Constitutionalism Pluralism and Federalism Notes | LL.M. Semester 1 | Mumbai University | munotes

And because in a plural society the alternative is that whoever has the majority takes everything. This is where MU's paper joins up. A society divided by religion, language, caste and region cannot be governed by simple majority rule alone, because the same minority loses every time. Constitutionalism is what makes a permanent minority safe enough to stay in the arrangement, and that is why this paper puts constitutionalism, pluralism and federalism in one title.

The Indian Constitution's own claim to be constitutional

It opens by locating the power it distributes. The Preamble begins "WE, THE PEOPLE OF INDIA" and ends by recording that the people "DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION". The government is therefore not the source of the document; the document is the source of the government.

Article 13 makes the limit operative. Clause (1) provides that all laws in force immediately before the commencement of the Constitution, so far as they are inconsistent with Part III, are void to the extent of the inconsistency. Clause (2) forbids the State to make any law taking away or abridging the rights conferred by Part III and declares that any law made in contravention of the clause is, to the extent of the contravention, void.

Article 32 supplies the remedy, and it is itself a right. The right to move the Supreme Court by appropriate proceedings for the enforcement of Part III rights is guaranteed by clause (1), and the Court is empowered by clause (2) to issue directions, orders or writs. Ambedkar called article 32 the very soul of the Constitution and the very heart of it, and the reason is structural rather than sentimental: a right without a remedy is a statement of policy.

Article 245 confines the legislature in terms. Parliament and the State Legislatures make law "subject to the provisions of this Constitution". A legislature in India is a body of limited competence, and the courts have said so from the first year of the Constitution's life.

And the Constitution itself began by repealing what came before it. Article 394 brought articles 5 to 9, 60, 324, 366, 367, 379 to 391, 392, 393 and 394 into force on 26 November 1949 and the rest on 26 January 1950. Article 393 gives the document its short title. Article 395 repeals the Indian Independence Act 1947 and the Government of India Act 1935. Article 392 gave the President a power, now spent, to remove difficulties in the transition.

A worked example

Take a statute that would be perfectly valid in a State with a constitution but no constitutionalism. Suppose Parliament enacts the Public Assemblies Act, which provides that no meeting of more than five persons may be held in any public place without the written permission of a District Magistrate, that permission may be refused without reasons, and that no court shall question a refusal.

Under a merely descriptive constitution the statute is law and that is the end of the matter. It was passed by the competent legislature in the correct manner and it says what it says.

Under the Indian Constitution three separate limits bite, and it is worth seeing them operate one after the other. First, article 19(1)(b) guarantees the right to assemble peaceably and without arms, so the statute must find shelter in article 19(3), which permits only reasonable restrictions in the interests of the sovereignty and integrity of India or public order. A permission that may be refused for any reason or none is not a reasonable restriction, because reasonableness requires that the limit be related to the purpose.

Second, article 13(2) supplies the consequence. The statute is not merely improper; it is void to the extent of the contravention, and it was void from the moment it was made.

Third, the clause ousting the courts is the point at which the statute stops being a bad law and becomes an attack on constitutionalism itself. Article 32 guarantees the right to move the Supreme Court for the enforcement of Part III, and a legislature cannot remove by ordinary law a right the Constitution confers. Our student can walk into the Supreme Court under article 32 without permission from anyone, and the Court can strike the Act down.

Notice which of the three does the real work. The first two describe a limit. The third is the machinery that makes the limit true, and a system that has the first two without the third has the appearance of constitutionalism and not the thing.

The cases

The Supreme Court has adopted the McIlwain distinction expressly. In I.R. Coelho (Dead) by LRs v. State of Tamil Nadu, (2007) 2 SCC 1; AIR 2007 SC 861, decided on 11 January 2007, a nine-judge Bench was asked whether laws placed in the Ninth Schedule after 24 April 1973 were immune from challenge merely because article 31B says so. The facts were that a Tamil Nadu Act had been struck down by the High Court and was then inserted into the Ninth Schedule by the Thirty-fourth Amendment, and the question was whether that insertion put it beyond review. Held. It did not: a law that abrogates or abridges Part III rights may or may not violate the basic structure, and where it does, whether by amending an article of Part III or by insertion in the Ninth Schedule, it must be invalidated. Every insertion completely excludes Part III at will, so every addition triggers review. Why it matters here is that the Court reasoned from the principle rather than from the text: constitutionalism requires control over the exercise of governmental power so that the democratic principle is not undermined, and article 31B could not be read to remove that control.

The doctrine of limited amending power is the same idea applied to the amending power itself. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, decided on 24 April 1973, thirteen judges considered the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. The facts were that the head of a Kerala mutt challenged Kerala land reform legislation affecting the mutt's property, and the challenge widened into the validity of the amendments protecting such legislation. Held. The Twenty-fourth Amendment was valid and Parliament may amend any part of the Constitution including Part III, but that the amending power under article 368 does not extend to altering the basic structure or framework of the Constitution. Why it matters here is that it answers the deepest objection to constitutionalism, which is that a government with a two-thirds majority can simply amend the limits away. After Kesavananda it cannot, because the power to amend is itself a conferred and therefore limited power. The case is worked in full in [The Basic Structure Doctrine].

And the price of getting this wrong is known, because India has paid it. In Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207, the question during the Emergency of 1975 was whether a detenu could move a High Court for habeas corpus, the writ by which a court requires a detaining authority to justify a detention, when the President had suspended the right to move any court for the enforcement of articles 14, 21 and 22. Held, by four to one. In view of the Presidential Order no person had any locus standi to move a High Court under article 226 for habeas corpus on any ground including mala fides. Khanna J. dissented. Why it matters here is that the majority reasoning treats the rights as existing only because the Constitution conferred them and therefore as capable of disappearing when the Constitution's remedy was suspended. The Forty-fourth Amendment 1978 answered the case by providing that articles 20 and 21 can never be suspended, and that answer is examined in [Emergency, and the Constitutionalism the Forty-fourth Amendment Put Back].

Distinctions

What it does NOT mean

It does not mean a written constitution. The United Kingdom has no single constitutional document and has constitutionalism, maintained by parliamentary convention, the ordinary courts and, since 1998, the Human Rights Act. Writing helps, because a written limit is harder to deny, but it is neither necessary nor sufficient.

It does not mean judicial supremacy. Constitutionalism limits the courts too. A court that decides according to the judge's preference rather than according to the Constitution is exercising unlimited power of exactly the kind the doctrine exists to prevent, and that criticism is taken seriously in [Constitutional Morality].

It does not mean a weak government. A government under constitutional limits may be very strong within them. The doctrine is about the boundary of power, not its quantity.

And it does not mean the absence of emergency powers. Every constitution provides for crisis. What constitutionalism requires is that the emergency power itself be conferred, defined, time-limited and reviewable, which is the difference between articles 352 to 360 as they now stand and as they stood in 1975.

Quick revision

Constitutionalism is limited government under enforceable law; a constitution is the instrument organising a government, which every State has. McIlwain: a legal limitation on government, the antithesis of arbitrary rule. Friedrich: institutionalised, regularised restraints. The Soviet Constitution of 1936 is the standard example of a constitution without constitutionalism. In India the doctrine lives in the Preamble's "WE, THE PEOPLE", article 13 which voids inconsistent law, article 32 which supplies the remedy and is itself a fundamental right, article 245 which subjects legislation to the Constitution, and the basic structure doctrine of Kesavananda Bharati which limits the amending power itself. I.R. Coelho holds that even the Ninth Schedule cannot exclude review. ADM Jabalpur is what the doctrine failing looks like, and the Forty-fourth Amendment is the answer to it.

Test yourself

1. State in two sentences the difference between a constitution and constitutionalism. A constitution is the body of rules by which a State organises its government, and every State has one. Constitutionalism is the doctrine that those rules must impose real and enforceable limits on that government, and a State has it only when a court will hold the government to them.

2. Why is the Soviet Constitution of 1936 the standard example? Because it contained an extensive declaration of rights while providing no way for any citizen to enforce any of them against the State, which shows that the presence of a rights chapter proves nothing on its own.

3. Which three articles of the Indian Constitution carry the doctrine most directly, and what does each do? Article 13, which makes a law inconsistent with Part III void to the extent of the inconsistency; article 32, which guarantees the right to move the Supreme Court for enforcement and is itself a fundamental right; and article 245, which makes all legislative power subject to the provisions of the Constitution.

4. Why is a rights chapter without a remedy worth nothing? Because the limit only exists if breaking it has a consequence. A right the government may ignore without any court being able to intervene is a statement of policy, and that is the position the majority in ADM Jabalpur accepted.

5. How does Kesavananda Bharati answer the objection that a government with a two-thirds majority can amend the limits away? By holding that the amending power in article 368 is itself a conferred and therefore limited power, which may amend any part of the Constitution but may not alter its basic structure or framework.

6. Why does a paper on constitutionalism also cover pluralism and federalism? Because in a society permanently divided by religion, language, caste and region, majority rule alone leaves the same minorities losing every time. Constitutional limits and the vertical division of power between a Union and its States are the two devices by which such a society governs itself without any group being at the mercy of another.

India has a functional rather than a strict separation, and the Constitution says so in places: article 50 directs the State to separate the judiciary from the executive in the public services. The Indian position is worked in [Separation of Powers in the Indian Constitution].

Feature four: the rule of law

Power is exercised through known, general and prospective rules, and everyone including the government is subject to the ordinary law administered by the ordinary courts. Dicey's formulation and what survives of it is the subject of [The Rule of Law: Dicey, and What Survives of Him].

Its Indian anchor is article 14, equality before the law and the equal protection of the laws, read with article 265, which forbids any tax except by authority of law, and article 21, which protects life and personal liberty against deprivation except according to procedure established by law.

Feature five: an independent judiciary

The court that enforces the limits must not be answerable to the body it is limiting. Independence has three practical components: how a judge is appointed, whether the judge can be removed easily, and whether the judge's pay and conditions can be reduced in retaliation.

In India, article 124 provides for appointment and for removal only by an address of both Houses supported by a special majority; article 125 charges the salaries of Supreme Court judges on the Consolidated Fund of India, and article 217 makes corresponding provision for the High Courts. Article 121 forbids discussion in Parliament of the conduct of a judge in the discharge of duties, except on a motion for removal. The subject is worked in [Judicial Independence and How the Constitution Protects It].

Feature six: guaranteed and enforceable fundamental rights

A limit that only the government may invoke is not a limit. Rights matter constitutionally because a private citizen may enforce them against the State without anyone's permission.

Part III confers them and article 32 makes them enforceable, the right to move the Supreme Court being itself a fundamental right. Article 226 gives the High Courts a wider power, extending to enforcement of any legal right. This is worked in [Fundamental Rights as a Limit on Government].

Feature seven: judicial review

A court must be able to declare a law or an executive act invalid for exceeding the constitutional limit. Without this the other features describe a moral position rather than a legal one.

In India it rests on articles 13, 32, 131, 136, 226, 227 and 245, and unlike in the United States it did not have to be inferred from the structure: the Constitution provides for it in terms. It is worked in [Judicial Review: Where It Comes From and How Far It Goes].

Feature eight: political accountability

The government must be answerable to somebody at regular intervals, and the machinery of answering must not be controlled by the government. Elections, a responsible executive, an independent audit and an independent public service are the standard devices.

Article 75(3) and article 164(2) make the Council of Ministers collectively responsible to the popular house at the Union and in a State. Article 324 vests the superintendence, direction and control of elections in an independent Election Commission. Article 148 creates the Comptroller and Auditor General, whose reports go to the legislature. This is worked in [The Institutions That Hold a Government to Account].

The two features a divided society adds

Federalism, because a vertical division of power limits a government as effectively as a horizontal one. A Union that cannot legislate on a State subject is a limited Union, and a citizen who dislikes one government has another. The whole of MU's topic 2 is this feature, beginning at [What a Federation Is].

An entrenched amending procedure, so that the limits cannot be removed by the ordinary majority they bind. Article 368 requires a majority of the total membership of each House and two-thirds of those present and voting, and for the provisions in its proviso, ratification by the legislatures of not less than one-half of the States. That is the subject of [The Amending Power, and the Road to Kesavananda].

A worked example

Take a real constitutional design problem and test it against the list. Suppose a State proposes a law creating a Special Tribunal to decide all disputes about land acquired for a named industrial project, whose members are appointed by the State government for two years at a time, whose decisions are final, and against whose orders no appeal or writ petition shall lie.

Feature by feature, ask what the design has removed. Judicial independence is gone: two-year terms held at the pleasure of the executive that is party to every dispute means the adjudicator's future depends on the litigant. Judicial review is gone: the finality clause and the bar on writ petitions attempt to exclude articles 226 and 32. The separation of powers is gone in substance, because the executive is now supplying the tribunal that decides claims against the executive.

Now ask which of those objections the Constitution actually enforces, because that is the difference between a critique and an answer. The bar on article 32 fails immediately, since a State legislature cannot take away a right the Constitution confers. The bar on article 226 fails because the High Court's writ jurisdiction has been held to be part of the basic structure. The two-year renewable term fails on the independence ground, which the Supreme Court has repeatedly applied to tribunals.

The example is worth doing because it shows the list working as a system. Any one of the three objections would be enough. The design fails several times over, and an answer that notices only the finality clause has seen a third of the problem.

The cases

The features are not an academic list: the Supreme Court has treated very nearly this list as unamendable. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, decided on 24 April 1973 by thirteen judges. Facts. A challenge by the head of a Kerala mutt to State land reform legislation, which widened into the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments protecting such legislation. Held. Parliament may amend any part of the Constitution including Part III, but that the amending power under article 368 does not extend to altering the basic structure or framework of the Constitution. Why it matters here is what the judgments then named as basic: the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers between the legislature, the executive and the judiciary, and the federal character of the Constitution. That is features one, three, four, eight and the federal addition, in the Court's own words.

The clearest single application is the case that struck down an amendment for offending the rule of law. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Facts. The Prime Minister's election had been set aside by the Allahabad High Court, and the Thirty-ninth Amendment then inserted article 329A(4), which declared that the election of a person holding the office of Prime Minister should not be void and should continue to be valid, and that no court should have jurisdiction over it. Held. Clause (4) void as destructive of the basic structure: the clause did not amend the election law at all, it decided a particular dispute by constitutional fiat and withdrew it from every court, and so violated the rule of law, free and fair elections, and the separation of the judicial function from the legislative. Why it matters here is that it shows three features of the list being used as operative law rather than as description, in a case where the ordinary text of article 368 had been complied with exactly.

Distinctions

What it does NOT mean

It does not mean that a State having all eight is beyond criticism. The features are structural minimums. A State can satisfy every one of them and still govern badly, and constitutionalism is not a theory of good government but a theory of limited government.

It does not mean the features are equally weighted. In practice the two that carry the rest are the enforceable right and the independent court, because they are the ones a citizen can use without anybody's cooperation.

And it does not mean that a feature present on paper is present in fact. Every one of the eight can be hollowed out while the article remains: an Election Commission whose members are chosen by the government it supervises, an audit report nobody debates, a court whose vacancies are left unfilled. The strain each is under in India is the subject of [Where Indian Constitutionalism Is Under Strain].

Quick revision

Eight features: supreme constitution, limited government, separation of powers, rule of law, independent judiciary, guaranteed and enforceable rights, judicial review, accountability. Two more for a divided society: federalism and an entrenched amending procedure. Indian anchors: 245 and 13; 53, 73, 154 and 162; 50; 14, 21 and 265; 124, 125 and 217; Part III with 32 and 226; 13 and 226; 75(3), 148, 164(2) and 324; the Seventh Schedule; 368. Kesavananda Bharati names supremacy, republican and democratic government, secularism, separation of powers and federalism as basic. Indira Nehru Gandhi v. Raj Narain struck article 329A(4) down for offending the rule of law, free and fair elections and the separation of powers.

Test yourself

1. Name the eight features and one Indian article for each. Supreme constitution, article 245; limited government, article 53; separation of powers, article 50; rule of law, article 14; independent judiciary, article 124; enforceable rights, article 32; judicial review, article 13; accountability, article 75(3).

2. Why are the features answered as a system rather than as eight separate items? Because each protects the others: rights without review are unenforceable, review without judicial independence is a formality, independence without entrenchment can be legislated away, and elections without free speech decide nothing.

3. Which features did the Court in Kesavananda Bharati identify as part of the basic structure? Among others, the supremacy of the Constitution, the republican and democratic form of government, the secular character of the Constitution, the separation of powers between the three organs, and the federal character of the Constitution.

4. What did article 329A(4) do, and which features did it offend? It declared the election of a person holding the office of Prime Minister valid and beyond the jurisdiction of every court. It offended the rule of law, free and fair elections, and the separation of the judicial function from the legislative.

5. Which two features does a plural society add to the standard list, and why? Federalism, because dividing power vertically limits a government and gives a citizen a second government; and an entrenched amending procedure, so that the majority the limits bind cannot remove them by an ordinary vote.

6. Give three ways a feature can be present on paper and absent in fact. An election commission appointed by the government it supervises; an audit report the legislature never debates; and a court with so many vacancies that a case takes a decade, which converts an enforceable right into a theoretical one.

Article 368 confers the amending power, and it is a conferred power too. Clause (2) prescribes the special majority and, for the entries in the proviso, ratification by the legislatures of not less than one-half of the States. Because the power comes from the document, it is limited by it, which is the reasoning of the basic structure doctrine.

Three consequences that follow immediately

A law can be void from the beginning. In Britain an Act is valid until repealed. In India a law contravening Part III is void to the extent of the contravention as soon as it is made, and a court declaring it so is stating what was always the position rather than changing the law.

A court may refuse to apply an Act. This is the ordinary work of articles 32 and 226 and it would be constitutionally unthinkable in the British system.

And there is a category of change no legislature can make at all. Even the amending power, which is the greatest power the Constitution confers, stops at the basic structure. There is nothing corresponding to this in a system of parliamentary sovereignty, where the legislature can by definition do anything.

A worked example

Suppose Parliament passes the Press Regulation Act, requiring every newspaper to obtain an annual licence and empowering the licensing authority to refuse renewal in the public interest. A newspaper's licence is refused. Compare what happens in the two systems.

In a system of parliamentary sovereignty the newspaper's only arguments are about interpretation and procedure. Was "the public interest" properly applied? Was the newspaper heard? What the newspaper cannot argue is that Parliament had no business passing the Act, because on that theory Parliament had every business passing it.

In India the newspaper argues first that the Act itself is void. Freedom of speech and expression under article 19(1)(a) includes the freedom of the press, and a restriction is valid only if it is reasonable and falls within one of the eight grounds in article 19(2). "The public interest" is not one of those eight grounds. The Act therefore contravenes Part III, article 13(2) makes it void to that extent, and the newspaper may move the Supreme Court directly under article 32.

Now push the example one step further, because that is where the doctrine is really tested. Suppose Parliament, faced with that outcome, amends article 19(2) to add "the public interest" as a ninth ground. It has the special majority. Under parliamentary sovereignty that is the end of the argument.

In India it is not the end, and the reason is the last of the three consequences above. The amendment is itself subject to review, because the amending power is conferred and therefore limited. Whether a general public interest ground destroys the freedom of speech and expression as a basic feature is a serious question the courts would have to decide, and the mere fact that the special majority was obtained does not answer it.

The cases

The classic statement that a legislature in India is a body of limited competence came early. In Keshavan Madhava Menon v. State of Bombay, AIR 1951 SC 128. Facts. A prosecution had been launched under the Indian Press (Emergency Powers) Act 1931 before the Constitution came into force, and the accused argued that because the Act was inconsistent with article 19(1)(a) it was void under article 13(1) and the pending prosecution must fall with it. Held. Article 13(1) is prospective: a pre-Constitution law inconsistent with Part III is not wiped out altogether but becomes void only from the date the Constitution came into force and only to the extent of the inconsistency, so rights and liabilities that had already accrued under it, including a pending prosecution, were unaffected. Why it matters here is that the whole argument only makes sense in a system of constitutional supremacy: the question was never whether the legislature had been entitled to pass the Act in 1931, but from what date the superior instrument had displaced it. That is a question no English court could be asked.

And the outer limit of the doctrine is the amending power itself. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225. Facts. They and the holding are worked in [The Basic Structure Doctrine]; the point relevant here is that the Court reasoned from the source of the power. Because article 368 is a provision of the Constitution conferring a power, the power it confers cannot be used to destroy the instrument conferring it, and the supremacy of the Constitution was itself named as one of the basic features. Why it matters here is that it completes the contrast: in Britain the legislature is the last word, and in India the last word is a document that the legislature may amend but may not unmake.

Distinctions

The contrast is not as clean as it once was. The United Kingdom's membership of the European Communities, the Human Rights Act 1998, and devolution to Scotland, Wales and Northern Ireland have all placed practical limits on what Parliament does, and courts there now speak of constitutional statutes that are not impliedly repealed. The doctrine remains the formal position, and an answer should say both things.

What it does NOT mean

It does not mean the Indian Parliament is weak. Within its competence it is plenary, which means its power over a subject in its List is as complete as that of any sovereign legislature. The limits are on the field and on Part III, not on the intensity of the power inside them.

It does not mean that a court may strike a law down for being unwise. The question in judicial review is competence and consistency with the Constitution, never whether the policy was a good one, and a court that forgets this is doing exactly what constitutionalism forbids.

And it does not mean India has judicial supremacy instead. Parliament may amend the Constitution, including to reverse the effect of a judgment, and has often done so. What it may not do is destroy the basic structure. That is a limited court and a limited legislature, which is the point.

Quick revision

Britain: Parliament may make or unmake any law, and no court may set it aside. India: the Constitution is supreme, Parliament's power is conferred by article 245 "subject to the provisions of this Constitution" and divided by article 246, and article 13(2) voids a law contravening Part III to the extent of the contravention. Even the amending power in article 368 is conferred and therefore limited, which is why the basic structure doctrine is possible. Keshavan Madhava Menon holds article 13(1) prospective, so a pre-Constitution law is void only from 26 January 1950 and accrued rights survive. Indian legislative power is plenary within its field: the limits are on the field and on Part III, not on the intensity.

Test yourself

1. State Dicey's formulation of parliamentary sovereignty and say why it cannot be true in India. That Parliament has the right to make or unmake any law whatever and that no body may override or set aside its legislation. It cannot be true in India because article 245 confers legislative power subject to the Constitution and article 13(2) makes a contravening law void, so both halves of the formulation fail.

2. What are the two separate limits on an Indian legislature's competence? It may not contravene Part III, and it may not legislate outside the List allotted to it by article 246 and the Seventh Schedule.

3. What does "void to the extent of the contravention" add to "invalid"? It confines the consequence to the offending part, so the rest of the statute may survive if it is severable, and it fixes the moment: the law was void when made rather than from the date of the judgment.

4. Why is article 13(1) prospective, and what did that decide in Keshavan Madhava Menon? Because a pre-Constitution law was validly made under the law as it then stood, so the Constitution displaces it only from its own commencement. That left a prosecution begun before 26 January 1950 unaffected.

5. Does constitutional supremacy make the Indian Parliament weak within its own field? No. Its power over a subject in its List is plenary, meaning as complete as that of a sovereign legislature. The limits are on which subjects it may reach and on Part III.

6. In what sense is the amending power itself an application of the same doctrine? Because article 368 is a provision of the Constitution conferring a power, and a conferred power cannot be used to destroy the instrument that confers it. That reasoning produced the basic structure doctrine.

It may not treat the Preamble as a source of power. No organ can claim a power because the Preamble names an objective. That was the Court's express reason in Berubari and no later case has disturbed it.

It may not treat the Preamble as a source of prohibition either. This is the half that students forget. Berubari said that what is true about powers is equally true about prohibitions and limitations, so a petitioner cannot argue that a statute is void because it offends the Preamble's socialism. The argument must be routed through an article.

A worked example

A State Act provides that in every private company registered in the State, at least one director shall be a person from a scheduled caste. It is challenged as violating article 19(1)(g), the right to practise any profession or carry on any occupation, trade or business. Counsel for the State argues that the Preamble declares India a SOCIALIST State committed to JUSTICE, social and economic, and that this is enough to sustain the Act.

That argument fails on the first proposition, and it is worth seeing exactly why. The Preamble is not a source of legislative power. The State must instead point to an entry in List II or List III, and then to article 19(6), which permits reasonable restrictions in the interests of the general public.

Now flip the argument, because a petitioner's Preamble argument fails for the same reason. A petitioner who says the Act is void because it offends the Preamble's guarantee of EQUALITY of opportunity has also asked the Preamble to do something it cannot do. The petitioner must plead article 14 or article 19(1)(g), and then the Preamble may be used to help construe them.

Where the Preamble does real work here is at the third stage. In deciding whether the restriction is reasonable "in the interests of the general public", a court may legitimately take account of the objectives the Preamble declares, because the phrase is open-textured and the Preamble is evidence of what the Constitution regards as the public interest.

And if the Act had been protected by a constitutional amendment, the Preamble would do a fourth kind of work: it would be the principal evidence of whether the amendment damaged a basic feature.

The cases

First position: the Preamble is not part of the Constitution. In In re Berubari Union and Exchange of Enclaves, Special Reference No. 1 of 1959, the opinion being pronounced on 14 March 1960. Facts. The Indo-Pakistan Agreement of 1958 provided for dividing Berubari Union No. 12, which the Radcliffe Award had placed in West Bengal, and for exchanging the Cooch-Behar enclaves; the President referred to the Court whether implementing it needed legislation, and if so whether a law under article 3 sufficed or article 368 was necessary. Held. Article 3 deals with the internal readjustment of the territories of States and does not authorise the cession of Indian territory to a foreign State, so a law under article 3 would be incompetent and a law under article 368 was competent and necessary. On the Preamble it held that the declaration by the people is, in Story's words, a key to open the mind of the makers, but that nevertheless the Preamble is not a part of the Constitution and has never been regarded as the source of any substantive power; that what is true about powers is equally true about prohibitions and limitations; and that at the highest, where the terms of an article are ambiguous, assistance may be sought in the objectives enshrined in the Preamble. Why it matters here is that the second and third propositions are still law, and the first is not.

Second position: it is part of the Constitution, and its basic elements cannot be amended away. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, decided on 24 April 1973 by thirteen judges. Facts. A challenge by the head of a Kerala mutt to State land reform legislation, widening into the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. Held. Parliament may amend any part of the Constitution including Part III, but that the amending power under article 368 does not extend to altering the basic structure or framework, and it treated the Preamble as part of the Constitution, so that it may itself be amended provided the basic features it declares are not destroyed. Why it matters here is that both halves are needed for an answer: the Preamble became amendable and became unamendable at the same time, in different respects, and the Forty-second Amendment three years later proved the first half by amending it.

Third: the Preamble as the measure of an amendment. In Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789. Facts. A challenge to clauses (4) and (5) of article 368 and to the amended article 31C, all inserted by the Forty-second Amendment. Held. Clause (5) unconstitutional, saying that it demolishes the pillars on which the Preamble rests by empowering Parliament to exercise constituent power without any limitation whatever, and that the power to destroy is not a power to amend; clause (4) was equally void because a limited power cannot be made unlimited by removing the means of enforcing the limit. Why it matters here is the phrase "the pillars on which the Preamble rests". The Preamble is being used as the standard against which an amendment is measured, which is the fourth and highest of its uses.

Distinctions

What it does NOT mean

It does not mean the Preamble is unenforceable in the sense of being useless. It cannot be sued on, but it decides cases, because construction and the basic structure doctrine both run through it.

It does not mean Berubari was wholly overruled. Only the first proposition went. The Preamble is still not a source of power or of prohibition.

It does not mean the Preamble cannot be amended. It has been, once, by the Forty-second Amendment in 1976, and Kesavananda is the authority that it can be.

And it does not mean the Preamble's words are merely aspirational. Sovereign, socialist, secular, democratic and republic are all descriptions the Court has treated as legally significant, and secularism in particular has been made an operative standard by S.R. Bommai.

Quick revision

The Preamble states the source (WE, THE PEOPLE), the nature of the State (sovereign, socialist, secular, democratic, republic), four objectives (justice, liberty, equality, fraternity) and the date of adoption, 26 November 1949; the Constitution came into force on 26 January 1950 under article 394. In re Berubari, opinion of 14 March 1960: the Preamble is a key to open the mind of the makers but is not part of the Constitution, is not a source of power, and equally not a source of prohibition; at the highest it resolves an ambiguity. Kesavananda Bharati, 1973: the Preamble is part of the Constitution and may be amended, but the basic features it declares may not be destroyed. Minerva Mills, 1980: article 368(5) demolished the pillars on which the Preamble rests, and the power to destroy is not a power to amend. The Preamble was in fact amended once, by the Forty-second Amendment 1976.

Test yourself

1. What did In re Berubari decide about the Preamble, and how much of it survives? That the Preamble is a key to open the mind of the makers but is not part of the Constitution, is not a source of any substantive power, and equally not a source of prohibitions or limitations, and that at the highest it may resolve an ambiguity. The first proposition was displaced by Kesavananda; the rest survives.

2. Why was a law under article 3 incompetent to implement the Berubari agreement? Because article 3 provides for the internal readjustment of the territories, boundaries and names of States, and does not authorise the cession of Indian territory to a foreign State. That required an amendment under article 368.

3. Name the four objectives in the Preamble, with their qualifying words. Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

4. State the four uses a court makes of the Preamble. To resolve an ambiguity in an article; to identify what belongs to the basic structure; to give content to open-textured phrases such as the interests of the general public; and to measure whether an amendment has damaged a basic feature.

5. Can a statute be struck down for offending the Preamble alone? No. The Preamble is not a source of prohibition, so the challenge must be routed through an article, and the Preamble is then used in construing that article.

6. Which two dates does the Preamble and article 394 give, and what is each? 26 November 1949, the date on which the Constituent Assembly adopted, enacted and gave the Constitution to the people, which the Preamble states; and 26 January 1950, the date on which the remaining provisions came into force under article 394.

And articles 29 and 30 protect the other side of the same idea, the right of a section of citizens to conserve its culture and of a religious or linguistic minority to establish and administer educational institutions of its choice.

So the amendment added a name to a structure. That is why the drafters of 1950 could decline to use the word and still produce a secular constitution, and it is why an examiner asking about the object of inserting the word expects the candidate to know that the object was declaratory.

What Indian secularism means, in the Preamble's sense

It does not mean the separation of religion from the State on the American model. The First Amendment to the United States Constitution forbids Congress to make any law respecting an establishment of religion, and produces a wall between the two. India regulates religion constantly: article 25(2)(a) preserves the State's power to regulate secular activity associated with religious practice, and article 25(2)(b) permits laws for social welfare and reform and for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus.

It means equal treatment of all religions by a State that has none of its own. The usual formulation is that the State observes principled distance: it keeps its distance from religion but may intervene, in favour of one religion or against it, where equality or a reform requires.

And it means that the State's own decisions must be made on non-religious grounds. That is what makes secularism enforceable rather than atmospheric, and it is the proposition S.R. Bommai turned into law.

A worked example

Suppose a State government announces a scheme paying a monthly stipend to the priests of one named religion, funded from the Consolidated Fund of the State, and defends it on the ground that those priests are poor. Is the scheme constitutional?

Start with article 27, because it is the article that bites first. The clause forbids compelling any person to pay a tax whose proceeds are specifically appropriated for the promotion or maintenance of a particular religion. A stipend for the priests of one religion, funded from general revenue, is on its face exactly that.

Then take the State's defence seriously, because the answer turns on it. If the scheme is genuinely a poverty measure, the State must explain why it reaches only the poor of one religious calling. Poverty is not distributed by religion, and a scheme aimed at poverty would be defined by income.

Then apply article 15(1) and article 14. A classification that selects beneficiaries by religion and cannot show that religion is relevant to the object fails the test in the chapter on reasonable classification in Module III: there is no rational nexus between the differentia, which is religion, and the object, which is relief of poverty.

Now vary the facts, because the variation is where marks are. Suppose instead the State maintains, out of general revenue, the buildings of temples, mosques, churches and gurdwaras alike, as monuments. That is not article 27's mischief: the appropriation is not for the promotion of any particular religion, the treatment is equal, and the purpose is the preservation of property. Indian secularism permits the second and forbids the first, which is precisely the difference between principled distance and a wall.

The cases

Secularism is a basic feature, and a State government may be dismissed for acting against it. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1, a nine-judge Bench considered Proclamations under article 356 dismissing the governments of Karnataka, Nagaland and Meghalaya, and of Madhya Pradesh, Rajasthan and Himachal Pradesh on 15 January 1993 following the demolition of the disputed structure at Ayodhya. Held, among twelve conclusions. The satisfaction under article 356 is subjective but conditioned rather than absolute, that a Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds, and that secularism is a basic feature of the Constitution: a State government which acts against the secular character of the Constitution is amenable to action under article 356. Why it matters here is that this converts secularism from a Preamble adjective into an operative standard by which a government may be removed. Its federalism aspect is worked in [President's Rule: Article 356 and S.R. Bommai].

The Preamble words became unamendable before they were even inserted. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, the Court held that the amending power under article 368 does not extend to altering the basic structure, and the judgments named the secular character of the Constitution among the basic features. Why it matters here is the chronology, which is worth a mark: the Court identified secularism as basic in 1973, three years before Parliament wrote the word into the Preamble. The amendment therefore could not have created what the Court had already found.

Secularism does not require ignorance of religion. In Aruna Roy v. Union of India, AIR 2002 SC 3176; (2002) 7 SCC 368, decided on 12 September 2002. Facts. A petition under article 32 challenging the National Curriculum Framework for School Education published by the National Council of Educational Research and Training, mainly on the ground that it introduced religious instruction into State schools contrary to article 28. Held. The petition failed. The study of religions for the purpose of value education is distinct from religious instruction in a particular religion, and article 28 forbids the second in a wholly State-funded institution, not the first. Why it matters here is that it fixes the boundary of article 28 and shows that Indian secularism is not hostility to religion.

And the election process is a secular activity. In Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629; AIR 2017 SC 401, decided on 2 January 2017. Facts. A reference to seven judges on the construction of section 123(3) of the Representation of the People Act 1951, which makes it a corrupt practice to appeal for votes on the ground of "his" religion, race, caste, community or language, the issue being whose religion "his" refers to. Held, by four to three. "his" is not confined to the candidate: an appeal in the name of the religion of the candidate, of a rival, of an agent or of the voter falls within the corrupt practice, because the election process is a secular activity. The minority read the word narrowly. Why it matters here is that secularism as a Preamble value is being used to construe an ordinary statute, which is one of the two ways the Preamble does legal work.

Distinctions

What it does NOT mean

It does not mean the amendment made India secular. The commonest error in answering this question is to write that India became a secular State in 1976. The articles were there in 1950 and the Supreme Court had identified secularism as a basic feature in 1973.

It does not mean the State may not touch religion. Article 25(2) expressly preserves the power to regulate secular activity associated with religious practice and to legislate for social welfare and reform.

It does not mean all religions must be treated identically in every respect. Articles 29 and 30 give minorities rights the majority does not have, and article 25(2)(b) applies in terms to Hindu religious institutions. Equal treatment in the Indian sense accommodates difference where the difference is relevant.

And it does not mean the word in the Preamble is decorative. The Preamble cannot be enforced by itself, but it is used to construe an ambiguous provision and to identify what is basic, and both uses are visible in the four cases above.

Quick revision

Section 2 of the Constitution (Forty-second Amendment) Act 1976 substituted "SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC" for "SOVEREIGN DEMOCRATIC REPUBLIC" and "unity and integrity of the Nation" for "unity of the Nation". Its Statement of Objects and Reasons said the purpose was to spell out expressly the high ideals of socialism, secularism and the integrity of the nation: declaratory, not constitutive. India was already secular by articles 15(1), 16(2), 25, 26, 27, 28, 29 and 30, and Kesavananda Bharati had named secularism a basic feature in 1973. S.R. Bommai makes it an operative standard: a State government acting against the secular character of the Constitution is amenable to article 356. Aruna Roy distinguishes the study of religions from religious instruction under article 28. Abhiram Singh holds the election process a secular activity and reads "his" in section 123(3) widely. Indian secularism is principled distance, not a wall.

Test yourself

1. Exactly what did section 2 of the Forty-second Amendment change in the Preamble? It substituted "SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC" for "SOVEREIGN DEMOCRATIC REPUBLIC", and "unity and integrity of the Nation" for "unity of the Nation".

2. Was India a secular State before 1976, and how do you prove it? Yes. Articles 15(1), 16(2), 25, 26, 27 and 28 were in force from 26 January 1950, article 27 forbidding taxation for the promotion of a particular religion and article 28(1) forbidding religious instruction in a wholly State-funded institution. Kesavananda Bharati named secularism a basic feature in 1973.

3. What is the difference between the American and the Indian models? The American model erects a wall of separation. The Indian model keeps a principled distance: the State has no religion of its own but may regulate secular activity associated with religious practice and may legislate for social welfare and reform under article 25(2).

4. How did S.R. Bommai make secularism enforceable? By holding it a basic feature and holding that a State government acting against the secular character of the Constitution is amenable to action under article 356, while making the Proclamation itself reviewable.

5. What did Aruna Roy decide about article 28? That the study of religions for value education is not the religious instruction that article 28(1) forbids in a wholly State-funded institution, so the National Curriculum Framework was not unconstitutional on that ground.

6. Why does the chronology of 1973 and 1976 matter to this question? Because it shows the amendment was declaratory. The Court had already identified the secular character of the Constitution as part of the basic structure three years before Parliament inserted the word, so the word could not have created the character.

Integrity: why a second word was needed beside unity

The Preamble had said "unity of the Nation" since 1950. The Forty-second Amendment made it "unity and integrity of the Nation".

The two words are not synonyms in constitutional usage. Unity points at the people and at the fact that they are one political community. Integrity points at the territory and at the fact that it is not to be broken up. The distinction is worth stating in an answer because it explains why both were thought necessary.

Integrity had already entered the Constitution in 1963, by an earlier amendment. The Sixteenth Amendment inserted the words "the sovereignty and integrity of India" into article 19(2), (3) and (4), which is why a restriction on speech, on assembly and on association may be imposed in the interests of the integrity of India.

And the Forty-second Amendment gave it a companion in Part IVA. Article 51A(c) makes it a fundamental duty of every citizen to uphold and protect the sovereignty, unity and integrity of India.

Read together, the three provisions do different work. The Preamble states the value, article 19(2) makes it a permissible ground for restricting a fundamental right, and article 51A(c) makes it a duty which, though not directly enforceable, may be used to judge the reasonableness of a restriction.

A worked example

A State legislature passes an Act making it an offence, punishable with three years' imprisonment, to publish any material questioning the territorial boundaries of India as shown on the official map. A geography textbook publisher and a newspaper columnist challenge it.

Take the "integrity" ground first, because the State will rely on it. Article 19(2) permits reasonable restrictions on the freedom of speech and expression in the interests of the sovereignty and integrity of India, so the subject matter is within a permitted ground. That disposes of the argument that no restriction is possible at all.

Then apply the reasonableness requirement, which is where the Act fails. The restriction reaches any material that questions a boundary, which includes an academic article on the history of a boundary settlement, a report of a foreign court's ruling and a textbook explaining a dispute. A restriction that catches scholarship and news along with secession propaganda is wider than the interest it serves.

Now show what a valid provision would look like, because that is the constructive half of the answer. A provision aimed at material that incites the violent dismemberment of India, requiring both the incitement and a proximate connection to disorder, would answer the same interest without reaching the textbook. That is the shape article 19(2) has taken in practice.

The example also shows the Preamble doing its real work. The word "integrity" did not create the power to restrict; article 19(2) did that in 1963. What the Preamble supplies is the value against which the reasonableness of the restriction is measured.

The cases

The Preamble words became part of the basic structure by the ordinary operation of the doctrine. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, the Court held that the amending power under article 368 does not extend to altering the basic structure of the Constitution, and the judgments named the sovereignty and territorial integrity of India, the republican and democratic form of government and the mandate to build a welfare State contained in the Directive Principles among the features that are basic. Why it matters here is that a candidate can say something more precise than "the Preamble is important": the values it names cannot be amended out, and that is a legal consequence with a date.

And the balance the word "socialist" describes was made a basic feature in terms. In Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789. Facts. A challenge to clauses (4) and (5) of article 368 and to the amended article 31C, all inserted by the Forty-second Amendment. Held. Clause (5) unconstitutional because it demolishes the pillars on which the Preamble rests by empowering Parliament to exercise constituent power without any limitation whatever, the power to destroy not being a power to amend; and clause (4) equally void, since a limited power cannot be made unlimited by removing the means of enforcing the limit. On article 31C the majority held that giving the Directive Principles a blanket priority over articles 14 and 19 destroyed the harmony between Parts III and IV, and that harmony is itself a basic feature. Why it matters here is that it fixes the constitutional status of the socialist goal: the Directive Principles are a permanent mandate, but they do not override the fundamental rights, and an amendment saying they do is void.

Distinctions

What it does NOT mean

It does not mean the Preamble commands a particular economic policy. A court will not strike a policy down for insufficient socialism, and none has.

It does not mean "integrity" adds a new ground for restricting speech. That was done by the Sixteenth Amendment in 1963, thirteen years earlier, and the Preamble word restates the value rather than creating the power.

It does not mean the fundamental duties are enforceable. Article 51A creates duties which no court enforces directly against a citizen. Their use is interpretive: a restriction that serves a duty in article 51A is more readily found reasonable.

And it does not mean the three words stand or fall together. Secularism has been made an operative standard by S.R. Bommai; socialism has not, and integrity operates through article 19(2) rather than through the Preamble. A good answer separates them.

Quick revision

The Forty-second Amendment 1976, section 2, added SOCIALIST, SECULAR and "integrity" to the Preamble. Socialist means a welfare State reducing inequality within a mixed economy, its content coming from articles 38 and 39, and no court has read it as requiring public ownership. Article 38(2), which directs the State to minimise inequalities in income and eliminate inequalities in status, facilities and opportunities, was itself added by the Forty-fourth Amendment 1978. Integrity points at territory, unity at people; "sovereignty and integrity of India" entered article 19(2), (3) and (4) by the Sixteenth Amendment 1963, and article 51A(c) makes upholding sovereignty, unity and integrity a fundamental duty. Kesavananda Bharati puts these values in the basic structure; Minerva Mills holds that the Directive Principles may not be given blanket priority over articles 14 and 19, because the harmony between Parts III and IV is itself basic.

Test yourself

1. Which three words did the Forty-second Amendment add to the Preamble? SOCIALIST, SECULAR and "integrity", the last converting "unity of the Nation" into "unity and integrity of the Nation".

2. What does "socialist" mean in the Indian Preamble, and what does it not mean? It means a welfare State committed to reducing inequality within a mixed economy, its content supplied by articles 38 and 39. It does not require public ownership of the means of production, and no court has struck down a privatisation for offending it.

3. Distinguish unity from integrity. Unity refers to the people as one political community; integrity refers to the territory as one undivided whole. Both appear in article 51A(c); integrity alone appears in article 19(2).

4. When did "the sovereignty and integrity of India" become a ground for restricting free speech? In 1963, by the Sixteenth Amendment, which inserted the words into article 19(2), (3) and (4), thirteen years before the Preamble was amended.

5. What did Minerva Mills decide about the relationship between Parts III and IV? That the harmony and balance between fundamental rights and directive principles is itself a basic feature, so an amendment giving the Directive Principles blanket priority over articles 14 and 19 is void.

6. Why is it wrong to answer MU's stem by writing only about secularism? Because the stem names three ideals and the marks follow the question. Socialism has its own content in articles 38 and 39, and integrity has its own operation through article 19(2) and article 51A(c).

This limb survives in its core and Dicey's use of it was mistaken. Equality before the law is article 14 in India and is fundamental. But Dicey's belief that a separate administrative jurisdiction means official privilege was wrong even about France: the Conseil d'Etat developed a body of law more demanding of officials than the English common law then was. And India itself has administrative tribunals under articles 323A and 323B.

Third meaning: the constitution is the result of the ordinary law of the land. In England the general principles of the constitution, such as the right to personal liberty, are the result of judicial decisions in particular cases brought by private persons, rather than of a written declaration of rights.

This limb does not apply to India at all, and saying so is worth a mark. India has a written Constitution which is the source of the rights rather than their summary. The Indian arrangement is in fact stronger: a right declared by a court can be reversed by an ordinary statute, and a right in Part III cannot.

What has replaced Dicey: the modern content

The formal or thin conception, associated with Joseph Raz, asks only about the qualities a law must have: it must be prospective, open, clear, relatively stable, made by general rules, and applied by an independent judiciary that is accessible. On this view a wicked law properly made and applied satisfies the rule of law, and the objection to it is moral rather than legal.

The substantive or thick conception adds that the law must respect certain fundamental rights, so that a State systematically denying them does not have the rule of law however regular its procedures. The International Commission of Jurists at Delhi in 1959 adopted a version of this, defining the rule of law as the principles, institutions and procedures which experience has shown to be essential for the protection of the individual against arbitrary government and for enabling the individual to enjoy the dignity of man.

India has adopted the substantive conception, and the proof is that the rule of law is enforced here through articles 14 and 21 rather than through procedural regularity alone. That is the subject of the next chapter.

A worked example

A State government issues an order transferring all pending prosecutions under a particular Act against members of one political party to a Special Court, whose procedure omits committal, allows the court to refuse cross-examination, and permits no appeal. Test the order against the three limbs.

Under the first limb the question is whether the discretion is confined. The order does not identify any principle by which a case is chosen for the Special Court. A power to pick which accused gets which procedure, exercisable for any reason, is exactly the wide discretionary authority Dicey objected to, and the Indian answer is the same: a discretion without a standard is arbitrariness.

Under the second limb the question is whether these accused are being treated as a class of their own without a reason. Speedier trial can be a valid object, and a classification of offences or of classes of cases by reference to that object may be sustainable. A classification of persons by their political affiliation cannot be, because affiliation has no connection with the need for speed.

Under the third limb, ask what an Indian court has that an English one did not. In England before 1998 the answer would have been the presumption that Parliament does not intend to abrogate liberty, which yields to clear words. In India the answer is article 14 and article 21, which do not yield to clear words at all, and article 32, by which the accused may go directly to the Supreme Court.

Note where the example ends up. Two of Dicey's three limbs give the right answer in India, and they give it more strongly than in the system he was describing, because here they are written down as rights.

The cases

The rule of law in India is a basic feature and an amendment offending it is void. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Facts. The Prime Minister's election had been set aside by the Allahabad High Court, and the Thirty-ninth Amendment inserted article 329A(4) declaring that the election of a person holding the office of Prime Minister should not be void and should continue to be valid, and that no court should have jurisdiction over it. Held. Clause (4) void as destructive of the basic structure: it did not amend the election law but decided a particular dispute by constitutional fiat and withdrew it from every court, violating the rule of law, free and fair elections, and the separation of the judicial function from the legislative. Why it matters here is that it is the purest Indian application of the generality requirement. The vice was not that the rule was harsh but that it was a rule for one case and one person.

Arbitrariness and equality are the same idea, and that is how the rule of law is enforced in India. In E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. Facts. A senior member of the Indian Administrative Service holding the post of Chief Secretary to the Government of Tamil Nadu was transferred to two other posts he said were inferior, and alleged the transfers were mala fide and violated articles 14 and 16. Held. The plea of mala fides failed on the facts, but reasoned that article 16 is an instance of the application of the concept of equality in article 14, article 14 being the genus and article 16 a species; that equality is a dynamic concept with many aspects and dimensions which cannot be cribbed, cabined and confined within traditional and doctrinaire limits; and that equality and arbitrariness are sworn enemies, so that where an act is arbitrary it is implicit in it that it is unequal and therefore violative of article 14. Why it matters here is that it gives an Indian court a general power to strike at arbitrary State action without needing to find a comparator, which is a stronger tool than anything in Dicey.

And the case that shows what the doctrine's absence looks like is Indian. In Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. Facts. During the Emergency the President had suspended the right to move any court for the enforcement of articles 14, 21 and 22, and detenus sought habeas corpus, the writ requiring a detaining authority to justify a detention. Held, by four to one. In view of the Presidential Order no person had locus standi to move a High Court under article 226 for habeas corpus on any ground including mala fides, and that section 16A(9) of the Maintenance of Internal Security Act was valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or liberty without the authority of law even when article 21 was suspended, because that principle did not owe its existence to article 21 alone. Why it matters here is that Khanna J.'s dissent is the rule of law in its substantive sense, and the Forty-fourth Amendment 1978 wrote it into the Constitution by providing that articles 20 and 21 may never be suspended.

Distinctions

What it does NOT mean

It does not mean rule by lawyers or by courts. The rule of law binds judges too, and a court deciding by preference rather than by law is the problem, not the cure.

It does not mean that all discretion is unlawful. The modern requirement is that discretion be conferred by law, guided by standards and open to review, not that it be abolished.

It does not mean rule of law and rule by law are the same. Rule by law means only that the government acts through legal forms, which an oppressive government can easily do. The rule of law adds requirements about what those laws must be like and who may be reached by them.

And it does not mean Dicey is the Indian law. He described England in 1885. The Indian doctrine takes his first two limbs, rejects his third, and adds an enforceable equality clause he did not have.

Quick revision

The rule of law is government by known, general, prospective rules rather than by will, with the government itself under the ordinary law. Dicey's three meanings: supremacy of regular law and no wide discretionary authority; equality before the law and no droit administratif; and the constitution as the result of ordinary judicial decisions. Limb one survives in part, since discretion is now permitted if conferred, confined and reviewable. Limb two survives as article 14, though Dicey's attack on French administrative law was misconceived and India has tribunals under articles 323A and 323B. Limb three does not apply to India, which has a written Constitution that is the source of rights. The modern debate is formal against substantive; India has the substantive conception, and the Delhi Declaration of 1959 is its classic statement. Indira Nehru Gandhi struck down a constitutional amendment made for one case. E.P. Royappa holds equality and arbitrariness to be sworn enemies. ADM Jabalpur is the failure, and Khanna J.'s dissent became law by the Forty-fourth Amendment.

Test yourself

1. State Dicey's three meanings of the rule of law. The absolute supremacy of regular law as against arbitrary power and wide discretionary authority; equality before the law, everyone being subject to the ordinary law and the ordinary courts; and the constitution being the result of the ordinary law developed by the courts rather than of a written declaration of rights.

2. Which of the three does not apply to India, and why? The third. India has a written Constitution which is the source of fundamental rights rather than a summary of decided cases, and that is a stronger position because a Part III right cannot be reversed by ordinary legislation.

3. Was Dicey right about droit administratif? No. He thought a separate administrative jurisdiction meant official privilege, but the Conseil d'Etat developed a law more demanding of officials than the English common law of his day. India itself has administrative tribunals under articles 323A and 323B.

4. Distinguish the formal and substantive conceptions. The formal conception asks only whether law is prospective, open, clear, stable, general and applied by an independent court, so a wicked law properly applied satisfies it. The substantive conception adds respect for fundamental rights. India has adopted the substantive conception.

5. What did Indira Nehru Gandhi v. Raj Narain add to the doctrine in India? It made the rule of law an operative limit on the amending power: article 329A(4) was struck down because it decided one dispute by constitutional fiat and removed it from every court, offending generality, free elections and the separation of powers.

6. Distinguish the rule of law from rule by law. Rule by law means only that a government acts through legal forms, which an oppressive government can do easily. The rule of law adds requirements about the quality of those laws, their generality and prospectivity, and about the government being reachable under them.

And the remedies: articles 32 and 226. Article 32 guarantees the right to move the Supreme Court for the enforcement of Part III and is itself a fundamental right. Article 226 empowers a High Court to issue directions, orders or writs for the enforcement of Part III rights and for any other purpose, which is wider.

The two express qualifications, which an honest answer states

Article 33 permits Parliament to modify the rights in their application to the armed forces, to the forces charged with the maintenance of public order, to persons employed in intelligence or counter-intelligence organisations, and to persons employed in telecommunication systems set up for those forces, so as to ensure the proper discharge of duties and the maintenance of discipline.

Article 34 permits Parliament to indemnify acts done during martial law, by providing for the indemnification of any person in the service of the Union or of a State for any act done in connection with the maintenance or restoration of order in an area where martial law was in force, and for validating any sentence passed or act done under martial law.

Both are real derogations and both are limited. Article 33 requires an Act of Parliament and only in relation to the named services; article 34 requires an Act of indemnity and only in relation to an area where martial law was in force. The rule of law in India is therefore not absolute, and a candidate who does not mention these two articles has described the Constitution as they would like it rather than as it is.

From Gopalan to Maneka: the change that made article 21 mean something

In the beginning the rights were read as separate compartments. In A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Facts. A challenge by a detenu to the Preventive Detention Act 1950. Held, upholding the Act except for section 14 which was severable. The fundamental rights are separate and self-contained: a law of preventive detention was to be tested against article 22 alone, article 19 had no application to a person lawfully detained, and "procedure established by law" in article 21 meant procedure laid down by a duly enacted law and not procedure a court would find fair. Fazl Ali J. dissented. Why it matters here is that on this reading article 21 added almost nothing to the rule of law: any procedure Parliament chose was, by definition, procedure established by law.

Twenty-eight years later the Court reversed the premise. In Maneka Gandhi v. Union of India, AIR 1978 SC 597. Facts. The petitioner's passport was impounded under the Passports Act 1967 in the public interest, without reasons and without a hearing. Held. Articles 14, 19 and 21 are not mutually exclusive but form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three; that the procedure established by law in article 21 must be right, just and fair and not arbitrary, fanciful or oppressive, and that a procedure which is arbitrary is no procedure at all; and that the right to travel abroad is part of personal liberty. Why it matters here is that it imported the substance of due process into article 21 without the words, and made the Indian rule of law substantive rather than formal. The relationship between the two phrases is worked in [Procedure Established by Law, and Due Process].

A worked example

A municipal corporation demolishes a row of shops without notice, relying on a byelaw permitting the removal of unauthorised structures. The shopkeepers had been in occupation for eleven years and had been paying a licence fee to the corporation.

Article 300A is the first provision, and it does less work than students expect. It requires authority of law for a deprivation of property, and the byelaw is law. It does not by itself require a hearing.

Article 21 supplies the hearing, and this is the Maneka effect in practice. The shops are the shopkeepers' livelihood, livelihood has been held part of the right to life, and after Maneka the procedure by which a person is deprived must be right, just and fair. A demolition without notice, where the occupation was long and the corporation itself had been taking money for it, is not a fair procedure.

Article 14 supplies the second objection. If other unauthorised structures in the same street were left standing, the selection of these shops requires an explanation, and an unexplained selection is arbitrary, which Royappa makes a breach of article 14.

Article 226 supplies the remedy, and note that it is wider than article 32 here. The High Court may issue a writ not only for a Part III right but for any other purpose, which covers the article 300A point, and it may mould relief, for example by directing rehabilitation rather than restoration.

The example shows the Indian rule of law working as a system of rights rather than as a presumption. In a system without a written constitution the shopkeepers would be arguing that the corporation had misconstrued its byelaw. Here they are arguing that the byelaw, so applied, is void.

The cases

A law that allows the executive to choose who gets which procedure offends article 14. In State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. Facts. The West Bengal Special Courts Act 1950, intituled an Act to provide for the speedier trial of certain offences, empowered the State Government by section 5(1) to direct that a Special Court try such offences, classes of offences, cases or classes of cases as it directed, the Special Court following a truncated procedure. Held. Section 5(1) discriminatory and void under article 14 so far as it permitted the State Government to refer "any case" to a Special Court; the special procedure was not on its face calculated to prejudice a fair trial and the need for a speedier trial could form the basis of a reasonable classification, so the section was unobjectionable in authorising the reference of offences or classes of offences or classes of cases. Why it matters here is that it is the generality requirement in its Indian form: classify by a criterion related to the object, and the classification stands; pick individuals, and it does not.

And the rule of law reaches into a police station. In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416; AIR 1997 SC 610. Facts. A letter to the Chief Justice about deaths in police custody, treated as a writ petition. Held. Custodial violence strikes a blow at the rule of law and issued eleven requirements to be followed in all cases of arrest and detention, including accurate identification of the arresting officers, a memo of arrest attested by a witness and countersigned by the arrestee, notification to a friend or relative, an entry in a diary, medical examination every forty-eight hours, and communication to the local magistrate. Why it matters here is that the rule of law is enforced in India not only by striking laws down but by supplying procedure where the statute left a gap, which is a use of article 32 that Dicey's system had no equivalent for.

Distinctions

What it does NOT mean

It does not mean India's rule of law has no exceptions. Articles 33 and 34, and the preventive detention clauses of article 22, are express qualifications, and preventive detention without trial is permitted by the Constitution itself.

It does not mean Gopalan was overruled on everything. What Maneka rejected was the compartment theory and the formal reading of "procedure established by law". Preventive detention remains constitutionally permissible.

It does not mean article 300A is as strong as a fundamental right. It was moved out of Part III by the Forty-fourth Amendment in 1978, so it cannot be enforced under article 32 as a fundamental right, though it is enforceable under article 226 and has been read with article 14.

And it does not mean the rule of law is a stand-alone ground of challenge. A petitioner does not succeed by saying a statute offends the rule of law in the abstract. The argument must be routed through an article, which is why this chapter is organised by article rather than by principle.

Quick revision

Article 14 carries equality before the law and equal protection; article 20 forbids retrospective crime, double jeopardy and compelled self-incrimination; article 21 requires a procedure that is right, just and fair after Maneka; article 22 protects on arrest and permits preventive detention; article 265 forbids tax without authority of law; article 300A forbids deprivation of property without authority of law and sits outside Part III since the Forty-fourth Amendment; articles 32 and 226 supply the remedy, article 32 being itself a fundamental right. Articles 33 and 34 are express derogations, for the armed forces and for martial law indemnity. Gopalan read the rights as compartments and "procedure established by law" formally; Maneka held articles 14, 19 and 21 a single scheme and made the procedure substantive. Anwar Ali Sarkar voids a power to pick individual cases for a special procedure. D.K. Basu supplies eleven arrest requirements where the statute was silent.

Test yourself

1. Name six articles that carry the rule of law and say what each does. Article 14, equality before the law and equal protection; article 20, no retrospective crime, no double jeopardy, no compelled self-incrimination; article 21, no deprivation of life or liberty except by fair procedure; article 265, no tax without authority of law; article 300A, no deprivation of property without authority of law; article 32, the right to move the Supreme Court for enforcement.

2. What did Gopalan decide and what did Maneka change? Gopalan held the rights separate and self-contained and read "procedure established by law" as any duly enacted procedure. Maneka held articles 14, 19 and 21 to form a single scheme and required the procedure to be right, just and fair, so that an arbitrary procedure is no procedure at all.

3. What are articles 33 and 34, and why must an answer mention them? Article 33 lets Parliament modify the fundamental rights in their application to the armed forces and forces charged with public order; article 34 lets Parliament indemnify acts done during martial law and validate sentences passed under it. They are express derogations, and omitting them describes a Constitution more absolute than the real one.

4. Why is article 300A weaker than a fundamental right? Because the Forty-fourth Amendment 1978 moved the right to property out of Part III into Part XII, so it cannot be enforced under article 32 as a fundamental right, though it remains enforceable under article 226.

5. What was wrong with section 5(1) of the West Bengal Special Courts Act? It let the State Government send "any case" to a Special Court with a truncated procedure without any stated criterion, so the executive chose who got which procedure. Classification by offence or class of case for speedier trial was permissible; selection of individual cases was not.

6. Give one example of the rule of law being enforced by supplying procedure rather than by striking a law down. D.K. Basu, where the Court issued eleven requirements for every arrest and detention, including a memo of arrest attested by a witness, notification to a relative and medical examination every forty-eight hours.

Articles 154 and 162 do the same for a State. Executive power is vested in the Governor and exercised by him directly or through officers subordinate to him; and its extent is the matters with respect to which the Legislature of the State has power to make laws, subject to a proviso for concurrent subjects where Union law occupies the field.

Article 72 and article 161 confer the pardon powers. The President may grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute a sentence, in the cases article 72 specifies, and a Governor has the corresponding power under article 161. Both are conferred powers, exercisable on ministerial advice, and both are reviewable on limited grounds, which is itself a good illustration of the doctrine: even a power of mercy has a source and a boundary.

The doctrine of ultra vires, in plain words

A thing done outside the grant is void, not merely wrong. Ultra vires is Latin for "beyond the powers". A municipal corporation empowered to license eating houses that purports to license bookshops has not made a bad decision; it has made no decision at all in law.

There are two kinds and both matter here. Substantive ultra vires means the authority did something it was never empowered to do. Procedural ultra vires means it had the power but failed to follow the procedure the empowering provision laid down, for example by not consulting a body the statute required it to consult.

And there is a third idea that does the most work in modern law. A power conferred for one purpose and used for another is an abuse of power, even though the authority undoubtedly had the power. A power to acquire land for a public purpose, used to punish a political opponent, is exercised for a collateral purpose and is void on that ground.

A worked example

A State government has power under a Municipalities Act to supersede a municipal council for "incompetence, or persistent default in the performance of duties". It supersedes a council three weeks after the council passes a resolution criticising the Chief Minister, giving as its reason the council's failure to complete a drainage project.

First ask whether the power exists. It does; the Act confers it, and the Act is within Entry 5 of List II, local government. So this is not substantive ultra vires.

Then ask whether the procedure was followed. If the Act requires a show-cause notice and none was given, the order falls for procedural ultra vires without anyone needing to examine the government's motive. Always take this point first, because it is the cheapest to prove.

Then ask what the power was for. The purpose disclosed by the words "incompetence, or persistent default" is the protection of municipal administration. If the drainage delay was shared by twenty other councils that were not superseded, and the timing follows the resolution, the inference is that the power was used for a purpose it was not given for.

Finally identify the constitutional provision that catches it, because "abuse of power" is not itself a head of challenge. Article 14 is: an order made on an extraneous consideration is arbitrary, and after Royappa arbitrariness is inequality. That is how the doctrine of limited government reaches an Indian court.

The cases

The Indian executive has no residue of inherent power, and the leading statement of this is early. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. Facts. The Punjab government took over the business of printing and publishing school textbooks and prescribing them for schools, and private publishers complained that it was carrying on a trade without any Act authorising it. Held. The executive power of a State is not confined to executing laws already made: it extends to matters on which the legislature can legislate, so the government could carry on this business without a statute, provided it did not encroach on anyone's rights and no expenditure was incurred without appropriation. It also held that Indian government does not follow a rigid separation of powers but a sufficient differentiation of functions, the executive being responsible to the legislature. Why it matters here is that it sets the true boundary. Executive power is wide, but it is bounded by the legislative competence of the government exercising it, and it cannot touch a citizen's rights without law.

And where a right is touched, the conferred power must satisfy the whole Constitution. In Maneka Gandhi v. Union of India, AIR 1978 SC 597. Facts. The impounding of a passport under the Passports Act 1967 in the public interest, without reasons and without a hearing. Held. Articles 14, 19 and 21 form a single scheme, so the exercise of a statutory power depriving a person of liberty must be right, just and fair, and that an arbitrary procedure is no procedure at all. Why it matters here is that having a statutory power is only the first of the questions. The authority also has to show that the power, as exercised, survives Part III, which is the point at which limited government and the rule of law meet.

Distinctions

What it does NOT mean

It does not mean the executive can act only where a statute authorises it. Ram Jawaya Kapur is clear that executive power extends to any matter on which the legislature could legislate, so a government may run a business or a scheme without an Act. What it may not do without an Act is take away a right or impose a burden.

It does not mean a limited government is a small one. Limited refers to the boundary of power, not its quantity, and a State with very extensive powers may still be a limited government if every one of them is conferred and reviewable.

And it does not mean every excess is a constitutional question. Most ultra vires arguments are ordinary administrative law and are decided by reading the statute. The constitutional questions arise where the excess touches Part III or crosses the federal line.

Quick revision

All governmental power in India is conferred. Article 52 creates the President and article 53(1) vests Union executive power in him; article 154(1) does the same for a Governor; articles 73 and 162 fix the extent of each by reference to the corresponding legislature's competence; article 74 makes the President act on the advice of the Council of Ministers, with a power to require reconsideration once, and clause (2) makes the tendering of advice non-justiciable. Articles 72 and 161 confer the pardon powers, which are themselves conferred and reviewable. Ultra vires means beyond the powers: substantive, procedural, or an abuse where the power is used for a collateral purpose. Ram Jawaya Kapur holds executive power co-extensive with legislative competence and does not require a statute for every executive act, but forbids encroachment on rights without law. Maneka Gandhi requires the exercise of a conferred power to satisfy articles 14, 19 and 21.

Test yourself

1. Where is the executive power of the Union vested, and what fixes its extent? In the President by articles 52 and 53(1); its extent is fixed by article 73, which extends it to the matters on which Parliament may make laws and to treaty rights, with a proviso keeping it out of Concurrent List matters inside a State unless expressly conferred.

2. What does article 74 add to article 53? It provides that a Council of Ministers with the Prime Minister at its head shall aid and advise the President, who shall act in accordance with that advice, subject to one power to require reconsideration; and clause (2) makes the question whether advice was tendered non-justiciable.

3. Define ultra vires and distinguish its two forms. Beyond the powers. Substantive ultra vires is doing something the authority was never empowered to do; procedural ultra vires is having the power but failing to follow the prescribed procedure.

4. Does the Indian executive need a statute for every act? No. Ram Jawaya Kapur holds that executive power extends to all matters on which the legislature could legislate, so a government may run a scheme or a business without an Act; but it may not encroach on a citizen's rights or spend without appropriation.

5. Through which article does an abuse of power reach a court, and why? Article 14. An order made on an extraneous consideration or for a collateral purpose is arbitrary, and after E.P. Royappa arbitrariness is inequality, so abuse of power becomes a breach of a fundamental right.

6. Why does limited government put the burden on the government rather than the citizen? Because no power is original: the citizen need not find a prohibition, and the government must point to the provision conferring the power it says it exercised.

Articles 122 and 212 protect the legislatures from the courts. The validity of any proceeding in Parliament, or in a State Legislature, shall not be called in question on the ground of any alleged irregularity of procedure, and no officer of the legislature in whom powers are vested for regulating procedure is subject to the jurisdiction of any court in respect of the exercise of those powers.

Article 361 protects the President and the Governors. They are not answerable to any court for the exercise and performance of the powers and duties of their office, and no criminal proceedings shall be instituted against them during their term.

Read together these provisions describe a mutual restraint rather than a wall. Each organ is kept out of the internal working of the others, and the essential function of each is protected.

The essential-function test

The Indian rule is not that an organ may never do work of another kind, but that it may not perform the essential function of another organ. Delegated legislation is permissible; delegating the essential legislative function, meaning the laying down of policy and its enactment as a binding rule, is not.

The judicial function is protected most strictly of all. A legislature may change the law, including retrospectively, and may thereby remove the basis on which a judgment rested. What it may not do is declare a particular judgment wrong and reverse it, because deciding a dispute between parties is the judicial function itself.

That distinction is the single most examinable point in this chapter, and it is what Indira Nehru Gandhi turns on.

A worked example

Suppose the Supreme Court holds that a State's method of computing a cess is invalid because the empowering Act did not authorise it. The State Legislature then passes a Validation Act which (a) amends the empowering Act retrospectively to authorise that method, and (b) declares that the judgment of the Supreme Court "shall be deemed never to have been passed" and that all collections are valid notwithstanding it.

Clause (a) is valid and this surprises students. A legislature may retrospectively amend the law and thereby remove the very basis on which a judgment proceeded. The judgment stands; the law it applied has changed.

Clause (b) is void, and the reason is the essential-function test. Declaring a judgment never to have been passed is not legislation at all; it is the exercise of judicial power over a decided case. That is what article 329A(4) attempted in Indira Nehru Gandhi.

Now note the practical lesson, because it is what a good answer adds. The State gets everything it wanted through clause (a) alone. The vice in clause (b) is not that the legislature achieved its object but that it chose a form which usurped a function, and the doctrine polices form for exactly that reason: a legislature which can annul judgments can annul any judgment, including one protecting a fundamental right.

The cases

The classic Indian formulation says both halves of the position at once. In Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549. Facts. The Punjab government took over the printing and publishing of school textbooks without any Act authorising it, and private publishers complained. Held. The executive power extends to matters on which the legislature can legislate and does not require a statute for every act, provided no right is encroached upon and no money is spent without appropriation; and that the Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity, but the functions of the different parts or branches have been sufficiently differentiated, and the executive is responsible to the legislature. Why it matters here is that it is the sentence every answer needs: differentiation of function, not rigid separation.

The limit is the essential function, and an amendment crossed it once. In Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Facts. The setting aside of the Prime Minister's election and the insertion by the Thirty-ninth Amendment of article 329A(4), declaring that election valid and beyond the jurisdiction of every court. Held. Clause (4) void as destructive of the basic structure, because it did not amend the election law but decided a particular dispute by constitutional fiat, violating the rule of law, free and fair elections and the separation of the judicial function from the legislative. Why it matters here is that separation of powers is thereby an operative limit even on the amending power, and the vice identified is precisely the usurpation of the judicial function.

And the courts have set the same limit on themselves. In Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899. Facts. The case concerned admissions to a medical college and the extent to which a court could examine the government's selection policy. Held. Although the doctrine of separation of powers has not been recognised in its absolute rigidity, the Constitution has made sufficient provision delineating the functions of the three organs, and that while the judiciary determines the legality of legislative and executive action, it cannot sit in judgment over the wisdom of policy: the judiciary must confine itself to the question of legality. Why it matters here is that separation of powers cuts both ways, and an answer that treats the doctrine only as a restraint on the political branches has missed half of it.

The same warning has been repeated in stronger terms. In Divisional Manager, Aravali Golf Club v. Chander Hass, (2008) 1 SCC 683. Facts. A direction by the courts below to create a post of tractor driver and regularise two employees in it. Held. Creating a post is an executive or legislative function and the courts had no business to direct it, and it cautioned against judicial overreach, saying that judges must exercise judicial restraint and not encroach into the executive or legislative domain. Why it matters here is that it supplies the Indian statement of judicial self-restraint, which an examiner expects alongside the cases restraining the other two organs.

Distinctions

What it does NOT mean

It does not mean India rejected the doctrine. Kesavananda Bharati names the separation of powers between the legislature, the executive and the judiciary among the basic features, so it is unamendable even though it is nowhere set out as a single article.

It does not mean the executive may not legislate at all. Articles 123 and 213 confer the ordinance power expressly, and delegated legislation is a daily necessity. The controls are the conditions in those articles and the limits on delegation.

It does not mean the legislature may never affect a decided case. It may change the law retrospectively, which is a different thing from reversing the decision.

And it does not mean a court may correct any wrong it sees. Asif Hameed and Aravali Golf Club are the answer to the student who treats separation of powers as a doctrine that only binds politicians.

Quick revision

Montesquieu, 1748: liberty is lost when powers combine. India adopts a functional, not a rigid, separation, because the parliamentary system puts Ministers in the legislature by article 75(5) and makes them collectively responsible by article 75(3). Article 50 directs separation of the judiciary from the executive in the public services. Articles 121 and 211 bar legislative discussion of a judge's conduct except on a removal motion; articles 122 and 212 bar courts from questioning legislative procedure; article 361 protects the President and Governors. The test is the essential function: delegated legislation yes, delegation of the essential legislative function no; retrospective amendment yes, reversal of a judgment no. Ram Jawaya Kapur: differentiation of functions, not rigid separation. Indira Nehru Gandhi: article 329A(4) void for usurping the judicial function. Asif Hameed and Aravali Golf Club: the same doctrine restrains the courts.

Test yourself

1. Why can India not adopt a strict separation of powers? Because it has a parliamentary executive. Article 75(5) requires a Minister to be a member of a House within six months, and article 75(3) makes the Council of Ministers collectively responsible to the House of the People, so the executive sits inside the legislature by design.

2. Which article states the doctrine, and what is its status? Article 50, a Directive Principle, directing the State to separate the judiciary from the executive in the public services. It is unenforceable in terms, but the separation of powers is part of the basic structure under Kesavananda Bharati.

3. What is the essential-function test? That an organ may perform work of another kind but may not perform the essential function of another organ: the legislature may delegate but not delegate the laying down of policy, and it may change the law retrospectively but not decide a case.

4. Distinguish a valid Validation Act from an invalid one. Valid: it retrospectively amends the law so that the basis of the earlier judgment disappears. Invalid: it declares the judgment itself void or deemed never passed, which is the exercise of judicial power over a decided dispute.

5. Name two articles that keep the legislature and the courts out of each other's internal working. Article 121, which bars discussion in Parliament of a judge's conduct except on a removal motion, and article 122, which bars a court from questioning the validity of parliamentary proceedings on the ground of irregularity of procedure.

6. State the Indian doctrine of judicial restraint and name a case for it. That the judiciary determines the legality of legislative and executive action but does not sit in judgment on the wisdom of policy: Asif Hameed v. State of Jammu and Kashmir, and more emphatically Divisional Manager, Aravali Golf Club v. Chander Hass, where a direction to create a post was set aside as an encroachment on the executive function.

Tenure, salary and conduct

Article 124(4) makes removal deliberately hard. A judge of the Supreme Court shall not be removed from office except by an order of the President passed after an address by each House supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members present and voting, presented in the same session, on the ground of proved misbehaviour or incapacity. Article 217(1)(b) applies the same procedure to a High Court judge.

Article 125 and article 221 protect the money. The salaries of Supreme Court and High Court judges are as provided by Parliament, and their allowances and rights in respect of leave and pension shall not be varied to their disadvantage after appointment. Article 112(3)(d) makes the salaries and pensions of Supreme Court judges expenditure charged on the Consolidated Fund of India, which means they are not submitted to the vote of Parliament.

Articles 121 and 211 protect the reputation. No discussion in Parliament with respect to the conduct of a judge of the Supreme Court or a High Court in the discharge of his duties, except on a motion for removal; and no discussion at all in a State Legislature.

Article 124(7) closes the exit. No person who has held office as a judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India. Article 220 restricts a former High Court judge from practising in any court in India except the Supreme Court and the other High Courts.

Article 146 gives the Chief Justice control of the establishment. Appointments of officers and servants of the Supreme Court are made by the Chief Justice or a judge or officer directed by him, and the administrative expenses of the Court are charged on the Consolidated Fund of India.

Articles 214 to 216 constitute the High Courts as courts of record with a Chief Justice and such other judges as the President may from time to time deem it necessary to appoint, and articles 233 to 235 place the appointment, posting and promotion of district judges, and the control over the subordinate courts, with the Governor in consultation with the High Court and with the High Court respectively.

A worked example

A State government is a party to a large number of pending land acquisition appeals in the High Court. It proposes three measures: to transfer the judge hearing them to another High Court; to reduce the pension payable to judges appointed after a certain date; and to move a resolution in the Legislative Assembly deploring the judge's conduct.

The transfer is the subtlest and is dealt with by article 222 read with the appointment cases. A transfer is constitutionally possible, but a transfer made to punish a judge for judicial conduct is a colourable exercise of the power and is examinable, which is the point Sankalchand Sheth settled.

The pension proposal fails on the words of article 221(2). Allowances and rights in respect of leave of absence and pension shall not be varied to the disadvantage of a judge after appointment. Note the limit of the protection: it protects a judge after appointment, so a general reduction applying only to future appointees is not caught by that clause, and a good answer says so rather than overclaiming.

The Assembly resolution fails outright on article 211. No discussion shall take place in the Legislature of a State with respect to the conduct of any judge of the Supreme Court or of a High Court in the discharge of his duties. Unlike article 121, article 211 has no exception at all, because a State Legislature has no part in removal.

The example is worth doing because it separates the three protections. Appointment and transfer are protected by the consultation cases; conditions by article 221; reputation by article 211. A student who knows only "judges are independent" cannot answer any of the three.

The cases: how "consultation" changed meaning three times

First: consultation means consultation, and the executive decides. In S.P. Gupta v. President of India, AIR 1982 SC 149, the First Judges case. Facts. A group of petitions about the transfer of High Court judges, the non-extension of additional judges, and the disclosure of correspondence between the Law Minister, the Chief Justice of Delhi and the Chief Justice of India. Held. Consultation under articles 124 and 217 does not mean concurrence: the Union Government is not bound by the Chief Justice's opinion, though the consultation must be full and effective and based on identical material. It also relaxed the rule of standing so that a member of the public with sufficient interest could move the court, which is the case's other and better known contribution. Why it matters here is that it left appointment substantially with the executive for eleven years.

Second: consultation means primacy for the judiciary. In Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441, the Second Judges case. Facts. A challenge to the position established by S.P. Gupta. Held, by a majority of nine judges. S.P. Gupta was wrongly decided on this point: in the matter of appointment of judges of the Supreme Court and the High Courts, the opinion of the Chief Justice of India, formed after consultation with his senior colleagues, has primacy, and the executive is bound by it save in exceptional circumstances. Why it matters here is that this created the collegium.

Third: the collegium's composition is fixed. In In re Special Reference No. 1 of 1998, (1998) 7 SCC 739, the Third Judges case. Facts. A Presidential reference under article 143 seeking clarification of the Second Judges case. Held. The Chief Justice of India must consult a collegium of the four senior-most puisne judges of the Supreme Court for an appointment to that Court, and of the two senior-most for a High Court appointment and for a transfer; that the opinions must be in writing; and that a recommendation made without following that procedure is not binding on the Government. Why it matters here is that it is the law in force today, the National Judicial Appointments Commission having been struck down in 2015 as violating the independence of the judiciary as part of the basic structure.

Transfer is a power, not a punishment. In Union of India v. Sankalchand Himatlal Sheth, AIR 1977 SC 2328. Facts. The transfer of a judge of the Gujarat High Court to the Andhra Pradesh High Court without his consent. Held. A transfer under article 222 does not require the judge's consent, but the power may be exercised only in the public interest and never by way of punishment, and the consultation with the Chief Justice of India must be full and effective; a transfer made as a punitive measure would be vitiated. Why it matters here is that it identifies the one route by which the executive could otherwise reach a sitting judge without removing him.

And independence has an internal aspect as well. In C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457. Facts. An agitation by a Bar Association demanding the resignation of a Chief Justice of a High Court over the royalties he had received for a book. Held. The Bar may not sit in judgment on a judge or pressurise a judge to resign, and laid down an in-house procedure by which complaints against a judge whose conduct falls short of removal are examined within the judiciary by the Chief Justice of India and the Chief Justice of the High Court. Why it matters here is that independence is protected from the Bar and from public agitation as well as from the executive, and that the only constitutional route to removal remains article 124(4).

Distinctions

What it does NOT mean

It does not mean judges are unaccountable. Article 124(4) provides for removal on proved misbehaviour or incapacity, and C. Ravichandran Iyer supplies an in-house procedure for conduct falling short of that.

It does not mean the collegium is in the Constitution. The word appears nowhere in it. The collegium is the product of the Second and Third Judges cases construing the word "consultation", which is why it is criticised as judicially created and why Parliament attempted to replace it.

It does not mean salaries can never change. Parliament fixes them and may raise them; what article 125(2) and article 221(2) forbid is variation to a judge's disadvantage after appointment.

And it does not mean independence from the law. A judge is independent in order to apply the law, not to depart from it, and that is the point [Constitutional Morality] returns to.

Quick revision

Three questions: who appoints, who removes, who controls conditions. Appointment: articles 124(2) and 217(1), "consultation", now the collegium. Removal: article 124(4), proved misbehaviour or incapacity, address by both Houses with a majority of total membership and two-thirds present and voting, in the same session. Salary and pension: articles 125 and 221, no variation to disadvantage after appointment; charged on the Consolidated Fund by article 112(3)(d). Reputation: articles 121 and 211. Establishment: article 146. After office: articles 124(7) and 220. Ad hoc and retired judges: articles 127 and 128. The three Judges cases: S.P. Gupta (consultation is not concurrence), Supreme Court Advocates-on-Record Association 1993 (primacy of the Chief Justice), In re Special Reference No. 1 of 1998 (the collegium of four, or two for a High Court, opinions in writing). Sankalchand Sheth: transfer only in the public interest, never punitive. C. Ravichandran Iyer: an in-house procedure, and no pressure from the Bar.

Test yourself

1. State the procedure for removing a Supreme Court judge. An order of the President after an address by each House, supported by a majority of the total membership of that House and by not less than two-thirds of the members present and voting, presented in the same session, on the ground of proved misbehaviour or incapacity: article 124(4).

2. What exactly do articles 125(2) and 221(2) protect? They provide that a judge's allowances and rights in respect of leave of absence and pension shall not be varied to his disadvantage after appointment. They do not prevent Parliament from fixing different terms for future appointees.

3. Trace the meaning of "consultation" through the three Judges cases. S.P. Gupta 1981: consultation is not concurrence and the executive decides. Supreme Court Advocates-on-Record Association 1993: the Chief Justice's opinion, formed with senior colleagues, has primacy. In re Special Reference No. 1 of 1998: the collegium is the Chief Justice with the four senior-most puisne judges for the Supreme Court and the two senior-most for a High Court, opinions in writing.

4. May a High Court judge be transferred without consent? Yes, under article 222, but only in the public interest and never by way of punishment, and only after full and effective consultation with the Chief Justice of India: Sankalchand Sheth.

5. What is the difference between articles 121 and 211? Article 121 bars discussion in Parliament of a judge's conduct in the discharge of duties except on a motion for an address for removal. Article 211 bars such discussion in a State Legislature with no exception at all, because a State Legislature has no role in removal.

6. What does article 146 protect, and why is it necessary? It gives the Chief Justice of India control over appointments to the Supreme Court's staff and charges the Court's administrative expenses on the Consolidated Fund. Without it a government could throttle a court through its establishment and budget without touching any judge.

Clause (4), inserted by the Twenty-fourth Amendment 1971, provides that nothing in article 13 shall apply to any amendment made under article 368. That is what Kesavananda had to deal with.

Three doctrines grow out of these words and each has a case. Eclipse, severability, and waiver.

The three doctrines under article 13

Severability: "to the extent of the inconsistency" or "of the contravention". Only the offending part falls, if what remains can stand on its own and gives effect to what the legislature intended. That is why section 5(1) of the West Bengal Special Courts Act fell in part and stood in part in Anwar Ali Sarkar.

Eclipse: a pre-Constitution law is overshadowed, not destroyed. In Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 781. Facts. A 1947 Berar Act permitting the State to take over the motor transport business had become inconsistent with article 19(1)(g) in 1950, and the First Amendment of 1951 then widened article 19(6) so that the Act would have been valid if passed after it. Held. The Act was not dead but eclipsed: an existing law inconsistent with a fundamental right is not wiped off the statute book but remains dormant as against citizens, and when the constitutional impediment is removed by amendment the shadow lifts and the law becomes enforceable again. Why it matters here is that it explains the different treatment of clauses (1) and (2), and it is the reason the First Amendment could revive earlier statutes.

And the doctrine does not apply in the same way to a post-Constitution law. In Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648. Facts. The case concerned the Uttar Pradesh Transport Service (Development) Act 1955 and its relation to a Central Act. Held, distinguishing clause (1) from clause (2). A pre-Constitution law is void only from the commencement of the Constitution whereas a law made in contravention of clause (2) is void ab initio, a still-born law, so that the doctrine of eclipse has no application to it in the same manner. Why it matters here is that the timing decides the remedy: an eclipsed law can be revived by amendment, and a still-born one has to be re-enacted.

And a right is not waivable. The reason is that Part III rights are not conferred for the individual's benefit alone but as limits on the State, and a limit which the person limited can persuade the beneficiary to give up is not a limit. This is the basis of Basheshar Nath v. Commissioner of Income-tax, Delhi, AIR 1959 SC 149. Facts. An assessee had accepted a settlement under section 8A of the Taxation on Income (Investigation Commission) Act 1947 and was later said to have waived his article 14 objection. Held. A fundamental right cannot be waived: the doctrine of waiver has no application to the fundamental rights, at the least those enacted for the benefit of the general public and not for an individual alone. Why it matters here is that it distinguishes a constitutional limit from a private right.

Article 32: the remedy that makes the rest real

Clause (1). The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by Part III is guaranteed. The remedy is itself a right, which is unusual and deliberate.

Clause (2). The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate.

Clause (4). The right guaranteed by article 32 shall not be suspended except as otherwise provided for by the Constitution, which is a reference to article 359 during an emergency, and which after the Forty-fourth Amendment cannot reach articles 20 and 21.

Article 226 is wider in one respect and narrower in another. Wider, because a High Court may issue a writ for the enforcement of Part III rights "and for any other purpose", which includes an ordinary legal right. Narrower, because it is discretionary, whereas article 32 is a guaranteed right.

A worked example

A society registered under the Societies Registration Act runs a school. Its entire recurring expenditure is met by a State government grant; the State nominates seven of its eleven governing body members; its rules require State approval for fees, staff strength and syllabus; and it was set up by a government resolution to run schools the State would otherwise have run itself. It expels a student without a hearing. Can the student move the High Court under article 226 for a violation of article 21?

The first question is article 12, and everything turns on it. The society is not a local authority, so the question is whether it is an "other authority". Apply the indicia: the entire expenditure is State-funded; the State holds a majority of the governing body; there is deep and pervasive State control over fees, staff and syllabus; and the function is one the State itself would otherwise perform. On Pradeep Kumar Biswas the body is financially, functionally and administratively dominated by the government, and the control is deep and pervasive rather than merely regulatory.

If article 12 is satisfied, the rest follows quickly. Article 21 is engaged because education has been held part of the right to life, and the procedure must be right, just and fair after Maneka. Expulsion without a hearing is not.

If article 12 is not satisfied, the student is not without a remedy, and a good answer says so. Article 226 permits a writ "for any other purpose", and the courts have entertained petitions against private bodies discharging a public duty. What the student loses is article 32, which reaches only the State.

And notice the constitutional point the example is really about. Whether Part III binds a body is not answered by its legal form. A government that could escape the Constitution by incorporating a company would have no limits at all, which is why the courts built the instrumentality test.

The cases on article 12

The narrow reading was rejected early. In Rajasthan State Electricity Board, Jaipur v. Mohan Lal, AIR 1967 SC 1857. Facts. The case concerned the service conditions of employees of the Board, a statutory corporation. Held. "other authorities" in article 12 is not to be read ejusdem generis with the preceding words and is not confined to bodies exercising governmental or sovereign functions: it includes all constitutional or statutory authorities on whom powers are conferred by law, whether or not the authority is engaged in performing commercial activities. Why it matters here is that it opened article 12 to the public sector.

Then came the indicia. In Sukhdev Singh v. Bhagatram Sardar Singh Raghuvanshi, AIR 1975 SC 1331. Facts. The case concerned the status of the regulations made by the Oil and Natural Gas Commission, the Life Insurance Corporation and the Industrial Finance Corporation and whether their employees could enforce them. Held. These statutory corporations are authorities within article 12 and their regulations have the force of law, so an employee dismissed in breach of them may be reinstated. Mathew J.'s concurring opinion introduced the idea of an instrumentality or agency of the State. In Ramana Dayaram Shetty v. International Airport Authority of India, AIR 1979 SC 1628. Facts. The acceptance of a tender for a restaurant at Bombay airport from a party who did not meet the advertised eligibility condition. Held. The Authority was an instrumentality of the State and therefore subject to article 14, and set out the indicia: the entire share capital held by government, financial assistance meeting almost the entire expenditure, a monopoly status conferred or protected by the State, deep and pervasive State control, and functions of public importance closely related to governmental functions. Why it matters here is that this is the checklist an answer applies.

And the indicia were restated as one test. In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, decided on 16 April 2002. Facts. Whether the Council of Scientific and Industrial Research is a State within article 12, an earlier Bench having held it was not. Held, by a majority of seven judges. The earlier decision was wrong and that the Council is a State: the question in each case is whether the body is financially, functionally and administratively dominated by or under the control of the Government, and that control must be particular to the body and deep and pervasive, not merely regulatory control of the kind exercised over any private body. Why it matters here is that this is the test in force.

But the test has a boundary. In Zee Telefilms Ltd v. Union of India, decided on 2 February 2005. Facts. Whether the Board of Control for Cricket in India is a State within article 12, in a dispute about the termination of telecast rights. Held, by three to two. It is not: the Board is not created by statute, no share capital is held by government, it enjoys no State monopoly conferred by law, there is no deep and pervasive State control, and its functions are not governmental, though the Court noted that a petition under article 226 may still lie against it where it discharges a public duty. Why it matters here is that it stops the test collapsing into "any important body", and it supplies the alternative route a student should always mention.

Distinctions

What it does NOT mean

It does not mean Part III binds private persons. Article 12 reaches the State. The exceptions are the rights that bind private persons in terms: article 15(2) on access to shops and public places, article 17 on untouchability, article 23 on trafficking and forced labour, and article 24 on child labour.

It does not mean a fundamental right can be given up by agreement. Basheshar Nath holds that the doctrine of waiver has no application to fundamental rights.

It does not mean article 32 lies for every grievance against the State. It lies only for the enforcement of a Part III right, which is why an ordinary illegality goes to article 226.

And it does not mean article 13(3)(a) catches everything called law. Whether uncodified personal law is "law" for this purpose is unresolved and is the subject of its own chapter.

Quick revision

Article 12 defines the State for Part III: Government and Parliament of India, Government and Legislature of each State, and all local or other authorities within India or under the control of the Government of India. "Other authorities": Rajasthan State Electricity Board rejects ejusdem generis; Sukhdev Singh and Ramana Dayaram Shetty give the indicia (share capital, funding, monopoly, deep and pervasive control, public functions); Pradeep Kumar Biswas restates them as financial, functional and administrative domination that is particular, deep and pervasive; Zee Telefilms holds the BCCI outside article 12 but leaves article 226 open. Article 13(1) voids pre-Constitution law prospectively and permits eclipse (Bhikaji Narain Dhakras); article 13(2) makes post-Constitution law void ab initio (Deep Chand); article 13(3)(a) defines law widely; article 13(4) exempts amendments. Severability follows from "to the extent of". Rights cannot be waived (Basheshar Nath). Articles 32 and 226 supply the remedy, article 32 being itself a right and article 226 being wider in scope but discretionary.

Test yourself

1. Name the three structural provisions of Part III and what each does. Article 12, which defines the State and so decides who is bound; article 13, which makes an inconsistent law void and supplies the sanction; and articles 32 and 226, which supply the remedy, article 32 being itself a fundamental right.

2. State the test for an "other authority" after Pradeep Kumar Biswas. Whether the body is financially, functionally and administratively dominated by or under the control of the Government, that control being particular to the body and deep and pervasive, rather than the regulatory control exercised over any private body.

3. Distinguish the effect of article 13(1) from that of article 13(2). A pre-Constitution law inconsistent with Part III is void from the commencement of the Constitution and only to the extent of the inconsistency, so it can be eclipsed and revived; a post-Constitution law made in contravention of clause (2) is void ab initio and must be re-enacted.

4. What is the doctrine of eclipse, and which case established it? That an existing law inconsistent with a fundamental right is not wiped off the statute book but remains dormant as against citizens, and revives when the constitutional impediment is removed: Bhikaji Narain Dhakras v. State of Madhya Pradesh.

5. Can a person waive a fundamental right? No. Basheshar Nath holds that the doctrine of waiver has no application to fundamental rights, at least those enacted for the benefit of the general public, because they are limits on the State rather than private benefits.

6. Give two differences between articles 32 and 226. Article 32 lies only for the enforcement of Part III and is itself a fundamental right; article 226 lies for Part III and for any other purpose but is discretionary. Article 32 runs throughout India; article 226 is confined to the High Court's territorial jurisdiction or where the cause of action arises.

The administrative and legal core. Article 40: organisation of village panchayats. Article 44: a uniform civil code, which is the whole of MU's topic 4. Article 45: early childhood care and education for children below six years. Article 46: promotion of the educational and economic interests of the Scheduled Castes, the Scheduled Tribes and other weaker sections. Article 48: organisation of agriculture and animal husbandry. Article 48A: protection of the environment and safeguarding of forests and wildlife. Article 49: protection of monuments. Article 50: separation of the judiciary from the executive. Article 51: promotion of international peace and security, which is the foundation of Module IV.

Note which two are borrowed by other parts of this paper. Article 44 belongs to Module III and article 51 to Module IV, and each is taught in its own chapter rather than here.

The relationship with Part III, in four stages

Stage one: Part III prevails. In State of Madras v. Champakam Dorairajan, AIR 1951 SC 226; 1951 SCR 525. Facts. A Madras Government communal Order allocating seats in engineering and medical colleges by community, defended on the ground that article 46 required the State to promote the interests of weaker sections. Held. The Order void: article 29(2) forbids denial of admission to a State-maintained or State-aided institution on grounds only of religion, race, caste or language, and the Directive Principles, being expressly unenforceable, must conform to and run subsidiary to the fundamental rights. Why it matters here is the immediate consequence: Parliament responded with the Constitution (First Amendment) Act 1951, which inserted article 15(4), and the whole of the reservation jurisprudence in Module III begins there.

Stage two: Parliament gives some directives priority. Article 31C, inserted by the Twenty-fifth Amendment 1971, provided that no law giving effect to the policy in article 39(b) or (c) should be void for inconsistency with article 14 or article 19, and that no such law should be called in question in any court on the ground that it does not give effect to that policy. The Forty-second Amendment 1976 widened it to cover a law giving effect to any of the Directive Principles.

Stage three: the Court accepts the narrower priority and rejects the wider. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, the Court upheld the first part of article 31C but struck down the second, the clause excluding judicial inquiry into whether the law gave effect to the stated policy, because that would have made the declaration conclusive and removed review altogether. Why it matters here is that the Court permitted a real preference for two directives while keeping the question of whether the law was in fact such a law for itself.

Stage four: harmony is a basic feature. In Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789. Facts. A challenge to article 368(4) and (5) and to article 31C as widened by the Forty-second Amendment. Held. Clauses (4) and (5) void, saying the power to destroy is not a power to amend; and, on article 31C, that giving the Directive Principles a blanket priority over articles 14 and 19 destroyed the harmony and balance between Parts III and IV, and that harmony is itself part of the basic structure. Why it matters here is that it is the settled answer: neither Part is superior; the Constitution is best served when they run together, and article 31C survives only in its original, narrower form.

How the principles decide cases in practice

By giving content to article 21. In Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180; (1985) 3 SCC 545. Facts. The eviction of pavement and slum dwellers in Bombay under the Bombay Municipal Corporation Act 1888, the dwellers arguing that eviction would deprive them of their livelihood and so of life. Held. The right to life in article 21 includes the right to livelihood, since no person can live without the means of living, and reasoned from articles 39(a) and 41 of Part IV in reaching that conclusion; the eviction was nonetheless permitted subject to procedural safeguards, notice and a hearing. Why it matters here is that it is the standard example of an unenforceable directive becoming enforceable through the door of article 21.

By converting a directive into a right, and then Parliament converting it into an article. In Unni Krishnan, J.P. v. State of Andhra Pradesh, AIR 1993 SC 2178. Facts. Petitions by private medical and engineering colleges about capitation fees and the right to establish such institutions. Held. The right to education flows from article 21, and that it is to be understood in the light of articles 41 and 45: every child has a right to free education until the age of fourteen, and thereafter the right is subject to the limits of the State's economic capacity and development. Why it matters here is the sequel. Parliament enacted the Constitution (Eighty-sixth Amendment) Act 2002, inserting article 21A making free and compulsory education for children of six to fourteen years a fundamental right, recasting article 45 for children below six, and adding the duty in article 51A(k). A directive became a judicially recognised right and then a written one.

A worked example

A State enacts a law requiring every employer of more than fifty workers to provide a creche, and fixing the minimum wage of workers in a scheduled employment at a level several employers say will make their businesses unviable. The employers challenge it under article 19(1)(g).

The employers' point is a real one and must be stated fairly. Article 19(1)(g) guarantees the right to carry on any trade or business, and a wage that makes a business unviable restricts it.

The State's answer runs through article 19(6), not through Part IV directly. Article 19(6) permits reasonable restrictions in the interests of the general public. The question is therefore whether this restriction is reasonable, and that is where the Directive Principles do their work: article 42 requires provision for just and humane conditions of work and for maternity relief, and article 43 requires a living wage. A restriction that gives effect to an express constitutional directive is much more readily found reasonable.

Now note what the State cannot say. It cannot say that because article 43 is fundamental in the governance of the country the law is immune from article 19. Since Minerva Mills the only surviving priority is the original article 31C, and that covers only articles 39(b) and (c), which is about material resources and concentration of wealth, not about wages.

And note what a court will not do. It will not order the State to fix a living wage, because article 37 makes the directive unenforceable. It will hold that a State which has fixed one has acted reasonably. That asymmetry is the whole practical meaning of Part IV.

Distinctions

What it does NOT mean

It does not mean the Directive Principles are legally irrelevant. They construe statutes, they colour the reasonableness of restrictions, and they have supplied the content of article 21 in a long line of cases.

It does not mean a citizen can sue to enforce one. Article 37 says so in terms, and Champakam Dorairajan applied it.

It does not mean Part IV is subordinate to Part III today. Champakam said subsidiary; Minerva Mills replaced that with harmony and balance, and made the harmony itself a basic feature.

And it does not mean every directive is equally protected. Only articles 39(b) and (c) enjoy the article 31C priority, and only against articles 14 and 19.

Quick revision

Part IV is articles 36 to 51. Article 37: not enforceable by any court, yet fundamental in the governance of the country, and it is the duty of the State to apply them in making laws. Modelled on the Irish Constitution 1937. Key articles: 38, 39, 39A, 40, 41, 42, 43, 43A, 43B, 44, 45, 46, 47, 48, 48A, 49, 50 and 51. Champakam Dorairajan 1951: the directives run subsidiary to Part III, and the First Amendment answered it by inserting article 15(4). Article 31C 1971 gave laws under articles 39(b) and (c) immunity from articles 14 and 19; Kesavananda upheld that and struck down the clause barring judicial inquiry; the Forty-second Amendment widened it to all directives and Minerva Mills struck the widening down, holding the harmony between Parts III and IV a basic feature. Olga Tellis reads livelihood into article 21 through articles 39(a) and 41; Unni Krishnan reads education into article 21 through articles 41 and 45, and the Eighty-sixth Amendment 2002 then inserted article 21A.

Test yourself

1. What does article 37 say, in its own terms? That the provisions of Part IV shall not be enforceable by any court, but that the principles are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply them in making laws.

2. What did Champakam Dorairajan decide, and what was Parliament's answer? That a communal Order allocating college seats by community violated article 29(2), and that the Directive Principles must run subsidiary to the fundamental rights. Parliament answered with the First Amendment 1951, inserting article 15(4).

3. Trace article 31C through its two versions. As inserted in 1971 it protected laws giving effect to articles 39(b) and (c) from articles 14 and 19 and barred any inquiry into whether the law gave effect to that policy; Kesavananda upheld the first limb and struck down the second. The Forty-second Amendment widened it to all directives, and Minerva Mills struck that widening down.

4. Name three ways an unenforceable directive still decides a case. By construing an ambiguous statute; by making a restriction on a fundamental right more readily found reasonable; and by supplying content to article 21, as in Olga Tellis and Unni Krishnan.

5. How did the right to education travel from Part IV to Part III? Unni Krishnan read it into article 21 in the light of articles 41 and 45; the Eighty-sixth Amendment 2002 then inserted article 21A making free and compulsory education for children of six to fourteen a fundamental right, recast article 45, and added the duty in article 51A(k).

6. State the settled relationship between Parts III and IV. They are complementary, neither being superior to the other, and the harmony and balance between them is itself part of the basic structure: Minerva Mills.

They are used in construction. Where an article is capable of two meanings, a construction that furthers a fundamental duty is preferred.

They may be enforced by a statute, and this is the point students miss. The duties themselves are not enforceable, but nothing prevents a legislature from making a duty a legal obligation. The Prevention of Insults to National Honour Act 1971, which predates article 51A, penalises disrespect to the National Flag and the Constitution, and clause (a) now supports it.

And they may be the foundation of a direction under article 32 or 226. Courts have relied on clause (g) in environmental litigation, where the duty of the citizen is read alongside article 48A's directive to the State.

A worked example

A State enacts a law making it an offence, punishable with a fine, for any person to fail to sing the National Anthem when it is played at a public function. A citizen who stands respectfully but does not sing is prosecuted. Is the law valid?

The State will point at clause (a) and it is entitled to. Respect for the National Anthem is a fundamental duty, so the object is a constitutional one, and the Prevention of Insults to National Honour Act shows that Parliament may legislate in this field.

But the citizen's answer is the whole of the chapter. A fundamental duty is not an exception to a fundamental right. Article 19(1)(a) includes the freedom not to speak, and article 25 protects a conscientiously held religious belief. A duty in article 51A does not by itself authorise a restriction; the restriction must still find a ground in article 19(2) and must still be reasonable.

And the case has actually been decided. In Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748; (1986) 3 SCC 615, decided on 11 August 1986. Facts. Three children of Jehovah's Witnesses in a Kerala school stood respectfully when the anthem was sung but did not join in, because their faith forbade them to sing any anthem, and they were expelled. Held. The expulsion violated articles 19(1)(a) and 25: the question is not whether a belief appeals to the court's reason or sentiment but whether it is genuinely and conscientiously held as part of the profession or practice of religion; the children had not been disrespectful, and no provision of law obliged anyone to sing. Why it matters here is that it is the clearest statement that a duty in article 51A cannot be used to cut down a right in Part III.

The cases

A duty may support a curriculum choice. In Aruna Roy v. Union of India, AIR 2002 SC 3176; (2002) 7 SCC 368, decided on 12 September 2002. Facts. A challenge under article 32 to the National Curriculum Framework for School Education, mainly on the ground that it introduced religious instruction into State schools contrary to article 28. Held. The study of religions for the purpose of value education is distinct from religious instruction in a particular religion, and dismissed the petition; and it reasoned in part from the fundamental duties, clause (e) on harmony and common brotherhood and clause (f) on the composite culture, as supporting an education that teaches children about the religions of their fellow citizens. Why it matters here is that it shows the duties operating as an aid to construction rather than as a command.

And a duty may reinforce a public trust. In M.C. Mehta v. Kamal Nath, (1997) 1 SCC 388. Facts. A private company with which a Minister's family was connected had been granted forest land on the bank of the Beas and had used earth-moving machinery to divert the river's course to protect a motel from flooding. Held. The State is the trustee of natural resources such as rivers, forests, air and the sea, which are meant for public use, and that the public trust doctrine is part of Indian law; the lease was quashed and the motel was directed to restore the environment and pay compensation. Why it matters here is that the reasoning treats the protection of the environment as a shared obligation, and article 51A(g) makes it a duty of every citizen while article 48A makes it a directive to the State.

Distinctions

What it does NOT mean

It does not mean a citizen can be punished under article 51A. The article creates no offence. Punishment requires a statute, and the statute must independently survive Part III.

It does not mean a duty overrides a right. Bijoe Emmanuel is the answer, and it is the point examiners look for.

It does not mean the duties are meaningless. They support legislation, guide construction and have been relied on in environmental and public-property litigation.

And it does not mean there are ten of them. There are eleven, and the eleventh arrived in 2002 with article 21A as part of the same amendment.

Quick revision

Part IVA, article 51A alone, inserted by the Forty-second Amendment 1976 on the Swaran Singh Committee's recommendation, with ten clauses; clause (k), the parent's or guardian's duty to provide education to a child of six to fourteen, added by the Eighty-sixth Amendment 2002, making eleven. Not enforceable against a citizen and creating no offence. Their legal uses: they support a statute enforcing them, they guide construction, and they may found a direction in public interest litigation. Clause (c), sovereignty, unity and integrity, and clause (e), harmony transcending religious, linguistic and regional diversities, are the two this paper uses most. Bijoe Emmanuel: a duty cannot cut down articles 19(1)(a) and 25. Aruna Roy: clauses (e) and (f) support teaching about religions as value education. M.C. Mehta v. Kamal Nath: the public trust doctrine, alongside article 48A and clause (g).

Test yourself

1. How many fundamental duties are there, and when did the last one arrive? Eleven. Ten were inserted by the Forty-second Amendment 1976; clause (k), the duty of a parent or guardian to provide educational opportunities to a child between six and fourteen, was added by the Eighty-sixth Amendment 2002.

2. Are the duties enforceable, and what follows? No court enforces them against a citizen and article 51A creates no offence. A legislature may enact a law giving effect to a duty, and that law is more readily found to be a reasonable restriction, but it must still satisfy Part III on its own.

3. Which case shows that a duty cannot override a right? Bijoe Emmanuel v. State of Kerala, where children who stood respectfully but did not sing the National Anthem were held protected by articles 19(1)(a) and 25 despite the duty in clause (a).

4. Name the two clauses most relevant to this paper and say why. Clause (c), to uphold and protect the sovereignty, unity and integrity of India, which is the "integrity" of the Preamble question; and clause (e), to promote harmony transcending religious, linguistic and regional diversities and to renounce practices derogatory to the dignity of women, which is pluralism stated as a citizen's duty.

5. Give one example of a statute that enforces a fundamental duty. The Prevention of Insults to National Honour Act 1971, which penalises disrespect to the National Flag and the Constitution and is supported by clause (a), although it predates article 51A.

6. How were the duties used in Aruna Roy? As an aid to construction: clauses (e) and (f), on harmony and on the composite culture, supported the view that teaching children about the religions of their fellow citizens is value education rather than the religious instruction article 28 forbids.

The consequence was that article 21 protected very little. If Parliament enacted a procedure, however summary, that procedure was by definition the procedure established by law. The article guaranteed the form of legality and nothing about its content.

Maneka: due process without the words

In Maneka Gandhi v. Union of India, AIR 1978 SC 597. Facts. The petitioner's passport was impounded under section 10(3)(c) of the Passports Act 1967 "in the interests of the general public", without reasons and without a hearing. Held. Three things. First, that articles 14, 19 and 21 are not mutually exclusive but form a single scheme, so a law depriving a person of personal liberty must answer the tests of all three: it must not be arbitrary (article 14), it must be a reasonable restriction on any freedom in article 19 that it touches, and it must prescribe a fair procedure (article 21). Second, that the procedure established by law must be right, just and fair, and not arbitrary, fanciful or oppressive, and that a procedure which is arbitrary is no procedure at all. Third, that the right to travel abroad is part of personal liberty.

The effect is that the Indian article now does the work of the American clause. The words were not amended; the reading changed.

How far the change has gone since

Life means more than animal existence. In Francis Coralie Mullin v. Administrator, Union Territory of Delhi, AIR 1981 SC 746. Facts. A detenu's complaint about restrictions on interviews with her lawyer and family under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Held. The right to life includes the right to live with human dignity and all that goes with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing oneself in diverse forms, and that any act which damages or injures or interferes with the use of any limb or faculty, permanently or temporarily, would be within the inhibition of article 21. Why it matters here is that it converts article 21 from a protection against unlawful procedure into a substantive guarantee.

And the substance of a law is now examined under article 21. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161. Facts. A reference to nine judges on whether the Constitution guarantees a right to privacy, earlier decisions having said it did not. Held. Unanimously that the right to privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and as part of the freedoms in Part III, and that an invasion of it must satisfy legality, a legitimate State aim and proportionality. Why it matters here is that a proportionality test is substantive review: it asks not only whether the procedure was fair but whether the measure was a necessary and balanced way of achieving its object.

Even so, the Court has not abandoned the distinction. In Bachan Singh v. State of Punjab, AIR 1980 SC 898. Facts. A challenge to the constitutionality of the death penalty for murder and to the sentencing procedure. Held, by four to one. The death penalty is not unconstitutional, that it may be imposed only in the rarest of rare cases when the alternative option is unquestionably foreclosed, and that the sentencing procedure in section 354(3) of the Code of Criminal Procedure, requiring special reasons, satisfies article 21. Bhagwati J. dissented. Why it matters here is that the Court applied a demanding article 21 standard and still upheld the law, which shows that reading due process into article 21 is not the same as substituting the Court's view of policy.

A worked example

A statute empowers a District Magistrate to order a person to leave a district for six months if satisfied that the person's presence is likely to cause a breach of the peace. No notice is required, no reasons need be recorded, and the order is final. Test it under both readings.

Under the Gopalan reading the statute survives. There is a law; it lays down a procedure, namely the Magistrate's satisfaction and an order; and the procedure was followed. Article 21 asks nothing more, and article 19 does not apply to a person lawfully restrained.

Under the Maneka reading the statute fails three times over. Article 21 requires a procedure that is right, just and fair, and a procedure with no notice, no hearing and no reasons is none. Article 19(1)(d), the right to move freely throughout the territory of India, is engaged, and the restriction must be reasonable under article 19(5). Article 14 is engaged because a satisfaction that need not be explained cannot be shown not to be arbitrary.

And under Puttaswamy there is a fourth question. Even a law with notice and reasons must be proportionate: is externment for six months a necessary and balanced means of preventing a breach of the peace, when binding over under the ordinary criminal law is available?

The example shows the whole arc of the topic in one statute, and it is why a student should be able to answer this question by tracing a single set of facts through 1950, 1978 and 2017.

Distinctions

What it does NOT mean

It does not mean the Constitution was amended. The words of article 21 are as they were in 1950. What changed is the reading, which is worth stating because it shows how much of constitutional law is interpretation rather than text.

It does not mean Gopalan is wrong in every respect. Preventive detention remains constitutionally permissible under article 22, and the specific holding upholding the Preventive Detention Act 1950 was of its time.

It does not mean article 21 now permits a court to strike down any law it thinks unwise. Bachan Singh upheld the death penalty applying a demanding standard, and the Court has repeatedly said that reasonableness is not the same as agreement.

And it does not mean the Assembly was wrong to choose as it did. The objection Frankfurter J. raised, that an undefined due process clause transfers policy to unelected judges, is the same objection made today to expansive readings of article 21, and a good answer notes that the debate did not end in 1949.

Quick revision

Article 21: no person shall be deprived of his life or personal liberty except according to procedure established by law. The phrase comes from article 31 of the Japanese Constitution 1946 and was preferred to "due process of law" on Frankfurter J.'s advice conveyed through B. N. Rau, because due process gives unelected judges power over the substance of legislation. A.K. Gopalan 1950: the rights are separate compartments and the phrase means any duly enacted procedure; Fazl Ali J. dissented. Maneka Gandhi 1978: articles 14, 19 and 21 form a single scheme, the procedure must be right, just and fair, and an arbitrary procedure is no procedure at all. Francis Coralie Mullin: life means living with human dignity. Puttaswamy 2017: privacy is part of article 21 and an invasion must satisfy legality, legitimate aim and proportionality, which is substantive review. Bachan Singh: the death penalty is constitutional, rarest of rare, which shows the standard is demanding but not a policy veto.

Test yourself

1. Where does the phrase "procedure established by law" come from, and why was it chosen? From article 31 of the Japanese Constitution 1946. It was preferred to "due process of law" on the advice of Frankfurter J., conveyed to B. N. Rau, that due process is undemocratic because it gives unelected judges power to strike down social legislation, and burdensome on the judiciary.

2. What did Gopalan make of the phrase? That the fundamental rights are separate and self-contained, that a preventive detention law is tested against article 22 alone, and that the phrase means procedure laid down by a duly enacted law rather than procedure a court would find fair.

3. State the three holdings in Maneka Gandhi. That articles 14, 19 and 21 form a single scheme and a law depriving liberty must satisfy all three; that the procedure must be right, just and fair and not arbitrary, fanciful or oppressive, an arbitrary procedure being no procedure at all; and that the right to travel abroad is part of personal liberty.

4. Distinguish procedural from substantive due process, and say where each now lives in India. Procedural asks whether there was notice, a hearing and an impartial adjudicator, and lives in article 21 after Maneka. Substantive asks whether the law itself is reasonable and proportionate, and lives in article 21 read with articles 14 and 19 and in the proportionality test of Puttaswamy.

5. Does the adoption of due process reasoning mean a court may strike down an unwise law? No. Bachan Singh upheld the death penalty while applying a demanding article 21 standard, and the Court has repeatedly distinguished unreasonableness from disagreement with policy.

6. Why is this topic a good illustration of constitutionalism? Because the same words produced almost no limit on government in 1950 and a very strong one after 1978, which shows that a written limit is only as strong as the institution reading it.

The three kinds of judicial review

Review of legislation. Is the statute within the legislature's competence, and does it contravene Part III or any other constitutional limitation?

Review of executive action. Was the act within a conferred power, was the prescribed procedure followed, was it exercised for the purpose for which it was given, and does it satisfy articles 14 and 21?

Review of a constitutional amendment. Does it damage or destroy the basic structure? This is the Indian addition, worked in [The Basic Structure Doctrine].

The standards a court applies, and the standard it does not

Competence. Read the entries. This is the federal ground and it is examined in [Pith and Substance, Colourable Legislation and Incidental Encroachment].

Consistency with Part III. Does the law restrict a right, and if so is the restriction within a permitted ground and reasonable?

Arbitrariness. After E.P. Royappa and Maneka Gandhi, arbitrary State action offends article 14 without any comparator being needed.

Proportionality, where a right is invaded: legality, a legitimate aim, a rational connection, necessity, and a balance between the harm and the benefit. This is the Puttaswamy formulation.

But not the wisdom of the policy. In Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899. Facts. The case concerned admissions to a medical college and how far a court could examine the government's selection policy. Held. Although the doctrine of separation of powers is not recognised in India in its absolute rigidity, the Constitution has sufficiently delineated the functions of the three organs, and that while the judiciary determines the legality of legislative and executive action it cannot sit in judgment over the wisdom of policy. Why it matters here is that it supplies the answer to the standard criticism that judicial review is undemocratic: the power is over legality, not over choice.

A worked example

Parliament enacts the Financial Disputes Tribunal Act, which creates a tribunal to decide all disputes between banks and borrowers, staffs it with retired civil servants appointed by the Central Government, and provides that its decisions shall be final and that no High Court shall entertain any petition in respect of any matter within its jurisdiction. A borrower challenges the Act.

Take the competence point first, because it is quickly answered. Banking is Entry 45 of List I, so Parliament may legislate, and article 323B permits tribunals for specified matters. Competence is not the problem.

Then take the exclusion of the High Courts, which is the real question. Article 226 is a constitutional power of the High Court, and the power of judicial review vested in the High Courts under article 226 and in the Supreme Court under article 32 is part of the basic structure. A statute cannot remove it.

Then take the composition, which is a separate and equally fatal objection. A tribunal replacing a court must be a real substitute for it: members appointed by the executive, without judicial members, deciding disputes to which public sector banks are party, does not satisfy the independence that judicial review presupposes.

And note what the answer is not. The tribunal is not unconstitutional because tribunals are a bad idea, and a court will not say so. It is unconstitutional because two identified constitutional limits are crossed, and that discipline is what separates a lawyer's answer from a commentator's.

The cases

Judicial review is part of the basic structure. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225. Facts. A challenge to Kerala land reform legislation which widened into the validity of the Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. Held. Parliament may amend any part of the Constitution but may not alter its basic structure, and it struck down that part of article 31C which barred any inquiry into whether a law in fact gave effect to the policy in article 39(b) or (c), precisely because such a bar would have made the legislature's declaration conclusive and removed review. Why it matters here is that judicial review is thereby beyond the reach of the amending power, which is the strongest form the doctrine can take anywhere.

A tribunal may substitute for a High Court only if it is a real substitute. In S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386. Facts. A challenge to the Administrative Tribunals Act 1985, which excluded the jurisdiction of the High Courts in service matters and vested it in tribunals. Held. The Act was valid subject to modifications, on the footing that the tribunal was an effective alternative institutional mechanism or authority for judicial review, and it directed changes to the composition and appointment provisions so that the tribunal would be a genuine substitute for the High Court. Why it matters here is that it accepted the exclusion of article 226 on the theory of a substitute, and that theory did not survive.

Because the High Court's power itself is basic. In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125. Facts. A reference to seven judges on the constitutional validity of clause 2(d) of article 323A and clause 3(d) of article 323B, which permitted the exclusion of the jurisdiction of the High Courts, and of section 28 of the Administrative Tribunals Act. Held. The power of judicial review vested in the High Courts under articles 226 and 227 and in the Supreme Court under article 32 is an integral and essential feature of the Constitution and part of the basic structure; that those clauses, to the extent they exclude that jurisdiction, are unconstitutional; and that tribunals will continue to function as courts of first instance, with their decisions subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the tribunal falls. Why it matters here is that it is the law today, and it overrules the substitute theory of Sampath Kumar on this point.

And review does not run against a judicial order of a superior court. In Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1. Facts. A High Court judge had orally directed that the evidence of a witness in a defamation suit should not be published, and journalists moved the Supreme Court under article 32 saying the order violated article 19(1)(a). Held, by a majority of nine judges. A judicial order of a competent court cannot be said to violate a fundamental right and is not amenable to a petition under article 32; the remedy against such an order is an appeal, not a writ. Why it matters here is that it fixes an important boundary: judicial review is review of legislative and executive action, and a wrong judicial order is corrected by appeal.

Distinctions

What it does NOT mean

It does not mean judicial supremacy. Parliament may amend the Constitution, including to answer a judgment, and has done so many times; what it may not do is destroy a basic feature.

It does not mean the courts may review anything. Article 122 and article 212 bar review of legislative procedure for irregularity; article 361 protects the President and Governors; the tenth Schedule limits review of a Speaker's decision to the grounds identified in Kihoto Hollohan; and a policy choice is reviewable for legality, not wisdom.

It does not mean an exclusion clause is always void. A statute may confine a remedy, provide for a tribunal, or prescribe a limitation period. What it may not do is exclude articles 32, 226 and 227 altogether.

And it does not mean every error is a constitutional one. Most judicial review is ordinary administrative law, and the constitutional questions arise only where a right or a federal limit is touched.

Quick revision

Judicial review is written into the Indian Constitution rather than inferred: articles 13, 32, 131, 136, 226, 227, 245 and 246, supported by articles 141, 142, 145 and 147. Three kinds: of legislation, of executive action, and of constitutional amendments. Standards: competence, consistency with Part III, arbitrariness under article 14, and proportionality where a right is invaded; not the wisdom of policy (Asif Hameed). Kesavananda Bharati makes judicial review part of the basic structure and strikes down the clause of article 31C that barred inquiry. S.P. Sampath Kumar accepted a tribunal as an alternative institutional mechanism; L. Chandra Kumar holds the power of the High Courts under articles 226 and 227 and of the Supreme Court under article 32 to be part of the basic structure, so articles 323A(2)(d) and 323B(3)(d) are unconstitutional so far as they exclude it, and tribunal decisions go to a Division Bench of the High Court. Naresh Shridhar Mirajkar: a judicial order of a superior court is not challengeable under article 32.

Test yourself

1. Name six articles that confer judicial review and say what each contributes. Article 13, which voids a law inconsistent with Part III; article 32, the guaranteed remedy in the Supreme Court; article 226, the wider writ power of a High Court; article 227, superintendence over courts and tribunals; article 246 with the Seventh Schedule, legislative competence; and article 136, discretionary special leave.

2. How does the Indian source of the power differ from the American? In the United States the power was inferred from the structure of the Constitution in Marbury v. Madison. In India it is conferred by express provisions, which is why an Indian court does not have to justify its existence before exercising it.

3. What did L. Chandra Kumar decide, and what did it displace? That the power of judicial review of the High Courts under articles 226 and 227 and of the Supreme Court under article 32 is part of the basic structure, so the clauses permitting its exclusion are unconstitutional and tribunal decisions are subject to review by a Division Bench of the High Court. It displaced the alternative-institutional-mechanism theory on which S.P. Sampath Kumar had upheld the exclusion.

4. Can a judicial order of a High Court be challenged under article 32? No. Naresh Shridhar Mirajkar holds that a judicial order of a competent court does not violate a fundamental right for this purpose and the remedy is an appeal.

5. State the four standards of review and the one question a court will not ask. Competence, consistency with Part III, arbitrariness under article 14, and proportionality where a right is invaded. A court will not ask whether the policy was wise: Asif Hameed.

6. Why is judicial review called the cornerstone of the Constitution? Because every other constitutional limit depends on it. Rights, the division of legislative power, the limits on the executive and the limits on the amending power are all statements about what may not be done, and none of them has any legal consequence unless a court can declare an act that crosses them invalid.

By special majority under article 368(2). The general rule.

By special majority with ratification by half the States. The proviso, which is the federal safeguard and matters again in Module I topic 2.

This threefold classification was set out in Sankari Prasad itself, and stating it is usually worth a mark because most answers give only the second.

The sequence, with dates

1951: the First Amendment and Sankari Prasad. The Constitution (First Amendment) Act 1951 inserted articles 31A and 31B and the Ninth Schedule to protect agrarian reform legislation from challenge under Part III. In Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar, AIR 1951 SC 458; 1952 SCR 89, decided on 5 October 1951. Facts. A challenge by zamindars whose estates had been abolished by the Bihar, Uttar Pradesh and Madhya Pradesh land reform Acts, arguing that a constitutional amendment is "law" within article 13(2) and so cannot take away a fundamental right. Held. The amendment valid: it set out the three classes of amendment above, and held that "law" in article 13(2) means ordinary legislative law made in exercise of legislative power and not a constitutional amendment made in exercise of constituent power. Why it matters here is that it is the foundation, and its distinction between legislative and constituent power is the one the Twenty-fourth Amendment later wrote into the text.

Why the land reform cases mattered so much. In The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga, AIR 1952 SC 252; 1952 SCR 889. Facts. A challenge to the Bihar Land Reforms Act 1950. Held. Most of the Act valid but struck down section 4(b), which required half the arrears of rent collected by a proprietor to be deposited in the State treasury, as a fraud on the Constitution: the provision purported to be compensation while in substance taking the proprietor's own money. Why it matters here is that it shows why the political branch wanted the Ninth Schedule: even after the First Amendment, courts were finding ways to examine land legislation, and each judicial success produced another amendment.

1964: Sajjan Singh and the doubts. In Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845; 1965 (1) SCR 933, decided on 30 October 1964. Facts. A challenge to the Constitution (Seventeenth Amendment) Act 1964, which added a large number of State land laws to the Ninth Schedule; the argument was that it affected article 226 and therefore needed ratification under the proviso. Held. The amendment valid, following Sankari Prasad: the amendment did not seek to make any change in article 226, so the proviso did not apply. Why it matters here is not the holding but the doubts. Mudholkar J. asked whether the Constitution has "basic features" and whether a two-thirds majority of the two Houses is all that is needed to alter the Preamble; Hidayatullah J. also doubted whether the fundamental rights were intended to be the plaything of a special majority. Those two paragraphs are the seed of the basic structure doctrine.

1967: Golak Nath reverses. In I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643. Facts. A challenge by a family whose land was affected by the Punjab Security of Land Tenures Act, which had been placed in the Ninth Schedule by the Seventeenth Amendment. Held, by six to five. Fundamental rights cannot be abridged or taken away by the amending procedure in article 368, because an amendment to the Constitution is "law" within article 13(2) and is therefore subject to Part III; Sankari Prasad and Sajjan Singh were overruled on that point. To avoid unsettling amendments already made and acted upon, the Court applied the doctrine of prospective overruling, so the decision operated only for the future. Why it matters here is that it produced a rigid position, that Part III could never be amended at all, which was itself unworkable: it would have frozen the reservation provisions and the land reform settlement permanently.

1971: Parliament answers. The Constitution (Twenty-fourth Amendment) Act 1971 inserted article 368(1) and (3) and amended article 13 by adding clause (4), so that article 13 does not apply to an amendment and the amending power is expressly a constituent power. The Twenty-fifth Amendment inserted article 31C.

1973: Kesavananda settles it, and that is the next chapter.

A worked example

Parliament passes an amendment adding a new entry to List I of the Seventh Schedule, transferring a subject from the State List, and passes it with a majority of the total membership of each House and two-thirds of those present and voting. Ten States object. Is the amendment valid?

The special majority is not enough, and the reason is the proviso. An amendment making a change in "any of the Lists in the Seventh Schedule" falls within the proviso to article 368(2), so it must also be ratified by the legislatures of not less than one-half of the States by resolutions to that effect, before the Bill is presented for assent.

Now vary the facts to test whether the student has read the proviso or memorised a list. Suppose the amendment instead alters the manner of electing the President. Article 54 is expressly in the proviso, so ratification is again required. Suppose it alters the qualifications of a High Court judge. Chapter V of Part VI is in the proviso, so again yes. Suppose it changes the number of members of the Council of States allotted to a State. That is the representation of States in Parliament, so again yes.

And suppose it simply raises the salary of a judge. Not in the proviso, so the special majority alone suffices.

Notice what the proviso is doing constitutionally. It is the federal element in the amending power: the matters entrenched are those that define the federal bargain, and they cannot be altered by the Union's own legislature acting alone. That connects this chapter directly to Module I topic 2.

Distinctions

What it does NOT mean

It does not mean India has an easily amendable Constitution. The special majority, plus State ratification for the entrenched matters, plus the basic structure, is a demanding combination even though the Constitution has been amended over a hundred times.

It does not mean Golak Nath is wholly of historical interest. The prospective overruling technique it introduced is still used, and its concern, that a special majority should not be able to remove a right, is what Kesavananda answered in a workable form.

It does not mean the Twenty-fourth Amendment settled the matter. It removed Golak Nath's textual footing, which is why Kesavananda had to reason from the nature of a conferred power instead.

And it does not mean an amendment is immune because it was passed correctly. Procedure is necessary and not sufficient, which is the whole point of the next chapter.

Quick revision

Article 368(1): Parliament may in exercise of its constituent power amend by addition, variation or repeal any provision. Clause (2): majority of the total membership of each House and two-thirds present and voting; the proviso adds ratification by half the States for articles 54, 55, 73, 162, 241, Chapter IV of Part V, Chapter V of Part VI, Chapter I of Part XI, the Seventh Schedule, the representation of States and article 368 itself. Clause (3): article 13 does not apply to an amendment. Three routes: simple majority outside 368; special majority; special majority with ratification. Sankari Prasad 1951: an amendment is not "law" under article 13(2). Kameshwar Singh 1952: section 4(b) of the Bihar Act struck down as a fraud on the Constitution. Sajjan Singh 1964: followed, with Mudholkar J.'s "basic features" doubt. Golak Nath 1967: an amendment is "law", Part III unamendable, prospective overruling. Twenty-fourth Amendment 1971 reverses the textual basis. Kesavananda 1973 settles it.

Test yourself

1. State the three routes by which the Constitution may be changed. By ordinary law outside article 368, as under articles 4 and 169; by the special majority in article 368(2); and by that majority plus ratification by not less than half the State legislatures for the matters in the proviso.

2. What exactly is the special majority? A majority of the total membership of each House, and a majority of not less than two-thirds of the members of that House present and voting.

3. What did Sankari Prasad decide and on what reasoning? That the First Amendment was valid, because "law" in article 13(2) means ordinary legislative law made in exercise of legislative power and does not include a constitutional amendment made in exercise of constituent power.

4. Why is Sajjan Singh important if it merely followed Sankari Prasad? Because of the doubts recorded in it. Mudholkar J. asked whether the Constitution has basic features and whether a two-thirds majority may alter the Preamble, and Hidayatullah J. doubted whether the fundamental rights were meant to be at the mercy of a special majority. Those passages are the origin of the basic structure doctrine.

5. What did Golak Nath hold, and what technique did it invent to soften the result? That an amendment is "law" within article 13(2), so Part III cannot be abridged by amendment, overruling the two earlier cases on that point. It applied prospective overruling so that amendments already made and acted upon were not disturbed.

6. How did Parliament answer Golak Nath, and why was that not the end of the argument? By the Twenty-fourth Amendment 1971, which inserted article 368(1) and (3) and article 13(4), making the power expressly constituent and putting amendments outside article 13. It was not the end because the objection then shifted from the text to the nature of a conferred power, which is the ground Kesavananda decided on.

Held. The Twenty-fourth Amendment was valid, so Parliament may amend any part of the Constitution including Part III, and Golak Nath was overruled to that extent; but that the amending power under article 368 does not extend to altering the basic structure or framework of the Constitution. The Twenty-ninth Amendment was upheld, article 31B being a constitutional device to place specified statutes beyond attack on the ground of inconsistency with Part III. On article 31C, the first part was upheld and the second part, which barred any court from inquiring whether a law in fact gave effect to the policy in article 39(b) or (c), was struck down, because a conclusive legislative declaration would have removed judicial review.

The margin and the mechanics are worth knowing. Thirteen judges heard the case over sixty-eight days; eleven separate opinions were delivered; the majority on the basic structure was seven to six; and the operative conclusions were recorded in a signed statement to which nine judges subscribed.

Why it matters is that it is the single most consequential decision in Indian constitutional law. It preserved the amending power that Golak Nath had denied, and it supplied a limit that Sankari Prasad and Sajjan Singh had not.

What is in the basic structure

There is no exhaustive list, deliberately. Sikri C.J. and other judges gave illustrative enumerations and the Court has added to them since. What follows is what the judgments and later cases have actually held.

From Kesavananda itself: the supremacy of the Constitution; the republican and democratic form of government; the secular character of the Constitution; the separation of powers between the legislature, the executive and the judiciary; the federal character of the Constitution; the sovereignty and territorial integrity of India; the dignity of the individual secured by the fundamental rights; the mandate to build a welfare State contained in the Directive Principles; the unity and integrity of the nation; and the parliamentary system of government.

Added by later decisions, each of which is worked in [Basic Structure After Kesavananda]: the rule of law and free and fair elections (Indira Nehru Gandhi); the limited nature of the amending power itself and the harmony between Parts III and IV (Minerva Mills); judicial review by the High Courts under article 226 and the Supreme Court under article 32 (L. Chandra Kumar); the power of judicial review over Ninth Schedule laws by the rights test (I.R. Coelho); and secularism as an operative standard (S.R. Bommai).

What is NOT basic is equally examinable. A particular article is not basic merely because it is important. The Court has repeatedly said the test is whether the identity of the Constitution is altered, not whether a valued provision is changed.

A worked example

Parliament passes an amendment providing that the President shall hold office for life, that no election shall be held for the office, and that the amendment shall not be called in question in any court. It is passed by the special majority and ratified by twenty States. Analyse it.

The procedure is faultless, and the answer must start by conceding that. Article 54 and article 55 are in the proviso to article 368(2), and ratification by more than half the States has been obtained. A candidate who answers "it was not properly passed" has misread the question.

The first feature damaged is the republican form of government. A head of State holding office for life without election is not the republic the Preamble names and Kesavananda identified as basic.

The second is free and fair elections, which Indira Nehru Gandhi added to the list.

The third is judicial review, because the ouster clause removes the courts, and L. Chandra Kumar holds review under articles 32 and 226 to be basic.

And the fourth is the limited nature of the amending power itself, because an amendment that cannot be examined has converted a limited power into an unlimited one, which Minerva Mills forbids.

Note the structure of the answer. Concede the procedure, identify the features one by one, name the case for each, and conclude. That is the shape MU's 2016 stem is asking for.

The correction MU's stem needs

The doctrine was made for amendments, and that is where it has full force. An amendment damaging a basic feature is void however correctly it was passed.

For ordinary legislation the position is different and narrower. An ordinary statute is already subject to the whole Constitution: it must be within the legislature's competence and must not contravene Part III or any other provision. The Supreme Court has said that an ordinary law cannot be struck down merely for offending the basic structure in the abstract, because the basic structure doctrine is a limit on constituent power, and the challenge to an ordinary law must be located in a specific provision.

There is one important qualification, which is what makes the stem defensible. Where a basic feature is also embodied in a specific article, a statute violating that article is void, and the fact that the feature is basic strengthens the reading of the article. I.R. Coelho takes this further for Ninth Schedule laws: their validity is tested by the rights test, that is, by their actual effect on Part III rights.

For executive action the doctrine operates through article 14. An executive act contrary to the rule of law or to secularism is struck down as arbitrary or as unconstitutional under the relevant article, and S.R. Bommai shows a Proclamation being reviewed on the secularism ground.

Distinctions

What it does NOT mean

It does not mean Part III cannot be amended. Kesavananda expressly overruled Golak Nath on that point. Part III may be amended; what may not be done is to destroy a basic feature by doing so.

It does not mean every important provision is basic. The test is whether the identity of the Constitution is altered.

It does not mean the doctrine has no critics. The standard objections are that the Constitution nowhere authorises it, that "basic structure" has no fixed content, and that it transfers to unelected judges the final say over constitutional change. An answer that states these objections and then explains why the Court thought the alternative worse is a better answer than one that does not.

And it does not mean the doctrine is a general licence. It has been invoked far more often than it has succeeded, and the Court has upheld the great majority of the amendments challenged before it.

Quick revision

Kesavananda Bharati, 24 April 1973, thirteen judges, seven to six: Parliament may amend any part of the Constitution including Part III, overruling Golak Nath, but the amending power under article 368 does not extend to altering the basic structure or framework. Reasoning: article 368 is a conferred power; a power to amend is not a power to abrogate; the Constitution has a structure; an amendment damaging it is not an exercise of the power. The Twenty-ninth Amendment was upheld; the second part of article 31C, barring inquiry into whether a law gave effect to article 39(b) or (c), was struck down. Features named as basic include supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism, sovereignty and territorial integrity, the dignity of the individual, the welfare-State mandate of Part IV, and the parliamentary system. There is no closed list. For ordinary legislation the doctrine is not a free-standing ground; the challenge must be located in a provision, though I.R. Coelho applies the rights test to Ninth Schedule laws. For executive action it operates through article 14 and the relevant article, as in S.R. Bommai.

Test yourself

1. State the holding of Kesavananda Bharati in one sentence. That Parliament may amend any provision of the Constitution including Part III, but the amending power under article 368 does not extend to altering the basic structure or framework of the Constitution.

2. Set out the four steps of the reasoning. Article 368 is a conferred power; a power to amend is not a power to abrogate; the Constitution has a basic structure that gives it its identity; and an amendment damaging that structure is therefore outside the power altogether.

3. Why could the Twenty-fourth Amendment not defeat the doctrine? Because the doctrine does not depend on article 13. Parliament removed the textual argument that an amendment is "law", and the Court reasoned instead from the nature of a conferred power, which cannot be enlarged by exercising it.

4. Name six features held to be basic and a case for two of them. Supremacy of the Constitution, republican and democratic government, secularism, separation of powers, federalism and judicial review. Secularism as an operative standard: S.R. Bommai. Judicial review under articles 32 and 226: L. Chandra Kumar.

5. Is an ordinary statute void merely because it offends the basic structure? Not by itself. An ordinary law is already subject to competence and to every provision of the Constitution, so the challenge must be located in a specific provision; the basic structure doctrine is a limit on constituent power. I.R. Coelho qualifies this for Ninth Schedule laws by applying the rights test.

6. State two criticisms of the doctrine and the answer to them. That it has no textual basis and that "basic structure" has no fixed content, so it transfers final authority to unelected judges. The answer is that the alternative, an unlimited amending power, would allow a temporary two-thirds majority to replace the Constitution altogether, and that the Court has in practice upheld most amendments challenged before it.

Why it matters is that it closed the obvious escape route. Without it, a Parliament with a two-thirds majority could have amended away the doctrine itself.

1981: a date line across the Ninth Schedule

In Waman Rao v. Union of India, AIR 1981 SC 271. Facts. Challenges to Maharashtra land ceiling legislation placed in the Ninth Schedule, and the question was whether every entry in the Schedule was now open to attack on basic structure grounds.

Held. A line is drawn at the date of Kesavananda. Acts and Regulations placed in the Ninth Schedule by constitutional amendments made on or after 24 April 1973 are open to challenge on the ground that they damage or destroy the basic structure; amendments made before that date are not to be reopened.

Why it matters is practical. Hundreds of land reform statutes had been acted on for two decades, and reopening them would have unsettled titles across the country. The date line is a piece of judicial statesmanship rather than doctrine, and saying so is a good observation in an answer.

1992: reading down instead of striking down

In Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686. Facts. A challenge to the Tenth Schedule, inserted by the Fifty-second Amendment 1985, which disqualifies a member of a legislature for defection and, by paragraph 6(1), makes the decision of the Speaker or Chairman final; paragraph 7 barred the jurisdiction of all courts.

Held. Paragraph 7 invalid for want of ratification by the States under the proviso to article 368(2), since it affected the powers of the High Courts and the Supreme Court; and it upheld the rest of the Tenth Schedule while holding that the Speaker or Chairman, when deciding a disqualification, acts as a tribunal, so the decision is subject to judicial review, though only on limited grounds such as jurisdictional error, mala fides, non-compliance with natural justice and perversity, and not at an interlocutory stage.

Why it matters here is that it shows the doctrine's second mode. Rather than strike the Schedule down, the Court preserved it and removed the finality, which is the technique the courts prefer where the amendment has a legitimate object.

1997 and 2015: the courts themselves

In L. Chandra Kumar v. Union of India, AIR 1997 SC 1125, the Court held that the power of judicial review vested in the High Courts under articles 226 and 227 and in the Supreme Court under article 32 is an integral and essential feature of the Constitution and part of the basic structure, and that clause (2)(d) of article 323A and clause (3)(d) of article 323B, to the extent they exclude that jurisdiction, are unconstitutional; tribunals continue as courts of first instance, subject to review by a Division Bench of the High Court.

And in 2015 the doctrine reached the appointment of judges. In Supreme Court Advocates-on-Record Association v. Union of India. Facts. A challenge to the Constitution (Ninety-ninth Amendment) Act 2014 and the National Judicial Appointments Commission Act 2014, which replaced the collegium with a Commission consisting of the Chief Justice of India, the two next senior judges, the Union Minister for Law and Justice and two eminent persons. Held, by four to one. The Amendment and the Act were unconstitutional and void, because the primacy of the judiciary in the appointment of judges is an aspect of the independence of the judiciary, which is part of the basic structure, and the composition of the Commission and its veto mechanism impaired that primacy. Why it matters here is that it is the doctrine's most contested modern application: an amendment passed by both Houses with near unanimity and ratified by twenty States was struck down.

2007: the Ninth Schedule tested by its effect

In I.R. Coelho (Dead) by LRs v. State of Tamil Nadu, (2007) 2 SCC 1; AIR 2007 SC 861, decided on 11 January 2007 by nine judges. Facts. A Tamil Nadu Act struck down by the High Court had been placed in the Ninth Schedule by the Thirty-fourth Amendment, and the question was whether an entry made after 24 April 1973 was immune merely because article 31B says so.

Held. It is not. A law that abrogates or abridges rights guaranteed by Part III may or may not violate the basic structure; where it does, whether by amending an article of Part III or by insertion in the Ninth Schedule, it must be invalidated. Each new insertion is judged on its own merits by the actual effect and impact of the law on Part III rights, which is the rights test, and all amendments adding laws to the Ninth Schedule after 24 April 1973 are open to challenge.

Why it matters is that it completes Waman Rao: the date line said which entries could be challenged, and Coelho says how.

A worked example

Parliament, faced with a series of judgments quashing acquisitions, passes an amendment inserting a new article providing that no law relating to the acquisition of land for industrial purposes shall be called in question in any court on any ground, and placing forty such State Acts in the Ninth Schedule. It is passed by the special majority and ratified by half the States. Analyse it.

The ouster clause fails on Minerva Mills and L. Chandra Kumar. A provision barring every court on every ground removes judicial review, which is a basic feature, and it also converts a limited power into an unlimited one by removing the means of enforcing the limit.

The Ninth Schedule entries fall to be tested individually under Coelho, and this is the part students get wrong. They are not automatically void; nor are they automatically safe. Each is examined for its actual effect on Part III rights, and an Act which, for example, permits acquisition without any compensation and without any hearing may be found to damage articles 14 and 21 to a degree that offends the basic structure.

The date matters. Since the amendment is made after 24 April 1973, Waman Rao leaves the entries open; had they been inserted in 1972 they would not be reopened.

And the remedy would be partial. The ouster clause falls; the entries stand or fall one by one. That is the shape of a modern basic structure judgment, and it is worth saying so rather than concluding that the whole amendment is void.

Distinctions

What it does NOT mean

It does not mean the doctrine strikes down amendments often. Over fifty years and more than a hundred amendments, four have gone, and the Court has upheld far more than it has invalidated.

It does not mean the Ninth Schedule is dead. Entries made before 24 April 1973 are protected, and later ones are examined rather than presumed void.

It does not mean the doctrine is uncontroversial. The 2015 decision in particular is criticised on the ground that a court struck down an amendment about the appointment of its own members, and a good answer notes that the objection is a serious one.

And it does not mean the list of basic features is closed. It is not, by design, and the cases above added to it one at a time.

Quick revision

Indira Nehru Gandhi 1975: article 329A(4) void; adds the rule of law, free and fair elections and the separation of the judicial function. Minerva Mills 1980: article 368(4) and (5) void, the power to destroy is not a power to amend, a limited amending power is basic; the widened article 31C void, the harmony between Parts III and IV is basic. Waman Rao 1981: Ninth Schedule entries made on or after 24 April 1973 are open to challenge; earlier ones are not reopened. Kihoto Hollohan 1992: paragraph 7 of the Tenth Schedule void for want of ratification, and the Speaker acts as a tribunal so the decision is reviewable on limited grounds. L. Chandra Kumar 1997: judicial review under articles 226, 227 and 32 is basic, so articles 323A(2)(d) and 323B(3)(d) are unconstitutional so far as they exclude it. I.R. Coelho 2007: the rights test, the actual effect and impact of the law on Part III. Supreme Court Advocates-on-Record Association 2015: the Ninety-ninth Amendment and the NJAC Act void.

Test yourself

1. Which four constitutional amendments have been struck down on basic structure grounds? Article 329A(4) inserted by the Thirty-ninth Amendment; article 368(4) and (5) and the widened article 31C inserted by the Forty-second; the parts of articles 323A and 323B excluding the High Courts' jurisdiction; and the Ninety-ninth Amendment creating the National Judicial Appointments Commission.

2. What is the significance of 24 April 1973? It is the date of Kesavananda Bharati. Waman Rao held that Ninth Schedule entries made by amendments on or after that date are open to challenge for damaging the basic structure, and earlier entries are not to be reopened.

3. What is the rights test in I.R. Coelho? That the validity of each Ninth Schedule entry made after 24 April 1973 is judged on its own merits by the actual effect and impact of the law on the rights guaranteed by Part III, rather than by the form of the amendment.

4. How did Kihoto Hollohan use the doctrine differently? It read the Tenth Schedule down rather than striking it out: paragraph 7 fell for want of State ratification, and the Speaker's decision was held to be that of a tribunal and so reviewable on limited grounds, which preserved the anti-defection law while removing its finality.

5. Why was clause (4) of article 368 as fatal as clause (5)? Because a limit that no court may examine is not a limit. Clause (5) removed the limitation and clause (4) removed the means of enforcing it, and either alone would have converted a limited power into an unlimited one.

6. State the strongest criticism of the 2015 decision and a reply to it. That the Court struck down an amendment, passed with near unanimity and ratified by twenty States, concerning the appointment of its own members, so it was a judge in its own cause. The reply is that the independence of the judiciary is a basic feature and no other body could have decided the question, which is the standing difficulty with the doctrine rather than a defect peculiar to that case.

And the most contested. In Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1; AIR 2018 SC 4720. Facts. The exclusion of women between the ages of ten and fifty from the Sabarimala temple. Held, by four to one. The exclusion violated the rights of women devotees under articles 25(1) and 14, that devotees of Lord Ayyappa do not constitute a separate religious denomination under article 26, and that the exclusion was not an essential religious practice; Indu Malhotra J. dissented, holding that questions of essential religious practice ought not to be decided by courts and that the petitioners were not devotees. The majority reasoned in terms of constitutional morality, treating the exclusion as inconsistent with the dignity and equality the Constitution guarantees. Why it matters here is that the aftermath is part of the topic: a review was admitted and larger questions were referred, so the doctrine's limits are unsettled, and an answer should say so rather than treat the case as closed.

The doctrine has also removed an offence that protected a husband. In Joseph Shine v. Union of India, (2019) 3 SCC 39; AIR 2018 SC 4898. Facts. A challenge to section 497 of the Indian Penal Code, which made a man liable for adultery with another man's wife without her consent, exempted the woman from punishment even as an abettor, and allowed the husband's consent to make the act lawful. Held. The section unconstitutional as violating articles 14, 15 and 21: it treated a wife as her husband's property, denied her sexual autonomy, and rested on a stereotype rather than a rational classification. Why it matters here is that it shows constitutional morality applied to a law that had stood for a century and had substantial social support.

And the doctrine's foundation is the privacy judgment. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161. Facts. A reference to nine judges on whether the Constitution protects a right to privacy, earlier decisions having said it did not. Held. Unanimously that privacy is protected as an intrinsic part of the right to life and personal liberty under article 21 and of the freedoms in Part III, and that any invasion must satisfy legality, a legitimate State aim and proportionality. Why it matters here is that a right of the individual against the collective is what constitutional morality presupposes, and the three cases above all rest on it.

A worked example

A State enacts a law prohibiting inter-caste couples from residing in a village where the panchayat has passed a resolution objecting, on the ground that the practice offends the sentiments of the majority of residents and that public order will otherwise be disturbed.

The State's argument is an appeal to social morality and to public order. Both must be dealt with, and dealing with the second is what separates a good answer.

On social morality the answer is direct. Navtej Johar holds that constitutionality is measured by constitutional morality and not by popular morality, and that the rights of a minority do not depend on majority approval. Articles 14, 15(1), 19(1)(e) and 21 are all engaged.

On public order the answer is more careful, because public order is a legitimate constitutional ground. The State is not entitled to convert the threat of unlawful action by objectors into a restriction on the rights of the people threatened. That would let a majority manufacture the very disorder it relies on, which is sometimes called a heckler's veto. The proper response is to police the objectors.

And note the constitutional morality point in its strongest form. The panchayat resolution is itself an exercise of public power and is therefore bound by the same values. A body created by Part IX cannot make a rule the Constitution forbids the State to make.

Distinctions

What it does NOT mean

It does not mean judges may decide by their own moral views. That is precisely what the doctrine forbids, and it is also the criticism made of it, which is the tension at its heart.

It does not mean religion has no constitutional protection. Articles 25 and 26 are fundamental rights, and constitutional morality operates on the limits in those articles rather than in place of them.

It does not mean popular opinion is irrelevant to law. It is decisive in a legislature and irrelevant in a court asked whether a law is valid, and stating that division cleanly is worth a mark.

And it does not mean the doctrine is settled. The Sabarimala review and the reference of larger questions leave its scope open, and the criticism below is not answered by the cases.

The criticism, stated fairly

It has no textual basis. The phrase appears nowhere in the Constitution. It is drawn from a speech in the Constituent Assembly, which is a legitimate aid to construction but not a provision.

Its content is uncertain. Liberty, equality, fraternity and dignity are capable of supporting more than one result in a hard case, so the doctrine may describe a conclusion rather than produce one.

It risks displacing the political process. Deciding by constitutional morality what a legislature has decided by ordinary morality moves a contested question from an accountable body to an unaccountable one.

The reply is the one constitutionalism always makes. Some questions are removed from the majority precisely because the majority is a party to them, and a Constitution that leaves the rights of an unpopular group to a popular vote has not protected them at all. Whether the courts have drawn that line in the right places is a fair question, and answering it is what the examiner is looking for.

Quick revision

Constitutional morality: the Constitution's own values, not prevailing social morality, decide constitutionality. Ambedkar, Constituent Assembly, 4 November 1948, borrowing from Grote on Athens; his sense was reverence for constitutional forms combined with freedom of criticism, and his point was that it must be cultivated. Modern uses: as the answer to an appeal to popular morality; as the meaning of "morality" in articles 19(2) and 25; and as the guide where an individual's dignity meets a group's practice. Navtej Johar 2018: section 377 unconstitutional so far as it criminalises consensual adult acts; constitutional morality, not social morality, is the standard. Indian Young Lawyers Association 2018: Sabarimala exclusion invalid, four to one, Indu Malhotra J. dissenting; a review was admitted and larger questions referred. Joseph Shine 2018: section 497 unconstitutional. Puttaswamy 2017: privacy under article 21, with the proportionality test. Criticisms: no textual basis, uncertain content, and displacement of the political process.

Test yourself

1. Where does the phrase come from and what did Ambedkar mean by it? From George Grote's account of Athenian democracy, quoted by Ambedkar in the Constituent Assembly on 4 November 1948. He meant a paramount reverence for constitutional forms combined with freedom of criticism, and he argued that because it had to be cultivated, the administrative machinery had to be written into the Constitution rather than left to convention.

2. State the proposition Navtej Johar is cited for. That the constitutionality of a provision is judged by constitutional morality and not by popular morality, and that the rights of a minority do not depend on the approval of the majority.

3. Give two places where the doctrine changes the meaning of a constitutional word. "Morality" in article 19(2), and "morality" in article 25(1), both of which are read as constitutional morality rather than as the moral opinion of the majority.

4. Why is the Sabarimala case an incomplete authority? Because a review was admitted and larger questions about the relationship between articles 25 and 26 and the scope of judicial inquiry into religious practice were referred, so the majority's reasoning has not been finally settled.

5. State the three main criticisms of the doctrine. That it has no textual basis in the Constitution; that its content is uncertain, so it may describe a conclusion rather than produce one; and that it transfers contested moral questions from an accountable legislature to an unaccountable court.

6. What is the constitutional answer to a heckler's veto? That the State may not restrict the rights of the people threatened in order to avoid disorder threatened by objectors, because that would allow a majority to manufacture the very ground it relies on. The proper response is to police the objectors.

Articles 149 to 151 give him his duties and powers, provide that he shall exercise them in relation to the accounts of the Union and of the States, and require his reports relating to the accounts of the Union to be laid before each House of Parliament and those relating to a State before the State Legislature.

The design is worth noticing. The auditor is appointed by the executive but can be removed only by the process that removes a judge, his pay cannot be cut, he cannot be offered a job afterwards, and his report goes not to the government but to the legislature. Every one of those is a device to make him useless as an instrument and effective as a check.

Electoral accountability

Article 324(1) vests the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament, to the State Legislatures, and to the offices of President and Vice-President, in an Election Commission.

Article 324(2) provides that the Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners as the President may from time to time fix, and that appointment shall be subject to any law made by Parliament.

Article 324(5) gives the Chief Election Commissioner the same protection as a judge of the Supreme Court: he shall not be removed from office except in like manner and on the like grounds, and his conditions of service shall not be varied to his disadvantage after appointment; another Election Commissioner shall not be removed except on the recommendation of the Chief Election Commissioner.

Articles 325 to 329 complete the scheme: one general electoral roll for every constituency with no exclusion on grounds of religion, race, caste or sex (article 325); adult suffrage (article 326); Parliament's power to make provision with respect to elections (article 327); and the bar in article 329 on judicial interference in electoral matters, an election being called in question only by an election petition.

Administrative accountability

Articles 315 to 323 provide for a Public Service Commission for the Union and for each State. Members are appointed by the President or the Governor, hold office for six years or until the age of sixty-five or sixty-two respectively, and may be removed only by the President on the ground of misbehaviour after a reference to and report by the Supreme Court, or for the specified disqualifications.

Article 320 makes it the duty of the Commissions to conduct examinations for appointments and to be consulted on recruitment, promotion, transfer and disciplinary matters. Article 322 charges their expenses on the Consolidated Fund, and article 323 requires their annual reports to be laid before the legislature with a memorandum explaining any non-acceptance of advice.

The requirement to explain non-acceptance is the interesting one. The advice is not binding, but a government that departs from it must say so in a document laid before the legislature, which is accountability by publicity rather than by prohibition.

A worked example

A State government awards a large contract without tender to a company, meets the expenditure from the Contingency Fund, appoints thirty officers to a new department without reference to the State Public Service Commission, and postpones local elections indefinitely by not constituting the State Election Commission. Identify the accountability failure in each and the provision that answers it.

The contract and the payment. Article 266(3) permits appropriation from the Consolidated Fund only in accordance with law, and article 267 confines the Contingency Fund to unforeseen expenditure pending authorisation. Expenditure known in advance and routed through the Contingency Fund is a device to avoid a vote, and the Comptroller and Auditor General's report under article 151 is the mechanism that will surface it.

The appointments. Article 320(3) requires the Commission to be consulted on recruitment, and article 323 requires the government to lay before the legislature a memorandum explaining any case in which the advice was not accepted. The remedy here is not primarily a court but a document the House can read.

The elections. Article 243K requires a State Election Commission for panchayat elections, and article 243ZA the same for municipalities, and the Supreme Court has repeatedly held that elections must be held before the expiry of a body's five-year term. This is where a court will intervene directly.

And the general lesson. Three of the four failures are addressed by disclosure and by a vote rather than by litigation, which is why a constitutionalism answer that mentions only the courts is incomplete.

The cases

Accountability machinery can be directed into existence. In Vineet Narain v. Union of India, (1998) 1 SCC 226; AIR 1998 SC 889. Facts. The Jain hawala diaries, in which payments were said to have been made to senior politicians and officials, and the failure of the Central Bureau of Investigation to investigate. Held. It could issue directions to ensure the performance of a statutory duty by an investigating agency, developed the technique of continuing mandamus by which a court retains a matter and monitors compliance, and laid down directions to insulate the Central Bureau of Investigation and the Central Vigilance Commission from executive control, including a fixed two-year tenure for the Director and the selection process later given statutory form. Why it matters here is that it is the clearest example of a court supplying accountability machinery where the political process had not.

Accountability includes the right to know how a government behaves. In Common Cause v. Union of India, (2018) 5 SCC 1. Facts. A petition seeking recognition of a right to die with dignity and the validity of an advance directive. Held. The right to die with dignity is part of the right to life under article 21, that passive euthanasia is permissible subject to safeguards, and it laid down a detailed procedure for advance directives pending legislation. Why it matters here is narrower than the subject matter suggests: it is another instance of the Court laying down a regime that binds the executive until Parliament acts, and of the argument, made by dissenting voices in every such case, that this is accountability being supplied by the wrong organ.

And the ultimate accountability mechanism, dismissal of a government, is itself accountable. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1, the nine-judge Bench held that the satisfaction under article 356 is subjective but conditioned rather than absolute, that a Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds, and that the test of a government's majority is to be taken on the floor of the House and not in the Governor's assessment. Why it matters here is the floor test: it moves the question from an appointee's opinion to a countable vote, which is accountability in its most literal form.

Distinctions

What it does NOT mean

It does not mean these bodies are beyond criticism. The appointment of the Comptroller and Auditor General and of the Election Commissioners is by the executive, which is the standing weakness in the design, and it has been the subject of litigation and of legislation.

It does not mean the Public Service Commission's advice binds. It does not; what binds is the duty to explain in public why it was not taken.

It does not mean the courts are the primary mechanism. Three of the four operate through disclosure and votes, and the courts enter mainly where the mechanism has been disabled.

And it does not mean accountability is only about corruption. Audit reports on the effectiveness of expenditure, and questions in the House about policy, are accountability in exactly the same sense.

Quick revision

Four mechanisms. Political: articles 75(3) and 164(2), collective responsibility to the popular house, with article 75(5) requiring membership within six months. Financial: article 266, no appropriation from the Consolidated Fund except by law; article 267, the Contingency Fund for unforeseen expenditure; article 114, no withdrawal except under an appropriation made by law; article 148, the Comptroller and Auditor General, removable only as a Supreme Court judge, pay not variable to his disadvantage, ineligible for later office; articles 149 to 151, duties and reports to the legislature. Electoral: article 324, an independent Election Commission with the Chief Election Commissioner protected as a judge; articles 325 to 329 complete the scheme. Administrative: articles 315 to 323, the Public Service Commissions, whose advice is not binding but whose non-acceptance must be explained in a memorandum laid before the legislature. Vineet Narain: continuing mandamus and directions insulating the investigating agencies. S.R. Bommai: the floor test.

Test yourself

1. Name the four accountability mechanisms and one article for each. Political, article 75(3); financial, article 148; electoral, article 324; administrative, article 315.

2. List four devices that make the Comptroller and Auditor General independent. Removal only in the manner and on the grounds applicable to a Supreme Court judge; conditions of service not variable to his disadvantage after appointment; ineligibility for further office under the Union or a State; and reports laid before the legislature rather than given to the government.

3. What does article 323 require, and why is it interesting? That the annual report of a Public Service Commission be laid before the legislature together with a memorandum explaining any case in which the Commission's advice was not accepted, and the reasons. It is accountability by publicity rather than by prohibition, since the advice does not bind.

4. What is the floor test and which case established it? That the majority of a government is to be determined by a vote on the floor of the House rather than by the Governor's assessment: S.R. Bommai v. Union of India.

5. What is continuing mandamus? A technique developed in Vineet Narain by which a court, instead of disposing of a matter with a single direction, retains it and monitors compliance over time through periodic reports.

6. Why is an answer on constitutionalism incomplete if it mentions only rights and courts? Because most limits on a government operate before litigation: an appropriation that must be voted, an audit report the House can read, an election run by somebody the government cannot remove, and a Council of Ministers that can be voted out.

And a national emergency may now be declared for a part of India, which the Thirty-eighth Amendment had made possible and which survives.

What happens to rights

Article 358: article 19 is suspended, but only partly. While a Proclamation on the ground of war or external aggression is in operation, nothing in article 19 restricts the State's power to make any law or take any executive action which it would otherwise be incompetent to make or take. The Forty-fourth Amendment narrowed this in two ways: it no longer applies to an emergency proclaimed on the ground of armed rebellion, and it protects only a law which contains a recital that it is in relation to the emergency.

Article 359: the remedy may be suspended, but not for articles 20 and 21. The President may by order declare that the right to move any court for the enforcement of such rights conferred by Part III as may be mentioned in the order shall remain suspended. Clause (1), as amended in 1978, expressly excludes articles 20 and 21. The Forty-fourth Amendment also required that a law be recited to be in relation to the emergency before it can be protected.

The distinction between the two articles is the most examinable point here. Article 358 suspends the RIGHT in article 19 automatically on a Proclamation of the specified kind. Article 359 does not suspend any right at all; it suspends the REMEDY, and only for the rights named in the Presidential Order, and never for articles 20 and 21.

What happened in 1975, and why it matters

The Proclamation of 25 June 1975 was made on the ground of internal disturbance. A Proclamation on the ground of external aggression, made during the 1971 war, was still in operation, so two ran together.

Presidential Orders under article 359 suspended the right to move any court for the enforcement of articles 14, 21 and 22. Preventive detention under the Maintenance of Internal Security Act followed on a large scale.

In Additional District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207. Facts. Several High Courts had entertained habeas corpus petitions from detenus notwithstanding the Presidential Order, and the Union appealed. Held, by four to one. In view of the Order no person had any locus standi to move a High Court under article 226 for habeas corpus to challenge the legality of a detention on any ground including mala fides, and that section 16A(9) of the Maintenance of Internal Security Act was valid. Khanna J. dissented, holding that the State had no power to deprive a person of life or liberty without the authority of law, and that this principle did not owe its existence to article 21 alone. Why it matters here is that the majority's position was that in an emergency there is no remedy at all against an unlawful detention, which is the collapse of the rule of law in a sentence, and it is why the Forty-fourth Amendment exists.

And the dissent has since been vindicated in terms. In Justice K.S. Puttaswamy (Retd.) v. Union of India, (2017) 10 SCC 1; AIR 2017 SC 4161, the nine-judge Bench, while holding that privacy is protected by article 21, expressly held that the decision in ADM Jabalpur is seriously flawed and stands overruled. Why it matters here is that a student may now say that ADM Jabalpur is not merely bad history but is no longer law, and can name the case that says so.

The Forty-fourth Amendment, item by item

The ground. "Internal disturbance" replaced by "armed rebellion" in article 352(1).

The procedure. The Cabinet's decision must be communicated to the President in writing before a Proclamation is issued.

The approval. Resolutions of both Houses within one month, by a majority of the total membership and two-thirds of those present and voting; continuance for six months at a time; revocation on a resolution of the House of the People, with a special sitting on the notice of one-tenth of the members.

The rights. Articles 20 and 21 may never be suspended under article 359. Article 358 confined to emergencies on the ground of war or external aggression, and to laws reciting their connection with the emergency.

And the right to property was moved out of Part III by the same amendment, becoming article 300A, which is a separate matter but part of the same Act.

The pattern is worth naming. Every change is a limit on the emergency power itself: on the ground, on who may decide, on how long, on what may be suspended. That is constitutionalism reasserting itself over a power that had been used against it.

A worked example

A Proclamation is issued on the ground of armed rebellion in three States. A Presidential Order under article 359 suspends the right to move any court for the enforcement of articles 14, 19, 21 and 22. A person is detained without grounds being communicated, and the detaining authority says the detention is beyond challenge.

The Order is void so far as it names articles 21 and 22 in part. Article 359(1) as amended excludes articles 20 and 21 in terms, so the right to move a court to enforce article 21 survives. That alone answers the authority's submission.

Article 358 does not help the authority either. The Proclamation is on the ground of armed rebellion, and article 358 as amended applies only to an emergency proclaimed on the ground of war or external aggression.

Article 22 is a separate question and must be dealt with separately. Clause (5) requires the grounds of detention to be communicated to the detenu as soon as may be. If the Order validly suspends the remedy for article 22, the detenu argues the same point through article 21, since after Maneka a procedure that gives no grounds and no opportunity to represent is not right, just and fair.

And the conclusion is the point of the chapter. In 1975 the detenu had no remedy at all. Under the same articles as they now stand, the detenu has a remedy that no Proclamation and no Presidential Order can take away.

Distinctions

What it does NOT mean

It does not mean the Constitution disapproves of emergency powers. They are in the document, they were used in 1962 and 1971 without controversy, and a State facing war must be able to act.

It does not mean an emergency suspends the Constitution. It suspends specified rights or remedies for a limited time under conditions the Constitution prescribes, and everything else continues, including judicial review of whether the conditions were satisfied.

It does not mean ADM Jabalpur can be cited as good law. It was expressly overruled in Puttaswamy.

And it does not mean the Forty-fourth Amendment cured everything. Preventive detention remains constitutional under article 22 without any emergency, and that is a standing derogation from the rule of law which article 22 itself authorises.

Quick revision

Three emergencies: article 352 national, article 356 President's rule, article 360 financial, never used. Article 352 after 1978: grounds of war, external aggression or armed rebellion; the Cabinet's decision communicated to the President in writing; approval within a month by a majority of the total membership of each House and two-thirds present and voting; six months at a time; revocation on a resolution of the House of the People, with a special sitting on the notice of one-tenth of the members. Article 358 suspends article 19 automatically, only for an emergency on the ground of war or external aggression, and only for laws reciting the connection. Article 359 suspends the remedy for the rights named in a Presidential Order, and never for articles 20 and 21. ADM Jabalpur 1976 held there was no remedy at all against detention; Khanna J. dissented; the case was expressly overruled in Puttaswamy 2017. The Forty-fourth Amendment also moved the right to property to article 300A.

Test yourself

1. State the grounds on which a national emergency may now be proclaimed, and what they replaced. War, external aggression or armed rebellion. "Armed rebellion" replaced "internal disturbance", the ground used in 1975, by the Forty-fourth Amendment 1978.

2. Distinguish article 358 from article 359 in three respects. Article 358 suspends the rights in article 19 themselves, automatically, and only where the emergency is on the ground of war or external aggression. Article 359 suspends only the remedy, only for the rights named in a Presidential Order, and never for articles 20 and 21.

3. What procedural safeguards did the Forty-fourth Amendment add to the making and continuance of a Proclamation? The Cabinet's decision must be communicated to the President in writing; approval requires resolutions of both Houses within a month passed by a majority of the total membership and two-thirds of those present and voting; continuance is for six months at a time; and the House of the People may disapprove, with a special sitting to be convened on the notice of one-tenth of its members.

4. What did the majority hold in ADM Jabalpur, and what is its status now? That in view of the Presidential Order no person had locus standi to move a High Court for habeas corpus on any ground including mala fides. It was expressly overruled in Puttaswamy in 2017.

5. Why is Khanna J.'s dissent constitutionally important? Because it held that the State has no power to deprive a person of life or liberty without the authority of law, and that this principle does not owe its existence to article 21 alone. The Forty-fourth Amendment adopted its substance by making articles 20 and 21 unsuspendable.

6. Does the Forty-fourth Amendment mean India can no longer detain a person without trial? No. Article 22(4) to (7) permits preventive detention independently of any emergency, subject to the safeguards in those clauses, and that remains a standing derogation authorised by the Constitution itself.

Why this is a constitutionalism point and not a technicality. An ordinance that is never laid and is repromulgated indefinitely is legislation by the executive alone, and the feature of constitutionalism it defeats is the separation of powers.

Two: the money bill route

The provision. Article 110 defines a Money Bill and article 109 gives the Council of States only fourteen days and a power to recommend. Article 110(3) provides that if a question arises whether a Bill is a Money Bill, the decision of the Speaker of the House of the People is final.

The strain is what may be put in one. In Rojer Mathew v. South Indian Bank Ltd, decided on 13 November 2019 by five judges. Facts. Part XIV of the Finance Act 2017 restructured a large number of tribunals, altering qualifications, appointment, term and conditions of service and leaving much to rules, and the Finance Act had been passed as a Money Bill so that the Council of States had no effective say. Held. The rules framed under section 184 were invalid and directed reformulation, holding that the conditions of service and manner of appointment of tribunal members must secure judicial independence; and it held that the question whether Part XIV could have been enacted as a Money Bill, and the scope of article 110, required reconsideration by a larger Bench, and referred it.

So the money bill question is open, and an answer that states it as settled either way is wrong. What can be said is that a Constitution Bench thought the point serious enough to refer.

Three: delay in assent

The provision. Article 200 gives a Governor three courses and article 201 governs a reserved Bill, and neither prescribes any time.

The strain and its current answer. In In re Assent, Withholding or Reservation of Bills by the Governor and the President, the advisory opinion pronounced on 20 November 2025. Facts. A Presidential reference of fourteen questions after the Tamil Nadu decision. Held. The Governor has discretion in choosing among the three courses and is not bound by ministerial advice in exercising the article 200 function; that the function is not justiciable on the merits; that a court may not prescribe timelines under article 200 or article 201; that article 142 does not permit a deemed assent; but that where inaction is prolonged, unexplained and indefinite a court may issue a limited mandamus to act within a reasonable time, without commenting on the merits.

The constitutionalism point is what remains after that. A Bill duly passed by an elected legislature may be delayed indefinitely by an unelected officer, and the only remedy is a direction to decide, not a direction as to the decision. Whether that is a satisfactory position is a fair question, and the answer given by the Court is that prescribing a timetable would put a court in the place of the Constitution's own silence.

Four: the Tenth Schedule

The provision. The Tenth Schedule, inserted by the Fifty-second Amendment 1985, disqualifies a member for defection, and paragraph 6(1) makes the decision of the Speaker or Chairman final.

The strain. In Kihoto Hollohan v. Zachillhu, (1992) 1 SCR 686. Facts. A challenge to the Tenth Schedule, paragraph 7 of which barred the jurisdiction of all courts. Held. Paragraph 7 invalid for want of ratification by the States under the proviso to article 368(2), since it affected the powers of the High Courts and the Supreme Court; and it upheld the rest of the Schedule while holding that the Speaker or Chairman deciding a disqualification acts as a tribunal, so the decision is subject to judicial review, though on limited grounds such as jurisdictional error, mala fides, non-compliance with natural justice and perversity, and not at an interlocutory stage.

The constitutionalism point that survives. The adjudicator is an officer of the House who belongs to a party, there is no time limit within which a decision must be made, and review is available only after the decision. A Speaker who does not decide until a term is over has decided.

A worked example

A candidate is asked MU's February 2026 question and writes two pages on the provisions that bolster constitutionalism, ending "thus the Indian Constitution firmly establishes constitutionalism". What is wrong with that answer?

It has not discussed. The stem says discuss, and an account that reports only the supporting side is a description.

It has also missed the strongest material. The four criticisms in this chapter are not the writer's opinions; they are findings of the Supreme Court. "Re-promulgation is a fraud on the Constitution" is a holding, not a view.

And it has lost the structural point. Each of the four is a device that lets a body act without a consent the Constitution ordinarily requires: the legislature's, in the ordinance and money bill cases; the elected government's, in the assent case; and an impartial adjudicator's, in the defection case. Naming that pattern is what turns four examples into an argument.

The right shape is therefore three parts. The provisions and interpretations that bolster constitutionalism; the four identified strains with their cases; and a conclusion that the doctrine is well established in India and that the courts have themselves marked where it is under pressure. That answers the question MU asked.

Distinctions

What it does NOT mean

It does not mean the provisions themselves are unconstitutional. Articles 110, 123, 200 and 213 and the Tenth Schedule are all in the Constitution. The criticism is of use, not of validity.

It does not mean the courts have failed to respond. All four have been before the Supreme Court, and in three of them the Court has laid down a limit.

It does not mean the list is closed. Other candidates are argued for, and a student who adds one should be able to source it as these four are sourced.

And it does not mean this is a criticism of any particular government. Every one of the four practices has been used by governments of different parties in different States and at the Union, and D.C. Wadhwa itself concerned a period beginning in the 1960s.

Quick revision

Four strains, each identified by the Supreme Court. Ordinances: articles 123 and 213; D.C. Wadhwa 1986, an emergency power, the primary law-making authority is the Legislature, repromulgation is a fraud on the Constitution; Krishna Kumar Singh 2017, seven judges, laying is a mandatory constitutional obligation, failure to lay is a serious infraction, the enduring rights theory is no longer good law, and the satisfaction is reviewable on relevant material after the Forty-fourth Amendment deleted clause (4). Money bills: article 110(3) makes the Speaker's decision final; Rojer Mathew 2019 struck down the tribunal rules and referred the scope of article 110 to a larger Bench, so the question is open. Assent: articles 200 and 201 prescribe no time; the Reference of 20 November 2025 holds the function non-justiciable on the merits, forbids timelines and deemed assent, and leaves a limited mandamus for prolonged, unexplained and indefinite inaction. Defection: the Tenth Schedule; Kihoto Hollohan struck down paragraph 7 for want of ratification and held the Speaker to act as a tribunal, reviewable on limited grounds and not at an interlocutory stage.

Test yourself

1. Why is re-promulgation a constitutional problem rather than a procedural one? Because an ordinance that is never laid before the legislature and is repromulgated indefinitely is legislation by the executive alone, which defeats the separation of powers. The Supreme Court has twice called it a fraud on the Constitution.

2. State three of the propositions in Krishna Kumar Singh. That laying an ordinance before the legislature is a mandatory constitutional obligation and failure to do so is a serious infraction; that the theory of enduring rights is no longer good law, survival of rights being a question of construction tested by public interest and constitutional necessity; and that the satisfaction of the President or Governor is reviewable on whether it rests on relevant material.

3. What is the current position on the money bill question? Open. In Rojer Mathew a Constitution Bench referred the question whether Part XIV of the Finance Act 2017 could have been enacted as a Money Bill, and the scope of article 110, to a larger Bench.

4. What remedy survives against indefinite delay in assent, and what does not? A limited mandamus to act within a reasonable time where the inaction is prolonged, unexplained and indefinite. What does not survive is a judicially prescribed timetable, a deemed assent under article 142, or review of the decision on its merits.

5. What did Kihoto Hollohan decide about the Speaker's role? That paragraph 7 of the Tenth Schedule was invalid for want of ratification by the States, and that the Speaker or Chairman deciding a disqualification acts as a tribunal, so the decision is subject to judicial review on limited grounds such as jurisdictional error, mala fides, breach of natural justice and perversity, but not at an interlocutory stage.

6. What is the common structure of the four criticisms? Each is a device by which a body acts without a consent the Constitution ordinarily requires: the legislature's in the ordinance and money bill cases, the elected government's in the assent case, and an impartial adjudicator's in the defection case.

An independent judiciary as umpire. Somebody must decide whether a law is inside a list, and it cannot be either of the parties to the dispute. This is developed in [Judicial Review in the Federal Framework: The Court as Umpire].

Two further features are usually added, and India has one of them. A bicameral central legislature with a chamber representing the units, which India has in the Council of States under articles 80 and 81. And dual citizenship and separate State constitutions, which India does not have, and which is why the classical writers hesitated about it.

Wheare's test, and the two ways of failing it

Wheare's test is co-ordination and independence within a sphere. Neither government may be legally subordinate to the other in the field allotted to it.

A system fails the test if the centre can override the units at will. If the general government can legislate on a regional subject whenever it chooses, or dismiss a regional government, the regional government is not independent within any sphere.

And it fails equally if the units can leave or can nullify central law. A right of secession, or a power in a unit to declare a central law inoperative within its territory, makes the general government dependent on the units and produces a confederation.

India has to be tested against the first limb, and that is the argument of the next two chapters.

The Indian provisions that create the division

Article 1(1) declares that India, that is Bharat, shall be a Union of States. The word "Union" was chosen deliberately, and Ambedkar explained in the Assembly that the Drafting Committee wanted to make it clear that though India was to be a federation, the federation was not the result of an agreement by the States, and that no State had a right to secede.

Article 245(1) confers legislative power on Parliament for the whole or any part of the territory of India and on a State Legislature for the whole or any part of the State, in both cases subject to the provisions of the Constitution.

Article 246 allocates the fields: List I of the Seventh Schedule to Parliament exclusively, List II to the State Legislatures exclusively, and List III to both, with Parliament prevailing in a conflict under article 254.

And the executive power follows the legislative power, by articles 73 and 162, so the division reaches administration as well as legislation.

A worked example

Take one ordinary subject and follow it through the machinery, because the abstract statement of the division is easy and the application is where marks are. Public health and sanitation, hospitals and dispensaries is Entry 6 of List II. Population control and family planning is Entry 20A of List III. Inter-State quarantine is Entry 81 of List I.

A State enacts a law regulating private hospitals in the State. Competent: Entry 6 of List II, and Parliament could not have made that law.

Parliament enacts a law prescribing standards for family planning services. Competent: Entry 20A of List III, and the State may also legislate on it, subject to article 254 if the two conflict.

Parliament enacts a law imposing a quarantine on movement between two States during an epidemic. Competent: Entry 81 of List I, and a State could not have made it.

Now the hard variant, which is the real work of a federal court. A State enacts a law prohibiting the movement of persons into the State during an epidemic. Is that public health under List II, or inter-State quarantine under List I? The answer is found by the doctrine of pith and substance, examined in [Pith and Substance, Colourable Legislation and Incidental Encroachment], and the point for now is that this question exists in every federation and that the umpire is a court.

The cases

India is a federation, but not one made by agreement. In State of West Bengal v. Union of India, AIR 1963 SC 1241. Facts. The Union sought to acquire coal-bearing land vested in the State of West Bengal under the Coal Bearing Areas (Acquisition and Development) Act 1957, and the State sued under article 131, arguing that it was sovereign within its own field and that Parliament could not compulsorily acquire State property. Held, by a majority. The Act was valid: the Indian Constitution is not traditionally federal in the sense of being a compact between independent sovereign units, the States were not sovereign before the Constitution, Parliament's legislative power extends to the property of a State unless the Constitution says otherwise, and there is no constitutional guarantee against acquisition of State property by the Union. Subba Rao J. dissented. Why it matters here is that it settles the character of the Indian Union: the division of power is real, but it descends from the Constitution rather than ascending from an agreement between the States.

And the federal character is nevertheless part of the basic structure. In Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461; (1973) 4 SCC 225, the judgments named the federal character of the Constitution among the basic features that the amending power cannot destroy. Why it matters here is that it answers a natural objection to State of West Bengal: if the Union created the States, could it not abolish the division? The answer is that it may alter it by the amending procedure and may not destroy it at all.

Distinctions

What it does NOT mean

It does not mean the units are sovereign. In no federation are they. They are independent within a sphere, which is a different and smaller claim.

It does not mean the division must be equal. Every federation gives the general government the larger and more important subjects. What matters is that the regional field exists and is protected.

It does not mean a federation must be created by agreement. Federations formed by devolution from a unitary State are still federations, and India, Belgium and Spain are examples.

And it does not mean federalism is only about legislative lists. Administrative relations, revenue sharing, the appointment of Governors, the emergency provisions and the courts are all part of the federal question, and each has its own chapter in this module.

Quick revision

A federation divides power between a general and regional governments, each co-ordinate and independent within a sphere and each deriving authority from the constitution: Wheare. Essentials: a written and supreme constitution, a division of powers, a rigid amending procedure for the federal provisions, and an independent judiciary as umpire; usually also a second chamber for the units, dual citizenship and separate unit constitutions. India has the first five and the second chamber, and does not have dual citizenship or separate State constitutions. Article 1(1): India, that is Bharat, shall be a Union of States, the word chosen to show that the federation was not the result of an agreement and that no State may secede. Article 245 confers legislative power subject to the Constitution; article 246 with the Seventh Schedule divides the fields; articles 73 and 162 make executive power follow legislative power. State of West Bengal v. Union of India 1963: not a compact between sovereign units, and Parliament may acquire State property; Subba Rao J. dissented. Kesavananda Bharati: the federal character is part of the basic structure.

Test yourself

1. State Wheare's federal principle. That the method of dividing powers should be such that the general and the regional governments are each, within a sphere, co-ordinate and independent.

2. Name five essential features of a federation. A written constitution; the supremacy of that constitution over both governments; a division of powers between two sets of government; a rigid procedure for amending the federal provisions; and an independent judiciary to decide disputes about the division.

3. Why was the word "Union" used in article 1(1) rather than "Federation"? Because the Drafting Committee wished to make clear that the Indian federation was not the result of an agreement between the States and that no State had a right to secede from it.

4. What did State of West Bengal v. Union of India decide? That the Indian Constitution is not traditionally federal in the sense of a compact between sovereign units, that the States were not sovereign before it, and that Parliament may compulsorily acquire land vested in a State, there being no constitutional guarantee against it. Subba Rao J. dissented.

5. Which two usual federal features does India lack? Dual citizenship and separate constitutions for the units, Jammu and Kashmir formerly being the exception to the second.

6. Why does a paper on pluralism also deal with federalism? Because a group that is a minority in the country may be a majority in a State, so a federal division lets it govern itself in the matters it cares about most while remaining within one country. Federalism is the territorial answer to the same problem minority rights answer personally.

A federation with a strong unitary bias is what most writers conclude, and the argument is worked in the next chapter.

A worked example

Suppose three constitutional changes are proposed. Which of them is possible in each of the three forms of government?

Change one: the centre abolishes a region and redistributes its territory. In a unitary State this is ordinary legislation. In a confederation it is impossible without the member's consent, and probably not even then. In a classical federation it requires the consent of the unit and usually a constitutional amendment. In India it is possible under article 3 by ordinary majority after the President has referred the Bill to the State Legislature for its views, which the Parliament is not bound to accept. That single fact is the strongest argument against calling India a classical federation.

Change two: the centre legislates on a subject reserved to the regions. Unitary: always possible. Confederal: never. Federal: not without an amendment. India: possible under article 249 if the Council of States so resolves by two-thirds, and under article 250 during an emergency, in both cases temporarily.

Change three: a region leaves the country. Unitary: no such concept. Confederal: permitted. Federal: not permitted. India: not permitted, and article 1 was drafted to say so.

The exercise is worth doing because it locates India precisely. On change three India is federal. On change two India is federal with defined temporary exceptions. On change one India is closer to unitary than any other federation, and that is the honest answer.

The cases

The Indian units were never sovereign, which rules out the confederal model at the outset. In State of West Bengal v. Union of India, AIR 1963 SC 1241. Facts. The Union's acquisition of coal-bearing land vested in West Bengal under the Coal Bearing Areas (Acquisition and Development) Act 1957, the State suing under article 131 on the footing that it was sovereign within its own field. Held, by a majority. The Constitution is not traditionally federal in the sense of a compact between sovereign units, that the States were not sovereign before it, that Parliament's legislative power extends to State property unless the Constitution provides otherwise, and that no constitutional guarantee protects a State's property from acquisition by the Union. Subba Rao J. dissented. Why it matters here is that it forecloses the confederal reading and leaves the choice between federal and quasi-federal.

And the territory of India is not the property of the States either. In In re Berubari Union and Exchange of Enclaves, Special Reference No. 1 of 1959, the opinion being pronounced on 14 March 1960. Facts. The Indo-Pakistan Agreement of 1958 required part of Berubari Union, which lay in West Bengal, to be transferred to Pakistan. Held. Article 3 governs the internal readjustment of the territories of States and does not authorise the cession of Indian territory to a foreign State, so a law under article 3 would be incompetent and an amendment under article 368 was necessary. Why it matters here is the shape of the answer: the internal boundary of a State can be changed by ordinary law, which is unitary; the external boundary of India cannot, which is a limit on the Union itself.

Distinctions

What it does NOT mean

It does not mean a unitary State cannot have strong regional government. Devolution in the United Kingdom has given Scotland powers wider in some fields than an Indian State's. What makes it unitary is that they were given by statute and could in law be taken back.

It does not mean a confederation is a weak federation. It is a different thing: an association of States rather than a State.

It does not mean the labels settle anything by themselves. What matters is the answer to particular questions: who may alter the division, who may legislate on what, and who decides a dispute. That is why the next chapter tests India against those questions rather than against a label.

Quick revision

Unitary: all authority in the centre, regional powers delegated by statute and withdrawable; United Kingdom, France, Japan. Confederal: sovereignty in the units, the centre exercising conferred powers and usually acting on the States, with a right of withdrawal; the United States 1781 to 1789. Federal: both governments derive authority from a written and supreme constitution, each acts directly on the citizen in its own field, and neither may alter the division alone. India's federal provisions: articles 1, 245, 246 and the Seventh Schedule, the proviso to article 368(2), articles 131 and 226. Its unitary provisions: article 3, articles 249 and 250, article 356, article 200, single citizenship, a single judiciary, a single audit and a single election commission. State of West Bengal v. Union of India: the States were never sovereign, so the confederal reading is foreclosed. In re Berubari: article 3 cannot cede territory to a foreign State; that needs an amendment.

Test yourself

1. Give the single test that distinguishes the three forms. Who may alter the division of powers: in a unitary State the centre alone, in a confederation the units, and in a federation neither acting alone.

2. Why is devolution in the United Kingdom not federalism? Because the Scottish Parliament and the other devolved bodies were created by Acts of the Westminster Parliament, which in law retains the power to alter or repeal them, so their authority is delegated rather than constitutional.

3. Name three Indian provisions that point away from a classical federation. Article 3, which lets Parliament alter a State's area, boundaries or name by ordinary majority without the State's consent; article 249, which lets Parliament legislate on a State subject on a two-thirds resolution of the Council of States; and article 356, which lets the Union assume the functions of a State government.

4. What did In re Berubari show about the two kinds of boundary? That an internal boundary between States may be altered by ordinary law under article 3, which is a unitary feature, while the external boundary of India may not be altered except by a constitutional amendment, which is a limit on the Union itself.

5. Why does State of West Bengal v. Union of India rule out the confederal model? Because it holds that the States were not sovereign before the Constitution and that the Constitution is not a compact between sovereign units, so there was never any sovereignty in the units for a centre to have received.

6. Is a federation formed by devolution a real federation? Yes, provided the division is constitutional rather than statutory and neither government may alter it alone. India, Belgium and Spain are federations or quasi-federations formed that way.

Article 356: the Union may dismiss a State government. Used well over a hundred times.

Article 155: the Governor is appointed by the President and holds office during his pleasure under article 156, which places the head of a State in the Union's gift.

And the machinery is single throughout. One citizenship, one judiciary with the Supreme Court above every High Court, one Election Commission, one Comptroller and Auditor General, and one All India Services cadre serving both governments.

The case that India is a federation

The division of powers is constitutional and justiciable. Article 246 gives the States an exclusive List of sixty-one entries, and a Union law on a State subject is void unless one of the express routes applies. The umpire is a court, and the courts have struck down Union laws for want of competence.

The division is entrenched. The proviso to article 368(2) requires ratification by not less than half the State legislatures before the Seventh Schedule, the representation of States in Parliament, or article 368 itself may be amended. The Union cannot alter the bargain alone.

The States have a chamber of their own. Articles 80 and 81 create a bicameral Parliament with the Council of States representing the States, and a Bill amending the entrenched provisions cannot pass without the States' legislatures.

Revenue is divided by the Constitution and by an independent body. Articles 268 to 281 allocate taxes and article 280 creates the Finance Commission, whose recommendations on the distribution of the net proceeds of taxes are made by a body neither government controls.

There is an original jurisdiction for federal disputes. Article 131 gives the Supreme Court exclusive original jurisdiction in a dispute between the Union and a State or between States.

And the federal character is unamendable. Kesavananda Bharati names it among the basic features.

How the Court's language has changed

1963: not traditionally federal. In State of West Bengal v. Union of India, AIR 1963 SC 1241. Facts. The Union's acquisition of coal-bearing land vested in the State, and Held., by a majority, that the Constitution is not traditionally federal, that the States were never sovereign, and that Parliament may acquire State property; Subba Rao J. dissented. Why it matters here is that this is the high point of the centralising reading.

1994: federalism is a basic feature and the States are not appendages. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1. Facts. A group of appeals about Proclamations under article 356 dismissing State governments in Karnataka, Nagaland, Meghalaya, Madhya Pradesh, Rajasthan and Himachal Pradesh. Held. The satisfaction under article 356 is subjective but conditioned and not absolute, that relevant material is a precondition, that the Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds, that the majority of a government is to be tested on the floor of the House, and that secularism is a basic feature. Why it matters here is that it made the strongest unitary provision in the Constitution justiciable, which changed the practical balance more than any amendment has.

2022: the States are not subordinate in a shared field. In Union of India v. Mohit Minerals Pvt Ltd, (2022) 10 SCC 700. Facts. A challenge to the levy of integrated goods and services tax on ocean freight in a contract of import, and the question whether the recommendations of the Goods and Services Tax Council bind the Union and the States. Held. The recommendations of the Council are not binding but have persuasive value, since article 246A confers simultaneous legislative power on the Union and the States and article 279A does not create a body whose recommendations displace that power; and it described Indian federalism as a dialogue in which the States and the Centre are equal participants in a shared field. Why it matters here is that it is the most recent authoritative statement, and it is the answer to the argument that the goods and services tax destroyed fiscal federalism.

A worked example

A candidate is asked whether India is a federation and writes "India is quasi-federal, as Wheare said". What is missing, and what would a good answer add?

What is missing is that the question is about a document, not a label. Wheare wrote in 1951 about a Constitution one year old, before Bommai, before the 73rd and 74th Amendments, before the Finance Commission had become the principal channel of resources, and before article 246A. A label from 1951 is a starting point.

A good answer separates the provisions from the practice. On the text, the centralising provisions are stronger than in any comparable federation. In practice, article 249 has been used rarely, article 356 is now reviewable and its use has fallen sharply since 1994, and the fiscal share going to the States is fixed by a body neither government controls.

A good answer also distinguishes normal times from emergencies. Ambedkar's formulation, that the Constitution is both unitary and federal according to the requirements of time and circumstances, is not a fudge: it describes a document that changes character in defined and reviewable circumstances, which is itself a federal design decision.

And a good answer takes a position. The defensible conclusion is that India is a federation with a strong centre, that its federal character is part of the basic structure and therefore beyond amendment, and that the unitary provisions are exceptions which the Constitution defines and the courts police, rather than the general rule.

Distinctions

What it does NOT mean

It does not mean the label controls the result. No case has ever been decided by asking whether India is federal. Cases are decided by reading article 246, article 254 or article 356.

It does not mean the balance is fixed. It has moved twice by amendment, in 1976 towards the centre and in 1992 and 2016 in mixed directions, and once by judicial decision in 1994.

It does not mean a strong centre is a defect. The Constituent Assembly chose it deliberately, against the background of Partition and of five hundred and sixty-two princely States, and Ambedkar defended it on that ground.

And it does not mean the federal features can be removed. Kesavananda Bharati puts the federal character in the basic structure, so an amendment abolishing the State List would be void however it was passed.

Quick revision

Wheare: quasi-federal, a unitary State with subsidiary federal features. Ambedkar: both unitary and federal according to the requirements of time and circumstances. Centralising provisions: article 3, articles 248, 249, 250, 252, 253, articles 256, 257 and 365, article 356, articles 155 and 156, single citizenship, judiciary, election commission and audit. Federal provisions: articles 245 and 246 with an exclusive State List, the proviso to article 368(2), the Council of States, articles 268 to 281 and the Finance Commission under article 280, article 131, and the federal character as a basic feature under Kesavananda. State of West Bengal 1963: not traditionally federal, the States were never sovereign. S.R. Bommai 1994: federalism is basic, article 356 is reviewable, the floor test. Mohit Minerals 2022: the GST Council's recommendations are persuasive and not binding, because article 246A gives simultaneous power, and Indian federalism is a dialogue between equal participants.

Test yourself

1. State Wheare's and Ambedkar's descriptions and the difference between them. Wheare called the Constitution quasi-federal, a unitary State with subsidiary federal features. Ambedkar said it is both unitary and federal according to the requirements of time and circumstances. Wheare describes a permanent character; Ambedkar describes a document that changes character in defined circumstances.

2. Name five provisions that make the Indian centre stronger than in a classical federation. Article 3, alteration of State boundaries by ordinary law; article 248 and Entry 97, the residuary power in the Union; article 249, entry into the State List on a resolution of the Council of States; article 250, legislation on State subjects during an emergency; and article 356, the dismissal of a State government.

3. Name five provisions that are genuinely federal. Article 246 with an exclusive State List; the proviso to article 368(2) requiring ratification by half the States; the Council of States; articles 268 to 281 with the Finance Commission under article 280; and article 131, the original jurisdiction in Union and State disputes.

4. How did S.R. Bommai change the practical balance? By holding that the satisfaction under article 356 is conditioned rather than absolute, that a Proclamation is reviewable and may be struck down if mala fide or based on irrelevant grounds, and that a government's majority is tested on the floor of the House. That made the strongest unitary provision justiciable.

5. What did Mohit Minerals decide about the GST Council? That its recommendations are persuasive and not binding, because article 246A confers simultaneous legislative power on the Union and the States, and Indian federalism is a dialogue in which both are equal participants in the shared field.

6. Why can the federal character not be amended away? Because Kesavananda Bharati names it among the basic features, so an amendment destroying the division of powers would be beyond the amending power however it was passed.

Article 280 creates the Finance Commission, constituted by the President every fifth year, to recommend the distribution of the net proceeds of taxes between the Union and the States and the allocation between States, and the principles governing grants in aid. It is the mechanism by which the vertical and horizontal division of money is settled by a body that is neither government.

Feature four: a chamber for the States

Articles 80 and 81 create a bicameral Parliament. The Council of States consists of not more than two hundred and thirty-eight representatives of the States and Union territories, elected by the elected members of the State Legislative Assemblies by proportional representation with a single transferable vote, plus twelve members nominated by the President.

The representation is not equal, unlike the American Senate: seats are allotted by population in the Fourth Schedule, so Uttar Pradesh has thirty-one and Sikkim one. That is a real difference and it belongs in the comparison chapter.

But the Council has two federal functions the House of the People does not. A resolution of the Council under article 249 is the only route by which Parliament may legislate on a State subject in normal times, and article 312 requires a Council resolution before Parliament may create a new All India Service.

Feature five: entrenchment

The proviso to article 368(2) requires that an amendment seeking to make a change in article 54, 55, 73, 162 or 241, in Chapter IV of Part V, Chapter V of Part VI or Chapter I of Part XI, in any of the Lists in the Seventh Schedule, in the representation of States in Parliament, or in article 368 itself, be ratified by the legislatures of not less than one-half of the States.

That is the constitutional guarantee of the federal bargain. Without it, Parliament could transfer any State subject to itself by a two-thirds vote of its own Houses.

Feature six: an umpire

Article 131 gives the Supreme Court exclusive original jurisdiction in a dispute between the Government of India and one or more States, or between two or more States, if the dispute involves a question on which the existence or extent of a legal right depends.

Articles 246 and 254 give it the working jurisdiction, since every question whether a law is inside a List reaches a court in ordinary litigation, and article 132 provides an appeal in any case involving a substantial question of law as to the interpretation of the Constitution.

And article 245 read with article 226 lets a High Court decide the same questions at first instance.

A worked example

MU's question is "Explain the Federal features of the Indian Constitution". How should twenty-five marks be spent?

Open by defining a federation and naming the test, which takes two sentences: division of powers between two governments each co-ordinate and independent within a sphere, on Wheare's formulation.

Then take the six features in order, giving each its article and one sentence of explanation. Written and supreme constitution, articles 13 and 245. Division of legislative power, article 246 and the three Lists with their entry counts. Division of executive and financial power, articles 73, 162 and 268 to 281 with the Finance Commission under article 280. A chamber for the States, articles 80 and 249. Entrenchment, the proviso to article 368(2). An umpire, articles 131 and 246.

Then state the unitary features honestly, because an answer that hides them is not a discussion: articles 3, 248, 249, 250, 356 and 365, single citizenship and a single judiciary.

Then give the judicial position with two cases, State of West Bengal v. Union of India for the character of the Union and S.R. Bommai for federalism as a basic feature.

And conclude with a position. A federation with a strong centre, whose federal character is unamendable and whose unitary provisions are defined exceptions policed by the courts.

The cases

The residuary power is real and it is wide. In Union of India v. H.S. Dhillon, AIR 1972 SC 1061. Facts. A challenge to the Wealth-tax Act 1957 as amended in 1969 to include the capital value of agricultural land, on the ground that taxes on agricultural land fall within Entry 49 of List II. Held, by four to three. The amendment was valid: where a Union law is challenged, the correct approach is to ask whether it falls in List II or List III, and if it does not, Parliament's competence under Entry 97 of List I read with article 248 is established without any need to point to a specific entry in List I. Why it matters here is that it explains how the residuary power actually operates: it is not a last resort but the default position for a Union law.

The Union is not a creature of the States. In State of West Bengal v. Union of India, AIR 1963 SC 1241, the majority held that the Constitution is not traditionally federal in the sense of a compact between sovereign units, that the States were not sovereign before the Constitution, and that Parliament may compulsorily acquire land vested in a State. Subba Rao J. dissented. Why it matters here is that the federal features listed above coexist with a Union whose authority does not derive from the States.

And the federal character is protected. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1, the nine-judge Bench held, among twelve conclusions, that the satisfaction under article 356 is conditioned and reviewable, that the floor of the House is the place to test a majority, and that federalism and secularism are basic features. Why it matters here is that it converts the list of federal features from a description into a limit on the amending power.

Distinctions

What it does NOT mean

It does not mean the lists are watertight. The Concurrent List is shared by design, and the doctrines of pith and substance and incidental encroachment exist precisely because entries overlap.

It does not mean the Council of States is a Senate. Representation is by population and members are elected by State legislators rather than directly, so it represents the States less strongly than its American counterpart.

It does not mean the Finance Commission's recommendations bind. They are recommendations, laid before Parliament with an explanatory memorandum, and their force is political and conventional rather than legal.

And it does not mean listing the features answers the question. MU's stem says "explain", and an answer that lists six articles without saying what each does has not explained anything.

Quick revision

Six federal features: a written and supreme constitution (articles 13 and 245); a division of legislative power (article 246 and the Seventh Schedule, with 97, 61 and 47 entries in Lists I, II and III, article 254 for conflicts and article 248 with Entry 97 for the residue); a division of executive and financial power (articles 73, 162 and 268 to 281, with the Finance Commission under article 280); a chamber for the States (articles 80 and 81, with the special functions in articles 249 and 312); entrenchment (the proviso to article 368(2), ratification by half the States); and an umpire (articles 131, 132 and 246). Unitary features: articles 3, 248, 249, 250, 356 and 365, single citizenship and a single judiciary. H.S. Dhillon: ask whether a Union law falls in List II or III; if not, Entry 97 with article 248 establishes competence. State of West Bengal: not a compact between sovereign units. S.R. Bommai: federalism is a basic feature.

Test yourself

1. List the six federal features with one article each. Written and supreme constitution, article 245; division of legislative power, article 246; division of executive and financial power, article 73 and article 280; a chamber for the States, article 80; entrenchment, the proviso to article 368(2); an umpire, article 131.

2. How many entries are in each List, and give two examples from each. List I has 97: defence, foreign affairs. List II has 61: public order, police. List III has 47: criminal law, education.

3. What did H.S. Dhillon decide about the residuary power? That where a Union law is challenged the correct approach is to ask whether it falls within List II or List III; if it does not, Parliament's competence is established by Entry 97 of List I read with article 248 without any need to find a specific entry in List I.

4. Why is the proviso to article 368(2) a federal feature? Because it prevents the Union's own Parliament from altering the Seventh Schedule, the representation of States in Parliament, or article 368 itself, without ratification by the legislatures of not less than half the States.

5. Give two federal functions of the Council of States that the House of the People does not have. A resolution under article 249, which is the only route by which Parliament may legislate on a State subject in normal times; and a resolution under article 312, which is required before Parliament may create a new All India Service.

6. Why should an answer on federal features also state the unitary ones? Because MU asks for an explanation and not a list, and because the character of Indian federalism is precisely the coexistence of a full federal structure with an unusually strong centre. An answer that omits articles 3, 249, 250 and 356 has described a different Constitution.

Why article 3 is the most unfederal provision in the Constitution

Because in every other federation the units are indestructible. Article IV, section 3 of the United States Constitution provides that no new State shall be formed within the jurisdiction of another, nor by the junction of two or more States or parts of States, without the consent of the legislatures concerned as well as of Congress. The Australian Constitution requires the consent of the Parliament of the State concerned and a referendum of its electors.

Because the Indian requirement is only to ask. The State's Legislature expresses views. Nothing turns on what those views are.

Because article 4 removes the last protection. A law under article 2 or 3 may amend the First Schedule, which lists the States and their territories, and the Fourth Schedule, which allots seats in the Council of States, and it is expressly not an amendment for the purposes of article 368. So a State can be abolished by simple majority, and even the entrenchment in the proviso to article 368(2) does not apply.

And the power has been used repeatedly. Andhra Pradesh was divided in 2014; Jammu and Kashmir was reorganised into two Union territories in 2019; and the States Reorganisation Act 1956 redrew the map of the whole country.

Where the power stops

It stops at the external boundary. In In re Berubari Union and Exchange of Enclaves, Special Reference No. 1 of 1959, opinion pronounced on 14 March 1960. Facts. The Indo-Pakistan Agreement of 1958 required the division of Berubari Union, which lay in West Bengal, and the exchange of the Cooch-Behar enclaves. Held. Article 3 relates to the internal readjustment of the territories of the constituent States and does not authorise the cession of Indian territory to a foreign State; a law of Parliament relatable to article 3 would be incompetent, a law relatable to article 368 is competent and necessary, and a law under both would be needed only if Parliament first amended article 3. Why it matters here is the symmetry: the States are destructible by ordinary law and the Union's own territory is not, which is exactly what "indestructible Union of destructible States" means.

And it stops at nothing else. In Babulal Parate v. State of Bombay, AIR 1960 SC 51. Facts. A challenge to the States Reorganisation Act 1956 and the Bombay Reorganisation proposals; the petitioner argued that after the Bill had been referred to the State Legislature it was substantially modified in Parliament, so that the Legislature had never expressed its views on the Bill as passed, and that the reference was therefore ineffective. Held. The proviso requires only that the Bill as introduced be referred and the State's views be obtained within the period specified; Parliament may thereafter amend the Bill, and there is no obligation to make a fresh reference of the amended Bill. Why it matters here is that it removes the last practical restraint: a State's views may be sought on one proposal and a different one enacted.

A worked example

Parliament proposes to create a new State by separating three districts from State A and two from State B, to rename State A, and to transfer a border village to Bangladesh under a boundary agreement. What is required for each?

The new State and the transfer of districts. Article 3(a) and (b): a Bill on the President's recommendation, referred to the Legislatures of States A and B for their views within a specified period, then an ordinary majority in both Houses. The States cannot prevent it.

The renaming of State A. Article 3(e), same procedure. Note that the State's own view is again only a view.

The consequential changes to the First and Fourth Schedules. Article 4: the same Act may make them, and it is not an amendment for the purposes of article 368.

The village transferred to Bangladesh. This is the one that fails. In re Berubari holds that article 3 does not authorise cession to a foreign State; that requires an amendment under article 368, which is how the Constitution (One Hundredth Amendment) Act 2015 gave effect to the India and Bangladesh land boundary agreement.

Note the shape of the answer. Three things need only an ordinary Act and a formality; one needs a constitutional amendment. That contrast is the chapter.

Distinctions

What it does NOT mean

It does not mean a State has no protection at all. The Union's power is legislative, and it must be exercised by an Act passed by both Houses in the ordinary way, which is a political constraint even if it is not a legal one. And a reorganisation that was mala fide or that destroyed the federal structure would be open to challenge on the basic structure ground, as was argued in the Jammu and Kashmir litigation.

It does not mean the State's views are pointless. They are laid before Parliament and they inform the debate; and where a State has been consulted and its objections recorded, the political cost of overriding them is real.

It does not mean Parliament may hand territory to another country by ordinary law. In re Berubari forecloses that.

And it does not mean a settlement of a boundary dispute is a cession. Where the boundary was always uncertain and an agreement merely ascertains it, no transfer of Indian territory occurs and no amendment is required. Where territory indisputably Indian passes to another State, it is a cession and article 368 applies.

Quick revision

Article 1: India, that is Bharat, shall be a Union of States; "Union" chosen to show the federation was not the result of an agreement and that no State may secede; the territory comprises the States, the Union territories in the First Schedule, and territories acquired. Article 2: admission or establishment of new States on such terms as Parliament thinks fit. Article 3: formation of new States, increase or diminution of area, alteration of boundaries or name; the proviso requires the President's recommendation and a reference to the State Legislature for its views within a specified period, which do not bind. Article 4: consequential amendments to the First and Fourth Schedules, and such a law is not an amendment for article 368. Babulal Parate: only the Bill as introduced need be referred, and Parliament may amend it afterwards without a fresh reference. In re Berubari: article 3 does not authorise cession to a foreign State; that requires article 368, as was done by the Hundredth Amendment 2015 for the India and Bangladesh land boundary agreement.

Test yourself

1. Why does article 1 say "Union of States" rather than "Federation"? Because the Drafting Committee wished to record that the Indian federation was not the result of an agreement by the States to join it and that no State has a right to secede.

2. What protection does a State have against being redrawn or abolished? Only that the Bill must be recommended by the President and referred to the State Legislature for its views within a period the President specifies. The views do not bind Parliament.

3. What did Babulal Parate decide, and why does it matter? That the proviso requires only the Bill as introduced to be referred, so Parliament may substantially amend it afterwards without a fresh reference. It removes the last practical restraint on article 3.

4. Why is a law under article 3 not a constitutional amendment? Because article 4 provides that such a law may make the consequential changes to the First and Fourth Schedules and shall not be deemed to be an amendment for the purposes of article 368.

5. How may Indian territory be ceded to a foreign State? Only by a constitutional amendment under article 368, as In re Berubari held and as the Hundredth Amendment 2015 did for the India and Bangladesh land boundary agreement.

6. Explain the phrase "an indestructible Union of destructible States". The Union itself cannot be broken up: no State may secede and no territory may be ceded except by amendment. The States can be created, merged, renamed or abolished by an ordinary Act of Parliament under article 3.

What happened after 1956

Bombay was divided in 1960 into Maharashtra and Gujarat by the Bombay Reorganisation Act 1960, after the Samyukta Maharashtra and Mahagujarat movements. It is worth noting because Babulal Parate arises from this process.

Punjab was divided in 1966 into Punjab, Haryana and the Union territory of Chandigarh, with hill areas going to Himachal Pradesh.

The north east was reorganised by the North-Eastern Areas (Reorganisation) Act 1971 and later Acts, creating Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh.

Three States were created in 2000 on grounds other than language: Chhattisgarh from Madhya Pradesh, Uttarakhand from Uttar Pradesh, and Jharkhand from Bihar, largely on grounds of tribal identity, terrain and neglect.

Telangana was created in 2014 from Andhra Pradesh by the Andhra Pradesh Reorganisation Act 2014, on grounds of regional development rather than language, both States speaking Telugu.

And Jammu and Kashmir was reorganised in 2019 into two Union territories, which is the subject of its own chapter.

The pattern is worth stating. Language was the organising principle from 1953 to 1971; since 2000 the grounds have been development, terrain and identity, and the two Telugu States show that language is no longer the criterion.

The language provisions that go with the map

Article 345 lets a State Legislature adopt any one or more of the languages in use in the State, or Hindi, as the official language of that State.

Article 347 empowers the President, on a demand made and if satisfied that a substantial proportion of the population of a State desire the use of a language spoken by them to be recognised, to direct that the language be officially recognised throughout the State or any part of it.

Article 344 provides for a Commission and a Committee of Parliament on official language.

And articles 350A and 350B protect the linguistic minority left inside a reorganised State, by requiring facilities for instruction in the mother tongue at the primary stage and by creating a Special Officer for linguistic minorities. Those are taken up in the chapter on linguistic pluralism in Module II.

A worked example

A movement demands a new State to be carved out of the eastern districts of an existing State, on the ground that those districts speak a distinct language, have a distinct literature, and have received a disproportionately small share of public investment. The State government opposes it. What is the constitutional route, and what stops it?

The route is article 3, and it is short. A Bill on the President's recommendation, referred to the State Legislature for its views within a specified period, then an ordinary majority in both Houses of Parliament. The State's opposition is a view and no more.

Nothing in the Constitution requires a linguistic basis. The criteria applied since 1955 are policy criteria, drawn from the States Reorganisation Commission's report and from practice: language, administrative and financial viability, the unity and security of India, and the interests of the people of the area. A court will not apply them, because article 3 confers a legislative power and not a discretion to be reviewed for reasonableness.

And Babulal Parate removes the procedural objection. In Babulal Parate v. State of Bombay, AIR 1960 SC 51. Facts. The Bill implementing the States Reorganisation Commission's proposals for Bombay was referred to the State Legislature and then substantially modified in Parliament, so that the Legislature had never expressed its views on the Bill as passed. Held. The proviso to article 3 requires only that the Bill as introduced be referred and the views be obtained within the period specified, and that Parliament may amend the Bill thereafter without a fresh reference. Why it matters here is that a movement cannot be defeated, and a State cannot be protected, by an argument about what exactly was referred.

What actually decides the question is political, and that is the honest answer: the constitutional threshold is low and the political threshold is high, which is why demands persist for decades.

Distinctions

The last row is in this table because MU has printed a question attributing the language recommendation to Sarkaria. It is a factual error in the printed question, and a candidate who knows what Sarkaria actually was can answer the question and say so.

What it does NOT mean

It does not mean the Constitution requires linguistic States. Article 3 sets no criterion at all. The linguistic principle is policy, not law.

It does not mean every State is monolingual. Every State contains linguistic minorities, which is why articles 347, 350A and 350B exist.

It does not mean reorganisation ended in 1956. It has continued in every decade since, on shifting grounds.

And it does not mean linguistic reorganisation was a mistake or a success. The Dhar Commission's fear was that it would encourage separatism; the counter-argument is that conceding the linguistic demand removed the grievance and that India's linguistic diversity has not produced secession. An answer that states both is better than one that asserts either.

Quick revision

Dhar Commission 1948: administrative convenience, not language. JVP Committee 1949: defer, with Andhra a possible exception. Potti Sriramulu died 15 December 1952; Andhra State created 1 October 1953. States Reorganisation Commission under Fazl Ali, Panikkar and Kunzru, appointed December 1953, reported 30 September 1955: language important but not the sole criterion, with unity and security, viability and the people's interests. States Reorganisation Act 1956 with the Seventh Amendment: fourteen States and six Union territories, abolishing Parts A, B and C. Later: Bombay divided 1960, Punjab 1966, the north east from 1971, three States in 2000 on non-linguistic grounds, Telangana 2014, Jammu and Kashmir 2019. Language provisions: articles 344, 345 and 347, with 350A and 350B protecting linguistic minorities. Babulal Parate: only the Bill as introduced need be referred. The Sarkaria Commission was on Centre-State relations and reported in 1988.

Test yourself

1. Name the three bodies that considered reorganisation before 1956 and what each recommended. The Dhar Commission 1948, against a linguistic basis and for administrative convenience; the JVP Committee 1949, to defer linguistic provinces with Andhra as a possible exception; and the States Reorganisation Commission 1955, accepting language as an important but not the sole criterion alongside unity and security, viability and the interests of the people.

2. What was the Sarkaria Commission, and why is that worth knowing here? It was a commission on Centre-State relations which reported in 1988. It is worth knowing because a printed examination question has attributed the linguistic reorganisation recommendation to it, and a candidate who knows the difference can answer accurately.

3. What did the States Reorganisation Act 1956 do? It redrew the internal map into fourteen States and six Union territories and, with the Seventh Amendment, abolished the classification of States into Parts A, B and C.

4. Give two States created on grounds other than language and say what the grounds were. Jharkhand in 2000, on grounds of tribal identity and regional neglect; and Telangana in 2014, on grounds of regional development, both it and Andhra Pradesh speaking Telugu.

5. Does the Constitution require a State to be linguistically homogeneous? No. Article 3 lays down no criterion, and articles 347, 350A and 350B exist precisely because every State contains linguistic minorities.

6. What procedural argument did Babulal Parate close off? That where a Bill referred to a State Legislature is substantially amended in Parliament, a fresh reference is needed. The Court held that only the Bill as introduced need be referred and Parliament may amend it afterwards.

List II, the State List, sixty-one entries. Public order (1), police (2), officers of the State courts (3), prisons (4), local government (5), public health and sanitation and hospitals (6), pilgrimages within India (7), intoxicating liquors (8), relief of the disabled (9), libraries and museums (12), communications other than those in List I (13), agriculture (14), preservation of livestock (15), water (17), land (18), fisheries (21), gas (25), trade and commerce within the State (26), markets and fairs (28), money-lending (30), betting and gambling (34), works and land of the State (35), industries subject to Entries 7 and 52 of List I (24), State public services (41), State courts fees (3), and taxing entries 45 to 63 including land revenue, agricultural income, duties on liquor, stamp duty, taxes on vehicles and on trades.

List III, the Concurrent List, forty-seven entries. Criminal law (1), criminal procedure (2), preventive detention for reasons connected with State security (3), civil procedure (13), contempt of court (14), marriage and divorce (5), infants and minors, adoption, wills, intestacy and succession, joint family and partition (5), transfer of property other than agricultural land (6), contracts (7), actionable wrongs (8), bankruptcy (9), trusts (10), evidence and oaths (12), forests (17A), protection of wild animals and birds (17B), education (25), legal, medical and other professions (26), trade unions and industrial disputes (22), social security and social insurance (23), labour welfare (24), price control (34), electricity (38), newspapers, books and printing presses (39), and economic and social planning (20).

Entry 5 of List III is the one Module III turns on, since it names marriage and divorce, infants and minors, adoption, wills, intestacy and succession, joint family and partition, and all matters in respect of which parties in judicial proceedings were immediately before the commencement of the Constitution subject to their personal law.

The residuary power

Article 248 provides that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or the State List, including a tax not mentioned in either. Entry 97 of List I says the same thing from the other end.

In India the residue is with the Union, unlike the United States and Australia where it is with the States, and that follows Canada's example.

A worked example

Take a real problem. A State enacts a law prohibiting the sale and consumption of liquor in the State, and provides that any person found intoxicated in a public place shall be punished with imprisonment. A distiller challenges it, saying the law is really about trade and industry, which are Union subjects.

Start by identifying the candidate entries, and be exhaustive about it. Entry 8 of List II: intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors. Entry 6 of List II: public health. Entry 1 of List III: criminal law. Entry 33 of List III: trade and commerce in, and the production, supply and distribution of, the products of certain industries. Entry 52 of List I: industries declared by Parliament to be in the public interest.

Then read the entries. Entry 8 of List II names the very subject in terms and covers production, manufacture, possession, transport, purchase and sale. It is not a general trade entry; it is a specific entry for this commodity.

Then apply the rule about general and specific entries. A general entry yields to a specific one. Trade and commerce generally cannot be used to defeat an entry that names liquor expressly.

Then deal with the criminal provision. Creating an offence to enforce a valid law is ancillary to the field, and criminal law is in any event Entry 1 of List III.

And note the one thing that would change the answer. If Parliament had declared the distillery industry to be an industry the control of which is expedient in the public interest under Entry 52 of List I, that industry would be carved out of Entry 24 of List II, and the State's power over that aspect would be displaced. That is how Entry 52 works and it is worth knowing.

The cases

A Union law's competence is established by elimination. In Union of India v. H.S. Dhillon, AIR 1972 SC 1061. Facts. A challenge to the Wealth-tax Act 1957 as amended in 1969 to include the capital value of agricultural land in net wealth, the argument being that taxes on agricultural land are Entry 49 of List II. Held, by four to three. The amendment was valid, and laid down the method: where a law made by Parliament is challenged, the court asks whether it falls within List II or List III; if it does not, no further question arises, because Parliament's competence is established by article 248 with Entry 97 of List I without any need to identify a specific Union entry. Why it matters here is that it reverses the burden for Union legislation, and it is the single most useful proposition for answering a competence problem.

A law may incidentally cover ground in another List. In State of Bombay v. F.N. Balsara, AIR 1951 SC 318. Facts. A challenge to the Bombay Prohibition Act 1949, which prohibited the manufacture, sale, possession and consumption of liquor; the challenge included the ground that the Act encroached on the Union's power over import and export across customs frontiers under Entry 19 of List I as it then stood. Held. The Act was in pith and substance a law with respect to intoxicating liquors in the State List, and that an incidental encroachment on a Union entry did not make it invalid; certain provisions were nevertheless struck down as violating fundamental rights, including those affecting medicinal and toilet preparations containing alcohol. Why it matters here is that it shows the two questions being kept apart: competence is one enquiry and fundamental rights are another, and a law may pass the first and fail the second.

And the doctrine came from the Privy Council under the 1935 Act. In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd, Khulna, (1947) 49 Bom LR 568, decided in 1947. Facts. A challenge to the Bengal Money-Lenders Act 1940, which limited the interest and principal recoverable on loans, on the ground that it dealt with promissory notes, a Federal subject under the Government of India Act 1935. Held. The Act was in pith and substance a law about money-lending, a Provincial subject, and that its effect on promissory notes was incidental; a law must be examined as a whole and its true nature and character ascertained, and the extent of the invasion of the other field is a matter of degree. Why it matters here is that the entries were inherited from the 1935 Act along with the doctrine used to read them, and Indian courts have applied that doctrine without interruption.

Distinctions

What it does NOT mean

It does not mean an entry can be read to defeat another. Harmonious construction comes first; the non obstante clauses in article 246 are the last resort.

It does not mean the entry numbers are stable. Entries have been amended: education moved from List II to List III by the Forty-second Amendment in 1976, and forests and the protection of wild animals moved the same way. A candidate who quotes an entry should know which List it is in today.

It does not mean List III is a Union list. A State law on a Concurrent subject is valid and operative unless it is repugnant to a Union law, and even then article 254(2) may save it.

And it does not mean competence is the only question. Balsara is the reminder: a law within an entry may still fail against Part III.

Quick revision

Article 246: List I to Parliament exclusively (97 entries), List II to the States exclusively (61), List III to both (47), with the non obstante clauses giving priority List I, then III, then II, and clause (4) covering territory outside a State. Article 248 with Entry 97: the residue to Parliament. Rules of construction: entries are fields and are read as widely as the words allow; ancillary matters are included; a specific entry beats a general one; taxing power must be traced to a taxing entry and is never implied; harmonise before applying the non obstante clause. Entry 5 of List III carries personal law and is the foundation of Module III. Education, forests and wild animals moved from List II to List III by the Forty-second Amendment 1976. H.S. Dhillon: for a Union law, ask only whether it falls in List II or III; if not, Entry 97 with article 248 suffices. Balsara: pith and substance, incidental encroachment permitted, but Part III is a separate enquiry. Prafulla Kumar Mukherjee: the doctrine, inherited from the 1935 Act, that the extent of invasion is a matter of degree.

Test yourself

1. State the effect of the three non obstante clauses in article 246. List I prevails over both other Lists; List III prevails over List II; and the State List is exclusive but subject to both. So the order of priority is Union, Concurrent, State.

2. Where is the residuary power, and how is it used? In Parliament, by article 248 and Entry 97 of List I. On H.S. Dhillon, a Union law is competent unless it falls within List II or List III, so no specific Union entry need be identified.

3. Give the five rules for reading an entry. Entries are fields and not powers, to be given the widest amplitude; ancillary and incidental matters are included; a specific entry prevails over a general one; a taxing power must be traced to a taxing entry and is not implied in a general entry; and entries are harmonised before the non obstante clauses are applied.

4. Which entry carries personal law, and why does it matter for this paper? Entry 5 of List III, which names marriage and divorce, infants and minors, adoption, wills, intestacy and succession, joint family and partition, and matters in which parties were subject to their personal law before the Constitution. It matters because a uniform civil code would be legislated under it, by Parliament or by a State.

5. Name three entries moved between Lists by amendment. Education, forests, and the protection of wild animals and birds, all moved from List II to List III by the Forty-second Amendment 1976.

6. Why does Balsara upholding a law under Entry 8 of List II not end the case? Because competence and fundamental rights are separate enquiries. The Act was within the State's field, and provisions of it were still struck down for violating Part III.

Colourable legislation

The maxim. Quod non potest fieri directe, non debet fieri per obliquum: what cannot be done directly ought not to be done indirectly.

What it is about, and this is the point most answers get wrong. Colourability has nothing to do with the legislature's motive or bad faith. The question is one of competence alone: is the law, in substance, on a subject the legislature could not legislate on? A legislature's honest belief that it may do something does not make it competent, and a legislature's bad motive in doing something it may do does not make it incompetent.

The doctrine is therefore an application of pith and substance, not a separate enquiry with a separate test.

Note where it does NOT apply. It has no application to a plenary legislature acting within its own field, and none to a challenge under Part III, where the question is the effect of the law and not its subject.

Incidental encroachment

A valid law may trespass, and the trespass does not undo it. A State law on money-lending may affect promissory notes; a State law on liquor may affect import.

But a law cannot use an incidental power to achieve a main purpose it could not achieve directly. That is where incidental encroachment shades into colourability, and the difference is one of degree, which is why the two doctrines are taught together.

And an ancillary power is different again. The power to legislate on a field carries the power to make that legislation effective: to create offences, to impose penalties, to provide for search and seizure. That is not encroachment at all.

A worked example

A State enacts the Agricultural Produce Protection Act. Its long title says it is a law to protect agricultural produce from adulteration. Its substantive provisions (a) require every person storing more than fifty quintals of grain to obtain a licence, (b) empower the State to fix the maximum price at which stored grain may be sold, and (c) prohibit the movement of grain out of the State without a permit. Test each.

Provision (a). Entry 14 of List II is agriculture; Entry 28 is markets and fairs. Licensing storage within the State to prevent adulteration is in pith and substance about agricultural produce inside the State. Valid.

Provision (b). Price control is Entry 34 of List III, so both governments may legislate; if there is a Union law in the field, article 254 decides, and that is the next chapter. Not a competence problem in itself.

Provision (c) is the interesting one. Trade and commerce within the State is Entry 26 of List II; trade and commerce with foreign countries and among the States is Entry 42 of List I; and article 301 guarantees freedom of trade throughout the territory of India. A prohibition on moving grain OUT of the State is in pith and substance a restriction on inter-State trade, whatever the long title says. The long title cannot save it, because pith and substance looks at object, scope and effect.

Now suppose the State replies that (c) is merely incidental to (a) and (b). That is the argument the doctrine of incidental encroachment exists for, and it is answered by degree: the provision is not a minor consequence of a storage licensing scheme but a free-standing prohibition with its own machinery. And if the State's real object was to keep prices down inside the State by trapping supply, the provision is colourable: it does through a public health statute what article 301 and Entry 42 forbid it to do directly.

The cases

The doctrine came to India from the Privy Council. In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd, Khulna, (1947) 49 Bom LR 568, decided in 1947. Facts. A challenge to the Bengal Money-Lenders Act 1940, which limited the amount of interest and principal recoverable on a loan, on the ground that it dealt with promissory notes, a Federal subject under the Government of India Act 1935, while money-lending was Provincial. Held. The Act was in pith and substance a law with respect to money-lending, and its effect on promissory notes was incidental; a law must be examined as a whole and its true nature and character ascertained, and the extent of the invasion of the other field is a matter of degree. Why it matters here is that the Seventh Schedule inherited both the Lists and the doctrine used to read them, so a 1947 Privy Council case is still the leading authority.

And it was applied to the Constitution at once. In State of Bombay v. F.N. Balsara, AIR 1951 SC 318. Facts. A challenge to the Bombay Prohibition Act 1949, which prohibited the manufacture, sale, possession, consumption and import of liquor, one ground being that it encroached on the Union's power over import across customs frontiers. Held. The Act was in pith and substance a law with respect to intoxicating liquors under Entry 8 of List II, and that an incidental encroachment on a Union entry did not invalidate it; several provisions were nevertheless struck down for violating fundamental rights, including as they applied to medicinal and toilet preparations containing alcohol. Why it matters here is that it separates the two enquiries cleanly: competence first, Part III afterwards.

Colourability is about competence, not motive. In The State of Bihar v. Maharajadhiraja Sir Kameshwar Singh of Darbhanga, AIR 1952 SC 252; 1952 SCR 889. Facts. A challenge to the Bihar Land Reforms Act 1950, which abolished intermediary estates; section 4(b) required half the arrears of rent collected by a proprietor before vesting to be deposited in the State treasury and treated as part of the compensation. Held. Most of the Act valid but struck down section 4(b) as a fraud on the Constitution: the provision purported to provide compensation while in substance taking the proprietor's own money and returning part of it as though it were compensation. Why it matters here is that it is the clearest Indian instance of the substance defeating the form, and the phrase "fraud on the Constitution" is the vocabulary an examiner expects.

And a law that is partly beyond competence may be severed. In R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628. Facts. A challenge to the Prize Competitions Act 1955, which regulated prize competitions; the petitioners ran competitions requiring skill, and argued that the Act, if it reached competitions of skill, went beyond the entry relating to betting and gambling. Held. The Act, properly construed, applied only to competitions of a gambling nature; and it set out the rules of severability, that the intention of the legislature is the determining factor, that the valid and invalid parts are severable if they are not so inextricably mixed that what remains cannot stand independently, and that a court will read down a provision to save it where the legislature would have enacted the narrower law. Why it matters here is that competence problems are usually solved by construction rather than by invalidation, which is the point a good answer ends on.

Distinctions

What it does NOT mean

It does not mean a long title decides anything. The court looks at object, scope and effect, and a statute's own description of itself is evidence at best.

It does not mean motive is examinable. Colourability is decided by asking what the law does, not why the legislature did it.

It does not mean any degree of encroachment is permitted. The extent of the invasion is a matter of degree, and a law that is substantially about the other field is not saved.

And it does not mean a competent law is a valid law. Balsara is the standing reminder that Part III is a separate enquiry.

Quick revision

Pith and substance: ascertain the true nature and character of the enactment as a whole, from its object, scope and effect; allot it to the entry it is substantially about; ignore an incidental effect on another entry; and remember that the extent of the invasion is a matter of degree. Colourable legislation: what cannot be done directly cannot be done indirectly; a question of competence and never of motive; the vocabulary is "fraud on the Constitution". Incidental encroachment: a valid law may trespass so far as is incidental, and an ancillary power to make legislation effective is not encroachment at all. Prafulla Kumar Mukherjee 1947: the Bengal Money-Lenders Act, money-lending in substance, promissory notes incidentally. Balsara 1951: the Bombay Prohibition Act, Entry 8 of List II, incidental encroachment permitted, but parts struck down under Part III. Kameshwar Singh 1952: section 4(b) a fraud on the Constitution. R.M.D. Chamarbaugwalla 1957: severability and reading down, the legislature's intention being the determining factor.

Test yourself

1. State the four steps of the pith and substance enquiry. Read the enactment as a whole; identify the entries in play; ask what the law is in substance about, by its object, scope and effect; and allot it to that entry, disregarding an incidental effect on another, subject to the extent of the invasion being a matter of degree.

2. Is colourable legislation about the legislature's motive? No. It is about competence alone: whether the law, in substance, is on a subject the legislature could not legislate on. A bad motive does not make a competent law void, and an honest motive does not make an incompetent one valid.

3. Distinguish incidental encroachment from an ancillary power. Incidental encroachment is a valid law having an effect in the other government's field, which is permitted so far as it is incidental. An ancillary power is the power to make legislation in one's own field effective, for example by creating an offence, and is not an encroachment at all.

4. What was struck down in Kameshwar Singh and why? Section 4(b) of the Bihar Land Reforms Act, which required half the arrears of rent collected by a proprietor to be deposited in the treasury and treated as compensation. It was a fraud on the Constitution because it purported to compensate while in substance taking the proprietor's own money.

5. State the rules of severability from R.M.D. Chamarbaugwalla. The intention of the legislature is the determining factor; the valid and invalid parts are severable if they are not so inextricably mixed that what remains cannot stand independently; and a provision may be read down to save it where the legislature would have enacted the narrower law.

6. Why is a 1947 Privy Council decision still the leading Indian authority? Because the Seventh Schedule's three-List structure was inherited from the Government of India Act 1935 together with the doctrine the Privy Council had developed to read it, and Indian courts have applied that doctrine without interruption.

The intention to occupy the field is inferred, not assumed. The court looks at the scheme of the Union Act, its provisions, and whether it purports to be exhaustive.

Article 254(2): the State's escape route

How it works. A State Bill on a Concurrent matter that would otherwise be repugnant to an earlier Union law may be reserved by the Governor under article 200 for the President's consideration. If the President assents, the State law prevails in that State.

Three limits. The saving operates only in the State concerned; it works only against an EARLIER Union law, not a later one; and by the proviso, Parliament may at any time add to, amend, vary or repeal the State law, so the protection lasts only as long as Parliament allows.

And the assent must be to the repugnancy. The President's assent under article 254(2) is understood to relate to the specific repugnancy for which the reservation was made, not to be a general immunisation of the State Act.

A worked example

Parliament enacts the Contract Labour (Regulation and Abolition) Act, a Concurrent subject under Entry 22 or 24 of List III, providing that a contractor employing twenty or more workers must be licensed. A State enacts a law providing that a contractor employing ten or more workers must be licensed, and imposing additional conditions. Is the State law repugnant?

Condition one is satisfied. Both laws are on a Concurrent matter, so both legislatures are competent and article 254 is in play.

Condition two is the real question, and the answer is usually no. A contractor employing fifteen workers must be licensed under the State law and need not be under the Union law. Can both be obeyed? Yes: obtaining a licence the Union law does not require is not disobedience to the Union law. A stricter State law on a Concurrent subject is generally not repugnant to a more permissive Union law.

Now change the facts so that it is. Suppose the Union Act provides that no contractor employing fewer than twenty workers SHALL BE REQUIRED to obtain a licence. Now the two cannot stand together: the Union law confers an immunity the State law removes, and the State law is void to the extent of the repugnancy.

And now change them again. Suppose the Union Act contains a complete scheme of registration, licensing, conditions of work and abolition, and states that it is to be the whole law on contract labour. Even the first State law may then be repugnant on the occupied field ground.

Finally, the escape route. If the State Bill in the second or third version had been reserved by the Governor under article 200 and had received the President's assent, it would prevail in that State under article 254(2), until Parliament chose to amend or repeal it.

The cases

Repugnancy arises only in the Concurrent field. In Hoechst Pharmaceuticals Ltd v. State of Bihar, 1983 AIR 1019; (1983) 4 SCC 45, decided on 6 May 1983. Facts. Section 5(3) of the Bihar Finance Act 1981 imposed a surcharge on large dealers and forbade them to pass it on to purchasers, while paragraph 21 of the Drugs (Prices Control) Order 1979, made under the Essential Commodities Act 1955, permitted a dealer to pass on sales tax; drug manufacturers said the State provision was repugnant and must yield under article 254(1). Held. The State provision valid. Entry 54 of List II is a tax entry, so the two laws were not in the same field. The question of repugnancy under article 254(1) arises only where both legislatures are competent with respect to a matter in the Concurrent List and there is a direct conflict; only then is the State law void to the extent of the repugnancy. Article 254(1) has no application to an overlap between List II on the one hand and Lists I and III on the other: there the State law fails, if at all, for want of competence under article 246(1) read with the opening words of article 246(3), and not for repugnance. Why it matters here is that it is the authority for the boundary of the article, and it is the proposition most answers miss.

The tests for a direct conflict. In M. Karunanidhi v. Union of India, AIR 1979 SC 898. Facts. A prosecution of a former Chief Minister under the Prevention of Corruption Act 1947 and the Indian Penal Code, the accused arguing that the Tamil Nadu Public Men (Criminal Misconduct) Act 1973, a State law which had received the President's assent and had later been repealed, was repugnant to the Central Acts and had displaced them. Held. There was no repugnancy: the State Act created a distinct offence with different ingredients and did not conflict with the Central Acts, and it laid down that repugnancy arises where the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together, where obedience to one involves disobedience to the other, or where Parliament has intended to lay down an exhaustive code in respect of the subject-matter replacing the State law. Why it matters here is that it is the standard statement of the tests and it gives the occupied-field limb its Indian formulation.

And the timing of the two laws matters, which article 254 conceals. In Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648. Facts. The case concerned the Uttar Pradesh Transport Service (Development) Act 1955 and its relation to the Motor Vehicles Act as amended by Parliament in 1956, the State scheme having been framed before the Central amendment. Held., distinguishing the two clauses of article 13 in a passage that has become the standard authority, that a pre-Constitution law inconsistent with a fundamental right is void only from the commencement of the Constitution, whereas a post-Constitution law made in contravention of article 13(2) is void ab initio and still-born; and on the federal question it applied the occupied-field principle to the competing transport schemes. Why it matters here is the still-born and eclipsed distinction, which is why a State law struck down for repugnancy cannot simply revive when the Union law is repealed unless it is re-enacted.

Distinctions

What it does NOT mean

It does not mean a stricter State law is repugnant. Where both can be obeyed, there is no direct conflict, and a stricter State standard on a Concurrent subject usually stands.

It does not mean the President's assent immunises a State Act generally. The assent relates to the repugnancy for which the reservation was made, and Parliament may override the State law at any time under the proviso.

It does not mean article 254 protects a State law made without competence. A law outside the State's field is void whether or not the President assented to it.

And it does not mean repugnancy is the usual reason a State law fails. Most State laws that fail do so for want of competence or for breach of Part III, and Hoechst exists because the two enquiries were being run together.

Quick revision

Article 254(1): a State law repugnant to a Parliamentary law or an existing law with respect to a Concurrent matter is void to the extent of the repugnancy, and the Parliamentary law prevails whether passed before or after. Two conditions: both legislatures competent in the same field, meaning the Concurrent List, AND a direct conflict. Hoechst: article 254 has no application to an overlap between List II and Lists I or III, where the question is competence under article 246(1) and (3) and not repugnance. M. Karunanidhi: repugnancy where the provisions are irreconcilable, where obedience to one is disobedience to the other, or where Parliament intended an exhaustive code. Deep Chand: a post-Constitution law contravening article 13(2) is void ab initio and still-born, not eclipsed. Article 254(2): a State law reserved for and assented to by the President prevails in that State against an earlier Union law, subject to the proviso letting Parliament add to, amend, vary or repeal it at any time.

Test yourself

1. State the two conditions for repugnancy under article 254(1). Both legislatures must be competent in the same field, which means the matter must be in the Concurrent List; and there must be a direct conflict between the two laws.

2. What did Hoechst decide about the boundary of article 254? That it has no application to an overlap between List II on the one hand and Lists I and III on the other. In such a case the State law fails, if at all, for want of legislative competence under the non obstante clause in article 246(1) read with the opening words of article 246(3), and not for repugnance.

3. Give the three tests of direct conflict from M. Karunanidhi. Where the two enactments contain inconsistent and irreconcilable provisions so that they cannot stand together; where obedience to one involves disobedience to the other; and where Parliament intended to lay down an exhaustive code on the subject-matter replacing the State law.

4. Is a stricter State law on a Concurrent subject repugnant to a more permissive Union law? Usually not, because both can be obeyed. It becomes repugnant if the Union law confers an immunity or a right that the State law removes, or if the Union law is an exhaustive code on the subject.

5. State three limits on the protection given by article 254(2). It operates only in the State concerned; only against an earlier Union law; and only until Parliament exercises its power under the proviso to add to, amend, vary or repeal the State law.

6. Why can a State law struck down for repugnancy not simply revive when the Union law is repealed? Because on Deep Chand a law that was void when made is still-born rather than merely eclipsed, so the removal of the impediment does not restore it and re-enactment is required.

Why it matters is that this reverses the burden. For a State law the question is "which State entry does it fall in?"; for a Union law the question is "does it fall in List II or III?", and if not, the law stands.

The five doors into the State List

Article 249: the national interest, on the States' own chamber's resolution. If the Council of States declares by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws on a matter in the State List specified in the resolution, Parliament may do so for the whole or any part of India while the resolution is in force. The resolution lasts one year and may be renewed for one year at a time; a law so made ceases to have effect six months after the resolution expires.

Note who the gatekeeper is. The Council of States is the chamber that represents the States, so the route into the State List is guarded by the States' own representatives, which is a genuinely federal safeguard.

Article 250: during an emergency. While a Proclamation of Emergency is in operation, Parliament has power to make laws for the whole or any part of India with respect to any matter in the State List. Such a law ceases to have effect six months after the Proclamation ceases.

Article 251 keeps the State's power alive. Nothing in articles 249 and 250 restricts the power of a State Legislature to make any law which it has power to make, but if a State law is repugnant to a law made by Parliament under either article, the Parliamentary law prevails, and the State law is inoperative only so long as the Parliamentary law continues.

Article 252: at the request of the States. If the Legislatures of two or more States resolve that a matter in the State List should be regulated by Parliament, Parliament may pass an Act for those States; and it then applies to any other State whose Legislature adopts it by resolution. Such an Act may be amended or repealed only by Parliament. The Urban Land (Ceiling and Regulation) Act 1976 and the Transplantation of Human Organs Act 1994 were passed this way.

Article 253: to implement a treaty. Notwithstanding anything in the foregoing provisions, Parliament has power to make any law for the whole or any part of India for implementing any treaty, agreement or convention with any other country, or any decision made at any international conference, association or other body. This is the widest of the five and it has no condition attached at all beyond the existence of the treaty, which is why it is examined again in the chapter on how international law enters Indian law in Module IV.

And article 356: when the State Legislature's powers pass to Parliament. Clause (1)(b) provides that the President may declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament. This is not a door into the State List so much as the temporary abolition of the State Legislature, and it is worked in [President's Rule: Article 356 and S.R. Bommai].

Two further provisions in the same family

Article 247: Parliament may establish additional courts for the better administration of laws made by it or of any existing law with respect to a matter in the Union List.

Article 255: a want of recommendation or previous sanction does not invalidate. Where a Bill required the previous sanction or recommendation of the President or a Governor and it was not given, the Act is not invalid for that reason alone if assent was afterwards given by the appropriate authority. This is a saving provision and it disposes of a common technical objection.

A worked example

A serious outbreak of a communicable disease crosses several States. The Union wishes to impose a uniform quarantine, uniform hospital standards and a uniform price cap on medicines. Which route does it use for each?

Quarantine between States. Entry 81 of List I is inter-State quarantine. No door is needed; this is the Union's own field.

Hospital standards. Public health and hospitals is Entry 6 of List II. The Union has three choices. It may seek a resolution of the Council of States under article 249, which requires two-thirds of those present and voting and lasts a year. It may wait for a Proclamation of Emergency under article 250, which is not available for a disease outbreak since the grounds are war, external aggression and armed rebellion. Or it may act under article 252 if two or more States resolve to ask it to.

Price control of medicines. Entry 34 of List III is price control, and drugs are Entry 19 of List III. So the Union may legislate directly, subject to article 254 where a State law conflicts.

And a fourth possibility worth naming. If India is party to the International Health Regulations, article 253 permits Parliament to legislate on any of these matters to implement them, regardless of the Lists.

The exercise shows why article 253 is the widest door, and why the treaty power is a standing federal question rather than an international law footnote.

Distinctions

What it does NOT mean

It does not mean Parliament may enter the State List at will. Each route has a condition, and the two most useful ones are guarded by the States themselves, through the Council of States under article 249 and through the States' own resolutions under article 252.

It does not mean a law under article 249 or 250 destroys the State law. Article 251 preserves the State's power and makes the State law merely inoperative while the Parliamentary law lasts.

It does not mean article 253 has no limits. It is confined to implementing a treaty or an international decision, so a law that goes beyond what the instrument requires cannot be supported by it, and the treaty must be a real one.

And it does not mean the residuary power swallows the State List. H.S. Dhillon asks first whether the law falls within List II or III, and only if it does not does Entry 97 come into play.

Quick revision

Article 248 and Entry 97: the residue, including taxes, is with Parliament, following Canada rather than the United States and Australia. H.S. Dhillon: for a Union law, ask only whether it falls in List II or III; if not, competence is established without finding a Union entry. Five doors into the State List. Article 249: Council of States resolution by two-thirds present and voting in the national interest, one year at a time, the law lapsing six months after. Article 250: during a Proclamation of Emergency, lapsing six months after. Article 251: the State's power survives and its law is only inoperative meanwhile. Article 252: at the request of two or more States, and adoptable by others; amendable only by Parliament. Article 253: to implement a treaty, agreement, convention or international decision, with no other condition. Article 356(1)(b): the State Legislature's powers exercisable by Parliament. Article 247: additional courts. Article 255: a missing recommendation or sanction does not invalidate if assent was afterwards given.

Test yourself

1. Where does the residuary power lie in India, and how does that compare with the United States and Australia? With Parliament, by article 248 and Entry 97 of List I. In the United States the Tenth Amendment reserves the residue to the States, and in Australia section 107 does the same; India followed the Canadian model deliberately.

2. State the method laid down in H.S. Dhillon for testing a Union law. Ask whether the law falls within List II or List III. If it does not, Parliament's competence is established by article 248 with Entry 97, and no specific Union entry need be identified.

3. Name the five routes into the State List with their conditions. Article 249, a Council of States resolution by two-thirds present and voting in the national interest; article 250, during a Proclamation of Emergency; article 252, at the request of two or more State Legislatures; article 253, to implement a treaty or international decision; and article 356(1)(b), when the State Legislature's powers become exercisable by Parliament.

4. Which of the five is guarded by the States themselves, and how? Article 249, because the resolution must be passed by the Council of States, the chamber representing the States; and article 252, because it operates only at the request of the State Legislatures concerned.

5. What does article 251 preserve? The State Legislature's power to make the law it could otherwise make. A State law repugnant to a Parliamentary law under article 249 or 250 is inoperative only so long as that Parliamentary law continues.

6. Why is article 253 the widest door? Because it operates notwithstanding the distribution of powers and carries no condition other than the existence of a treaty, agreement, convention or international decision to be implemented, so Parliament may legislate on any State subject that an instrument requires.

Step one: identify the entry. Taxes on advertisements other than advertisements published in newspapers and advertisements broadcast by radio or television is Entry 55 of List II. Taxes on advertisements broadcast by radio or television are excluded from the State entry, which disposes of the case on competence alone.

Now change the facts so that the doctrine has work to do. Suppose instead the State taxes an entertainment event, and the event is a lottery organised in another State whose tickets are sold in this one.

Step two: is the connection real? Tickets are sold within the State, to residents of the State, by agents operating in the State. That is a genuine link and not a contrivance.

Step three: is the liability pertinent to the connection? If the tax is on the tickets sold within the State, yes. If the tax is on the whole turnover of the lottery wherever sold, no: the link supports a tax on the local part of the activity and no more.

Step four: state the limit. The doctrine expands a State's reach where an activity straddles a boundary; it does not turn a State Legislature into a national one, and a law that uses a slender local connection to tax an essentially external activity fails on the second limb.

The case

The doctrine is applied inside the ordinary competence enquiry rather than as a separate head. In State of Bombay v. F.N. Balsara, AIR 1951 SC 318. Facts. A challenge to the Bombay Prohibition Act 1949, which prohibited the manufacture, sale, possession, consumption and import of liquor, one of the grounds being that the Act reached transactions and property connected with places outside the State and encroached on the Union's power over import across customs frontiers. Held. The Act was in pith and substance a law with respect to intoxicating liquors within Entry 8 of List II, that an incidental encroachment on a Union entry did not invalidate it, and that the prohibition operated on acts done within the State; several provisions were nevertheless struck down for violating fundamental rights, including as they applied to medicinal and toilet preparations. Why it matters here is that it shows how the territorial question is actually decided: not by asking whether the law has any external effect, but by asking what the law operates on, which is the same question pith and substance asks.

Distinctions

What it does NOT mean

It does not mean article 245(2) enlarges Parliament's subject-matter competence. It removes a territorial objection only.

It does not mean any connection will do. The connection must be real and the liability pertinent to it, and both limbs must be satisfied.

It does not mean a State may never regulate a person outside it. It may, where the person's activity has a genuine link with the State, which is exactly what the doctrine permits.

And it does not mean the doctrine is a separate head of challenge. It is applied within the competence enquiry, alongside pith and substance.

Quick revision

Article 245(1): Parliament for the whole or any part of India, a State Legislature for the whole or any part of the State. Article 245(2): a law of Parliament is not invalid on the ground that it would have extra-territorial operation, which removes the territorial objection but not a competence objection and does not make Indian law enforceable abroad. There is no corresponding saving for a State, so a State law reaching outside the State needs a territorial nexus: the connection must be real and not illusory, and the liability sought to be imposed must be pertinent to that connection. Both limbs are required. Commonest in sales tax, entertainment tax and betting. Balsara: the question is what the law operates on, which is the pith and substance enquiry.

Test yourself

1. What does article 245(2) do, and what does it not do? It provides that a law of Parliament shall not be deemed invalid on the ground that it would have extra-territorial operation. It does not enlarge Parliament's subject-matter competence, and it does not make Indian law enforceable in a foreign court.

2. State the two limbs of the territorial nexus test. The connection between the State and the object of the law must be real and not illusory; and the liability sought to be imposed must be pertinent to that connection.

3. Why does a State need the doctrine when Parliament does not? Because article 245(2) saves only a law of Parliament. Article 245(1) confines a State Legislature to laws for the whole or any part of the State, and there is no corresponding saving, so a nexus must be shown.

4. Give an example of a connection that is real but a liability that is not pertinent. Tickets of an out-of-State lottery are sold within the State, which is a real connection; a tax on the entire turnover of the lottery wherever sold is not pertinent to it, because the link supports a tax on the local part of the activity only.

5. In which fields does the doctrine most often arise, and why? Sales tax, entertainment tax and betting and gambling, because in each the activity taxed can begin in one State and be completed in another.

6. Is territorial nexus a separate ground of challenge? No. It is decided inside the ordinary competence enquiry, by asking what the law in substance operates on, which is the same question the doctrine of pith and substance asks.

Article 279A creates the Council within sixty days of the amendment's commencement. Its members are the Union Finance Minister as Chairperson, the Union Minister of State in charge of Revenue or Finance, and the Minister in charge of Finance or Taxation, or any other Minister nominated, of each State. Clause (9) fixes the voting: every decision requires a majority of not less than three-fourths of the weighted votes of the members present and voting, the Centre having a weightage of one-third and all the States together two-thirds.

Article 366(12A) defines goods and services tax as any tax on supply of goods, or services, or both, except taxes on the supply of the alcoholic liquor for human consumption.

The 101st Amendment also deleted or amended a long list of entries, including Entry 84 of List I and Entry 54 of List II, and provided for compensation to the States for loss of revenue for five years.

Why article 246A is a constitutional novelty

Because it is the first genuinely simultaneous power in the Constitution. The Concurrent List is not simultaneous in this sense: both may legislate, but article 254 makes the Union law prevail. Article 246A operates notwithstanding article 254, so a State law is not displaced by a Union law on the same subject.

Because it is outside the Seventh Schedule altogether. The power comes from the article, not from an entry, which is why the amendment had to delete the entries it replaced.

And because it made a bargaining institution constitutionally necessary. Two governments with power over the same tax must agree the rate or the tax cannot work, and article 279A is the machinery for that agreement.

The case

In Union of India v. Mohit Minerals Pvt Ltd, (2022) 10 SCC 700. Facts. Importers were required to pay integrated goods and services tax on ocean freight for goods imported on a cost, insurance and freight basis, on a reverse charge basis, although they had already paid the tax on the composite supply of imported goods; the Gujarat High Court had struck the notifications down. The Union argued that the Council's recommendations bound the States and the Union alike.

Held. The levy on ocean freight was bad, since the importer had already been taxed on a composite supply of which transportation was a part, and taxing the freight separately was double taxation. On the constitutional question it held that the recommendations of the Goods and Services Tax Council are not binding on the Union and the States but have persuasive value: article 246A confers simultaneous legislative power on both, article 279A does not create a body whose recommendations displace that power, and the deliberative federalism the Council embodies works by dialogue rather than by command. It described Indian federalism as a dialogue in which the States and the Centre are equal participants, and observed that both the Centre and the States are competent to legislate on the tax.

Why it matters here is that it answers the strongest objection to the amendment. The objection was that a State which surrenders its sales tax power to a Council in which it has one thirty-first of two-thirds of the vote has lost its fiscal autonomy. The answer is that the Council recommends and the legislature enacts, so the constitutional power remains with each legislature.

The counter-argument should be stated too, because it is real. A State that legislates against a Council recommendation loses the uniformity that is the whole point of the tax, and may lose compensation. Legal freedom and practical freedom are not the same thing, and a good answer says so.

A worked example

A State wishes to reduce the rate of tax on handloom textiles produced in the State, in order to support a local industry. The Council has recommended a uniform rate. What may the State do?

Constitutionally, it may legislate. Article 246A gives the State Legislature power to make laws with respect to the tax on intra-State supply, and Mohit Minerals holds that the Council's recommendation does not bind it.

Practically, three things follow, and they are the substance of the answer. First, the tax is designed as a chain of input credits, so a State rate out of step with the rest breaks the credit chain and burdens the very industry it is meant to help when the goods leave the State. Second, the State cannot alter the integrated tax on inter-State supply at all, because article 246A(2) gives Parliament exclusive power there. Third, the compensation arrangement and the political cost of departing from a Council decision are real constraints.

And a fourth point is worth making. A State could achieve its object by a subsidy rather than a rate change, which is not a tax measure at all. That is what most States do, and it shows how the constitutional and the practical interact.

Distinctions

What it does NOT mean

It does not mean the States gave up their taxing power. They exchanged a set of entries for a simultaneous power in article 246A, and Mohit Minerals holds that power intact.

It does not mean everything is inside the tax. Alcoholic liquor for human consumption is excluded by article 366(12A), and the five petroleum products are outside until the Council recommends a date.

It does not mean the Council is a legislature. It recommends; Parliament and the State Legislatures enact.

And it does not mean the Council's decisions can be ignored without cost. The tax works only if the rates match, so the practical pressure to conform is very strong even though the legal obligation is absent.

Quick revision

Constitution (One Hundred and First Amendment) Act 2016. Article 246A: simultaneous power in Parliament and every State Legislature, notwithstanding articles 246 and 254; Parliament exclusive for inter-State supply under clause (2); five petroleum products deferred by the proviso. Article 269A: inter-State tax levied and collected by the Union and apportioned, with import treated as inter-State supply. Article 279A: the Council, chaired by the Union Finance Minister, with a Minister from each State; decisions by three-fourths of weighted votes, Centre one-third and States two-thirds. Article 366(12A): the definition, excluding alcoholic liquor for human consumption. Entry 84 of List I and Entry 54 of List II were amended. Mohit Minerals 2022: the levy on ocean freight was double taxation and bad, and the Council's recommendations are persuasive and not binding, because article 246A confers simultaneous power and Indian federalism is a dialogue between equal participants.

Test yourself

1. What is constitutionally novel about article 246A? It confers simultaneous power on Parliament and on every State Legislature over the same tax, expressly notwithstanding article 254, so neither law displaces the other; and the power comes from the article itself rather than from an entry in the Seventh Schedule.

2. Which supplies does Parliament alone tax, and which instrument says so? Supplies in the course of inter-State trade or commerce, by article 246A(2), with article 269A providing for the levy, collection and apportionment of that tax and treating import into India as an inter-State supply.

3. How does the GST Council vote? Every decision requires not less than three-fourths of the weighted votes of the members present and voting, the Centre having one-third of the weight and all the States together two-thirds.

4. What did Mohit Minerals decide about the Council's recommendations, and on what reasoning? That they are persuasive and not binding, because article 246A confers simultaneous legislative power on the Union and the States and article 279A does not create a body whose recommendations displace it; Indian federalism is a dialogue in which both are equal participants.

5. Name two things that remain outside the tax. Alcoholic liquor for human consumption, excluded by the definition in article 366(12A); and the five petroleum products named in the proviso to article 246A, until the Council recommends a date.

6. State the strongest objection to calling the GST a federal reform, and the answer to it. That a State which surrenders its sales tax power to a Council where it holds a small fraction of the vote has lost its fiscal autonomy. The answer is that the Council only recommends and each legislature enacts, so the legal power remains; but the practical answer is weaker, since a State departing from a recommendation breaks the input credit chain and bears a real cost.

Article 257(4): the Union pays. Where a direction under clause (2) or (3) causes a State to incur extra costs, the Union shall pay such sum as may be agreed or as an arbitrator appointed by the Chief Justice of India may determine.

Article 258: the Union may entrust its functions to a State. The President may, with the consent of the State Government, entrust to that Government or its officers functions relating to any matter to which the executive power of the Union extends. Clause (2) lets Parliament confer powers and impose duties on a State or its officers by a law relating to a Union subject, whether or not the State consents, and clause (3) provides for the Union to pay the extra costs.

Article 258A: and a State may entrust its functions to the Union. Inserted by the Seventh Amendment 1956, it permits the Governor, with the Union's consent, to entrust State functions to the Government of India or its officers.

Articles 259 and 260 deal respectively with the armed forces in the former Part B States, now omitted, and with the Union's jurisdiction in relation to territories outside India.

Article 261: full faith and credit. Full faith and credit shall be given throughout India to public acts, records and judicial proceedings of the Union and of every State, and final judgments or orders delivered by civil courts in any part of India are executable anywhere in India according to law.

Article 300: suits. The Government of India may sue and be sued by the name of the Union of India and the Government of a State by the name of the State, subject to any law of Parliament or of the State Legislature.

And article 365 is the sanction. Where a State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union, it shall be lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution. That is the language of article 356(1), so the consequence of disobedience is a Proclamation.

A worked example

Parliament enacts an Act regulating the disposal of hazardous waste, made under Entry 52 or 54 of List I. The Act is to be administered by State pollution control boards. A State declines to prosecute a large plant in the State, and refuses to act on the Union's letters. What can the Union do?

Step one: identify the source of the obligation. Article 256 obliges the State to exercise its executive power so as to ensure compliance with a law made by Parliament. This is such a law, so the obligation exists.

Step two: give a direction, and give it properly. The Union's power under article 256 is to give such directions as appear to the Government of India to be necessary. A letter of complaint is not a direction: the communication should identify the law, the failure and what the State must do.

Step three: if the State still refuses, article 365 becomes available. The President may hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the Constitution, which is the trigger for article 356.

Step four, and this is where a good answer stops being mechanical. After S.R. Bommai a Proclamation is reviewable, and the material must be relevant. A single refusal to prosecute one plant, however serious, is unlikely to satisfy a court that the government of the State cannot be carried on. Article 365 makes the Proclamation LAWFUL; it does not make it unreviewable, and the disproportion between the failure and the consequence is exactly what a court would examine.

Step five: the alternative the Union usually takes. Article 258(2) lets Parliament, by the Union law itself, confer powers and impose duties on State officers directly, so a well-drafted Union Act creates the duty in the officer rather than relying on directions to the State. That is why most modern Union Acts name the State officers who must act.

The case

The sanction is real but it is not unreviewable. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1. Facts. Appeals and transferred cases about Proclamations under article 356 dismissing the governments of Karnataka, Nagaland, Meghalaya, and of Madhya Pradesh, Rajasthan and Himachal Pradesh on 15 January 1993. Held, in twelve conclusions. The satisfaction under article 356 is subjective but the power is conditioned and not absolute, relevant material being a precondition; that the Proclamation is not immune from judicial review and may be struck down if it is mala fide or based on wholly irrelevant or extraneous grounds; that the court examines whether the material was relevant, not whether it was correct or adequate; that the majority of a government is to be tested on the floor of the House; and that secularism is a basic feature. Why it matters here is that article 365 leads to article 356, and since 1994 the whole route is examinable by a court. Before Bommai it was not.

Distinctions

What it does NOT mean

It does not mean the Union administers the States. The power is to direct in relation to the enforcement of Union law and the exercise of Union executive power, not to run a State.

It does not mean every failure justifies article 356. Article 365 makes it lawful for the President to hold that the situation has arisen; whether the material justified that conclusion is reviewable after Bommai.

It does not mean article 258(2) needs the State's consent. Clause (1) does; clause (2), by which Parliament imposes duties on State officers through a Union law, does not, and the Union pays the extra cost under clause (3).

And it does not mean article 261 makes every State's law apply everywhere. Full faith and credit is given to public acts, records and judicial proceedings; it is a rule about recognition and execution, not about the reach of legislation.

Quick revision

Executive federalism: the Union legislates and the States administer. Article 256: the State must exercise its executive power to ensure compliance with Parliamentary and existing laws, and the Union may direct it to. Article 257(1): the State must not impede the Union's executive power; clauses (2) and (3) cover national communications and the railways; clause (4) makes the Union pay the extra cost, with arbitration by an arbitrator appointed by the Chief Justice of India. Article 258: the Union may entrust functions to a State with consent, and Parliament may impose duties on State officers by a Union law without consent, the Union paying. Article 258A: a State may entrust functions to the Union. Article 261: full faith and credit, and civil decrees executable throughout India. Article 300: suits by and against the Union and the States. Article 365: failure to comply with a direction makes it lawful for the President to hold that the State's government cannot be carried on in accordance with the Constitution, which is the article 356 trigger. S.R. Bommai: that whole route is reviewable.

Test yourself

1. What is executive federalism and why does it matter here? That the Union legislates on its own subjects while the States administer most of those laws, because the Union has little field administration of its own. It matters because a Union law would otherwise depend on the goodwill of the government enforcing it, which is why article 256 confers a power to direct.

2. Distinguish the duties in articles 256 and 257(1). Article 256 imposes a positive duty on a State to exercise its executive power so as to ensure compliance with Union laws. Article 257(1) imposes a negative duty not to exercise that power so as to impede or prejudice the Union's executive power.

3. What is the sanction for disobeying a direction, and where is it? Article 365: it becomes lawful for the President to hold that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of the Constitution, which is the language that triggers article 356.

4. Does a Union law imposing duties on State officers need the State's consent? Not under article 258(2), by which Parliament may confer powers and impose duties on a State or its officers by a law relating to a Union subject whether or not the State consents; the Union pays the extra cost under clause (3). Consent is needed only for an entrustment under clause (1).

5. Who pays when a direction under article 257(2) or (3) costs a State money? The Union, under article 257(4), in such sum as may be agreed or, in default of agreement, as determined by an arbitrator appointed by the Chief Justice of India.

6. Since when has the article 365 route been examinable by a court, and on what grounds? Since S.R. Bommai in 1994. A Proclamation may be struck down if it is mala fide or based on wholly irrelevant or extraneous grounds, the court asking whether the material was relevant rather than whether it was correct or adequate.

Section 5: the reference and the report. The Central Government refers the dispute and any connected matter to the Tribunal, which investigates and forwards a report setting out the facts and its decision. Sub-section (2) requires the Tribunal to make its decision within three years, extendable by two. Sub-section (3) allows the Central Government or a State to seek an explanation or guidance within three months, and the Tribunal to forward a further report.

Section 6: the decision is final and binding. The decision of the Tribunal, after its publication in the Official Gazette by the Central Government, shall be final and binding on the parties to the dispute and shall be given effect to by them. Sub-section (2), inserted in 2002, provides that the decision shall have the same force as an order or decree of the Supreme Court.

Section 11: the exclusion. Notwithstanding anything contained in any other law, neither the Supreme Court nor any other court shall have or exercise jurisdiction in respect of any water dispute which may be referred to a Tribunal under the Act.

Where the exclusion stops

It excludes adjudication of the dispute, not judicial review of everything connected with it. The Supreme Court has entertained petitions about whether a dispute exists, whether the Central Government has unreasonably delayed constituting a Tribunal, and whether a Tribunal's award has been implemented.

Article 136 has been used to examine an award. Because section 6(2) gives the award the force of a decree of the Supreme Court, the Court has held that it may examine an award under article 136 in the same way it examines a decree, which is a narrow but real route.

And article 32 is not excluded where a fundamental right is in issue, because article 262(2) authorises Parliament to exclude jurisdiction over the water dispute, and a claim that a citizen's article 21 right to water has been violated is a different claim.

The honest position is that the exclusion is wide and not absolute, and a candidate should say both halves.

A worked example

Two States share a river. State A builds a barrage that reduces the flow into State B by a third. State B wants relief. Trace the route and its limits.

Article 131 is closed. This is a dispute between two States about the use of the waters of an inter-State river, and section 11 of the Act of 1956 excludes the jurisdiction of the Supreme Court over any water dispute that may be referred to a Tribunal.

The route is section 3. State B requests the Central Government to refer the dispute; the Central Government forms an opinion whether it can be settled by negotiation; if not, it must constitute a Tribunal under section 4.

Now the practical problem, which is the real subject of the chapter. Suppose the Central Government simply does not act. Section 4 says the Central Government "shall" constitute a Tribunal when it is of opinion that the dispute cannot be settled by negotiations, and the opinion is its own. A State faced with inaction has moved the Supreme Court for a mandamus, and the Court has entertained such petitions, because the complaint is not the water dispute itself but the failure to perform a statutory duty.

And the enforcement problem, which is the other half. An award under section 6 is final and binding and has the force of a decree of the Supreme Court, but a State that does not comply presents a problem no tribunal can solve. That is where article 256 and, in the last resort, article 365 return, and where the Court has used contempt and continuing supervision.

The lesson for a federalism answer. Article 262 removes the umpire that a federation normally relies on and substitutes a specialised one. It works when the parties accept the award, and when they do not, the constitutional machinery has no answer that a court can enforce against a State government in the way it can against a person.

The case

The federal background to any such dispute is that a State is not an appendage of the Centre. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1. Facts. A group of appeals about Proclamations under article 356 dismissing State governments. Held, among its twelve conclusions. Federalism is a basic feature, that the power under article 356 is conditioned and reviewable, that relevant material is a precondition, and that a government's majority is tested on the floor of the House. Why it matters here is the limit it sets on the enforcement route: a Union that wishes to compel a State to obey a water award cannot treat article 365 as an automatic gateway to dismissal, because the material must be relevant and the Proclamation is examinable.

Distinctions

What it does NOT mean

It does not mean the Supreme Court has no role at all. It has entertained petitions about whether a dispute exists, about delay in constituting a Tribunal, and about implementation, and section 6(2) has been used to bring an award within article 136.

It does not mean water is a Union subject. It is Entry 17 of List II, expressly subject to Entry 56 of List I, and a declaration by Parliament is needed before the Union's regulation displaces the State's.

It does not mean a Tribunal is an executive body. Its members are nominated by the Chief Justice of India from serving judges of the Supreme Court or a High Court.

And it does not mean the arrangement works well. Tribunals have taken decades, and section 5(2)'s three-year limit with a two-year extension was inserted in 2002 precisely because they had not. An answer that notices the gap between the design and the practice is a better answer.

Quick revision

Entry 17 of List II: water, subject to Entry 56 of List I. Entry 56 of List I: regulation and development of inter-State rivers to the extent Parliament declares by law to be expedient in the public interest. Article 262(1): Parliament may provide for adjudication of an inter-State water dispute. Clause (2): notwithstanding anything in the Constitution, Parliament may exclude the Supreme Court and every other court. Inter-State River Water Disputes Act 1956: section 3, a State's request to the Central Government; section 4, constitution of a Tribunal of a Chairman and two members nominated by the Chief Justice of India from serving judges; section 5, reference and report, with a three-year limit extendable by two since 2002; section 6, the decision final and binding on publication, with the force of a Supreme Court decree under sub-section (2); section 11, the exclusion of jurisdiction. The exclusion covers the dispute, not collateral questions such as delay in constituting a Tribunal or implementation, and article 136 has been used against an award.

Test yourself

1. What does article 262 permit that no other article does? It permits Parliament, notwithstanding anything in the Constitution, to provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of an inter-State water dispute.

2. Where is water in the Seventh Schedule, and what qualifies it? Entry 17 of List II, expressly subject to Entry 56 of List I, which gives Parliament the regulation and development of inter-State rivers to the extent it declares by law that Union control is expedient in the public interest.

3. How is a Water Disputes Tribunal constituted, and by whom are its members chosen? Under section 4 of the Act of 1956, by notification of the Central Government when it is of opinion that the dispute cannot be settled by negotiation; the Chairman and two members are nominated by the Chief Justice of India from among serving judges of the Supreme Court or of a High Court.

4. What is the status of a Tribunal's decision? Under section 6 it is final and binding on the parties once published in the Official Gazette, and by sub-section (2), inserted in 2002, it has the same force as an order or decree of the Supreme Court.

5. Name two matters on which the Supreme Court may still be moved despite section 11. Whether the Central Government has unreasonably delayed constituting a Tribunal after a request under section 3, and whether an award has been implemented; and by article 136 against the award itself, because section 6(2) gives it the force of a decree.

6. Why is this topic a good illustration for a federalism answer? Because it shows a federation deliberately removing its own umpire for one class of dispute and substituting a specialised one, and because the enforcement problem that follows has no judicial answer against a State government, which is the practical limit of federal adjudication.

The Goods and Services Tax Council, article 279A. The newest of the four and the only one with a voting rule written into the Constitution: three-fourths of the weighted votes, the Centre holding one-third and the States together two-thirds. Mohit Minerals holds its recommendations persuasive and not binding.

The Zonal Councils. Created by sections 15 to 22 of the States Reorganisation Act 1956, five of them, each comprising the States and Union territories of a zone, with the Union Home Minister as chairman and the Chief Ministers as members, to discuss matters of common interest in economic and social planning, border disputes, inter-State transport and matters arising out of reorganisation. A sixth, the North Eastern Council, was created by its own Act in 1971.

The National Institution for Transforming India. Established by a Cabinet resolution of 1 January 2015 in place of the Planning Commission, with the Prime Minister as chairperson and a Governing Council of all Chief Ministers and Lieutenant Governors. It is not a constitutional or statutory body and has no power to allocate funds, which is the principal difference from the Planning Commission it replaced.

The three kinds of federalism, distinguished

Cooperative federalism: the two levels work together, through consultation and shared institutions, on subjects neither can manage alone. Article 263, the GST Council and the Zonal Councils are its machinery.

Competitive federalism: States compete with one another for investment, and the Union encourages the competition by ranking them. This is the newer language, associated with the National Institution for Transforming India, and its critics say it substitutes ranking for resources.

Coercive federalism: the Union secures compliance by directions and by control of money, through articles 256, 257 and 365 and through conditional grants under article 282. The term is used critically, and an answer that names it shows awareness that cooperation is not the only description available.

A worked example

Suppose the Union wishes to introduce a national policy on the sharing of police records and criminal databases. Police is Entry 2 of List II. What are the options, and which is cooperative?

Legislate under a Union entry if one fits. Entry 8 of List I is the Central Bureau of Intelligence and Investigation, and Entry 80 permits the extension of the powers of one State's police into another with that State's consent. Neither reaches a national database directly.

Legislate under article 249. A resolution of the Council of States by two-thirds, valid for a year. Legally available, politically expensive, and it produces a law the States did not agree to.

Use article 263. Refer the subject to the Inter-State Council as one in which the Union and the States have a common interest, discuss it, and produce recommendations for better coordination. Nothing binds, but what emerges is agreed.

Or use article 282. Make grants for a public purpose on condition that a State joins the scheme. That is the route most such schemes actually take, and it is why the term coercive federalism exists: nothing compels a State, and a State that refuses loses the money.

The example is worth doing because it shows the choice is real. Article 249 is command, article 263 is cooperation, and article 282 is somewhere in between, and which one a Union chooses tells you what kind of federalism it is practising.

The cases

Cooperative federalism has a judicial definition now, and it is a dialogue. In Union of India v. Mohit Minerals Pvt Ltd, (2022) 10 SCC 700. Facts. A challenge to the levy of integrated goods and services tax on ocean freight in a contract of import, and whether the recommendations of the Goods and Services Tax Council bind the Union and the States. Held. The levy was bad as double taxation, and that the Council's recommendations are not binding but have persuasive value: article 246A confers simultaneous legislative power on the Union and the States, article 279A does not create a body whose recommendations displace that power, and Indian federalism is a dialogue in which the States and the Centre are equal participants. Why it matters here is that it supplies the vocabulary for a cooperative federalism answer from a 2022 Constitution Bench rather than from a textbook, and it sets the limit: cooperation means agreement, not obedience.

And the cooperative reading rests on the States not being subordinate. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1, the nine-judge Bench held that federalism is a basic feature, that the power under article 356 is conditioned and reviewable on relevant material, and that a government's majority is tested on the floor of the House. Why it matters here is that cooperation between unequals is not cooperation, and Bommai is what makes the two levels legally comparable.

Distinctions

What it does NOT mean

It does not mean the Inter-State Council decides anything. It inquires, investigates, discusses and recommends, and it cannot adjudicate a dispute; water disputes are expressly outside it by the reference to article 262.

It does not mean cooperative federalism is in the Constitution by name. The phrase appears nowhere in it. What is in the Constitution is the machinery, and the phrase is the description courts and writers have given it.

It does not mean the institutions have worked as designed. The Inter-State Council was not established for forty years after the Constitution came into force, and has met infrequently since.

And it does not mean cooperation excludes conflict. The GST Council decides by a weighted majority, which means States can be outvoted, and Mohit Minerals exists because the Union argued that being outvoted was legally binding.

Quick revision

Cooperative federalism: the two levels acting together by consultation and shared institutions rather than command. Article 263: the President may establish an Inter-State Council to inquire into and advise upon disputes between States, to investigate and discuss subjects of common interest, and to recommend better coordination of policy and action; established on 28 May 1990 on the Sarkaria Commission's recommendation, with the Prime Minister as Chairman, all Chief Ministers and six Union Ministers. Article 280: the Finance Commission. Article 279A: the GST Council, three-fourths weighted vote, Centre one-third and States two-thirds. Zonal Councils: sections 15 to 22 of the States Reorganisation Act 1956, five of them, plus the North Eastern Council of 1971. The National Institution for Transforming India: Cabinet resolution of 1 January 2015, advisory, no power to allocate funds. Mohit Minerals 2022: Indian federalism is a dialogue between equal participants and the Council's recommendations are persuasive, not binding. Competitive and coercive federalism are the other two descriptions.

Test yourself

1. What are the three functions article 263 gives the Council? To inquire into and advise upon disputes which may have arisen between States; to investigate and discuss subjects in which some or all of the States, or the Union and one or more States, have a common interest; and to make recommendations on any such subject, particularly for the better coordination of policy and action.

2. When was the Inter-State Council established, and on whose recommendation? By Presidential order on 28 May 1990, on the recommendation of the Sarkaria Commission on Centre-State Relations.

3. Name the four standing institutions of cooperative federalism and say which are constitutional. The Inter-State Council (article 263), the Finance Commission (article 280) and the Goods and Services Tax Council (article 279A) are constitutional; the Zonal Councils are statutory, under the States Reorganisation Act 1956; and the National Institution for Transforming India is neither, having been created by a Cabinet resolution of 1 January 2015.

4. How did Mohit Minerals describe Indian federalism? As a dialogue in which the States and the Centre are equal participants, the Council's recommendations having persuasive value and not binding force, because article 246A confers simultaneous legislative power on both.

5. Distinguish cooperative, competitive and coercive federalism. Cooperative: negotiation and shared institutions. Competitive: States competing for investment, with the Union ranking them. Coercive: the Union securing compliance by directions under articles 256, 257 and 365 and by conditional grants under article 282.

6. Which route would a Union take to secure a national scheme on a State subject without legislating, and why is it criticised? Article 282, by making grants for a public purpose on condition that the State joins the scheme. It is criticised as coercive because nothing compels a State and a State that refuses simply loses the money.

Article 312: the all India services. Notwithstanding anything in Chapter VI of Part VI or Part XIV, if the Council of States has so declared by a resolution supported by two-thirds of the members present and voting, Parliament may by law provide for the creation of one or more all India services, including an all India judicial service, common to the Union and the States. Clause (2) deems the Indian Administrative Service and the Indian Police Service to be so created. Clauses (3) and (4), inserted by the Forty-second Amendment, deal with the proposed all India judicial service.

Article 312A, inserted by the Twenty-eighth Amendment 1972, gives Parliament power to vary or revoke the conditions of service of persons appointed by the Secretary of State before independence.

Articles 313 and 314 are transitional: article 313 continues the pre-Constitution law until otherwise provided, and article 314, which protected the conditions of service of officers appointed by the Secretary of State, was omitted by the Twenty-eighth Amendment.

Articles 315 to 323 create the Public Service Commissions, and article 320(1) makes it the duty of the Union Public Service Commission to conduct examinations for appointments to the services of the Union, which includes the all India services.

Why the arrangement is federally strange

The officer is recruited by the Union but employed by the State. A District Magistrate is an Indian Administrative Service officer allotted to a State cadre, working under the State government, drawing pay from the State.

But the State cannot dismiss the officer. Because an all India service is a service of the Union for the purposes of article 311, the authority competent to remove is a Union authority. A State may suspend and may report, and the ultimate disciplinary power is not its own.

And the officer's career depends on the Union. Empanelment for senior Union posts, deputation to the Union and promotion within the service are all controlled centrally, so an officer serving a State knows who decides their future.

The argument for the arrangement. Sardar Patel called the services the steel frame of India, and argued in the Constituent Assembly that an officer able to speak frankly to a Chief Minister without fear of dismissal is a protection for the rule of law in a State. The services also carry practice and standards across the country and give the Union a way of knowing what is happening in the States.

The argument against. A State government responsible to its own legislature for law and order and for administration cannot control the officers who deliver both. That is a real derogation from the accountability that makes a State government answerable, and it is the reason State governments have asked for the arrangement to be revisited.

A worked example

A State government wishes to remove the Director General of Police, an Indian Police Service officer, after a serious failure. What can it do?

It may transfer the officer within the State. Cadre postings inside a State are within the State's power, subject to the rules and to any minimum tenure prescribed for the office.

It may place the officer under suspension and may initiate disciplinary proceedings under the All India Services (Discipline and Appeal) Rules 1969.

It may not dismiss or remove the officer. Article 311(1) provides that no member of an all India service shall be dismissed or removed by an authority subordinate to that by which he was appointed; appointment is by the President, so removal is a Union decision.

And whatever it does must satisfy article 311(2) and article 14. An inquiry with notice of the charges and a reasonable opportunity to be heard is required unless one of the three exceptions in the second proviso applies. And a transfer that is in substance a punishment is examinable: E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555. Facts. The Chief Secretary to the Government of Tamil Nadu was moved to two posts he said were inferior and alleged the transfers were mala fide, is the standing authority. Held. The plea of mala fides failed on the facts, but that article 16 is an instance of the concept of equality in article 14, that equality is a dynamic concept, and that equality and arbitrariness are sworn enemies, so that arbitrary State action is by that fact unequal and violates article 14. Why it matters here is that the case arose from precisely this situation: a senior all India service officer and a State government disagreeing, and the constitutional check being article 14 rather than the service rules.

Distinctions

What it does NOT mean

It does not mean the Union runs State administration. Day to day postings, work and supervision inside a State are the State's.

It does not mean an all India service officer is beyond discipline. The rules provide a full disciplinary code; what the State lacks is the final power of removal.

It does not mean Parliament may create such a service at will. Article 312 requires a resolution of the Council of States supported by two-thirds of the members present and voting, so the States' own chamber is the gatekeeper, exactly as under article 249.

And it does not mean the all India judicial service exists. Article 312 has permitted one since the Forty-second Amendment, and repeated proposals have not produced it, largely because of objections from the States and the High Courts about control over the subordinate judiciary under article 235.

Quick revision

Article 312: Parliament may create an all India service, including an all India judicial service, if the Council of States so resolves by two-thirds of the members present and voting; the Indian Administrative Service and the Indian Police Service are deemed to be so created by clause (2). Article 309: the appropriate legislature regulates recruitment and conditions of service, with rules by the President or Governor meanwhile. Article 310: office held during the pleasure of the President or Governor. Article 311: no dismissal or removal by an authority subordinate to the appointing authority, and no dismissal, removal or reduction in rank except after an inquiry with notice of the charges and a reasonable opportunity to be heard, subject to three exceptions in the second proviso. Article 312A: power to vary the conditions of service of pre-independence appointees. Articles 313 and 314: transitional, 314 omitted in 1972. Recruited by the Union, serving the State, removable only by the Union. Patel's steel frame against the State's loss of control. E.P. Royappa: equality and arbitrariness are sworn enemies, and a punitive transfer is examinable under article 14.

Test yourself

1. What must happen before Parliament may create a new all India service? The Council of States must declare by a resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest.

2. Why can a State not dismiss an Indian Administrative Service officer? Because article 311(1) forbids dismissal or removal by an authority subordinate to the appointing authority, and members of an all India service are appointed by the President, so removal is a Union decision.

3. State the doctrine of pleasure and the two safeguards that qualify it. Article 310: except as expressly provided, a civil servant holds office during the pleasure of the President or the Governor. Article 311 qualifies it by requiring removal only by an authority not subordinate to the appointing authority, and an inquiry in which the person is informed of the charges and given a reasonable opportunity of being heard.

4. Name the three exceptions in the second proviso to article 311(2). Conviction on a criminal charge; where the authority empowered to dismiss or remove is satisfied, for reasons to be recorded in writing, that it is not reasonably practicable to hold an inquiry; and where the President or Governor is satisfied that in the interest of the security of the State it is not expedient to hold one.

5. State the argument for and against the all India services in one sentence each. For: an officer who cannot be dismissed by the State government can administer the law without fear, and the services carry common standards and information across the country. Against: a State government answerable to its legislature for law and order cannot control the officers who deliver it.

6. Does an all India judicial service exist, and why not? No. Article 312 has permitted one since the Forty-second Amendment, but repeated proposals have failed, largely because of objections from the States and the High Courts, whose control over the subordinate judiciary rests on article 235.

Article 270: the divisible pool. All taxes and duties in the Union List, except the duties and taxes in articles 268 and 269, surcharges under article 271 and cesses levied for a specific purpose, are levied and collected by the Union and distributed between the Union and the States in the manner the Finance Commission recommends.

Article 271: surcharges belong wholly to the Union. Parliament may at any time increase any of the duties or taxes in articles 269 and 270 by a surcharge, and the whole proceeds form part of the Consolidated Fund of India.

That last provision is the most important sentence in this chapter for a modern answer. A surcharge or a cess is outside the divisible pool, so a Union that raises revenue through surcharges and cesses rather than through the basic rate keeps all of it, whatever the Finance Commission has recommended about the share. The share of gross tax revenue actually transferred is therefore smaller than the headline percentage, and this is the principal State grievance in fiscal federalism today.

Grants

Article 275: statutory grants in aid. Such sums as Parliament may by law provide shall be charged on the Consolidated Fund of India as grants in aid of the revenues of such States as Parliament determines to be in need of assistance, and different sums may be fixed for different States. The proviso provides for grants for schemes of development to raise the level of administration of Scheduled Areas and for the welfare of Scheduled Tribes.

Article 282: discretionary grants. The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which the Parliament or the State Legislature may make laws.

Article 282 is short and it has carried an enormous weight. Centrally sponsored schemes in education, health, rural employment and housing, on subjects in List II, are made under it. A State is not obliged to join; a State that does not join loses the money. That is why the article is at the centre of the coercive federalism argument in [The Inter-State Council, and Cooperative Federalism].

The Finance Commission

Article 280(1) requires the President to constitute a Finance Commission within two years of the commencement of the Constitution and thereafter at the expiration of every fifth year or earlier if he considers it necessary. It consists of a Chairman and four other members.

Clause (3) sets the terms of reference. It is the duty of the Commission to make recommendations as to the distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided between them and the allocation between the States of the respective shares of such proceeds; the principles which should govern the grants in aid of the revenues of the States out of the Consolidated Fund of India; the measures needed to augment the Consolidated Fund of a State to supplement the resources of the panchayats and municipalities in the State on the basis of the recommendations of the State Finance Commission; and any other matter referred to the Commission by the President in the interests of sound finance.

Article 281 requires the President to cause every recommendation of the Commission, together with an explanatory memorandum as to the action taken on it, to be laid before each House of Parliament.

The recommendations are not legally binding, and that is the point students should notice. Their force is conventional: no government has rejected the core recommendation on the vertical share, and the memorandum under article 281 makes any departure public.

And there is a State-level counterpart. Articles 243-I and 243Y require the Governor to constitute a State Finance Commission every fifth year to review the finances of panchayats and municipalities, which is the third tier's version of the same machinery.

Borrowing, and the rest of Part XII

Article 292: the Union may borrow upon the security of the Consolidated Fund of India within such limits as Parliament may fix.

Article 293: a State may borrow within India upon the security of its Consolidated Fund, subject to limits fixed by its Legislature; but a State may not raise a loan without the Union's consent if there is still outstanding any part of a loan made to it by the Union or in respect of which the Union has given a guarantee. That is a significant and much-used lever.

Articles 285 to 289 exempt each government's property and income from the other's taxation, with exceptions, which is the ordinary immunity of instrumentalities found in every federation.

A worked example

A State complains that although the Fifteenth Finance Commission recommended that forty-one per cent of the divisible pool go to the States, it receives far less than forty-one per cent of what the Union actually collects. Is the complaint constitutionally sound?

The arithmetic is sound and the constitutional answer is that nothing has been breached. Article 270 defines the divisible pool as the taxes in the Union List EXCEPT surcharges under article 271 and cesses levied for specific purposes. A rupee collected as a cess is not in the pool at all, so the forty-one per cent is forty-one per cent of a smaller number.

So the State's remedy is not a court. There is no provision limiting how much revenue the Union may raise through surcharges and cesses, and article 271 says in terms that the whole proceeds form part of the Consolidated Fund of India.

The remedies that exist are political and institutional. The Finance Commission may be asked, under the "any other matter" limb of article 280(3), to consider the treatment of cesses; the Inter-State Council under article 263 may discuss it; and the memorandum under article 281 makes the Union's action on the recommendation public.

And the example makes the general point. In fiscal federalism the constitutional text settles less than students expect, and the practice is governed by an independent recommending body whose recommendations do not bind.

The case

The newest institution in this field is the one whose recommendations were said to bind. In Union of India v. Mohit Minerals Pvt Ltd, (2022) 10 SCC 700. Facts. A challenge to integrated goods and services tax on ocean freight, and the question whether the recommendations of the Goods and Services Tax Council bind the Union and the States. Held. The levy was bad as double taxation, and that the Council's recommendations are not binding but have persuasive value, because article 246A confers simultaneous legislative power on the Union and the States and article 279A does not create a body whose recommendations displace that power; Indian federalism is a dialogue in which both are equal participants. Why it matters here is that the same reasoning explains the Finance Commission: a recommending body in a federation is powerful because both governments accept its recommendations, not because they must.

Distinctions

What it does NOT mean

It does not mean the States are financially helpless. Entries 45 to 63 of List II give them land revenue, stamp duty, taxes on vehicles, on professions, on entertainments and on electricity, and article 246A gives them the goods and services tax on intra-State supply.

It does not mean the Finance Commission's recommendations bind. They do not, and article 281 provides for a memorandum on the action taken precisely because a government may depart from them.

It does not mean article 282 is unconstitutional. It is in the Constitution and has been used since 1950; the criticism is about its use to enter the State List by conditional funding, not about its validity.

And it does not mean a State may borrow freely. Article 293(3) requires the Union's consent while any Union loan or guarantee is outstanding, which in practice is always.

Quick revision

Vertical imbalance: elastic taxes to the Union, expensive services to the States, corrected by machinery. Article 268: levied by the Union, collected and appropriated by the States. Article 269: levied and collected by the Union, assigned to the States. Article 269A: integrated goods and services tax, apportioned. Article 270: the divisible pool, excluding surcharges under article 271 and cesses, distributed on the Finance Commission's recommendation. Article 271: surcharges belong wholly to the Union, which is the principal State grievance. Article 275: statutory grants in aid to States in need, with a proviso for Scheduled Areas and Scheduled Tribes. Article 282: discretionary grants for any public purpose, the basis of centrally sponsored schemes. Article 280: the Finance Commission every fifth year, a Chairman and four members, recommending the division of taxes, the principles of grants, and measures to supplement panchayat and municipal resources. Article 281: the recommendation and an explanatory memorandum laid before each House. Article 292 and 293: borrowing, with the Union's consent required for a State while a Union loan or guarantee is outstanding.

Test yourself

1. What is the vertical imbalance, and is it accidental? That the Union holds the taxes that grow with the economy while the States carry most of the expenditure responsibilities. It is deliberate, inherited from the Government of India Act 1935, and the Constitution provides machinery to correct it.

2. Why does a State receive less than the percentage the Finance Commission recommends? Because article 270 excludes surcharges under article 271 and cesses levied for specific purposes from the divisible pool, and article 271 gives the whole proceeds of a surcharge to the Union. The percentage is a share of a smaller sum.

3. Distinguish articles 275 and 282. Article 275 provides statutory grants in aid, charged on the Consolidated Fund of India, to States Parliament determines to be in need. Article 282 permits either government to make a grant for any public purpose even outside its legislative competence, and is the basis of centrally sponsored schemes on State subjects.

4. State the four terms of reference of the Finance Commission. The distribution between the Union and the States of the net proceeds of divisible taxes and the allocation between the States; the principles governing grants in aid out of the Consolidated Fund of India; the measures needed to augment a State's Consolidated Fund to supplement the resources of panchayats and municipalities on the State Finance Commission's recommendations; and any other matter referred by the President in the interests of sound finance.

5. Are the Commission's recommendations binding, and what follows? No. Article 281 requires the President to lay every recommendation before each House with an explanatory memorandum on the action taken, so a departure is made public. Their force is conventional rather than legal.

6. What limits a State's power to borrow? Article 293: a State may borrow within India on the security of its Consolidated Fund within limits fixed by its Legislature, but may not raise a loan without the Union's consent while any part of a Union loan to it, or a loan guaranteed by the Union, remains outstanding.

Article 303(2). Nothing in clause (1) prevents Parliament from making a law giving preference or making discrimination if it is declared by that law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of India. Note that this exception is available to Parliament alone.

Article 304(a). Notwithstanding anything in article 301 or 303, the Legislature of a State may by law impose on goods imported from other States or Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced.

Article 304(b). And may impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest. The proviso requires the previous sanction of the President for the introduction or moving of such a Bill.

Article 305. Saves existing laws and laws providing for State monopolies so far as the President otherwise provides, and preserves article 19(6)(ii) State monopolies.

Article 306 was omitted by the Seventh Amendment 1956; it had related to the former Part B States.

Article 307. Parliament may by law appoint such authority as it considers appropriate for carrying out the purposes of articles 301 to 304 and confer powers on it. No such authority has ever been appointed, which is a small fact worth knowing.

The three stages of the case law

1960: taxes are restrictions, and the test is direct and immediate effect. In Atiabari Tea Co. Ltd v. The State of Assam, 1961 AIR 232; 1961 SCR (1) 809, decided on 16 August 1960. Facts. The Assam Taxation (on Goods Carried by Roads and Inland Waterways) Act 1954, passed under Entry 56 of List II, taxed tea and jute carried by road and inland waterways; the companies said it violated article 301 and had not obtained the previous sanction required by article 304(b). The State argued that taxing laws are governed by Part XII alone. Held, by the majority. The Act violated article 301 and was void for want of compliance with article 304(b): the freedom in article 301 is wider than that in section 297 of the Government of India Act 1935 and includes freedom from tax laws; article 301 provides that the flow of trade shall run smooth and unhampered by any restriction either at the boundaries of the States or at any other point inside them; and a law imposing a direct restriction on the movement of goods attracts article 301 and can be sustained only under article 302 or article 304. Sinha C.J. differed.

1962: unless the tax is compensatory. In The Automobile Transport (Rajasthan) Ltd v. The State of Rajasthan, 1962 AIR 1406; 1963 SCR (1) 491, decided on 9 April 1962. Facts. Section 4(1) of the Rajasthan Motor Vehicles Taxation Act 1951 forbade the use or keeping of a motor vehicle in Rajasthan without paying the scheduled tax, and bus operators plying routes that crossed strips of Rajasthan were assessed. Held. The tax valid: the freedom in article 301 must be understood in the context of an ordinary society and of a Constitution distributing powers, so it recognises the need and legitimacy of some degree of regulatory control; regulatory measures and compensatory taxes for the use of trading facilities do not hamper trade but facilitate it, are therefore not hit by article 301, and need not comply with article 304(b); and on construction the tax was really a charge for the use of the roads, the passenger and loading capacity being merely a method of measuring it.

2016: the compensatory tax doctrine has no juristic basis. In Jindal Stainless Ltd v. State of Haryana, AIR 2016 SC 5617; (2017) 12 SCC 1, decided on 11 November 2016 by a Bench of nine judges. Facts. A very large batch of appeals about entry taxes levied under Entry 52 of List II, referred to settle whether such a tax offends article 301 and what remained of the compensatory tax doctrine.

Held, by majority. In its own numbered answers: that taxes simpliciter are not within the contemplation of Part XIII and the word "free" in article 301 does not mean free from taxation; that only taxes which are discriminatory are prohibited by article 304(a), so a non-discriminatory tax does not infringe article 301; that clauses (a) and (b) of article 304 are to be read disjunctively; that a levy violating article 304(a) cannot be saved even if article 304(b) is satisfied; that the compensatory tax theory has no juristic basis and is rejected; that Atiabari, Automobile Transport and the 2006 Jindal decision, and all judgments following them, are overruled to the extent of such reliance; that entry tax is permissible although similar goods are not produced within the taxing State; that article 304(a) frowns upon discrimination of a hostile, protectionist nature and not upon mere differentiation, so incentives and set-offs for a limited time to develop economically backward areas do not violate it; and that States may design their fiscal legislation so that the burden on imported and locally produced goods falls equally.

The judgment also said something a federalism answer should use. The federal structure is one of the basic features, and the interpretation of Part XIII must preserve the balance between the Union and the States and must not erode the autonomy of the States in the fields assigned to them. That is why the decision went the way it did: reading article 301 to catch every tax would have subjected a large part of State taxing power to the President's sanction.

A worked example

A State levies an entry tax of five per cent on goods entering a local area for sale, and grants a two-year exemption to units set up in three designated backward districts of the State. A manufacturer in a neighbouring State challenges the tax and the exemption.

On the old law the manufacturer had a straightforward argument. Atiabari made any direct restriction on movement a breach of article 301, so the tax needed the President's previous sanction under article 304(b), and if it was not compensatory it fell.

On the law since 2016 that argument is gone. Taxes simpliciter are outside Part XIII, and the word "free" does not mean free from taxation, so the challenge must be that the tax DISCRIMINATES under article 304(a).

So the question becomes whether the exemption discriminates. The 2016 answers hold that article 304(a) frowns on discrimination of a hostile, protectionist nature and not on mere differentiation, and that incentives or set-offs granted to a specified class of dealers for a limited period in a non-hostile fashion to develop economically backward areas do not violate the article.

The manufacturer's real case must therefore be that the exemption is protectionist in effect: that it is available in practice only to local producers, or that its duration and scope make it a permanent shield rather than a development measure. That is a question of fact.

And note what does not help the manufacturer. The absence of similar goods produced within the taxing State does not invalidate the entry tax: answer (7) of the 2016 judgment says so in terms.

Distinctions

What it does NOT mean

It does not mean a State may now tax freely. Article 304(a) still forbids a discriminatory tax, and a discriminatory tax cannot be saved by article 304(b).

It does not mean Atiabari and Automobile Transport are irrelevant. They were overruled to the extent of the reliance on the propositions the 2016 Court rejected, and a student must know them because the modern answers are stated as departures from them.

It does not mean non-fiscal restrictions escape article 301. Article 304(b) still governs reasonable restrictions in the public interest and still requires the President's previous sanction.

And it does not mean article 307 is a dead letter by design. Parliament may still appoint an authority to carry out the purposes of articles 301 to 304, and the fact that it never has is an observation about practice rather than about the text.

Quick revision

Article 301: trade, commerce and intercourse throughout the territory of India shall be free, subject to the rest of Part XIII, and the freedom operates across and within State boundaries. Article 302: Parliament may restrict in the public interest. Article 303(1): neither Parliament nor a State may give preference or discriminate between States by a trade and commerce entry; clause (2) lets Parliament do so to deal with scarcity, on a declaration. Article 304(a): a State may tax imported goods as it taxes its own, without discriminating; 304(b): reasonable restrictions in the public interest with the President's previous sanction. Article 305: existing laws and State monopolies saved. Article 306: omitted in 1956. Article 307: an authority Parliament has never appointed. Atiabari 1960: taxes are restrictions; direct and immediate effect. Automobile Transport 1962: compensatory taxes and regulatory measures are outside article 301. Jindal Stainless 2016, nine judges: taxes simpliciter are outside Part XIII; only discriminatory taxes are prohibited by article 304(a); (a) and (b) are disjunctive; a levy violating (a) cannot be saved by (b); the compensatory tax theory has no juristic basis; the earlier cases are overruled to that extent; entry tax is valid though similar goods are not produced locally; article 304(a) forbids hostile protectionist discrimination and not mere differentiation; and Part XIII must be read so as not to erode State fiscal autonomy, the federal structure being a basic feature.

Test yourself

1. What does article 301 guarantee, and how far does it reach? That trade, commerce and intercourse throughout the territory of India shall be free, subject to the other provisions of Part XIII. The word "throughout" extends the freedom across and within State boundaries, so an internal barrier is caught as much as a border one.

2. State the 2016 position on whether a tax offends article 301. Taxes simpliciter are not within the contemplation of Part XIII and "free" does not mean free from taxation. Only a discriminatory tax is prohibited, by article 304(a), and a non-discriminatory tax does not infringe article 301.

3. What happened to the compensatory tax doctrine, and when? It was rejected as having no juristic basis by a Bench of nine judges on 11 November 2016 in Jindal Stainless Ltd v. State of Haryana, which also overruled Atiabari, Automobile Transport and the 2006 Jindal decision to the extent of the reliance placed on them.

4. Distinguish discrimination from differentiation under article 304(a). Article 304(a) frowns upon discrimination of a hostile, protectionist nature. Mere differentiation is permitted, so incentives or set-offs granted to a specified class of dealers for a limited period in a non-hostile fashion, in order to develop economically backward areas, do not violate the article.

5. Can a discriminatory State tax be saved by obtaining the President's sanction under article 304(b)? No. The 2016 answers hold that clauses (a) and (b) are to be read disjunctively and that a levy violating clause (a) cannot be saved even if the procedure under clause (b) or its proviso is satisfied.

6. Which federal principle did the 2016 Court rely on, and why does it matter? That the federal structure is a basic feature and the interpretation of Part XIII must preserve the balance between the Union and the States without eroding State autonomy in the fields assigned to them. It matters because reading article 301 to catch every tax would have subjected a large part of State taxing power to the President's sanction.

Read those three clauses together and they say the opposite of what clause (1) sounds like. Everything is done in the Governor's name, and clause (2) then makes the name a FORM which nobody may go behind, so that a properly authenticated order cannot be attacked by proving that the Governor never saw it. Clause (3) hands the actual allocation of the work to rules the Ministers will operate, and carves out only the discretionary business. Article 166 is therefore the textual counterpart of article 163: the Governor's name on everything, the Ministers' decision behind almost everything, and the discretionary field marked off by the same words in both articles.

Article 163: the discretion, and its four categories

In Nabam Rebia v. Deputy Speaker, Arunachal Pradesh Legislative Assembly, (2016) 8 SCC 1. Facts. The Governor of Arunachal Pradesh advanced the session of the Assembly by a month and fixed the removal of the Speaker as the first item of business, on his own initiative, against the advice of the Council of Ministers, in the middle of a defection crisis.

Held. The Governor's orders unconstitutional and set them aside, restoring the position as it stood before them. On article 163(1) it held that the Governor is bound by the advice of his Council of Ministers, and that the words "except in so far as" create only three exceptions: where he may act in his discretion as conferred BY the Constitution, where he may act in his discretion as conferred UNDER the Constitution, and where he may act in his individual judgment in instances the Constitution specifies. A fourth, narrow category has evolved by constitutional necessity in extraordinary situations. The Governor has no power to interfere in the internal proceedings of the House.

Why it matters here is that it is the modern statement of the general rule, and the general rule is that the Governor acts on advice.

Article 200: what a Governor may do with a Bill

The three courses. When a Bill has been passed by the Legislative Assembly and is presented to the Governor, he shall declare either that he assents to the Bill, or that he withholds assent, or that he reserves the Bill for the consideration of the President.

The first proviso. He may, as soon as possible after the presentation, return the Bill, if it is not a Money Bill, together with a message requesting the House to reconsider it or any specified provisions and to consider the desirability of introducing any recommended amendments; and when a Bill is so returned the House shall reconsider it accordingly, and if it is passed again with or without amendment and presented again, the Governor shall not withhold assent therefrom.

The second proviso. The Governor shall not assent to, but shall reserve for the consideration of the President, a Bill which in his opinion would, if it became law, so derogate from the powers of the High Court as to endanger the position that Court is designed to fill.

Article 201 then governs what the President does with a reserved Bill: he shall declare that he assents or withholds assent, and may direct the Governor to return the Bill for reconsideration, in which case the House must reconsider it within six months.

The dispute, and the two decisions of 2025

The problem was inaction. Article 200 does not prescribe any time within which the Governor must do any of the three things, and Governors in several States left Bills undecided for months and years.

On 8 April 2025 the Supreme Court held that this could be cured by timelines. In State of Tamil Nadu v. Governor of Tamil Nadu, 2025 INSC 481. Facts. Ten Bills passed by the Tamil Nadu Legislative Assembly had been pending with the Governor for long periods, and that after the Supreme Court's decision in the Punjab Governor's case he reserved all ten for the President, including Bills already returned once and repassed. Held. Article 200 gives three options and that the first proviso is not an independent fourth course but is attached to withholding; that neither a pocket veto nor an absolute veto exists, since "shall declare" leaves no room for inaction; that as a general rule the Governor may not reserve a Bill for the President in the second round after it has been returned and repassed, unless the Bill is materially different; that the reservation of the ten Bills was illegal and was set aside; that the Bills were deemed to have been assented to on the date they were presented after reconsideration; and that the Court could prescribe timelines, laying down maxima of one month and three months for the various situations.

On 20 November 2025 that was displaced. In In re Assent, Withholding or Reservation of Bills by the Governor and the President, an advisory opinion under article 143 pronounced on 20 November 2025. Facts. Following the Tamil Nadu decision the President referred fourteen questions to the Supreme Court about the powers of the Governor under article 200 and of the President under article 201, and whether a court may fix time limits for either.

Held., in the conclusions numbered 165.1 to 165.10: that the Governor has three options and the first proviso restricts them rather than adding a fourth, the third option being unavailable for a Money Bill; that the Governor enjoys discretion in choosing among the three and is not bound by the aid and advice of the Council of Ministers when exercising the article 200 function; that the discharge of that function is not justiciable and there can be no merits review, but that where inaction is prolonged, unexplained and indefinite the Court may issue a limited mandamus to act within a reasonable time, without commenting on the merits; that article 361 bars proceedings against the Governor personally while the office remains subject to the Court's jurisdiction; that it is not appropriate for the Court to prescribe timelines under article 200, and the same applies to the President under article 201; that neither decision is justiciable before the Bill becomes law; and that article 142 does not permit a deemed assent. Two of the fourteen questions were returned unanswered.

Why it matters is that three propositions a student might have learned in 2025 are now wrong: that the Governor must act on ministerial advice under article 200, that a court may impose a one-month or three-month limit, and that a Bill can be deemed assented to. What survives is the limited mandamus against prolonged, unexplained and indefinite inaction.

A worked example

A State Assembly passes a Bill and presents it to the Governor on 1 March. He does nothing. On 1 September the State moves the Supreme Court. What may the Court do?

It may not review the merits. Conclusion 165.3 of the Reference is that the discharge of the article 200 function is not justiciable and there can be no merits review.

It may not fix a deadline. Conclusion 165.5 is that it is not appropriate for the Court to prescribe timelines.

It may not deem the Bill assented to. Conclusion 165.10 is that article 142 does not permit a deemed assent.

It may issue a limited mandamus. Conclusion 165.3 permits a direction to act within a reasonable time where the inaction is prolonged, unexplained and indefinite, without any comment on which of the three courses the Governor should take.

And it may not proceed against the Governor personally. Article 361 bars that, though the office is subject to the Court's jurisdiction, so the direction runs to the office.

Now vary the facts. Suppose he returns the Bill under the first proviso, the House repasses it unchanged, and he then reserves it for the President. On the Tamil Nadu decision that was impermissible as a general rule unless the Bill was materially different. That part of the Tamil Nadu decision concerned the construction of article 200 rather than timelines, and a careful answer distinguishes what the Reference displaced, which is timelines, deemed assent and the advice question, from what it did not.

Distinctions

What it does NOT mean

It does not mean the Governor is a Union agent. He is the constitutional head of the State, bound by ministerial advice in the general run of his functions under article 163 as Nabam Rebia held, and the discretion recognised in 2025 relates to the article 200 function.

It does not mean inaction is now beyond remedy. The limited mandamus survives, and prolonged, unexplained and indefinite inaction is what it addresses.

It does not mean the whole of the Tamil Nadu decision is gone. Its construction of the three options and of the first proviso is consistent with the Reference; what went is the timelines, the deemed assent and the holding on advice.

And it does not mean the Governor may be sued. Article 361 protects the person; the office is amenable.

Quick revision

Article 153: a Governor for each State. Article 155: appointed by the President by warrant. Article 156: holds office during the President's pleasure, term five years. Article 163(1): bound by ministerial advice except where required to act in his discretion; Nabam Rebia gives three exceptions, discretion conferred by the Constitution, discretion conferred under it, and individual judgment in specified instances, with a narrow fourth by constitutional necessity, and holds that he may not interfere in the internal proceedings of the House. Article 200: assent, withhold, or reserve; the first proviso requires return as soon as possible with a message for a Bill other than a Money Bill, and on repassing the Governor shall not withhold assent; the second proviso requires reservation of a Bill derogating from the High Court's powers. Article 201: the President's course on a reserved Bill, with six months for reconsideration. State of Tamil Nadu v. Governor, 8 April 2025: no pocket or absolute veto, no reservation in the second round as a general rule, deemed assent, and timelines of one and three months. In re Assent, 20 November 2025: the Governor has discretion under article 200 and is not bound by advice; the function is not justiciable on the merits; a court may not prescribe timelines; article 142 does not permit deemed assent; but a limited mandamus lies against prolonged, unexplained and indefinite inaction; article 361 protects the person, not the office.

Test yourself

1. How is a Governor appointed and removed? Appointed by the President by warrant under his hand and seal under article 155, and holds office during the President's pleasure under article 156, for a term of five years.

2. State the exceptions to the rule that the Governor acts on advice, as Nabam Rebia stated them. Where he may act in his discretion as conferred by the Constitution; where he may act in his discretion as conferred under the Constitution; and where he may act in his individual judgment in instances specified by the Constitution; with a narrow further category evolved by constitutional necessity in extraordinary situations.

3. What are the three courses under article 200, and what does the first proviso add? Assent, withhold assent, or reserve for the President. The first proviso requires that, on withholding assent to a Bill other than a Money Bill, the Governor return it as soon as possible with a message for reconsideration; and if it is passed again and presented, he shall not withhold assent.

4. What did the Presidential Reference of 20 November 2025 decide about timelines and deemed assent? That it is not appropriate for a court to prescribe timelines under article 200 or article 201, and that article 142 does not permit a deemed assent.

5. What remedy survives for indefinite inaction? A limited mandamus directing the Governor to act within a reasonable time, available where the inaction is prolonged, unexplained and indefinite, and issued without any comment on the merits of which course he should take.

6. Does article 361 put the Governor beyond the Court? It bars proceedings against the Governor personally and forbids criminal proceedings during his term, but the office remains subject to the Court's jurisdiction, which is what makes a limited mandamus possible.

Clause (4): six months at a time, three years in all. A Proclamation approved under clause (3) continues in force for six months from the date of issue and may be extended by further resolutions, but no Proclamation shall remain in force for more than three years.

Clause (5), inserted by the Forty-fourth Amendment 1978: a continuance beyond one year needs more. A resolution extending a Proclamation beyond one year may be passed only if a Proclamation of Emergency is in operation in the whole or part of the State at the time, and the Election Commission certifies that the continuance is necessary on account of difficulties in holding general elections to the State Assembly.

That clause is the reason article 356 is no longer used for long periods, and it is a good example of a safeguard added after abuse.

From State of Rajasthan to Bommai

1977: the satisfaction is very nearly unreviewable, and there is a reason nobody mentions. In State of Rajasthan v. Union of India, 1977 AIR 1361; 1978 SCR (1) 1, decided on 6 May 1977. Facts. After the ruling party lost the March 1977 general election, the Union Home Minister wrote on 18 April 1977 to the Chief Ministers of nine Congress-ruled States commending that they advise their Governors to dissolve the Assemblies under article 174(2)(b) and seek a fresh mandate, and the Union Law Minister said publicly that a clear case for dissolution had been made out because the party had been rejected by the electorate; six States sued under article 131 for a declaration that the letter was ultra vires and for injunctions restraining the Union from resorting to article 356.

Held, dismissing the suits. The choice between dissolution and re-election is a matter of political expediency under a democratic system and that seeking political power is not per se illegal; that giving electors a periodic opportunity to choose their legislature is an object of a democratic constitution, so a policy serving that end is not contrary to the basic structure; and that article 356(1) calls for an assessment of a situation which, so far as it embraces political and executive policy, the courts cannot interfere with unless a constitutional provision is shown to be contravened. Even so, the Court accepted that a Proclamation could be challenged if it were mala fide or based on wholly extraneous or irrelevant grounds.

The reason the language is so restrictive is a clause that no longer exists. Article 356(5), inserted by the Thirty-eighth Amendment, then provided that notwithstanding anything in the Constitution the satisfaction of the President shall be final and conclusive and shall not be questioned in any court on any ground. Read with article 74(2), which bars any inquiry into ministerial advice, the Court said it could determine validity only on whatever grounds remained or were admitted. The Forty-fourth Amendment 1978 omitted clause (5), and that omission is why Bommai could go where this case could not. Why it matters here is that a candidate who quotes the 1977 language without the clause is describing a Constitution that no longer exists.

1994: the satisfaction is conditioned and the floor is the test. In S.R. Bommai v. Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1. Facts. A group of appeals and transferred cases about Proclamations dismissing the governments of Karnataka on 21 April 1989, Nagaland, Meghalaya on 11 October 1991, and Madhya Pradesh, Rajasthan and Himachal Pradesh on 15 January 1993 after the demolition of the disputed structure at Ayodhya. Held, in twelve conclusions. The satisfaction under article 356 is subjective but the power is conditioned and not absolute, relevant material being a precondition; that the Proclamation is not immune from judicial review and may be struck down if mala fide or based on wholly irrelevant or extraneous grounds, the court examining whether the material was relevant and not whether it was correct or adequate; that the majority of a government is to be tested on the floor of the House and not in the Governor's assessment; that a dissolution of the Assembly should not take place until both Houses have approved the Proclamation, so that the House can be revived if the Proclamation is struck down; and that secularism is a basic feature, so a State government acting against the secular character of the Constitution is amenable to action under article 356.

Why it matters is that it converted the strongest centralising provision into a reviewable one and changed the practice. The Karnataka, Meghalaya and Nagaland Proclamations were held bad; those relating to Madhya Pradesh, Rajasthan and Himachal Pradesh were upheld.

2006: and the Governor's report is examinable. In Rameshwar Prasad v. Union of India, decided on 24 January 2006. Facts. The Bihar election of February 2005 produced no majority, the Assembly was kept in suspended animation from 7 March 2005 without ever meeting, and the Governor reported on 27 April and 21 May 2005 that there was a serious attempt to cobble a majority, that members were being won over by various means, that parties were being targeted for a split, and that there were high pressure moves, allurements of caste, posts and money, and horse-trading; the Assembly was dissolved by a Proclamation of 23 May 2005. Held, by the majority. The Proclamation was unconstitutional. In its own words, there was no material, let alone relevant material, with the Governor to assume that there was no legitimate realignment of political parties and that there was a blatant distortion of democracy by induced defections through unfair, illegal, unethical and unconstitutional means. Disqualification for defection is vested in the Speaker and the Governor could not arrogate that authority to himself; the reports were almost identical to those from Karnataka and Nagaland that Bommai had invalidated; and the Governor had moved swiftly and with undue haste on finding that one party might be close to a majority, so the object was to prevent that party from staking a claim.

Relief was nevertheless moulded: despite the unconstitutionality, the Court declined in its discretion to order status quo ante restoring the Assembly. Why it matters here is that it extended Bommai to the report on which the President acts, which is where the material actually comes from, and that it is the standing reminder that a successful challenge does not always restore anything.

A worked example

A State government loses several members to a rival party. The Governor reports that it has lost its majority and recommends a Proclamation. The Union issues one and dissolves the Assembly the same day. Both Houses approve a month later. Advise the dismissed Chief Minister.

The first argument is the floor test. Bommai holds that the majority is to be tested on the floor of the House and not in the Governor's assessment. A Governor who reports a loss of majority without calling for a floor test has substituted his own opinion for the constitutional method.

The second is the material. After Bommai and Rameshwar Prasad, the reports and the material before the President are examinable, not for adequacy but for relevance and for whether they exist at all. A report of defections without any test on the floor may be no material for the conclusion drawn.

The third is the dissolution, and it is the strongest. Bommai holds that the Assembly should not be dissolved until both Houses have approved the Proclamation, precisely so that the House can be revived if the Proclamation falls. Dissolution on the same day forecloses the remedy.

The fourth is the remedy. If the Proclamation is struck down, the Court may restore the status quo ante, reviving the Assembly and the government. In practice relief is often moulded, as it was in Rameshwar Prasad where fresh elections had been notified, and a good answer says so rather than promising restoration.

Distinctions