremacy in
executive matters. The LG, invoking Article 239AA, claimed he could refer all matters of
disagreement to the President and was not bound by the Council’s advice. The Delhi
Government argued that this interpretation rendered the elected Assembly meaningless,
defeating democratic accountability. The matter, after conflicting High Court decisions,
reached the Supreme Court Constitution Bench headed by Chief Justice Dipak Misra
(2018), later followed by a two-judge Bench (2023) that applied the principles
specifically to control over “services.” The legal issue was thus: how should Article
239AA be read to maintain a workable balance between the Union’s control and Delhi’s
autonomy, without allowing either an “obstructionist” or an “arbitrary” exercise of
power? The Court recognized that Delhi is not a full-fledged State, yet not a typical
Union Territory either. Article 239AA introduced a unique structure, a “Union Territory
with a Legislative Assembly” empowered to make laws on State List and Concurrent List
subjects, except public order, police, and land. The judgment became a constitutional
lesson in harmonizing asymmetric federalism with representative democracy. Chief
Justice Misra’s lead opinion emphasized the guiding principle that democracy is not
merely a structural form but a moral commitment. The LG, as an appointee of the Union,
is not a rival power centre but a constitutional functionary obligated to act on the aid and
advice of the Council of Ministers in matters where the Delhi Assembly has legislative
competence. Misra C.J. clarified that the phrase “any matter” in Article 239AA(4),
allowing the LG to refer disagreements to the President, must be interpreted narrowly to
prevent the Union from paralysing the elected government. Constant recourse to the
President would, in his words, “erode the fundamental values of representative
governance.” The LG’s discretion is exceptional and must be exercised only when the
matter verges upon national importance or constitutional breakdown. This reading, the
Court explained, upholds the doctrine of constitutional morality, a concept first
advanced by B.R. Ambedkar, distinguishing it from “public morality.” Constitutional
morality binds all institutions to respect the spirit of the Constitution, not transient
political preferences. Whereas public morality changes with popular sentiment,
constitutional morality anchors governance in rule of law, accountability, and balance of
power. The judges warned that disregarding this morality in favour of political
expediency would lead to constitutional anarchy. Justice D.Y. Chandrachud’s concurring
opinion offered a profound exposition of constitutional morality. He argued that
institutions must behave not as power-maximising actors but as custodians of democratic
ethos. The LG cannot be an “obstructionist figure” who reduces the Council to a symbolic
body. Every provision, he said, must be read to advance constitutional trust, a mutual
respect between constitutional authorities. He drew on precedents like S.R. Bommai v.
Union of India, where federalism and democracy were declared part of the Constitution’s
basic structure. Bommai had held that the Union cannot use Article 356 to dismiss State
governments on political grounds. Extending that principle, Chandrachud J. reasoned that
the Union cannot use the LG’s office to indirectly control a democratically elected
government in Delhi. Justice Ashok Bhushan, while concurring, offered a nuanced
perspective, underscoring that although Delhi is not a “State” under Part VI, its ministers
are not mere advisors. The LG’s role is supervisory, not supervisory-plus-executive. Thus,
the LG must ordinarily act in harmony with the Council’s advice, save in exceptional
cases implicating national interests. The Court revisited the Keshava Madhava Menon
doctrine, which had affirmed that constitutional interpretation must align with the
document’s spirit, not its mechanical text. This meant that words like “aid and advice”
cannot be stripped of their normative purpose, to ensure responsible government. The
judgment therefore stressed that the LG’s insistence on concurrence before action
effectively nullified that purpose. Central to the reasoning was the essence of federalism.
While federalism traditionally denotes dual sovereignty between the Union and States, the
Indian variant is “quasi-federal” or “asymmetrically federal,” allowing differential
autonomy to diverse regions, such as Jammu & Kashmir (then), Mizoram, and Delhi. The
Court highlighted that asymmetric federalism is not a weakness but a strength of Indian
constitutional design, enabling flexibility in governance while preserving unity. Delhi’s
arrangement exemplifies this asymmetry: it is a Union Territory under Article 239 but,
through Article 239AA, enjoys legislative powers akin to a State. The LG’s existence
ensures linkage with the Union, yet that linkage cannot convert representative
government into bureaucracy by proxy. The Court also touched upon legislative
competence in brief, explaining that executive power follows legislative competence.
Since the Delhi Assembly’s competence excludes only three subjects, public order, police,
and land—the Council of Ministers retains executive authority over all other matters. The
LG, therefore, cannot unilaterally decide issues of services, finance, or administration
within that domain. To hold otherwise would invert the parliamentary model enshrined in
Articles 73 and 162, which make the executive subservient to the legislature. In
determining the contours of discretion, the Court invoked primordial adjudication, its
duty as final interpreter of the Constitution to prevent either authority from breaching the
equilibrium designed by the framers. The judiciary’s role, it said, is not to choose between
competing sovereignties but to maintain their constitutional balance. Misra C.J.
eloquently observed that “neither the Lieutenant Governor nor the Council of Ministers
can claim supremacy; both are constitutional partners.” This principle of partnership
echoes the cooperative federalism doctrine advanced earlier in State of Rajasthan v.
Union of India and reaffirmed in S.R. Bommai. Applying these principles in 2023, the
Court (Chandrachud C.J.) ruled specifically that “services” excluding public order, police,
and land fall within the legislative and executive domain of the Delhi Government. It held
that “aid and advice” is not a mere ceremonial phrase but an operational command
requiring the LG to act in accordance with ministerial advice. The Union’s argument that
control over services was essential for national interests was rejected, as it would destroy
the representative character of the NCT’s government. Chandrachud C.J. reiterated that
the essence of federalism lies not in rigid division but in functional autonomy. The
Union may retain overriding control in exceptional circumstances, yet ordinary
administration must rest with the elected government. Throughout, the Court
 distinguished between aid and advice as an aspect of separation of powers rather than
the essence of federalism itself. Federalism, it clarified, concerns the territorial
distribution of legislative power; aid and advice concern the functional distribution within
the executive. Still, both principles interrelate to uphold democratic accountability. The
LG’s insistence on concurrence before action was condemned as antithetical to both. The
Court warned that if the LG could veto or delay decisions indefinitely, Delhi’s
government would exist only in form, not in substance, a constitutional mockery. In
tackling the obstructionist role problem, the Court borrowed from comparative
constitutionalism and Indian precedents. It reasoned that the Constitution does not
contemplate “a government within a government.” Where the LG acts contrary to advice
in ordinary matters, he becomes an impediment to governance, violating the principle of
collective responsibility. The judgment emphasized that disagreement must be based on
constitutional grounds, not administrative convenience. The LG must communicate
reasons for referral to the President transparently, thereby ensuring accountability. By
weaving constitutional morality, asymmetric federalism, and the rule of law, the Court
transformed a political stalemate into a constitutional discourse. It reminded all actors that
India’s federal structure is a means to achieve participatory democracy, not a platform for
hierarchical control. Constitutional morality requires each organ to act within its sphere
yet cooperate for the larger constitutional goal. Public morality may applaud majoritarian
decisions, but constitutional morality insists that even the majority must act under law.
The Court therefore elevated the principle of cooperative federalism to a constitutional
obligation, not a mere ideal.
• A.K. Roy and Ors. Vs. Union of India (UOI) and Ors. (1982) - The petition arose from a
challenge to the National Security Ordinance, 1980, later replaced by the National
Security Act, 1980, which authorized preventive detention. The petitioners, led by A.K.
Roy, a Marxist Member of Parliament detained under the Ordinance, argued that this use
of presidential power to curtail liberty violated the basic tenets of parliamentary
democracy and the fundamental rights enshrined in the Constitution. The Court, headed
by Chief Justice Y.V. Chandrachud with Justices Bhagwati, Desai, Tulzapurkar, and
Gupta, was asked to determine whether the President’s ordinance-making power was
legislative or executive, and whether it could lawfully affect the fundamental rights to life
and liberty under Article 21. The petitioners, represented by R.K. Garg, Ram Jethmalani,
Tarkunde, Kapil Sibal, and others, framed a multi-layered challenge. They contended that
the power to issue ordinances is an executive function, not legislative, and thus cannot
override or replace parliamentary legislation. Ordinances, they argued, were not “law”
within the meaning of Article 21, since they were not created by a democratically elected
legislature. Hence, no person’s liberty could be taken away by such temporary
instruments. They further argued that the procedure prescribed under an ordinance,
because of its limited duration and lack of permanence, could not be regarded as
“procedure established by law.” R.K. Garg drew upon philosophical authorities such as
Montesquieu and Blackstone to assert that “there can be no liberty where legislative and
executive powers are united in the same body.” He invoked Jawaharlal Nehru’s critique
of colonial-era ordinances as “the humiliation of ordinances.” The petitioners stressed that
allowing the executive to legislate would violate the principle of separation of powers,
which forms part of the basic structure of the Constitution, and would enable the
executive to trample upon fundamental rights, rendering Articles 14, 19, and 21
meaningless. The Attorney General, defending the Union, contended that the power under
Article 123 was legislative in nature and not merely executive. An ordinance, he argued,
had the same force and effect as an Act of Parliament and was therefore valid law under
the Constitution. The Court, therefore, had to determine the true character of this power.
Chief Justice Chandrachud began by tracing the historical origin of the ordinance-making
power. Unlike the United States or Britain, where no such executive power exists, the
Indian system inherited this device from Section 42 of the Government of India Act,
1935, which empowered the Governor-General to promulgate ordinances when legislative
assemblies were not in session. Despite its colonial misuse, the Constituent Assembly
retained this provision, considering it a “necessary evil” to deal with extraordinary and
urgent situations that could not wait for Parliament to reconvene. The framers thus sought
a balance between efficiency and democracy, equipping the executive with temporary
legislative powers but subjecting them to constitutional checks. The Court emphasized
that Article 123 is placed under “Legislative Powers of the President”, clear textual
indication that this power is legislative, not executive. Clause (2) explicitly states that an
ordinance “shall have the same force and effect as an Act of Parliament.” Therefore, the
only difference between a law and an ordinance lies in its duration and procedural
safeguards: an ordinance expires six weeks after Parliament reassembles, unless approved
or replaced by a statute. To further reinforce this equivalence, the Court cited Article
13(3), which defines “law” to include ordinances, and Article 367(2), which mandates
that references to “Acts or laws of Parliament” be construed to include ordinances.
Hence, an ordinance is law, subject to the same limitations, it cannot infringe fundamental
rights, nor can it exceed legislative competence. Chief Justice Chandrachud
acknowledged the concern that “it may sound strange at first blush that the executive
should possess legislative powers,” but clarified that the Indian Constitution envisages
such power only in special circumstances, when both Houses of Parliament are not in
session and immediate action is necessary. The provision, he said, functions as a “safety
valve” in emergencies, echoing his earlier words in State of Rajasthan v. Union of India
(1978), where he noted that such extraordinary provisions “have an imperious garb and a
repressive content but are designed to save, not destroy democracy.” Thus, the judgment
upheld the constitutionality of the President’s ordinance-making power but embedded it
within strict normative limits. The power was not to be used recklessly or mala fide, nor
to bypass the legislature or serve political ends. The Court warned that such misuse would
constitute a “fraud on the Constitution.” The assurance given by the framers, that
ordinances would remain a temporary measure for urgent situations, was reaffirmed as a
constitutional trust to be exercised in good faith. Addressing the argument that an
ordinance is not “law” under Article 21, the Court held that law includes any legislation,
whether made by Parliament or the President, provided it complies with constitutional
 limitations. If ordinances were excluded, it reasoned, they would also fall outside the
discipline of Article 13(2), enabling the executive to violate fundamental rights without
judicial recourse, an absurd result contrary to constitutional design. Hence, ordinances are
“law” for the purpose of Article 21, and any deprivation of life or liberty under them must
follow a fair and certain procedure. The Court also dismissed the argument that temporary
duration makes an ordinance’s procedure uncertain. It cited State of Orissa v. Bhupendra
Kumar Bose (1962) to affirm that even temporary laws can create enduring rights and
obligations. What matters, the Court said, is not how long a law lasts but whether its
procedure is clear, defined, and reasonable. On the justiciability of the President’s
satisfaction, the Court treaded carefully. Though Justice Tarkunde argued that judicial
review must extend to examining whether circumstances truly necessitated an ordinance,
the majority held that such satisfaction is generally non-justiciable, as it rests on
confidential executive materials. However, it acknowledged that, after the 44th
Constitutional Amendment, which deleted the earlier 38th Amendment clause making
presidential satisfaction “final and conclusive,” limited judicial review could be invoked
in cases of mala fide or extraneous exercise. The Court refused to apply this test here,
noting insufficient evidence to challenge the necessity of the ordinance. In rejecting the
plea that ordinance-making violates separation of powers, the Court clarified that India
follows no rigid separation like the U.S.; the Constitution permits overlapping functions.
The President’s power to legislate temporarily does not destroy this balance but instead
sustains it in exceptional emergencies. Finally, the Court reiterated that the ordinance-
making power operates within the same constitutional limits as legislation, it cannot
override Articles 14, 19, or 21, nor exceed Parliament’s legislative field. It is valid only so
long as it conforms to constitutional morality, to be used sparingly, faithfully, and not
politically.
• Dr. D.C. Wadhwa v State of Bihar (1986) - It addressed a deeply concerning practice in
the State of Bihar, where the government had, for over a decade, been repromulgating
ordinances repeatedly to keep them alive indefinitely, without placing them before the
State Legislature. The Supreme Court, led by Chief Justice P.N. Bhagwati, condemned
this practice as a “fraud on the Constitution” and a subversion of democratic governance.
The case began when Dr. D.C. Wadhwa, a professor at the Gokhale Institute of Politics
and Economics, filed a public interest petition under Article 32, supported by three others
who were personally affected by different ordinances. His extensive research revealed
that between 1967 and 1981, 256 ordinances had been promulgated and kept alive by
continuous repromulgation, some for as long as 14 years. Among them were the Bihar
Forest Produce (Regulation of Trade) Ordinance, the Bihar Bricks Supply (Control)
Ordinance, and the Bihar Intermediate Education Council Ordinance. These were reissued
again and again, often without any legislative debate or conversion into Acts. The
petitioners argued that the Governor’s power under Article 213 is an emergency
legislative power, meant only for situations where immediate action is necessary and the
Legislature is not in session. The practice of perpetual repromulgation, they said, usurped
the Legislature’s constitutional role, allowing the Executive to legislate indefinitely.
Petitioner No. 1 (Dr. Wadhwa) challenged this as a public wrong, contending that every
citizen has the right to be governed only by laws made in accordance with the
Constitution, not by executive-made ordinances. The State of Bihar defended the practice,
arguing that since some of the ordinances had later been enacted as laws and others were
pending before the Legislature, the petitions were academic and the petitioners lacked
locus standi. The Court rejected this objection, noting that public-spirited individuals
could challenge systemic constitutional violations as per the principle laid down in S.P.
Gupta v. Union of India (1981). Thus, Dr. Wadhwa was held entitled to maintain the
petition as a matter of public interest litigation. When examining the facts, the Court
uncovered shocking administrative evidence. The Government of Bihar had
institutionalized the repromulgation process. A circular dated 29 July 1981, issued by the
Department of Parliamentary Affairs, instructed all Secretaries to “get all concerned
ordinances repromulgated” before their expiry after each legislative session. It even stated
that if an old ordinance was reissued in the same form, “the approval of the Council of
Ministers would not be necessary.” This bureaucratic routine turned the Governor’s
extraordinary constitutional power into an ordinary law-making device. The Executive
had, in effect, established an “Ordinance Raj” in the State. The central constitutional
question before the Supreme Court was: Can the Governor repromulgate an ordinance
successively, thereby keeping it alive indefinitely, and thus take over the Legislature’s
law-making function? The Court’s answer was an emphatic no. Chief Justice Bhagwati
began his reasoning by reaffirming that the power under Article 213 is an emergency
power, not a regular legislative mechanism. It can be exercised only when the Legislature
is not in session and immediate action is necessary to prevent public inconvenience. The
Governor’s ordinance must be laid before the Legislature and ceases to operate six weeks
after its reassembly, unless replaced by an Act or disapproved earlier. This time limit
ensures that the Executive cannot govern permanently through ordinances, since Article
174 requires that the Legislature meet at least twice every year. Therefore, the maximum
life of an ordinance is seven and a half months. Repromulgation, the Court held, defeats
this constitutional limitation. It allows the Executive to do indirectly what it cannot do
directly, extend a temporary law beyond its permitted life. Such a device, Bhagwati C.J.
said, is a “colourable exercise of power” and “a fraud on the Constitution.” It violates the
basic democratic structure because law-making belongs to the Legislature, which
represents the people. To allow the Executive to continue ordinances endlessly would
mean that citizens are governed not by their elected representatives, but by bureaucrats
and Ministers. The Court drew support from precedents like K.C. Gajapati Narayan Deo
v. State of Orissa (1953) and P. Vajravelu Mudaliar v. Special Deputy Collector (1965),
where it was held that even a constitutionally vested power cannot be used to defeat a
constitutional prohibition. Likewise, the Bihar government’s practice of serially issuing
identical ordinances was held to be constitutionally invalid. The Court emphasized that a
constitutional authority cannot do indirectly what it is forbidden to do directly, the
substance of the act, not its form, determines its validity. Bhagwati C.J. clarified that there
could be rare and exceptional circumstances, for example, if the Legislature’s session was
 too short or too crowded with business, where repromulgation might be permissible for
public interest. But as a rule, ordinances must either be converted into Acts or allowed to
lapse. Anything beyond that is an abuse of constitutional power. The Court also noted
that, since 1950, no President of India had ever repromulgated an ordinance under Article
123, emphasizing that the Bihar Government’s conduct was an extraordinary deviation.
The practice, it said, amounted to “executive usurpation of legislative power”, violating
the principle of separation of powers and the rule of law, both essential to the basic
structure of the Constitution. In its judgment, the Supreme Court declared that the Bihar
Intermediate Education Council Ordinance, 1985, which was still in operation, was
unconstitutional and void. It further directed the State of Bihar to refrain from continuing
this unconstitutional practice and warned that there must not be an “Ordinance Raj” in the
country. In recognition of Dr. Wadhwa’s public service, the Court awarded him ₹10,000
in costs. Ultimately, the Court reaffirmed that the Governor’s ordinance-making power is
temporary, exceptional, and subordinate to legislative supremacy. Repromulgation
beyond necessity is unconstitutional, for it subverts the democratic process and destroys
the balance of power the framers so carefully designed.
• Krishna Kumar Singh & Others v. State of Bihar (2017) - It arose from a long and
troubling pattern of the State of Bihar continuously repromulgating ordinances without
placing them before the legislature, a constitutional malpractice earlier condemned in
D.C. Wadhwa v. State of Bihar (1986). This case revisited that issue in detail, reaffirming
democratic accountability and the supremacy of legislative power. The factual
background involved a chain of ordinances through which the State of Bihar took over
certain privately managed schools, converting their employees into government servants.
The first ordinance was promulgated in 1989, followed by several identical ordinances,
each issued after the previous one expired, continuing till 1992. However, none of these
ordinances were ever placed before the State Legislature, nor were they enacted into a
permanent statute. The last of these ordinances expired on 30 April 1992, and by that
time, the employees of these schools claimed they had permanently become government
servants by virtue of the repeated ordinances. When the Bihar government stopped paying
their salaries after the final ordinance lapsed, the employees challenged this decision. The
Patna High Court ruled that since the ordinances were never laid before the legislature,
they were unconstitutional. It held that there was no permanent vesting of schools in the
State, and the employees’ rights ended when the final ordinance expired. However, to
prevent undue hardship, the High Court directed that salaries already paid during the
period of validity of the ordinances should not be recovered. Dissatisfied, the employees
appealed to the Supreme Court, leading to the landmark nine-judge bench judgment. The
central constitutional issue before the Court was: Whether successive repromulgation of
ordinances without placing them before the legislature is constitutionally valid, and what
legal effect, if any, follows from such ordinances after they cease to operate? Chief
Justice T.S. Thakur, writing for the majority, began by reaffirming that the Governor’s
ordinance-making power under Article 213 is not an independent legislative power but an
emergency power, a temporary substitute for legislative action when the State Legislature
is not in session. It is conditioned by two strict requirements: The Legislature must not be
in session, and The Governor must be satisfied that circumstances exist which render it
necessary to take immediate action. The Court emphasized that necessity, not
convenience or political strategy, must guide the exercise of this power. The Governor’s
satisfaction must be based on objective circumstances, not subjective desires. “Necessity
is distinct from mere desirability,” the Court observed. To prevent misuse, Article 213(2)
mandates that every ordinance shall be laid before the Legislative Assembly (and the
Council, if it exists). The legislature must be given an opportunity to approve or
disapprove the ordinance, ensuring democratic oversight. An ordinance automatically
ceases to operate six weeks after the legislature reassembles, unless disapproved earlier or
replaced by a statute. Thus, the maximum life of an ordinance cannot exceed seven and a
half months, the gap between two legislative sessions plus six weeks. This structure
ensures that ordinances remain temporary and accountable to the elected legislature. The
Court reasoned that the requirement of laying an ordinance before the legislature is not
procedural but mandatory. The use of the phrase “shall be laid before the legislature” in
Article 213(2) conveys a constitutional obligation. Failure to do so deprives the
legislature of its supervisory role, and repromulgation without such laying is a
constitutional fraud. The power to make ordinances is meant to meet extraordinary
situations, not to bypass legislative scrutiny or govern by executive decree. Referring to
the earlier ruling in D.C. Wadhwa, the Court reaffirmed that repromulgation of ordinances
is constitutionally impermissible, except in very rare cases where immediate reissuance is
genuinely necessary due to shortage of time or public interest. Repeated repromulgation
without legislative consideration amounts to a subversion of the democratic process and a
usurpation of legislative authority. It transforms the Governor into a parallel law-making
body, something wholly alien to the constitutional design. Justice D.Y. Chandrachud,
delivering a separate but concurring opinion, went further to describe repromulgation as a
fraud on constitutional power. He observed that the Constitution does not permit
governance by ordinances, it establishes a system of parliamentary responsibility, where
the executive is answerable to the legislature. To bypass that accountability through serial
ordinances is to defy constitutional morality. He wrote that “the satisfaction of the
Governor cannot be a shield for usurping the functions of an elected legislature.” The
Court then addressed the legal effect of ordinances after they cease to operate. The
majority held that an ordinance has the same force and effect as a law only during its
lifetime. Once it lapses, all rights, obligations, and liabilities created under it also lapse,
unless there is a saving clause in a subsequent Act. The State cannot claim that acts done
under an expired ordinance have permanent effect. To hold otherwise would mean that the
executive could permanently alter rights without legislative approval, violating the
principle that sovereignty belongs to the people acting through their legislature. The
employees argued that since they had become government servants under the ordinances,
that status should survive even after their expiry. The Court rejected this, explaining that
temporary legal effects cannot become permanent without legislative sanction. As the
ordinances were never laid before the legislature, they never acquired legitimacy, and
 hence could not create enduring rights. However, in fairness, the Court protected the
employees from financial loss by directing that salaries already paid during the
subsistence of the ordinances would not be recovered. The Court also clarified the
distinction between an ordinance ceasing to operate and being void ab initio. While an
ordinance validly promulgated remains effective until it lapses, its continued reissuance
without legislative oversight renders it unconstitutional. Therefore, the Bihar ordinances
were unconstitutional from the moment they were repromulgated in violation of Article
213. The Court described this pattern as a “systematic subversion of the Constitution” that
deprived the legislature of its authority. The Supreme Court upheld the findings of the
Patna High Court that there was no permanent vesting of schools in the State after the
expiry of the ordinances; That repromulgation without laying before the legislature
violated D.C. Wadhwa; and That failure to comply with constitutional obligations made
the ordinances ultra vires. Accordingly, the Supreme Court dismissed the appeals and
affirmed that the employees could not claim any legal right to continue in service. Finally,
the Court articulated a broader constitutional philosophy. The power under Article 213, it
held, must be exercised within the framework of constitutional morality and democratic
accountability. The separation of powers principle means that the executive cannot
arrogate to itself the legislative function. The framers envisaged temporary ordinance-
making only to meet unforeseen situations when the legislature could not act, not as an
alternative system of lawmaking. To allow otherwise would erode the sovereignty of the
legislature, the rule of law, and ultimately the people’s right to be governed through their
representatives. In conclusion, the Supreme Court held that the Governor’s ordinance-
making power is subject to strict constitutional limit is not a parallel legislative
mechanism. Repromulgation of ordinances without placing them before the legislature is
unconstitutional and constitutes a fraud on the Constitution. Ordinances that are never
laid before the legislature create no enduring rights and lapse completely once expired.
The Bihar ordinances were ultra vires, and employees gained no permanent rights under
them. The executive cannot bypass the legislature through repeated ordinances, as this
violates the democratic structure and constitutional morality.
• Makhan Singh v. State of Punjab (1964) - Dealt with the extent to which courts could
exercise jurisdiction during a constitutional emergency, especially when the President,
under Article 359(1), had suspended the right of citizens to move courts for enforcement
of certain fundamental rights. The case arose during the 1962 Sino-Indian War, when the
Indian government enacted the Defence of India Act, 1962, empowering preventive
detentions for national security. The Supreme Court’s ruling clarified the relationship
between personal liberty, executive authority, and judicial power in emergencies, shaping
the doctrine of constitutional suspension of rights in India. In October 1962, India faced
Chinese aggression. Consequently, the President issued a Proclamation of Emergency
under Article 352, declaring that India’s security was threatened by external aggression.
Subsequently, on 3 November 1962, the President issued an Order under Article 359(1)
suspending the right of any person to move a court for the enforcement of Articles 21 and
22 (later amended to include Article 14). The Defence of India Ordinance, 1962, and later
the Defence of India Act, 1962, empowered the Central Government to make rules, under
which Rule 30(1)(b) authorized preventive detention. Numerous individuals, including
Makhan Singh, were detained under these provisions. They approached the Punjab and
Bombay High Courts under Section 491(1)(b) of the CrPC, challenging their detention as
unconstitutional for violating Articles 14, 21, and 22. Both High Courts dismissed their
petitions, holding that the Presidential Order under Article 359(1) barred such
proceedings. However, the Allahabad High Court, in a similar case (Sher Singh Negi v.
District Magistrate, Kanpur), held the opposite, leading to this Constitution Bench
reference before the Supreme Court. The central issue was whether the Presidential Order
under Article 359(1) barred detenues from approaching any court, including High Courts
under Section 491 CrPC, for the enforcement of their fundamental rights during the
emergency. A connected issue was whether Section 491 proceedings (the statutory
equivalent of habeas corpus) were independent of the constitutional remedy under
Articles 32 and 226, or whether they too were suspended under the Presidential Order.
Mr. M.C. Setalvad, appearing for the appellants, argued that Article 359(1) merely
suspended the right to move the Supreme Court under Article 32, and not the High Courts
under Article 226 or through Section 491(1)(b). He maintained that the statutory right to
seek habeas corpus under Section 491 was distinct from the constitutional right and could
therefore survive the suspension order. He contended that unless the legislature
specifically repealed or suspended Section 491, the courts retained jurisdiction to test the
legality of detention orders. He relied on Rankin, C.J. in Girindra Nath Banerjee v.
Birendra Nath Pal and District Magistrate, Trivandrum v. K.C. Mammen Mappillai to
show that the right to habeas corpus in India was statutory, not merely constitutional.
Thus, the Presidential Order could not affect it unless expressly stated. Setalvad further
urged that the Constitution did not intend to create an “executive dictatorship” during
emergencies and that judicial review must remain available to ensure legality. The
Attorney General, opposing this, emphasized that the emergency provisions were
designed to protect the State’s integrity, and during such times, national security must
override individual liberty. He argued that Article 359(1) explicitly barred moving “any
court” for enforcement of suspended rights, including High Courts and subordinate
courts. To interpret it otherwise, he warned, would render the Presidential Order
meaningless, as citizens could simply bypass it by approaching High Courts. Drawing
from English wartime cases, Rex v. Halliday (1917) and Liversidge v. Anderson (1942),
he submitted that during national crises, executive discretion must be given wider latitude
and judicial interference curtailed. The Court, speaking through Justice P.B.
Gajendragadkar, approached the matter by comparing Articles 358 and 359. Article 358
automatically suspended Article 19 during emergencies, allowing Parliament or the
executive to act free of those restrictions, though actions taken under it could not be
challenged even after the emergency. Article 359, however, did not suspend rights
themselves but merely barred access to courts for their enforcement. Thus, while the
rights under Articles 14, 21, and 22 technically continued to “exist,” citizens could not
seek judicial remedy for their breach during the emergency. The Court clarified that
Article 359(1) empowered the President to suspend the right to move any court, not
merely the Supreme Court. The phrase “any court” must be given its plain, grammatical
meaning, encompassing all courts of competent jurisdiction. If the Constitution-makers
had intended to confine it only to the Supreme Court, they would have said so explicitly.
Therefore, both Article 32 and Article 226 proceedings were suspended when the
Presidential Order covered those fundamental rights. The Court rejected the argument that
High Courts’ powers under Article 226 were discretionary and hence outside Article 359,
reasoning that even discretionary jurisdiction was judicially enforceable and thus covered.
Turning to Section 491(1)(b), the Court examined whether proceedings under it were
independent of the Constitution. It traced the historical evolution of habeas corpus in
India, noting that since 1923, the right to seek such directions was purely statutory under
Section 491, not a part of the common law. However, post-1950, that statutory right had
merged with constitutional rights, since any plea for release from detention would
necessarily invoke Articles 21 and 22, making it indistinguishable from enforcement of
fundamental rights. Therefore, even if the petition was framed under Section 491, it was,
in substance, an attempt to enforce constitutional guarantees of liberty, which were
suspended by the Presidential Order. The Court reasoned that the form of the proceeding
was irrelevant; its substance determined its character. If granting relief required the Court
to test whether a fundamental right had been violated, such proceedings were barred.
Hence, applications under Section 491, though styled as statutory, in effect sought
enforcement of Article 21, and thus fell within the prohibition of Article 359(1). The
Presidential Order, therefore, created a “blanket moratorium” on any judicial action
questioning detentions made under the Defence of India Act during the emergency. The
Court rejected the plea that unless Section 491 was expressly repealed, it remained
operative. It held that the suspension of citizens’ rights to move any court impliedly
suspended the courts’ jurisdiction to entertain such cases. Thus, even if the CrPC
provision survived on paper, it was rendered inoperative pro tanto for the period of
emergency. Likewise, whether the Court could act suo motu or through a third party made
no difference; if the substantive issue involved enforcement of suspended rights, the bar
under Article 359 applied. Applying this reasoning, the Court held that the detenues’
applications under Section 491(1)(b) were not maintainable, as they essentially
challenged the validity of the Defence of India Act and Rules on the ground of violating
fundamental rights, an inquiry the courts were constitutionally prohibited from
undertaking during the emergency. It affirmed that the Presidential Order did not suspend
the rights themselves but suspended judicial remedies, thereby pro tanto suspending court
jurisdiction. Ultimately, the Supreme Court upheld the validity of the Presidential Order
and ruled that no citizen could move any court, including High Courts, to enforce
suspended fundamental rights during an emergency. The appeals were dismissed. The
decision thus established that during a constitutional emergency, personal liberty could be
curtailed without judicial redress, and executive action could not be challenged on the
ground of violating Articles 14, 21, or 22. However, once the emergency ended, citizens
could resume such challenges, as the rights themselves were not extinguished.
• Additional District Magistrate, Jabalpur v. Shivakant Shukla (1976) - Popularly known as
the Habeas Corpus case, remains one of the most significant constitutional cases in Indian
legal history, as it directly tested the limits of the State’s power during a period of
constitutional emergency. It arose during the 1975 Emergency proclaimed by then Prime
Minister Indira Gandhi, a period when fundamental rights and personal liberties were
curtailed under the guise of national security. The question before the Supreme Court was
profoundly significant: Could a citizen file a writ of habeas corpus under Article 226 of
the Constitution to challenge detention during the proclamation of an emergency? In
essence, the issue tested whether the right to life and personal liberty under Article 21
existed at all during an emergency when the enforcement of such rights stood suspended.
To understand the background, on 25 June 1975, the President proclaimed a national
emergency under Article 352 citing “internal disturbances.” The following day, on 27
June 1975, another order was issued under Article 359(1) suspending the right of any
person to move any court for enforcement of rights conferred by Articles 14, 21, and 22.
The Maintenance of Internal Security Act (MISA), 1971, became the central instrument
through which thousands were detained without trial, including political leaders,
journalists, and activists. Several detainees challenged their detentions before various
High Courts through writs of habeas corpus, arguing that even though fundamental rights
were suspended, the executive had acted beyond its legal authority and contrary to the
statute’s requirements. Different High Courts, including those of Allahabad, Delhi,
Karnataka, and Rajasthan, held that while the enforcement of fundamental rights was
suspended, the courts could still examine whether detentions were made in accordance
with the law. In other words, the State could not act arbitrarily or beyond statutory limits
even during an emergency. The government appealed to the Supreme Court against these
rulings, leading to this historic constitutional confrontation. The government, represented
by the Attorney General, argued that during an emergency, the right to life and liberty
itself stands suspended when the enforcement of Articles 14, 21, and 22 is barred. It was
contended that the Presidential Order under Article 359(1) had the effect of completely
suspending judicial review in matters relating to detention. Hence, no person had any
locus standi to move a writ of habeas corpus before the High Court under Article 226.
The executive’s actions, even if arbitrary, could not be questioned because in times of
grave national emergency, the survival of the State takes precedence over individual
liberty. The government relied on English precedents such as Liversidge v. Anderson and
Greene v. Secretary of State for Home Affairs, where the courts had upheld the
supremacy of executive discretion during wartime. It was further argued that Article
359(1) was a constitutional imperative, not a mere procedural bar, and that any challenge
to detention would indirectly amount to enforcing suspended fundamental rights, which
the Constitution itself prohibited. On the other hand, the respondents, including Shivkant
Shukla and other detenus, argued that the suspension of the right to enforce fundamental
rights did not mean the extinguishment of those rights themselves. They contended that
Article 359(1) merely barred the enforcement of specified rights under Part III but did not
touch upon common law, statutory, or natural rights to life and liberty. The power of the
executive was limited even during an emergency, and detention orders must conform
strictly to the conditions laid down in Section 3 of MISA. If the detaining authority acted
beyond the statute, the detention was ultra vires and could be judicially reviewed. The
respondents stressed that the executive could not use the emergency to flout legislative
mandates and that the rule of law continued to exist. The writ of habeas corpus, they
argued, was not just a tool for enforcing fundamental rights but also a safeguard against
arbitrary executive action. The majority judgment, delivered by Chief Justice A.N. Ray
and Justices M.H. Beg, Y.V. Chandrachud, and P.N. Bhagwati, upheld the government’s
position. The Court held that during the operation of a Presidential Order under Article
359(1), no person has locus standi to move any court for enforcement of the rights under
Articles 14, 21, and 22. The majority concluded that since the right to move the court for
enforcement was suspended, the courts could not examine whether the detention was
lawful or unlawful, even if it was arbitrary or mala fide. The judgment declared that the
right to personal liberty is not an absolute right but one conferred by the law, and since
the Constitution itself allowed for its suspension, the government’s action was
constitutionally protected. The Court observed that during an emergency, the executive
must be vested with exceptional powers to ensure national security and that judicial
interference would obstruct the State’s ability to protect the nation. Justice Chandrachud
reasoned that liberty is a “gift of law,” and as law can confer it, it can also take it away.
The majority drew a distinction between the existence of rights and their enforceability,
emphasizing that though the right to life and liberty may exist in theory, its enforcement
could be constitutionally suspended. The majority also rejected the contention that habeas
corpus could be sought on grounds of ultra vires executive action. It held that the bar
under Article 359(1) was absolute, neither the High Courts under Article 226 nor the
Supreme Court under Article 32 could entertain petitions challenging detentions. The
Court also held that even the writ of habeas corpus under Section 491 of the Criminal
Procedure Code could not be invoked, as it would indirectly enforce suspended rights.
Thus, the judiciary, for the time being, abdicated its power of review, placing full trust in
the executive’s discretion. The dissenting judgment of Justice H.R. Khanna stands as a
beacon of constitutional courage and principle. In his lone dissent, Justice Khanna held
that even in an emergency, the State has no power to deprive a person of life or liberty
without the authority of law. He declared that Article 21 is not the sole repository of the
right to life and liberty; these rights flow from the basic principles of natural justice and
the rule of law, which exist independently of the Constitution. Justice Khanna maintained
that while Article 359(1) barred enforcement of fundamental rights, it did not suspend the
rule of law itself. The Constitution did not envision a situation where the State could
detain or even kill a person arbitrarily without legal sanction. To hold otherwise, he
warned, would mean that when life and liberty are most in peril, the courts would be
powerless, a proposition wholly inconsistent with the idea of constitutional government.
Justice Khanna reasoned that the Constitution makers had consciously inserted safeguards
against preventive detention to prevent its abuse. Preventive detention, he said, “is a curse
to all those who love personal liberty,” and its justification lies only in strict compliance
 with constitutional and statutory provisions. He invoked the fundamental distinction
between liberty and license, asserting that the essence of constitutional democracy lies in
the ability of the courts to protect citizens from arbitrary power. In a famous line, he
observed that “even without Article 21, the State has no power to deprive a person of life
or liberty without authority of law,” emphasizing that the rule of law is the foundation of
civilized governance. The majority judgment, however, effectively sanctioned executive
supremacy during emergencies. It validated the notion that no remedy existed against
unlawful detention and that courts must remain silent even if the government acted
without authority of law. The result was a temporary judicial endorsement of
authoritarianism, leading to widespread criticism from legal scholars, civil libertarians,
and citizens alike. The judgment marked the lowest point in Indian constitutional
jurisprudence, where the Supreme Court prioritized State security over individual
freedom. Justice Khanna’s dissent, though solitary, became historically vindicated. It
inspired the post-Emergency constitutional amendments and later judgments reaffirming
the supremacy of the rule of law. The decision was expressly overruled in Justice K.S.
Puttaswamy v. Union of India (2017), where the Supreme Court recognized the right to
privacy as intrinsic to life and liberty and declared that ADM Jabalpur was erroneous in
holding that these rights could be suspended..
• State of Rajasthan v. Union of India (1977) - Defining moment in India’s constitutional
jurisprudence on federalism and emergency powers, particularly in interpreting Article
356, which allows the President to impose President’s Rule in a State if he is satisfied that
the government of the State cannot be carried on in accordance with the Constitution. The
issue before the Supreme Court was not about the proclamation itself but about whether
the President’s satisfaction in issuing a proclamation under Article 356 is subject to
judicial review. The case arose in a politically charged atmosphere following the 1977
general elections, when the newly elected Janata Government at the Centre recommended
to the President to dissolve nine State Assemblies then controlled by the Congress party,
arguing that the State governments no longer reflected the people’s mandate. The affected
States, Rajasthan, Madhya Pradesh, Punjab, Bihar, and others, challenged this decision in
the Supreme Court, alleging that it was politically motivated and unconstitutional. The
petitioners argued that Article 356 was never meant to serve political ends, but to be
invoked only when a genuine constitutional breakdown occurred in a State. They claimed
that the Union Government’s advice to the President was based on irrelevant and
extraneous considerations, namely the political defeat of the Congress party at the Centre,
which did not automatically imply that the State governments had lost their constitutional
competence or legitimacy. The States maintained that the President’s satisfaction under
Article 356 was not absolute and could be questioned if it was mala fide or based on
irrelevant grounds. They also contended that until Parliament approved the proclamation,
the dissolution of the Assemblies was unconstitutional, as the President’s rule could not
come into effect without legislative ratification. The petitions thus asked the Court to
restrain the Union from acting upon the proclamations and to declare them
unconstitutional. The Union of India, represented by the Attorney General, contended that
the President’s satisfaction under Article 356(1) was purely subjective and beyond
judicial review. It argued that this provision required the President to assess whether the
constitutional machinery in a State had broken down, a determination that was inherently
political in nature, not judicial. The Union further relied on Article 74(2), which bars
courts from inquiring into the advice tendered by ministers to the President, and Article
356(5), which specifically prohibits courts from questioning the President’s satisfaction
on any ground. Therefore, according to the Union, the courts could not substitute their
judgment for that of the President or review the material upon which such satisfaction
was based. The Union also maintained that since the proclamations had not yet been
approved by Parliament, they were temporary and reversible, and hence, the petitions
were premature. The seven-judge bench of the Supreme Court, led by Chief Justice M.H.
Beg, and including Justices Y.V. Chandrachud, P.N. Bhagwati, N.L. Untwalia, P.K.
Goswami, R.S. Pathak, and A.C. Gupta, delivered a unanimous verdict dismissing the
petitions. Although the judges offered somewhat different lines of reasoning, they broadly
agreed that the matter was non-justiciable, being one of political discretion rather than
legal right. The Court held that judicial review of a proclamation under Article 356 was
extremely limited, and that the President’s satisfaction was, in most cases, final and
conclusive. The majority reasoned that Article 356(1) calls for the President to assess a
“situation”, a complex mixture of political, administrative, and constitutional factors.
Such an assessment, they held, could not be reduced to a question of objective legality
that a court could adjudicate upon. The Court observed that the Constitution confers the
satisfaction upon the President and not the judiciary, and thus, it was presumed that he
would act responsibly and upon the advice of his Council of Ministers. Judicial
interference, they cautioned, could disrupt the delicate balance between the executive and
judiciary, especially when the matter pertained to federal relations and national
governance. The bench further held that the proclamation took immediate effect upon
issuance and could remain valid for two months even before parliamentary approval.
Hence, the State Assemblies stood dissolved immediately upon the President’s action, and
the petitions challenging their dissolution were therefore premature. Justice Chandrachud,
concurring, emphasized that Article 356(5) expressly made the President’s satisfaction
non-justiciable. He noted that the President’s decision necessarily involves political
judgment, and courts are ill-equipped to evaluate such considerations. To question the
President’s satisfaction, he reasoned, would amount to questioning the advice of the
Council of Ministers, which is constitutionally barred under Article 74(2). The Court
likened the President’s satisfaction to similar subjective powers granted elsewhere in the
Constitution, such as those in Articles 123 and 213 (ordinance-making powers), which are
also exercised on ministerial advice and generally not open to judicial scrutiny. Thus, the
Court held that the petitions failed to raise a justiciable issue. At the same time, however,
the judges clarified that the President’s satisfaction was not absolutely immune from
judicial review. They observed that if a proclamation was shown to be mala fide or based
on wholly irrelevant or extraneous grounds, the courts could, in theory, intervene. Chief
Justice Beg described this as an “exceptional and narrow” possibility, emphasizing that
 such cases would be “rare indeed.” Nevertheless, since the petitioners had not provided
any concrete evidence of mala fides, and the proclamations had not yet been placed
before Parliament, no such grounds existed in this case. The Court therefore concluded
that the proclamations were constitutionally valid and could not be interfered with. The
Court also dealt with the secondary issue of whether the dissolution of the State
Assemblies prior to parliamentary approval of the proclamations was unconstitutional. It
held that the dissolution could take effect immediately upon the President’s issuance of
the proclamation and did not require prior parliamentary sanction. Parliament’s role, the
judges explained, was to approve or disapprove the proclamation within two months, but
until that time, the proclamation remained fully operative. Thus, the State Legislatures
ceased to exist upon the issuance of the proclamation, and their members lost their
positions and corresponding entitlements, such as salaries and allowances. The Court
reasoned that while the loss of salary might have been an unintended consequence, it was
too remote and indirect to constitute a violation of fundamental rights. Hence, the
petitioners could not claim any relief on that basis. Although the petitions were dismissed,
the Court’s decision subtly reaffirmed that Article 356 was not entirely beyond judicial
review. It left open a narrow window by acknowledging that courts could intervene in
cases of clear mala fides or abuse of power.
• S.R. Bommai v. Union of India (1994) - Interpretation of Article 356, the President’s
power to impose President’s Rule in a State. The case arose out of a series of events
beginning in Karnataka but also involved similar dismissals in several other States,
including Meghalaya, Nagaland, Madhya Pradesh, Himachal Pradesh, and Rajasthan. It
tested the balance between federalism and national unity, and between political discretion
and constitutional limits, especially during constitutional emergencies. The story began in
March 1985 when elections were held to the Karnataka Legislative Assembly. The Janata
Dal, led by R. H. Hegde, secured 139 out of 225 seats and formed the government. Later,
in 1988, Hegde resigned, and S. R. Bommai became the Chief Minister. Over time,
defections weakened his majority. In February 1989, 19 MLAs defected, and the
Governor received letters expressing a lack of confidence in Bommai. Acting on this, the
Governor sent a report to the President recommending the invocation of Article 356.
However, within days, seven of the defecting MLAs withdrew their support for the move,
affirming their continued backing for Bommai and alleging that their earlier signatures
had been obtained by misrepresentation. Bommai immediately requested the Governor to
allow a floor test to prove his majority and even advanced the Assembly session for this
purpose. The Governor, however, refused and instead sent a second report to the
President, claiming that Bommai had lost his majority. The President, acting on this
advice, proclaimed President’s Rule, dismissing the government and dissolving the
Assembly. Bommai challenged this action in the Karnataka High Court, which dismissed
his petition, leading to an appeal before the Supreme Court. The central constitutional
question was whether the President’s satisfaction under Article 356, that a State
government cannot be carried on according to the Constitution, was subject to judicial
review. Related questions were: whether the President had unfettered powers; what the
expression “a situation has arisen” meant; and what the permissible extent of intervention
under Article 356 was. The case also questioned whether the dissolution of the Assembly
before parliamentary approval of the Proclamation was constitutional. The Union of India
argued that since Article 74(2) bars courts from inquiring into the advice tendered by
ministers to the President, the reasons for issuing the Proclamation under Article 356 were
beyond judicial review. The Court, led by Justice P. B. Sawant writing for himself and
Justice Kuldip Singh, rejected this contention. He clarified that Article 74(2) merely
prevents the courts from questioning whether the President followed ministerial advice
but does not bar scrutiny of the material on which the President’s satisfaction was based.
Judicial review, therefore, could extend to examining whether any relevant material
existed and whether the satisfaction was formed in good faith or was tainted by mala fides
or irrelevance. Justice Sawant emphasized that interpreting Article 356 purely from a
technical or legalistic angle would be a grave error. The Constitution is a political
document, he said, and provisions like Article 356 carry the potential to destroy the
federal-democratic framework. Therefore, their exercise must be subject to constitutional
safeguards. Democracy and federalism, being part of the basic structure of the
Constitution, cannot be undermined by arbitrary central action. The power under Article
356, though vested in the President, is effectively wielded by the Union Cabinet and can
paralyze the autonomy of States if unchecked. Hence, it must be subject to close judicial
scrutiny within the limits of illegality, irrationality, and mala fides. Dr. B. R. Ambedkar’s
Constituent Assembly statements were repeatedly cited. He had described Article 356 as a
measure of last resort, expressing hope that it would remain a “dead letter.” Ambedkar
expected that the President would first issue a warning to the State and, if that failed, call
for fresh elections before finally invoking Article 356. Justice Sawant drew from this to
stress that the States are not mere administrative arms of the Union but constitutionally
autonomous units with independent legislatures and executives. The federal character of
the Indian Constitution, though allowing temporary central intervention, cannot justify
routine or politically motivated dismissals. The Court noted that the frequent use of
Article 356, over 90 times since independence, mostly against opposition-ruled States,
showed its abuse for political ends. This, the judgment said, endangered democracy itself.
Repeated dissolutions drained the public exchequer, disillusioned citizens, and made
electoral politics the preserve of the affluent. The misuse of Article 356, the Court
warned, could erode faith in democracy and pave the way for authoritarianism. Justice
Sawant also tied the issue to broader democratic values like decentralization and
pluralism. India’s multi-lingual, multi-cultural polity required power-sharing and self-
governance. The arbitrary dismissal of State governments betrayed the constitutional
promise of local autonomy. He stressed that political pluralism, including the existence of
different parties ruling at the State and national levels, was intrinsic to democracy. Hence,
the mere defeat of a ruling party in national elections could not justify the dissolution of a
State Assembly. Citing the earlier State of Rajasthan v. Union of India (1977) case, the
Court reiterated that such defeat did not mean the State government could no longer
function constitutionally. The will of the electorate is ordinarily tested only at the end of
an Assembly’s term, not through the whims of central authorities. The Court held that
judicial review of a Proclamation under Article 356 was not only permissible but
constitutionally necessary. It laid down that courts could inquire whether relevant material
existed, whether the material was reasonable, and whether the action was mala fide. If the
Proclamation was invalid, courts could restore the dismissed government and Assembly,
even if Parliament had approved the Proclamation. This was crucial because otherwise
judicial review would be meaningless, reduced to an empty formality. An important
doctrinal development in the case was the application of the principle of proportionality.
Justice Sawant explained that not every breakdown of constitutional machinery warranted
the full use of Article 356 powers. The President could assume only some functions of the
State government or suspend certain authorities without necessarily dissolving the
Assembly. Excessive or disproportionate use of power would render the Proclamation
invalid. The President should first attempt milder measures, such as warnings or
directives, and invoke Article 356 only when absolutely unavoidable. Another vital aspect
was the timing of dissolution. The Court ruled that the President cannot dissolve a State
Assembly until Parliament approves the Proclamation. Dissolution before such approval
would be per se unconstitutional. The President may, however, suspend the Assembly
during the interim. This ensures that Parliament’s supervisory role under Article 356(3)
remains meaningful, preventing irreversible actions before legislative scrutiny. Justice
Sawant also addressed the consequences of invalid or unapproved proclamations. If a
Proclamation is declared unconstitutional, the logical result is the restoration of the
dismissed government and Assembly, as happened in Pakistan’s Mian Nawaz Sharif v.
President of Pakistan (1993). The Court can, however, validate certain acts done during
the intervening period for administrative continuity. If a Proclamation, though valid, is
not approved by Parliament within two months, fresh elections must be held, and the
previous government does not automatically stand revived. The Court also empowered
itself to grant interim relief. If a challenge to a Proclamation appeared prima facie strong,
the Court could stay fresh elections to prevent a fait accompli that would nullify judicial
review. However, it could not stop the President from issuing or operating a
Proclamation, as that would interfere with constitutional functions. Justice Sawant
summarized these conclusions in ten key points: (1) Proclamations under Article 356 are
subject to judicial review; (2) Article 74(2) does not bar scrutiny of the material forming
the President’s satisfaction; (3) the President may exercise all or some powers under
Article 356; (4) he cannot take irreversible actions like dissolution before parliamentary
approval; (5) if the Proclamation is invalid, the court can restore the status quo ante; (6)
interim injunctions may be issued to preserve judicial review; (7) courts may validate or
mould relief as necessary; (8) secularism is part of the basic structure, and violation of
secularism can justify Article 356; (9) certain proclamations, like those in Karnataka,
Meghalaya, and Nagaland, were unconstitutional; and (10) others, such as those in
Madhya Pradesh, Rajasthan, and Himachal Pradesh following the Babri Masjid
demolition, were upheld as valid. The majority, Justices Sawant, Kuldip Singh, Jeevan
Reddy, S. C. Agarwal, and Ratnavel Pandian, formed a clear 5:4 verdict. Justice Jeevan
 Reddy, concurring with Justices Sawant and Singh, broadly agreed with their conclusions
but added that the validity of the President’s satisfaction could be tested by whether the
material logically supported the breakdown of constitutional machinery. Justice Pandian
agreed with key conclusions on judicial review, secularism, and the scope of relief. The
minority, consisting of Justices J. S. Verma, A. M. Ahmadi, K. Ramaswamy, and
Yogeshwar Dayal, agreed that the President’s Proclamation was subject to judicial review
but differed on its scope. They believed the Court should not question the sufficiency or
adequacy of material but only its existence. They were more deferential to the President’s
discretion and less willing to allow restoration of dismissed governments once Parliament
had approved the Proclamation.
• Rameshwar Prasad & Ors. v. Union of India (2006) - It originated from the 2005 Bihar
Legislative Assembly elections, which resulted in a fractured verdict. No political party
secured a majority: the Rashtriya Janata Dal (RJD) and its allies failed to cross the
halfway mark, while the Janata Dal (United)–Bharatiya Janata Party (BJP) alliance also
fell short. As no combination appeared immediately capable of forming a stable
government, the Governor of Bihar, Buta Singh, assumed a crucial constitutional role.
Under the Indian federal system, the Governor functions as the constitutional head of the
State, expected to act impartially in facilitating government formation according to the
majority will. However, in this case, the Governor’s actions became the epicenter of a
constitutional storm. After the elections, the Governor submitted a series of reports to the
President of India, claiming that attempts were being made by certain political groups to
form a majority through defections and inducements, which, according to him, posed a
threat to democratic values. He asserted that horse-trading and unethical practices were
underway and that the only way to prevent this alleged subversion of democracy was to
dissolve the newly elected Assembly even before it held its first session. Acting on the
Governor’s report, the Union Council of Ministers advised the President to issue a
Proclamation under Article 356 imposing President’s Rule in Bihar and simultaneously
dissolving the Legislative Assembly under Article 174(2)(b). The President accepted this
advice, and on 23 May 2005, the Bihar Assembly was dissolved. This decision triggered
widespread outrage, as it meant that a duly elected Assembly, representing the people’s
mandate, was dissolved without ever convening to determine who truly commanded a
majority. A group of petitioners, including Rameshwar Prasad, challenged the
constitutional validity of the Proclamation before the Supreme Court of India. The central
issue was whether the Governor could recommend the dissolution of an Assembly before
its first meeting, and whether such a Proclamation under Article 356 was constitutionally
valid when based merely on suspicion and conjecture rather than demonstrable evidence
of constitutional breakdown. The petitioners argued that the Governor had grossly
exceeded his constitutional authority, acting not as a neutral constitutional head but as a
political instrument of the Union government. They contended that the Governor’s role
was limited to facilitating government formation by allowing any party or combination of
parties claiming a majority to prove it on the floor of the Assembly, the only
constitutionally sanctioned forum for determining legislative confidence. By
recommending dissolution based on unverified reports and media speculation, the
Governor, they argued, subverted democracy rather than safeguarding it. They further
maintained that the Union Council of Ministers failed in its duty to independently verify
the facts before accepting the Governor’s report, instead treating it as “gospel truth.” The
Union government defended its actions by claiming that the Governor’s assessment
indicated a real danger to democratic integrity, as defections and corrupt political
manoeuvring could have led to a government formed by immoral or unconstitutional
means. It argued that the Governor’s report provided sufficient material for the
President’s satisfaction under Article 356(1), and therefore the Court should refrain from
reviewing the Proclamation, citing the principle of limited judicial review recognized in
S.R. Bommai v. Union of India (1994). The Supreme Court, however, rejected these
arguments and subjected the Governor’s actions and the President’s Proclamation to
intense scrutiny. The Court reaffirmed that Article 356 powers are extraordinary and must
be exercised with extreme caution. Justice Y.K. Sabharwal, writing for the majority, held
that the Governor’s report lacked credible and relevant material to justify such a drastic
action. The Governor’s recommendations, the Court observed, were founded on “fanciful
assumptions” and “hypothetical apprehensions”, which could not constitute a legitimate
basis for invoking Article 356. The Court described the Governor’s behaviour as
exhibiting “undue haste”, clearly indicating a preconceived motive to prevent the JD(U)-
BJP alliance from staking claim to form the government. By doing so, the Governor
misled the Centre and distorted the democratic process. The Court emphasized that the
Constitution does not permit dissolution of a newly elected Assembly before it meets.
Under Article 174(2)(b), the Assembly can be dissolved only after it has convened, and
the Governor’s report cannot substitute for a floor test, which remains the only
constitutionally valid method of determining majority support. To dissolve the Assembly
before this test is conducted would be to deny the people’s representatives their
constitutional right to form a government, thereby undermining the core of parliamentary
democracy. Further, the Court clarified that while Article 356(1) allows the President to
act on the Governor’s report, the satisfaction of the President must be based on objective
and verified material. The Union Council of Ministers is constitutionally obliged to
independently assess the Governor’s recommendations before advising the President. In
this case, both the Governor and the Union Cabinet failed in their constitutional duties,
and the resultant Proclamation was declared unconstitutional. In explaining the limits of
gubernatorial discretion, the Court held that a Governor’s report must be accompanied by
relevant evidence justifying his conclusion that a government cannot be formed or cannot
function in accordance with the Constitution. The absence of such material reduces the
report to the Governor’s personal opinion, which cannot be the foundation for invoking
emergency powers. The Court noted that the Governor’s apprehension of defections did
not warrant dissolution; the Tenth Schedule (Anti-Defection Law) already provided a
constitutional mechanism to address such concerns. Thus, the Governor’s reasoning was
not only irrelevant but constitutionally unsound. Drawing upon the principles laid down
in S.R. Bommai v. Union of India (1994), the Court reiterated that judicial review of
Article 356 proclamations is not barred. It reaffirmed that such proclamations can be
reviewed to determine whether they were issued on the basis of relevant and credible
material or were mala fide or irrational. The Court echoed Bommai’s insistence that the
floor of the Assembly is the only place where majority support can be tested, and that
Governor’s discretion cannot override legislative confidence. Like Bommai, this case
underscored that federalism and democracy are part of the Constitution’s basic structure,
and their subversion by arbitrary dissolution would threaten the constitutional balance.
However, while Bommai focused on the misuse of Article 356 to dismiss functioning
State governments, Rameshwar Prasad expanded the principle to cases where a newly
elected Assembly was dissolved even before meeting, thereby widening the constitutional
safeguard against executive overreach. The Court also examined whether it had the power
to revive the dissolved Assembly. It observed that ordinarily, once dissolution has taken
place and elections are set in motion, the process of governance must continue without
disruption. Although the Court held that it does possess the authority to restore a
dissolved Assembly in appropriate cases, it declined to do so in this instance. Since fresh
elections had already been announced and were at an advanced stage, the Court reasoned
that reviving the old Assembly could destabilize the electoral process and lead to greater
constitutional chaos. The Court thus adopted a balanced approach, declaring the
dissolution unconstitutional, yet refraining from reversing it in order to preserve political
stability and respect for the people’s renewed [Link] judgment was widely
acclaimed for maintaining constitutional propriety and judicial restraint. Scholars noted
that the Court skillfully avoided a confrontation between the judiciary and legislature by
not reviving the Assembly, thereby upholding the principle of separation of powers while
reaffirming its role as a guardian of the Constitution. The Court’s refusal to restore the
Assembly was viewed as a pragmatic decision, it recognized that the ultimate sovereignty
lay with the people, whose fresh verdict would resolve the impasse. By allowing the
electoral process to proceed, the Court reaffirmed public faith in democratic remedies,
asserting that when the constitutional process is subverted, the ballot box, not judicial fiat,
should ultimately restore order. In conclusion, the Supreme Court’s decision in
Rameshwar Prasad marked a critical evolution in the interpretation of Articles 174 and
356, reinforcing the doctrine of constitutional accountability. The Court declared that
emergency powers cannot be a tool for political manipulation and that the Governor is
bound by constitutional morality rather than political expediency. It held that pre-emptive
dissolution based on unverified suspicions violates both democracy and federalism, the
twin pillars of the Indian Constitution. Though the Court did not reverse the dissolution in
Bihar, its judgment firmly established that neither the Governor nor the Centre can act in
bad faith under the guise of constitutional authority, ensuring that such misuse of power
remains subject to judicial correction and democratic scrutiny.
EMERGENCY POWERS – RAHUL SAGAR
• The emergency provisions in the Indian Constitution, particularly Articles 352 and 356,
have always reflected the tension between the need to protect the nation in extraordinary
times and the imperative to preserve democracy and federalism. Rahul Sagar’s critique
argues that while India’s constitutional system has seemingly “tamed” these powers,
given that financial emergencies have never been declared, national security emergencies
ended in 1977, and the misuse of President’s Rule has declined, the apparent restraint is
not due to constitutional safeguards, but because of contingent political conditions: weak
central coalitions and a relatively stable international environment. His warning is that
these provisions remain dangerously broad and vulnerable to abuse, as demonstrated
historically by the excesses of 1975 and multiple unconstitutional uses of Article 356.
• Part XVIII of the Constitution divides emergencies into three types: national security
emergencies under Article 352, breakdowns of constitutional machinery under Article
356, and financial emergencies under Article 360. Article 352 allows the President to
proclaim an emergency when the security of India or any part of it is threatened by war,
external aggression, or armed rebellion. Once proclaimed, Parliament can legislate on
state matters, the Union can take over control of revenues, and citizens’ fundamental
rights, especially under Article 19, can be suspended. Articles 358 and 359 permit the
President to restrict enforcement of rights, including through orders suspending remedies
under Articles 32 and 226, except for protections under Articles 20 and 21. In theory,
several safeguards were built into the Constitution: the President must act on the written
advice of the Cabinet, both Houses must approve the proclamation by special majorities,
and the Lok Sabha may revoke it by resolution if one-tenth of its members demand
reconsideration. Yet, as Sagar points out, these “safeguards” rely too heavily on the
political morality of those in power rather than on enforceable constitutional checks.
• Article 356, allowing the President to proclaim failure of constitutional machinery in a
state, represents the most controversial feature of Indian federalism. Under this provision,
the President can assume all or any functions of the state government and Parliament can
exercise the powers of the state legislature. Although the text provides that such
proclamations expire in two months unless approved by Parliament and cannot last more
than three years, the provision effectively hands the Union near-absolute power over state
governments. The author traces Article 356 to Section 93 of the Government of India Act,
1935, a colonial mechanism used by Governors to override provincial autonomy. Its
inclusion in Part XVIII, he argues, is conceptually flawed: while “emergency” usually
denotes a sudden crisis requiring immediate response, Article 356 deals with political
breakdowns, which are gradual and often political rather than existential. It was not
designed to address imminent threats to national security but to counter what the framers
feared might be “subversive” local governments, particularly communist-led ones, that
could undermine the constitutional order through democratic means.
• The Constituent Assembly debates revealed deep confusion about its purpose. Proponents
like Algu Rai Sastri justified Article 356 by citing internal disturbances in Bengal,
 Madras, and Hyderabad, precisely the kinds of threats covered under Article 352. Others,
like K.M. Munshi and B.R. Ambedkar, saw it as a measure of “militant democracy,”
intended to protect the Constitution from forces using democratic power to destroy
democracy. Yet, as H.N. Kunzru warned, such power could easily degenerate into
authoritarianism. Ambedkar himself expressed hope that Article 356 would “remain a
dead letter,” though history quickly proved otherwise. Between 1950 and 1994, it was
used over ninety times, mostly for partisan ends. The Supreme Court, in State of
Rajasthan v. Union of India (1977), refused to review its misuse, holding that the
President’s satisfaction was beyond judicial scrutiny. Only in S.R. Bommai v. Union of
India (1994) did the Court overturn this approach, holding that the President’s satisfaction
under Article 356 is justiciable, and that the majority of a state government must be tested
on the assembly floor, not in Raj Bhavan. Even so, Sagar notes, the doctrine of judicial
review was reactive, it could only operate after dismissal, not prevent misuse beforehand.
• The critique of Article 352 is sharper. It has been invoked thrice, during the wars with
China (1962), Pakistan (1971), and the internal emergency (1975). The judiciary’s record
in all three periods exposes its failure to act as a constitutional safeguard. In Sree Mohan
Chowdhury v. Chief Commissioner (1963), the Court held that once a presidential order
under Article 359 suspended the right to enforce Articles 21 and 22, detainees had no
locus standi to challenge preventive detention. The judiciary’s deference was even clearer
in Makhan Singh Tarsikka v. State of Punjab (1964), where the Court reiterated that all
habeas corpus petitions were barred during emergencies, though it cautiously listed three
exceptions: detentions could be challenged for mala fides, for violating fundamental
rights not covered by the suspension, or for excessive delegation of legislative power. Yet,
by treating these exceptions as theoretical rather than real, the Court surrendered its
constitutional role. When the 1975 emergency was declared on vague grounds of “internal
disturbance,” the judiciary’s failure culminated in ADM Jabalpur v. Shivkant Shukla
(1976), where the Supreme Court infamously held that even the right to life could be
suspended. Sagar interprets these cases as evidence that the constitutional text, by relying
on executive satisfaction, made the judiciary structurally subservient during emergencies.
Only after the 44th Amendment in 1978 did Parliament limit Article 352 by replacing
“internal disturbance” with “armed rebellion” and mandating Cabinet-written advice.
• The author’s most forceful critique is that constitutional design itself encourages
deference. The President’s “satisfaction” under Article 352 is treated as subjective; the
judiciary historically viewed it as non-justiciable. By allowing executive discretion to
define the existence of a “grave emergency,” the framers vested in the Union powers
incompatible with democracy’s foundational principle of limited government. The
reliance on parliamentary approval is hollow since the ruling majority can rubber-stamp
emergency extensions. Thus, even though the 44th Amendment introduced procedural
checks, such as the requirement of periodic review and the right of one-tenth of Lok
Sabha members to seek revocation, the author argues these remain political rather than
legal restraints.
• It questions why Articles 356 and 360 were grouped with genuine emergencies. He points
out that a “financial emergency” under Article 360 is even less defensible, as financial
instability rarely arises suddenly and can be addressed by normal legislation. Yet its
inclusion in Part XVIII reflects the framers’ anxiety about populist fiscal policies at the
state level, like tax cancellations or prohibition laws that might endanger national
solvency. Figures such as K. Santhanam feared that reckless provincial governments
could bankrupt the Union, while critics like Kunzru countered that economic
mismanagement should be punished through elections, not central intervention. Munshi,
defending Article 360, argued that India’s financial structure was “one and indivisible,”
requiring central control during crises. For Sagar, this reasoning reveals an authoritarian
undercurrent in the framers’ thinking: a belief that democracy required strong paternal
oversight. He terms Article 360 a “financial equivalent of militant democracy,” allowing
the Centre to preemptively discipline the states.
• The evolution of emergency jurisprudence since the 1970s shows how deeply these
provisions have shaped the balance of power. In Indira Nehru Gandhi v. Raj Narain
(1975), the Supreme Court invoked the basic structure doctrine to strike down clauses of
the 39th Amendment that insulated the Prime Minister’s election from judicial scrutiny.
This marked the first time the Court resisted executive overreach under emergency cover.
Later, in Minerva Mills v. Union of India (1980), the Court reaffirmed that limited
amending power and judicial review are part of the Constitution’s basic structure,
implicitly constraining future abuses of Articles 352 and 356. However, Sagar argues that
these decisions corrected outcomes rather than structures: they did not amend the
dangerous textual latitude that the emergency provisions still provide. The President’s
subjective satisfaction remains the legal threshold, and judicial review, while theoretically
available, is politically unlikely in real-time crises.
• The apparent dormancy of these provisions since the 1990s is deceptive. The decline of
their use reflects coalition politics and judicial vigilance, not constitutional reform.
Should a dominant majority return to power, the same constitutional text could be
exploited as in 1975. Moreover, new threats, like majoritarian populism and digital
surveillance, make emergency powers even more potent. While S.R. Bommai curbed the
abuse of Article 356, the centralizing impulse endures through indirect means, such as
using governors or fiscal tools to influence states. Thus, despite the procedural
amendments of 1978, the structural problem, the fusion of executive discretion with
parliamentary majority, remains intact.
• He sees the framers’ “militant democracy” approach as historically understandable but
normatively flawed. Emergencies, he suggests, should protect the Constitution’s liberal
core, not suspend it. Judicial review must be proactive, not deferred, and the President’s
satisfaction must be tested on objective grounds. From this viewpoint, India’s emergency
provisions reflect a deeper contradiction: a Constitution born from anti-colonial struggle,
yet embedded with colonial-era distrust of its own people. Unless reformed, they remain,
in his words, “a dormant volcano”, quiet only because circumstances have not yet
conspired to awaken it.
• First Judges Case - S.P. Gupta v. Union of India (1982) - Was one of the most significant
constitutional decisions concerning the independence of the judiciary, the scope of the
President’s power to appoint judges, and the meaning of “consultation” under Articles
124 and 217 of the Constitution. The dispute arose from a circular issued by the Law
Minister on March 18, 1981, asking Chief Justices of all High Courts whether additional
judges were willing to be appointed as permanent judges in any other High Court. The
circular was widely seen as an attempt by the executive to assert influence over judicial
appointments and transfers. Several petitions were filed, questioning not just the
circular’s legality but also the constitutional process for appointing and transferring
judges, and the secrecy surrounding correspondence between the executive and judiciary.
The Delhi High Court had upheld the executive’s discretion, leading to a direct
constitutional challenge before the Supreme Court. At the core of the case were three
principal issues: first, whether the Law Minister’s circular was constitutional or amounted
to executive interference with judicial independence; second, whether the Chief Justice of
India’s opinion enjoyed primacy over the views of other constitutional functionaries in
appointments and transfers; and third, whether correspondence between the Law Ministry,
the Chief Justice of the High Court, and the Chief Justice of India was protected from
disclosure under Article 74(2) or whether it could be produced in court as evidence. The
seven-judge bench of the Supreme Court was deeply divided. The majority, comprising
Justices P.N. Bhagwati, S.M. Fazal Ali, D.A. Desai, and E.S. Venkataramiah, upheld the
validity of the circular but with safeguards protecting judges from arbitrary
discontinuance and ruled that the Chief Justice of India’s opinion was not entitled to
primacy in appointments or transfers. The minority, Justices A.C. Gupta, V.D.
Tulzapurkar, and R.S. Pathak, dissented on crucial points, particularly emphasizing that
judicial independence required giving the Chief Justice of India a greater, if not decisive,
role in the consultative process. Justice Bhagwati, writing the leading judgment for the
majority, began by describing the judiciary as a “separate but equal branch of the State,”
entrusted with transforming the constitutional vision of justice into reality. He explained
that judicial independence was not an abstract ideal but a “living faith,” vital to the
democratic and social-revolutionary goals of the Constitution. The judiciary, he said,
could not remain a passive umpire but had to play a creative role in achieving socio-
economic justice. Thus, appointments to the higher judiciary must reflect this vision,
judges should be men and women with social awareness, creative minds, and a
commitment to constitutional values. This ideological preface set the tone for Bhagwati’s
reasoning: judicial independence was essential, but its protection had to be balanced with
the need for accountability and transparency in appointments. Addressing the first issue—
the validity of the Law Minister’s circular—Justice Bhagwati held that the circular itself
was not unconstitutional because it did not, by its own force, create legal obligations or
consequences. It was merely an administrative communication, seeking information on
judges’ willingness to serve in other High Courts. However, he emphasized that if any
judge suffered adverse consequences for refusing to consent to transfer, such an action
would be unconstitutional. Additional judges, Bhagwati reasoned, had a right to be
considered for further appointment in their own High Court and could not be discontinued
solely because they declined transfer. To do so would amount to penalizing them for
asserting independence, which would undermine the very principle of judicial
independence the Constitution sought to protect. Bhagwati also analyzed Article 222,
which authorizes the President to transfer a judge from one High Court to another after
consulting the Chief Justice of India. He clarified that the circular did not amount to a
“transfer” under Article 222, since the judges in question were being considered for new
appointments in other courts after their tenure as additional judges ended. Such
reappointments, though involving relocation, were not transfers of sitting judges. The use
of the word “transfer” by the Law Minister in parliamentary speeches was, he said,
merely casual and should not be read as constitutional language. On the broader question
of appointments, the Court examined Articles 124(2) and 217(1), which require the
President to consult the Chief Justice of India, the Chief Justice of the concerned High
Court, and the Governor of the State before appointing judges. Bhagwati held that the
term “consultation” meant an effective exchange of views, where all three constitutional
authorities were entitled to equal consideration. The Chief Justice of India’s opinion,
though important, did not have primacy over the others. The President was free to make
the final decision after weighing all opinions, provided the consultation was full and
identical in terms of facts and materials considered. According to Bhagwati, to give the
Chief Justice of India veto power would contradict the constitutional design, which
placed all three authorities on equal footing. The executive, as the appointing authority,
had to retain discretion, subject to the constitutional requirement of consultation, to
ensure accountability and democratic legitimacy. Justice Bhagwati, however, reaffirmed
that judicial independence was the bedrock of democracy. He said the judiciary must
remain free from executive influence but also from “pressures of class, ideology, or social
bias.” Judges must be fearless before political or economic power. He recognized the
judiciary’s role as a “bulwark against executive excesses” and linked independence not
only to non-interference but to the moral courage of judges to apply law impartially.
While defending the executive’s role in appointments, he insisted that independence could
be maintained through transparent consultation and the integrity of constitutional
conventions. A major portion of the judgment dealt with the issue of privilege and
disclosure. The government claimed that correspondence between the Law Ministry, the
Chief Justice of Delhi, and the Chief Justice of India was protected from disclosure under
Article 74(2), which shields ministerial advice to the President from judicial scrutiny.
Rejecting this claim, Bhagwati ruled that while the President’s final advice was indeed
protected, the material forming the basis of that advice, including consultations with
judicial authorities, was not. These documents, he said, did not form part of the advice but
preceded it, and their disclosure was essential for transparency and accountability in a
democracy. Citizens, he declared, had a right to know how their government functioned:
“No democratic government can survive without accountability, and the basic postulate of
accountability is information.” This observation became a cornerstone for India’s later
right-to-information jurisprudence. Justice A.C. Gupta, concurring in part, highlighted
that the independence of the judiciary required functional autonomy in appointments.
While agreeing that “consultation” did not mean “concurrence,” he emphasized that the
President should ordinarily accept the Chief Justice of India’s opinion unless there were
clear reasons to differ. The Chief Justice of India, he noted, was best placed to assess
professional competence and integrity, and treating his opinion as equal to that of the
Governor, who had little expertise in legal matters, would dilute the quality of judicial
appointments. Gupta suggested that the Governor’s role was primarily to provide inputs
on local antecedents or character, not professional merit. Justice Fazal Ali agreed that
independence of the judiciary formed part of the basic structure but stressed that it must
operate within constitutional limits. He viewed the system as a balanced “admixture of
judicial and executive functions.” The President, acting on ministerial advice, held the
appointment power, but his discretion was not absolute; consultation with the Chief
Justice of India and the Governor was a constitutional check. Fazal Ali endorsed the
government’s circular as a legitimate step to promote inter-state transfers and bring
diversity to the judiciary. He reasoned that appointing judges from outside the State could
prevent local favoritism and increase public confidence. He emphasized that a Chief
Justice from outside the State was less vulnerable to local pressures and that the policy
behind the circular was consistent with Article 222, provided the transfers served public
interest and were based on consultation. Justice V.D. Tulzapurkar dissented sharply,
holding that the circular exuded “an odour of executive arrogance” and was coercive in
nature. By implying that additional judges might not be continued if they refused transfer,
the executive had, in his view, violated the independence of the judiciary. Tulzapurkar
further argued that Article 217(1) implicitly gave primacy to the Chief Justice of India’s
advice. Though the word “consultation” was used, the constitutional scheme envisaged
that the President would be guided by the Chief Justice of India’s recommendation,
particularly since judicial appointments were specialized matters requiring expert
evaluation. He reasoned that the Chief Justice of India’s advice was not a veto but carried
greater weight. This primacy, he argued, was essential to preserve judicial independence
and prevent the executive from manipulating appointments. Tulzapurkar also emphasized
that the Governor’s consultation was not equal in nature. While the Governor might
provide information on character or background, the Chief Justice of the High Court and
the Chief Justice of India were the true evaluators of merit. The President, he said, should
ordinarily follow their joint recommendation, and any deviation must be justified with
compelling reasons. He also faulted the Law Ministry and the Chief Justice of Delhi for
failing to conduct proper consultation with the Chief Justice of India in one of the
disputed appointments. Without identical information before all authorities, the
constitutional requirement of “effective consultation” was not met, rendering the
appointments defective. Justice D.A. Desai’s opinion adopted a pragmatic approach. He
warned against “idolizing independence” to the point of making the judiciary
unaccountable. Independence, he said, must be understood within the framework of the
Constitution, which envisaged a balance between the judiciary and the executive. The
President’s power to appoint judges was an executive function, and by Article 74, the
President had to act on the advice of the Council of Ministers. Judicial independence, he
maintained, referred primarily to adjudicatory autonomy, not to administrative or
appointment functions. He noted that even the Constituent Assembly had debated and
rejected a proposal to give the Chief Justice of India veto power over appointments. Thus,
creating such primacy through interpretation would contradict the framers’ intent. Justice
R.S. Pathak took a middle position. He accepted that appointments were executive acts
but insisted that the process of consultation under Articles 217 and 222 was not a mere
formality. It imposed a constitutional obligation on the President to give due weight to
judicial opinions. Pathak held that when both the Chief Justice of the High Court and the
Chief Justice of India agreed on a candidate, the President should normally accept their
recommendation unless there were strong, cogent reasons to the contrary. He viewed their
input as “expert advice” on suitability and competence. However, he declined to hold that
the Chief Justice of India’s view alone had primacy, noting that the Constitution required
collective consultation among all three functionaries. Justice Venkataramiah, in a detailed
but concurring opinion, elaborated that Article 217(1) had to be read as part of the larger
constitutional design ensuring an independent yet accountable judiciary. He rejected the
notion of judicial supremacy in appointments, affirming that the President, acting through
the Council of Ministers, retained the final authority. The Chief Justice of India’s opinion
deserved high respect, but it was not binding. Venkataramiah also discussed constitutional
conventions, observing that while political practice might give deference to the judiciary’s
views, such conventions were not legally enforceable. The courts could not transform
conventions into constitutional mandates unless they were expressly incorporated into the
text. On transfers, he reiterated that Article 222 authorized them only in public interest
and not for extraneous reasons. Justice Pathak also addressed the sensitive issue of
transfers, recognizing them as an extraordinary power that could threaten judicial
independence if misused. Transfers should be rare and justified only by compelling public
interest, not by the executive’s desire to discipline or intimidate judges. The burden of
proving such public interest, he said, lay on the State. This view, though expressed in
minority, influenced later judicial thinking and was central to the Second Judges Case
(1993). The majority’s ruling, however, was clear: (1) the Law Minister’s circular was not
invalid on its face; (2) an additional judge’s tenure could not be discontinued for refusing
transfer; (3) the Chief Justice of India’s opinion did not enjoy primacy over other
constitutional functionaries; (4) the material forming the basis of ministerial advice was
not privileged from disclosure; and (5) appointments were executive functions subject to
meaningful but non-binding consultation. In essence, the Court’s judgment in S.P. Gupta
reflected a cautious affirmation of executive discretion and a rejection of judicial primacy.
It marked the high point of executive control over appointments, a position later
overturned in Supreme Court Advocates-on-Record Association v. Union of India (1993),
where the Supreme Court reversed this interpretation and established the collegium
system. But in 1981, Bhagwati’s majority saw executive consultation as compatible with
judicial independence, trusting constitutional morality and political conventions to
prevent abuse.
• Second Judges Case - Supreme Court Advocates-on-Record Association v. Union of India
(1993) - The central question was whether the term “consultation” with the Chief Justice
of India, as used in Articles 124(2) and 217(1) of the Constitution, meant that the Chief
Justice’s opinion had primacy over that of the executive, thereby ensuring the
independence of the judiciary from political interference. The controversy stemmed from
the earlier S.P. Gupta v. Union of India (1981) decision, also known as the First Judges
Case, which had upheld executive primacy. Dissatisfaction with the potential erosion of
judicial independence led to this re-examination by a nine-judge bench. The issues before
the Court were multifaceted. Primarily, it had to decide: (1) whether the executive or the
judiciary had the final say in judicial appointments and transfers; (2) whether the Chief
Justice’s opinion held primacy among all constitutional functionaries; (3) how the process
of consultation should function; and (4) the extent to which these matters were justiciable.
These issues were deeply tied to the basic structure doctrine, particularly the element of
“independence of the judiciary.” Justice J.S. Verma, delivering the majority opinion,
reinterpreted “consultation” to create what he termed a “participatory and integrated
consultative process.” The judgment emphasized that the appointment of judges is not the
sole prerogative of any single authority. Instead, it is a collective constitutional function
involving the judiciary and the executive. The Chief Justice of India, as the head of the
Indian judiciary, initiates proposals for appointments to the Supreme Court, while Chief
Justices of High Courts initiate appointments within their respective jurisdictions. For
transfers of judges or Chief Justices of High Courts, initiation must come exclusively
from the Chief Justice of India. The Court ruled that the process of consultation must be
genuine, substantive, and aimed at reaching an agreed decision that best serves
constitutional objectives. The Chief Justice of India’s opinion, formed after consulting a
collegium of senior judges, was to have primacy. This meant that no appointment could
be made unless it conformed to the Chief Justice’s recommendation. Only in rare and
exceptional cases, where the executive had “strong and cogent reasons” supported by
positive material showing unsuitability, could the recommendation be refused. Even then,
if the Chief Justice of India reiterated the recommendation, the executive was bound to
accept it. This created what became known as the “collegium system,” which sought to
shield judicial appointments from political interference while maintaining limited
executive involvement as a check against arbitrariness. Justice Verma reasoned that the
framers of the Constitution deliberately used the word “consultation” rather than
“concurrence” to prevent any one authority, even the Chief Justice, from having unilateral
power. However, he clarified that the purpose of consultation was to vest greater weight
in the judiciary’s view because judges are best equipped to assess a candidate’s suitability.
Political influence, he warned, could compromise judicial independence. Therefore, while
“consultation” implied participation, the Chief Justice’s opinion, representing the
judiciary, carried determinative value. The process was designed to ensure appointments
were made on merit, free from political or executive pressures, with the executive
retaining only a limited veto power subject to justification. On transfers under Article
222, Justice Verma reaffirmed that the Chief Justice of India alone could initiate such
proposals, reflecting the judiciary’s control over its internal structure. Consent of the
judge concerned was not required, and transfers made on the Chief Justice’s
recommendation could not be treated as punitive or challenged in court. Judicial review in
matters of appointments and transfers was restricted only to procedural irregularities or
instances of mala fide exercise of power. Justice S. Ratnavel Pandian expanded on the
philosophical foundation of judicial independence, calling it a “fixed star” of the
Constitution. He explained that independence of the judiciary was central to maintaining
public confidence in justice. He emphasized that Articles 124(2) and 217(1) imposed a
constitutional limitation on the President’s power of appointment, as consultation with the
Chief Justice was mandatory and binding. The Chief Justice’s opinion could not be placed
on par with that of the Governor or the executive because the judiciary’s domain was
distinct and insulated from political influences. Pandian’s reasoning was deeply rooted in
constitutional morality, he asserted that “consultation” in the context of judicial
appointments was not a mere formality but an enforceable limitation designed to secure
judicial independence. Justice A.M. Ahmadi took a more nuanced stance, introducing the
idea of “graded weight.” He identified three forms of primacy attached to the Chief
Justice of India’s opinion: (a) as head of the judiciary; (b) among other constitutional
consultees; and (c) vis-à-vis the executive. He acknowledged that while the Chief
Justice’s views carried greater weight, they were not absolutely binding. Instead, the
President could depart from them for strong and recorded reasons. Ahmadi’s
interpretation balanced judicial primacy with executive accountability, ensuring neither
institution dominated the other. Justice Kuldip Singh reinforced the judiciary’s collective
primacy, interpreting the term “Chief Justice of India” as representing not an individual
but the institution of the Supreme Court. He proposed that the Chief Justice must consult
at least two senior-most colleagues, and when dealing with appointments from a specific
State, he must also seek the view of the senior-most judge from that State. Similarly,
Chief Justices of High Courts were to consult their two senior-most colleagues before
making recommendations. These written consultations, forming part of the official record,
institutionalized transparency and shared responsibility within the judiciary. Singh held
that the executive was bound by the Chief Justice’s recommendation, thereby overruling
the S.P. Gupta precedent that had allowed the government to override judicial advice.
Justice M.M. Punchhi, in partial dissent, traced the constitutional history of Articles 124
and 217, observing that the framers had consciously chosen “consultation” over
“concurrence” to prevent either the Chief Justice or the executive from exercising veto
power. He cautioned against transforming consultation into concurrence, arguing that
such a shift effectively rewrote the Constitution. Nevertheless, Punchhi acknowledged the
Chief Justice’s singular and unique constitutional role, describing him as the “pater
familias” of the judiciary, responsible for maintaining discipline and unity across the
judicial hierarchy. In his view, while appointments required joint participation between
the Chief Justice and the executive, transfers were internal judicial matters where the
Chief Justice’s primacy was near absolute. He disagreed, however, with the majority’s
denial of judicial review, asserting that excluding it altogether contradicted the basic
 structure doctrine. Through these individual opinions, the Court collectively redefined the
balance of power between the executive and the judiciary. The majority explicitly
overruled S.P. Gupta, holding that the Chief Justice of India’s opinion, formed
collectively with senior judges, had primacy in appointments and was determinative in
transfers. The appointment of the Chief Justice of India was to be based on seniority, and
executive discretion was confined to exceptional circumstances supported by verifiable
reasons. Consent of a transferred judge was unnecessary, and such transfers were not to
be deemed punitive or justiciable. The fixation of judge strength in High Courts, however,
was held to be justiciable to a limited extent. The judgment thereby introduced a
constitutional convention, later formalized in the “Collegium System”, where
appointments and transfers in the higher judiciary were primarily controlled by the
judiciary itself, with the executive acting only as a constitutional check.
• Third Judges Case – Special Reference No.1 of 1998 - arose from the President’s
reference under Article 143(1) to the Supreme Court seeking its advisory opinion on
doubts and controversies that had emerged from the Second Judges Case of 1993. In that
case, the Court had interpreted Articles 124(2), 217(1), and 222(1), holding that the Chief
Justice of India’s opinion had primacy in the appointment and transfer of judges.
However, questions remained about the meaning of “consultation,” the size of the
collegium, the extent of the Chief Justice’s powers, and the scope of judicial review. To
clarify these, President K.R. Narayanan referred nine questions to the Supreme Court on
July 23, 1998, centering on the process of judicial appointments, transfers, and the
independence of the judiciary in the constitutional framework. The reference asked
whether “consultation with the Chief Justice of India” meant consultation with multiple
judges or merely his individual opinion; whether transfers of judges could be judicially
reviewed; how wide the consultation process should be; and whether recommendations
made without proper consultation were binding on the government. These questions went
to the heart of India’s constitutional design for maintaining a balance between the
executive and the judiciary, and for ensuring the independence of the latter from political
interference. A nine-judge bench led by Justice S.P. Bharucha heard the reference. He
began by noting that the Second Judges Case had already established the primacy of the
Chief Justice’s opinion in appointments and transfers, but it had not precisely defined how
that opinion should be formed. The Court reiterated that the primacy belonged not to the
individual Chief Justice but to the institution of the judiciary, symbolized by the Chief
Justice’s collective opinion formed after consulting his senior colleagues. The judgment
recognized that the Constitution had deliberately provided for consultation rather than
concurrence to ensure checks and balances, but the process had evolved through
convention into one that gave determinative weight to the judiciary’s view to safeguard
independence. The Court traced the evolution from the First Judges Case (S.P. Gupta v.
Union of India, 1981), which gave primacy to the executive, to the Second Judges Case
(1993), which reversed that view. The Third Judges Case sought to solidify these
principles into a functional framework. Justice Bharucha emphasized that Article 124(2)
intended a participatory consultative process among the President, the Chief Justice of
India, and other judges, aimed at appointing the most suitable persons. However, this
participation had to occur through the judiciary’s institutional mechanism rather than
through individual discretion. The Court then addressed the composition of the collegium.
The Attorney General and others had argued that the Chief Justice should consult a larger
number of judges. The Court agreed that collective decision-making was essential and
held that for appointments to the Supreme Court, the Chief Justice of India must consult
the four senior-most puisne judges of the Supreme Court. This expanded collegium of
five judge, the Chief Justice and his four senior-most colleagues, would ensure plurality
and reduce arbitrariness. For appointments to the High Courts, the Chief Justice was
required to consult the two senior-most puisne judges. In both cases, the Chief Justice
must also seek the written views of the Chief Justice of the High Court concerned and,
where relevant, of Supreme Court judges familiar with that High Court’s affairs. Justice
Bharucha was explicit that the Chief Justice could not act solely in his individual
capacity. His final recommendation had to be the product of institutional consultation, and
every view expressed within the collegium had to be recorded in writing. This written
record was to be forwarded to the Government of India along with the recommendation,
ensuring transparency and accountability within constitutional limits. The Court
explained that this procedural discipline acted as an internal check, making further
judicial review unnecessary except on narrow grounds. On the issue of judicial review of
transfers and appointments, the Court reaffirmed that the process was largely immune
from judicial scrutiny to protect the independence of both the judiciary and the
consultation mechanism. However, it carved out a limited scope for review: it would
apply only where there was non-compliance with the constitutional requirements of
consultation, lack of eligibility, or a transfer made without the Chief Justice’s
recommendation. Thus, while the process remained shielded from political or public
challenge, the judiciary preserved a minimal self-corrective power to ensure
constitutional fidelity. The Court elaborated that transfers of High Court judges under
Article 222 must also follow the same collegial principle. Before recommending a
transfer, the Chief Justice must obtain the written opinions of the Chief Justices of both
the High Courts involved, along with the views of one or more Supreme Court judges
who might have relevant information. The proposal and all written opinions were to be
shared with the Government. Transfers could not be made unless this collegial process
had been properly followed. The judgment clarified that this structure was not meant to
curtail the executive’s role completely but to confine it within constitutional bounds. The
executive retained the right to raise objections or convey material adverse information
about a proposed appointee. Such inputs, however, had to be considered by the collegium,
and the final say lay with the judiciary. If the Chief Justice, in consultation with his
collegium, reaffirmed the recommendation after considering the executive’s objections,
the government was bound to accept it as a matter of constitutional convention. Another
crucial question before the Court was whether reasons had to be recorded for bypassing
seniority in judicial appointments. The 1993 judgment had mentioned that “strong cogent
reasons” were required for departing from seniority. The 1998 Bench clarified that such
 reasons need not be recorded for each individual passed over; instead, what had to be
recorded were the positive reasons for selecting a particular candidate, such as
outstanding merit or regional representation. Seniority remained an important factor, but
merit and institutional balance were paramount. The Court thus reaffirmed that while
seniority gave rise to a legitimate expectation, it could not override the primary criterion
of merit. The Court also clarified that the government could not demand the Chief Justice
to transmit the opinions of other judges in writing unless they were part of the formal
consultative process. Yet, the Chief Justice was expected to provide a summary of all
opinions, ensuring that the government had access to all relevant materials before
appointments were finalized. The Court underscored that while the judiciary held
primacy, it was not immune to accountability, the process had to be rigorous, collective,
and transparent within constitutional confidentiality. On the relationship between the
Union and the State judiciary, the Court highlighted that appointments and transfers
created an interdependent judicial structure linking both levels of the judiciary under the
same constitutional mechanism. The Chief Justice of the High Court and his senior
colleagues were integral consultees, ensuring that state-level judicial realities informed
the decision-making at the Union level. This institutional dialogue between the Supreme
Court and High Courts embodied the federal principle within the judiciary. Finally, in
answering the nine presidential questions, the Court unanimously held that “consultation
with the Chief Justice of India” required consultation with a plurality of judges; that the
Chief Justice could not act alone; that recommendations made without following this
process were not binding on the government; that transfers of judges were judicially
reviewable only on limited grounds; and that the collegium must consist of the Chief
Justice and four senior-most puisne judges for Supreme Court appointments, and the
Chief Justice and two senior-most judges for High Court appointments.
• Fourth Judges Case - Supreme Court Advocates-on-Record Association and Another v.
Union of India (2016) - How the judiciary’s independence could be safeguarded against
executive overreach. The case arose from petitions challenging the constitutional validity
of the 99th Constitutional Amendment Act, 2014 and the National Judicial Appointments
Commission (NJAC) Act, 2014, which sought to replace the collegium system established
by earlier judicial pronouncements, the Second Judges Case (1993) and Third Judges
Case (1998). The petitioners, primarily advocates and members of the Supreme Court
Bar, argued that the NJAC compromised the independence of the judiciary, a component
of the Constitution’s basic structure, by allowing the executive and “eminent persons” to
influence judicial appointments. The respondents, representing the Union of India,
defended the amendment as a democratic reform intended to enhance transparency and
accountability in judicial appointments. The government argued that the collegium system
had become opaque, promoting favoritism and lacking public accountability. The key
constitutional question was whether the new mechanism undermined the “independence
of the judiciary”, and thus violated the Constitution’s basic structure. Justice Jagdish
Singh Khehar, delivering the majority opinion, began by contextualizing the evolution of
judicial appointments. Articles 124 and 217 of the Constitution governed the appointment
of judges to the Supreme Court and High Courts, respectively, while Articles 222, 224,
and 224A dealt with transfers and additional judges. Under Article 124(2), the President
appointed judges “after consultation” with the Chief Justice of India (CJI) and other
judges as deemed necessary. However, through the Second Judges Case, “consultation”
had been judicially interpreted to mean “concurrence”, vesting primacy in the judiciary
through the CJI and a collegium of senior judges. This interpretation overruled the First
Judges Case (1981), which had held that the executive’s view was final. The 99th
Amendment sought to constitutionalize a new process through Articles 124A, 124B, and
124C, establishing the NJAC comprising six members, the Chief Justice of India
(Chairperson), two senior-most judges of the Supreme Court, the Union Law Minister,
and two eminent persons. These eminent persons were to be selected by a committee
consisting of the Prime Minister, the Chief Justice of India, and the Leader of the
Opposition. The Amendment and the NJAC Act received presidential assent on 31
December 2014 and came into force on 13 April 2015. The petitioners argued that this
change replaced judicial primacy with a system susceptible to political and external
influence. The Union’s argument rested on two broad pillars. First, it asserted that
Parliament, representing the “will of the people,” had plenary power under Article 368 to
amend the Constitution. The NJAC, it was argued, was a legitimate expression of
democratic will, and judicial interference with it amounted to negating democracy.
Second, the Union contended that the earlier interpretation of “consultation” as
“concurrence” was an unconstitutional judicial innovation that usurped Parliament’s
legislative domain. The executive’s inclusion in the appointment process, it argued, was
not an attack on judicial independence but a mechanism for transparency and shared
responsibility. The petitioners, on the other hand, maintained that judicial independence
was a non-negotiable aspect of the basic structure, and any dilution of the judiciary’s
primacy in appointments would subvert the separation of powers. They highlighted
India’s constitutional history, especially the political manipulation of judicial
appointments during the 1970s, and insisted that vesting executive or external control
over judicial selection would endanger the courts’ ability to act as a bulwark against
majoritarian excesses. Justice Khehar, writing for the majority, began by rejecting the
Union’s plea that a constitutional amendment passed by an overwhelming majority
represented the people’s will and was beyond judicial review. He reaffirmed that
Parliament’s amending power under Article 368 is procedural, not unlimited. Even a
unanimous constitutional amendment, he held, is subject to judicial review if it violates
the Constitution’s basic structure. Democracy, in his words, “is not merely about
representation but about limitation,” and judicial review functions as the Constitution’s
conscience, ensuring that no institution, including Parliament, transgresses its
constitutional boundaries. The Court then traced how the independence of the judiciary
had evolved as a foundational principle. Referring to precedents like Kesavananda
Bharati v. State of Kerala (1973), S.P. Gupta (1981), Supreme Court Advocates-on-
Record Association (1993), and the Presidential Reference (1998), the Court reaffirmed
that judicial independence was part of the basic structure. It emphasized that Article 141
made Supreme Court interpretations binding, meaning that the meaning of “consultation”
established in the earlier Judges Cases, conferring primacy on the CJI and collegium,
formed part of the constitutional framework itself. Any amendment or statute inconsistent
with that interpretation would violate the Constitution’s structure. The judgment delved
into the philosophical roots of this doctrine. Drawing from Shamsher Singh v. State of
Punjab (1974), the Court reiterated that “consultation with the highest dignitary in the
judiciary” implied that the “last word must belong to the Chief Justice of India.” Judicial
independence, it held, could not exist where the executive or external agents had an equal
or greater say in appointments. Similarly, in Sankalchand Himatlal Sheth (1977), the
Court had clarified that the government must ordinarily accept the CJI’s recommendation,
and any deviation would invite judicial scrutiny. Thus, the “primacy of the judiciary” was
a constitutional tradition, not a judicial invention. The Court also referenced Dr. B.R.
Ambedkar’s statements in the Constituent Assembly. Ambedkar had expressly rejected
the U.S. and U.K. models of judicial appointments, fearing political patronage and
legislative influence. He argued that the judiciary must be “completely independent of the
executive.” This historical evidence, the Court reasoned, demonstrated that the framers
intended judicial independence as a structural guarantee, linking it directly to the process
of judicial appointments. Empirical history, too, weighed heavily. Justice Khehar cited
instances such as the supersession of senior judges in 1973, the mass transfer of judges
during the Emergency (1976), and the 1977 supersession, all of which were
acknowledged by the government’s own counsel as “executive aberrations.” These
episodes, the Court observed, justified insulating judicial appointments from political
influence. Turning to the text and scheme of the NJAC, the Court examined Articles
124A–C and the NJAC Act’s provisions in exhaustive detail. It found that while the
inclusion of three judges in the Commission preserved judicial representation, the
addition of the Law Minister and two eminent persons, coupled with their collective veto
power, fatally undermined judicial primacy. Since any two members could block an
appointment, the judiciary could be overruled by the combined votes of non-judicial
members, eroding the constitutional balance. The Court observed that “introducing lay
persons with veto power into the heart of the judicial selection process invites political
influence into the temple of justice.” The Court also reviewed Sections 5, 6, and 8 of the
NJAC Act, which prescribed procedures for recommending judges, assessing their
“fitness,” and convening meetings. It found the term “fit” dangerously vague, giving
excessive discretion to non-judicial members. Moreover, the provision making the
Secretary to the Ministry of Law and Justice the convener of the NJAC meetings reflected
executive control inconsistent with judicial independence. These provisions, the Court
held, violated the doctrine of separation of powers by allowing the executive to influence
appointments indirectly. Addressing the argument that the NJAC enhanced democracy by
introducing participation from outside the judiciary, the Court posed a crucial question:
“Can an institution defend liberty if its composition depends on government favour?”
True democracy, the Court reasoned, is defined not merely by popular will but by
constitutional limitation, the ability of the system to restrain majoritarian impulses.
Judicial review, therefore, is not a threat to democracy but its truest expression, because it
ensures that constitutional values endure even against transient political majorities.
Justice Khehar further rejected the notion that the judiciary, through the collegium, was
exercising power without accountability. He clarified that judicial primacy in
appointments is not supremacy, but a functional necessity to preserve impartial
adjudication. The Court acknowledged the need for reform and transparency within the
collegium but held that such reform must come through judicially consistent mechanisms,
not constitutional amendments that alter the basic framework. In interpreting
“consultation” in Articles 124, 217, and 222, the Court reaffirmed the understanding from
earlier cases, that primacy must rest with the Chief Justice of India, acting collectively
with senior colleagues. This interpretation, it held, had become an “integral constituent”
of the Constitution itself. Therefore, any attempt to reduce the CJI’s decisive role in
appointments amounted to breaching the independence of the judiciary. The Court found
additional support in practice and convention. Since 1950, virtually all appointments to
the higher judiciary had been made on the advice of the CJI, reflecting long-standing
recognition of judicial primacy. The Memoranda of Procedure framed in 1950 and 1999,
both approved by the executive, explicitly accepted that the process must be initiated and
led by the CJI. This historical continuity, the Court concluded, could not be undone by
statutory innovation. Justice Khehar also addressed the Union’s contention that the NJAC
was consistent with the global trend of broad-based appointment bodies. He
acknowledged that while comparative models in the U.K., South Africa, and Canada
included non-judicial members, India’s constitutional context was unique. Given the
country’s history of political interference and the explicit constitutional mandate for
judicial independence, foreign analogies could not justify diluting the judiciary’s control
over appointments. 99th Amendment and the NJAC Act violated the basic structure by
compromising judicial independence and disrupting the separation of powers. Article
124A, which established the NJAC, was declared unconstitutional, and consequently, the
entire 99th Amendment collapsed. Since the NJAC Act was dependent on the
Amendment, it too was struck down in its entirety. The collegium system, as articulated in
the Second and Third Judges Cases, was automatically revived. In its reasoning, the Court
underscored that while Parliament has wide authority to amend the Constitution, it cannot
alter its essential identity. Judicial primacy in appointments, it declared, is one such
essential feature. Judicial independence, it concluded, is not merely a structural principle
but a moral compass guiding constitutional governance. It ensures that courts remain free
to uphold citizens’ rights, even against the state itself.
JURISDICTION – RAESSA VAKIL
• Conceived by Dr. B. R. Ambedkar as the keystone of a unified judicial structure meant to
ensure uniformity in law and preserve the unity of the country, the Court was entrusted
with an unusually broad range of powers, serving simultaneously as an appellate court, a
constitutional court, and a final court of record. Yet, this breadth of jurisdiction, rather
than strengthening the coherence of India’s judicial system, has given rise to internal
tensions, inconsistency, and overreach. Vakil’s critique of the Supreme Court highlights
how its own expansion of power and lack of internal self-restraint have generated
contradictions between constitutional ideals and judicial practice, especially in relation to
its position as the apex of both Union and State judicial hierarchies.
• Although much contemporary attention has focused on the Court’s enforcement of
fundamental rights, the reality is that nearly 80 percent of its docket consists of appeals,
making it, in practice, primarily a court of appeal. The Constituent Assembly itself was
apprehensive that such a wide appellate jurisdiction would overwhelm the Court, with
members warning of a “flood of appeals” that would distract it from its constitutional
responsibilities. To counter this, the Constitution originally imposed careful restrictions
on which appeals could reach the Supreme Court. Articles 132 to 136 of the Constitution
defined four categories of appeal, civil, criminal, constitutional, and those by special
leave. In principle, civil and criminal appeals required certification by High Courts,
ensuring that only questions of general public importance or substantial constitutional
interpretation reached the Supreme Court. However, the Court’s eventual self-expansion
through Article 136’s special leave jurisdiction undermined these constraints, allowing it
to admit appeals from virtually any court or tribunal, in any matter, on any ground.
• The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 and the
30th Amendment (1972) both liberalized the criteria for appeals, allowing criminal
appeals not only in death penalty cases but also where imprisonment exceeded ten years,
and replacing the monetary threshold in civil appeals with the more subjective test of
“substantial question of law of general importance.” Parliament’s intention was to
democratize access to justice by removing economic barriers, but the unintended
consequence was to intensify the Court’s workload. Instead of these reforms leading to a
decrease in petitions under A 136, the opposite occurred. The SC, often acting suo motu,
continued to grant SLP’s even in cases where the formal criteria for appeal were not met.
• The Constituent Assembly, she reminds us, had assumed that the Supreme Court would
evolve internal restraints, much as the British common law system relied on conventions.
However, this has not happened. Instead, the Court has frequently described Article 136
as an “untrammelled reservoir of power incapable of being confined by definitional
bounds,” a phrase that itself reflects the absence of discipline in its appellate function.
The Court often justifies intervention in cases of “grave injustice” or where the matter
“shocks the conscience,”. To coin such phrases is not to set a standard. Justice Ruma Pal
similarly warned that emotional subjectivity in defining “injustice” inevitably produces
inconsistency and unpredictability.
• The Supreme Court’s refusal to formalize criteria for the exercise of its discretion has
resulted in a jurisprudence marked by inconsistency and arbitrariness. The Court has
alternately allowed and disallowed new legal pleas to be raised at the appellate stage, or
chosen at whim whether to interfere with concurrent findings of fact by lower courts. This
inconsistency is exacerbated by the Court’s practice of sitting in two-judge division
benches, leading to conflicting interpretations of identical provisions. Because each
bench’s decision carries binding authority unless overruled by a larger bench, the result is
a fragmentation of doctrine within the highest judicial body. Thus, while the Supreme
Court was designed to unify legal interpretation across the country, it has paradoxically
become a source of doctrinal disunity.
• By 2011, nearly 85 percent of the Court’s cases were special leave petitions, with only a
fraction being constitutional or original matters, showing how the Court’s character as a
national constitutional authority has been overshadowed by its functioning as a general
appellate tribunal. This overexpansion not only burdens the institution but also dilutes its
constitutional role. In this respect, the critique resonates with Rajeev Dhavan’s warning as
early as 1978 that the Court “simply cannot discharge its extremely wide jurisdiction.”
The growing pendency of cases is therefore not just an administrative problem but a
constitutional one, it signifies the erosion of the Supreme Court’s primary identity as a
constitutional court intended to interpret and safeguard the Constitution.
• It is both a national court of appeal and a constitutional court. Under Article 143, the
President may seek its advisory opinion on questions of law or fact; under Article 131, it
adjudicates disputes between States and between States and the Union; and under Article
132, it hears appeals involving substantial questions of constitutional interpretation. The
Constitution also vests in the Court the power under Article 13 to strike down laws
inconsistent with fundamental rights. These provisions collectively make the Court the
final interpreter of the Constitution. Despite the gravity of these powers, the Court rarely
functions in this capacity. Only a small portion of its docket involves constitutional
adjudication, though these few cases often have profound political and institutional
consequences.
• Article 131 jurisdiction, which empowers the Court to decide federal disputes, embodies a
crucial federal design. Justice P. N. Bhagwati had earlier recognized that this jurisdiction
is a “necessary concomitant of a federal or quasi-federal form of government.” The
Constituent Assembly’s decision to place this power in the judiciary rather than the
executive or a political council was meant to ensure impartial arbitration between the
Union and the States. However, Article 131’s scope remains narrow and hedged by
limitations, only certain types of disputes and certain parties may invoke it. Moreover,
over time, this jurisdiction has been exercised sporadically, with the Court often reluctant
to define its boundaries clearly. While Dr. Ambedkar had envisioned the Supreme Court
as the ultimate guardian of constitutional uniformity across India, its federal jurisdiction
has remained underdeveloped and, in many cases, inconsistently applied.
• The Court’s advisory jurisdiction under Article 143 has been invoked only fourteen times
since Independence. While this power allows the President to seek the Court’s advice on
 questions of public importance, its use has largely been shaped by political expediency.
From the Re Kerala Education Bill (1958) to the Ayodhya Reference (1994), the Court
has alternated between issuing cautious, well-reasoned opinions and treating advisory
references as quasi-political exercises. The framers had hoped this jurisdiction would
create a consultative relationship between the executive and the judiciary, but instead, it
has reflected the shifting political will of governments.
• We see the importance of Article 132 appeals, which allow questions of constitutional
interpretation to reach the Supreme Court even from ordinary civil or criminal
proceedings. It ensures a uniform understanding of constitutional law across the nation.
However, the Court’s growing preoccupation with special leave appeals has diminished
the attention given to these significant questions. The Court with the widest jurisdiction in
the world has been unable to develop a stable and coherent constitutional jurisprudence.
• As a final court, the Supreme Court occupies an exalted position. Its judgments bind all
subordinate courts, and under Article 141, they form the law of the land. As a court of
record, its decisions are meant to be final and unalterable except through the
constitutional processes of review and curative petitions. The Court’s frequent invocation
of its power to “do complete justice” under Article 142 has eroded this finality. Originally
conceived as a residuary power to ensure substantive justice, Article 142 has become a
tool through which the Court often rewrites law or creates remedies that exceed statutory
boundaries. The emergence of curative petitions, a judicially invented mechanism
allowing a second review after a failed review petition, illustrates this tendency. While
these innovations have been justified in the name of equity, they blur the distinction
between judicial correction and judicial overreach. When the Court constantly revisits its
own decisions, the principle of finality, so central to its authority, is undermined.
• Orders passed under Article 142 are increasingly met with executive resistance or partial
compliance, leading to a cycle where judicial authority is asserted more aggressively but
respected less consistently. The Supreme Court’s claim to “inherent powers” unmoored
from textual constitutional sources is particularly troubling. The Court has begun to treat
its jurisdiction as an “abstract inherent jurisdiction,” detached from the constitutional
framework that created it. This self-perception as a power above rather than within the
Constitution, she warns, risks turning the Supreme Court from a guardian of the
Constitution into its own autonomous sovereign.
• The crisis of arrears, the fragmentation of constitutional doctrine, and non-compliance
with judicial orders are not isolated administrative challenges but symptoms of an
underlying structural problem, the absence of constitutional discipline in defining the
Court’s jurisdiction. Successive reform proposals, such as those by the Law Commission
of India, have focused on technical fixes like increasing the number of judges or creating
regional benches or cassation divisions. However, these responses miss the constitutional
root of the problem. The Court’s jurisdiction itself, not merely its structure, requires
recalibration. Without clear limits on what the Supreme Court should hear and what it
should defer to High Courts or specialized tribunals, its authority risks dilution through
overextension.
• The Supreme Court now possesses a jurisdiction “wider than any superior court in any
part of the world,” but this width, when exercised without constitutional restraint, leads to
inconsistency, inefficiency, and erosion of its moral authority. The Court must therefore
look inward for reform. The Constitution, while granting it immense latitude, also expects
it to evolve principles guiding its own functioning. True judicial independence, lies not in
the expansion of power but in self-regulation, recognizing that the Court’s legitimacy
flows from the Constitution itself. Only when the Supreme Court consciously limits its
own reach can it preserve the coherence and integrity of the Indian judicial system.

Arghya Sengupta – Appointment to the Higher Judiciary

• The Constituent Assembly Debates reflected the framers’ careful effort to strike a balance
between judicial independence and executive accountability. Dr. B. R. Ambedkar, often
quoted on this issue, emphasized that neither the executive nor the judiciary should hold
exclusive control over judicial appointments. Ambedkar argued that an executive
monopoly would endanger judicial independence, while a judicial monopoly could lead to
insularity and self-perpetuating elitism. The phrase “after consultation with” in Articles
124(2) and 217(1) was, therefore, a deliberate compromise, intended to ensure that the
President (acting on the advice of the Council of Ministers) would consult the Chief
Justice of India and relevant judicial authorities but would not be bound by their advice.
This was in contrast to the “concurrence” model proposed by K. T. Shah, which
Ambedkar rejected as inconsistent with democratic accountability. Sengupta emphasizes
that Ambedkar’s position reflected a deeper constitutional logic: the judiciary, though
independent, was not meant to be politically unaccountable. Judicial independence was to
be secured through tenure, salary protection, and removal procedures under Article
124(4), not by exclusion from the appointment process.
• The early constitutional practice after independence adhered to this equilibrium. From
1950 to the early 1980s, appointments to the higher judiciary were largely executive-led,
with the judiciary serving as a key consultative partner. This period saw appointments of
towering judges such as Patanjali Sastri, M. C. Mahajan, and B. P. Sinha, all of whom
were elevated through mutual consensus between the government and the judiciary.
Sengupta notes that this arrangement operated without controversy for nearly three
decades, suggesting that the system worked when both institutions acted in constitutional
good faith. The executive’s leadership in appointments was accepted as part of the
constitutional scheme because the President was politically accountable, while the
consultation requirement ensured that the judiciary’s institutional knowledge was
considered.
• However, the equilibrium began to crumble during the 1970s, particularly during the
Emergency era, when executive interference in judicial appointments and transfers
became overtly political. The supersession of three senior judges in 1973, Justices Shelat,
Grover, and Hegde, following the landmark Kesavananda Bharati v. State of Kerala
 decision, and the appointment of Justice A. N. Ray as Chief Justice of India over them,
marked a turning point. Similarly, the transfer of High Court judges perceived as
politically inconvenient during Indira Gandhi’s tenure, including Justice H. R. Khanna’s
eventual marginalization after his dissent in ADM Jabalpur v. Shivkant Shukla, eroded
judicial confidence in the executive’s integrity. These actions motivated the judiciary to
reinterpret the Constitution in a way that insulated itself from political manipulation. He
argues that while this shift was understandable given the context of executive overreach,
the judiciary’s later response, by appropriating appointment powers through judicial
interpretation, distorted the constitutional balance and replaced one form of domination
with another.
• The First Judges’ Case, S. P. Gupta v. Union of India (1981), was the judiciary’s first
major attempt to clarify the meaning of “consultation.” A seven-judge bench held, by
majority, that the executive was not bound by the opinion of the Chief Justice of India in
judicial appointments and transfers. Justice Bhagwati, writing for the majority, reasoned
that since the President acts on ministerial advice under Article 74, and because
accountability to the people is maintained through Parliament, the executive must have
the final say. The judiciary’s role was advisory, not determinative. This decision was in
keeping with the framers’ intent, as expressed by Ambedkar, but Sengupta critiques the
reasoning as doctrinally inconsistent. The Court conflated political accountability with
constitutional supremacy, allowing the executive’s discretion to eclipse the judiciary’s
independence. In doing so, the Court failed to appreciate that the framers’ use of
“consultation” implied meaningful dialogue, not a unilateral executive prerogative.
• The backlash to S. P. Gupta culminated in the Second Judges’ Case, Supreme Court
Advocates-on-Record Association v. Union of India (1993), where a nine-judge bench
overruled the earlier view. Justice J. S. Verma, writing the majority opinion, held that
judicial primacy was implicit in the Constitution’s structure because the judiciary was
best suited to assess the competence and suitability of judicial candidates. The process of
appointment was redefined as a “participatory consultative process” in which the opinion
of the CJI, formed collectively with his senior-most colleagues, would have primacy. This
decision established the collegium system, shifting effective control over judicial
appointments from the executive to the judiciary. He identifies two core flaws in the
reasoning: first, that it created a constitutional convention without textual basis, and
second, that it conflated institutional independence with administrative autonomy.
• The flaw in reasoning, lies in the Court’s assumption that independence of the judiciary
necessarily required primacy in appointments. The judgment read “consultation” as
“concurrence,” effectively rewriting the constitutional text. This interpretation, he argues,
was an instance of judicial legislation masquerading as constitutional interpretation. By
holding that judicial primacy was required to preserve the basic structure, the Court
transformed an institutional safeguard into a self-empowering principle. The flaw in result
was even more consequential: by vesting appointment powers in the judiciary itself, the
Court created a closed system lacking transparency, accountability, or objective criteria.
 The collegium, unlike the executive, was not answerable to the legislature or the public,
and its decisions were often opaque and inconsistent.
• The Third Judges’ Case, the Presidential Reference (1998), further entrenched this
arrangement. Responding to doubts about the Second Judges’ Case, a nine-judge bench
clarified that the Chief Justice of India must consult a collegium of the four senior-most
judges before making recommendations. The Court also specified that the executive could
return a recommendation for reconsideration but was bound to accept it if the collegium
reiterated its view. This decision effectively institutionalized judicial supremacy in
appointments. He points out that this development completed a process of constitutional
inversion: whereas the framers had vested the power of appointment in the executive
subject to judicial consultation, the Court now vested it in the judiciary subject to
executive compliance.
• The consequences of this shift are best illustrated through the episode surrounding the
proposed elevation of Justice P. D. Dinakaran to the Supreme Court in 2009. Allegations
of land grabbing and corruption against Justice Dinakaran surfaced while his name was
under consideration by the collegium. Civil society groups and members of the Bar
voiced concerns, but the collegium initially refused to disclose its deliberations or justify
its decision. It was only after intense public scrutiny and media pressure that the
government stalled his appointment. The Dinakaran episode exemplifies the dangers of an
insular appointment process devoid of transparency or accountability. Under the original
constitutional scheme, public criticism could have been addressed through executive
accountability to Parliament; under the collegium, there was no mechanism to question
the judiciary’s internal processes.
• The constitutional consequences of the collegium system have been profound. First, it has
created an accountability vacuum, while the judiciary appoints itself, there exists no
external check on its discretion. Second, it has weakened the executive’s legitimate role in
ensuring representativeness and diversity within the higher judiciary. The Constitution’s
framers had envisioned the judiciary as socially inclusive, reflective of India’s pluralism.
Yet under the collegium, appointments have often favored upper-caste and urban elites,
reproducing a narrow social composition. Third, the system has eroded public confidence
by operating without written criteria or transparency in decision-making. The Supreme
Court’s own acknowledgment in Supreme Court Advocates-on-Record Association v.
Union of India (2016) that the collegium requires reform demonstrates the institutional
unease with the system it created.
• He, does not advocate returning to unrestrained executive control. Rather, he calls for a
restoration of constitutional balance through a reimagined appointments mechanism that
combines judicial expertise with democratic legitimacy. He sees the judiciary’s post-1993
trajectory as an overcorrection, a reaction to the executive abuses of the 1970s that has
now produced its own distortions. The 99th Constitutional Amendment and the National
Judicial Appointments Commission (NJAC) Act, though struck down in 2016,
represented an attempt to recalibrate this balance. While the Supreme Court invalidated
the NJAC on grounds that it violated the basic structure by undermining judicial
 independence, Sengupta observes that the Court failed to engage with the underlying
constitutional problem: how to preserve independence without sacrificing accountability.
• Throughout his analysis, he draws attention to the broader democratic principle that no
institution can be the final judge of its own legitimacy. The Constitution envisaged a
system of separated but interdependent powers, each constrained by the others. By
assuming exclusive control over appointments, the judiciary has placed itself beyond
meaningful constitutional scrutiny. This self-referential independence, he warns, risks
alienating the judiciary from the people it serves. In democratic theory, judicial
independence is a means to an end, the fair administration of justice, not an end in itself.
When independence becomes indistinguishable from insulation, it ceases to serve its
constitutional purpose.
• In conclusion, his critique reveals how the journey from the Constituent Assembly’s
balanced vision to the present-day collegium marks a slow but steady departure from
constitutional accountability. The framers entrusted the executive with the power of
appointment, moderated by judicial consultation, precisely because they understood that
democracy requires institutional interdependence. The judiciary’s transformation of this
cooperative model into one of unilateral control undermines that design. The Dinakaran
controversy symbolized the paradox of judicial independence without responsibility, a
judiciary empowered to guard liberty but unaccountable to the democratic process.
Sengupta’s argument, therefore, is not a rejection of judicial independence but an appeal
for its constitutional reanchoring. Independence, in his view, must coexist with
transparency, representation, and democratic legitimacy; otherwise, the judiciary’s moral
authority will erode under the weight of its own power