Constitutional Law

Constitution

a. Definition of Constitution and its Classification

b. Sources and Framing of the Indian Constitution

The framers, working through the Constituent Assembly, consciously developed a constitutional pattern “suitable to the genius and requirements of the Indian people”.

c. Salient features of Indian Constitution

• Constitutional Supremacy: The Constitution is supreme; all organs (executive, legislature, judiciary) owe their existence to it and must function within its limits.
• Preamble and Objectives: Resolves to constitute India as a Sovereign Secular Democratic Republic and secures Justice, Liberty, and Equality to all citizens, promoting Fraternity and the unity/integrity of the Nation.
• Fundamental Rights (Part III, Arts. 12-35): Establish Political Democracy. They are basic rights guaranteed to citizens and operate as restrictions imposed on the State. Violation is punishable and the rights are justiciable (enforceable by courts). They can be suspended during a national emergency, but Articles 20 and 21 cannot be suspended.
• Directive Principles of State Policy (Part IV, Arts. 36-51): Establish Economic and Social Democracy. They are guidelines for the Government while framing policies, fostering the welfare of the entire community. They are not justiciable; violation is not punishable, and courts cannot declare a law invalid merely for violating DPSPs.
• Separation of Powers/Checks and Balances: The constitutional scheme is generally based on the principle of checks and balances, rather than strict separation of powers.
• Basic Structure Doctrine: Affirmed in Kesavananda Bharati v. State of Kerala (1973). Parliament’s power to amend the Constitution (Art. 368) is limited, and it cannot destroy the basic foundation and structure. Essential features of the Basic Structure include: Supremacy of the Constitution, Republican and Democratic form, Secular character, Separation of powers, and Federal character.

d. Is Indian Constitution Federal in Nature?

The Indian Constitution is generally described as ‘quasi-federal’. It is a mixture of federal and unitary elements, leaning more towards the latter.

Constitutional Organs

a. Parliament

• Composition: Parliament’s composition is set out in the Constitution.
• Parliamentary Sovereignty: The doctrine of British parliamentary sovereignty does not apply, as the Constitution is supreme. Indian Legislatures derive their limited powers from the Constitution.
• Parliamentary Privileges (Arts. 105 & 194): These are rights enjoyed by the Houses and members, necessary for discharging their functions. Key privileges include freedom of speech in Parliament (Art. 105(1)). Privileges are equated to those existing immediately before Section 15 of the 44th Amendment Act, 1978.
• Judicial Review and Privileges: The courts possess the jurisdiction to examine the content and scope of powers and privileges claimed by the legislature.
  • Article 122(1) prohibits calling into question proceedings in Parliament merely on the ground of “irregularity of procedure”.
  • However, judicial scrutiny is permissible where there is substantive illegality, violation of constitutional mandate, gross illegality, irrationality, or mala fides.

b. Executive Power: Power of President and Governor

• Scope of Executive Power (Arts. 73, 162): The executive power of the Union and States is co-extensive with their respective legislative powers. Executive function includes determining policy and carrying it into execution.
• Constitutional Head: The President (Union) and Governor (State) are the constitutional or formal heads. They must exercise their powers and functions on the aid and advice of the Council of Ministers.
• Governor’s Discretion (Art. 163): The Governor must generally act on ministerial advice, except insofar as the Constitution requires him to exercise functions in his discretion.
  • This discretion applies in specific constitutional provisions (e.g., reporting on failure of constitutional machinery under Article 356).
  • In a situation involving the prosecution of a Chief Minister or Minister (e.g., under the Prevention of Corruption Act), the Governor must, as a matter of propriety, necessarily act in his own discretion and not on the advice of the Council of Ministers, due to the risk of bias. If the Council of Ministers’ decision to refuse sanction is irrational or based on non-consideration of relevant factors, the Governor is right to act in discretion.

c. Judiciary

• Independence of Judiciary: This is an integral and essential feature of the Constitution, acknowledged as part of the basic structure. The framers ensured judicial independence by rejecting executive/legislative control over judicial appointments, fearing impact by “political pressure” and “political considerations”.
• Judicial Review (Arts. 32, 226/227): This power, vested in the Supreme Court and High Courts, is an inviolable part of the basic structure of the Constitution. It cannot be ousted entirely. The judiciary determines if any law has exceeded the legislative limits prescribed by the Constitution.
• Jurisdiction of Supreme Court and High Courts:
  • High Courts exercise powers under Articles 226/227.
  • The Supreme Court is the apex court, and the law declared by it is the law of the land (Art. 141). The power of judicial review helps maintain the balance of power within the constitutional scheme.

Distribution of Powers between Centre and States

The distribution of legislative, administrative, and financial powers is central to India’s quasi-federal structure.

a. Legislative Relations between Union and the States (Arts. 245-255)

• Basis: Powers are allocated through three lists in the Seventh Schedule (List I: Union, List II: State, List III: Concurrent).
• Supremacy: Article 246 establishes the principle of federal supremacy. If there is an irreconcilable conflict between Union (List I) and State (List II) legislative powers, the Union power prevails. In the Concurrent List (List III), if a State law is “repugnant” to a Union law, the Union law prevails.
• Residuary Power: Parliament has exclusive power over any matter not enumerated in List II or List III (Art. 248, Entry 97 List I).
• Harmonious Construction: When lists appear to conflict, courts must first attempt to reconcile them by reading them broadly, giving full scope to the language of both entries where possible. Recourse to the non-obstante clause (federal supremacy) is a measure of last resort.

b. Administrative Relations between Union and the States

• State Obligations (Arts. 256, 257): States are obligated to ensure their executive power secures compliance with laws made by Parliament. States must not impede or prejudice the exercise of the executive power of the Union.
• Union Directions: The Union can issue directions to States as necessary for these purposes.
• Entrustment of Functions (Art. 258): The President may, with the consent of a State, entrust functions related to Union executive power to the State or its officers.
• Duty to Protect (Art. 355): The Union is obligated to protect every State against external aggression and internal disturbance.

c. Financial Relations between Union and the States

• Separation of Taxing Power: The Constitution mandates a complete separation of taxing powers between the Union and the States. Taxes are separately listed in List I (Entries 82-92A) and List II (Entries 45-63); List III has no tax entries.
• Tax Categories: Taxes imposed under List I (e.g., tax on capital value of assets, Entry 86) and List II (e.g., tax on lands and buildings, Entry 49) are conceptually different and operate on different subject-matters, ensuring mutual exclusiveness. For instance, a tax on capital value of assets (List I) is imposed on the totality of assets, whereas a tax on lands and buildings (List II) is imposed on units.
• State Dependence: Despite the separation of taxing heads, States rely heavily on the Union for financial assistance, grants, and shared/assigned taxes (Arts. 268-275).

Relevant Doctrines

i. Territorial Nexus (Art. 245)

• Core Principle: Parliament has the power to make laws for the territory of India (Art. 245(1)). A law made by Parliament shall not be invalid merely because it has extra-territorial operation (Art. 245(2)).
• Limitation: Parliament is constitutionally restricted from enacting legislation regarding extra-territorial aspects or causes unless they have, or are expected to have, a real connection/nexus with the territory of India, or with the interests, welfare, well-being, or security of the inhabitants of India and Indians.
• Test: The connection must be real or expected to be real, and not illusory or fanciful. Laws that relate to extra-territorial aspects but have no impact or nexus with India would be considered ultra-vires.

ii. Harmonious Construction

• Core Principle: When two or more provisions or legislative entries appear to conflict or overlap, the courts must interpret them so that effect is given to both, preventing one provision from being rendered meaningless or otiose.
• Application in Federalism: This principle is used extensively to reconcile legislative entries (Lists I, II, III). Courts aim to separate the powers into two mutually exclusive spheres to avoid overlapping. The non-obstante clause (federal supremacy) is only to be used if reconciliation proves impossible.

iii. Pith and Substance

• Core Principle: Used to resolve legislative conflicts in federal systems, requiring the court to look at the true nature and character or the predominant purpose of the challenged legislation.
• Incidental Encroachment: If the law, in substance (pith), falls within the competence of the enacting legislature, it is valid even if it incidentally encroaches upon (substance) a field reserved for another legislature. The extent of the incidental invasion is only relevant for determining the true nature of the Act, not for invalidating it outright.
• Case Law: In State of Rajasthan v. G. Chawla (1959), a State law regulating loud noise from amplifiers was upheld because its pith and substance related to public health and tranquility (State List), even though it incidentally touched broadcasting (Union List).

iv. Doctrine of Repugnancy (Art. 254)

• Application: Applies exclusively to concurrent legislation (List III) where both Parliament and a State legislature are competent to enact laws on the same subject.
• Repugnancy Rule (Art. 254(1)): In case of conflict, the Union law prevails, and the State law is void to the extent of repugnancy. Repugnancy arises from direct conflict, or where the Central law is intended to be a complete exhaustive code.
• Presidential Assent Exception (Art. 254(2)): A State law repugnant to an earlier Union law will prevail in that State if it has been reserved for and received the President’s assent. However, Parliament can subsequently override this prevailing State law by enacting a new law on the same matter.

v. Colourable Legislation

• Core Principle (Question of Power): This doctrine focuses on the competency of a limited legislature, not its motives or intentions (bona fides or mala fides).
• Transgression: Legislation is deemed “colourable” if the legislature, though apparently acting within its designated sphere, in substance and reality transgressed its powers. This transgression is disguised by “mere pretence or disguise”.
• Maxim: It rests on the maxim that a legislature cannot do indirectly what it cannot do directly. The focus is on the effect of the legislation to ascertain its true nature.
• Case Law: Provisions of the Bihar Land Reforms Act were held invalid as colourable legislation because certain deductions, though ostensibly related to ‘compensation’ (List III, Entry 42), were found to be fictitious and unrelated to facts, thus falling outside the scope of legislative competence.

Emergency Provisions: Articles 352- 360

a. Proclamation of emergency (Article 352)

Proclamation of Emergency (National Emergency) can be issued on the grounds of war, external aggression, or armed rebellion.

b. effect of emergency

• Fundamental Rights: Article 19 becomes inoperative. However, rights guaranteed under Articles 20 and 21 cannot be suspended under any circumstances.
• Legislative Power: Parliament gains competence to legislate on matters normally reserved for the State List (List II).

c. Financial emergency (Article 360)

The President may proclaim a financial emergency if the financial stability or credit of India is threatened.

President’s Rule (Article 356) – A Detailed Note for Examination

Article 356 deals with the failure of constitutional machinery in a State.

1. Nature of Power: It is an emergency power intended to protect and preserve the Constitution (Art. 355), but it is not an absolute power. The President’s satisfaction (acting on the advice of the Council of Ministers) must be based on objective material.
2. Judicial Review: The power under Article 356 is subject to judicial review (S.R. Bommai v. Union of India 1994). Courts can examine:
   • Whether the Governor’s report is based upon relevant material.
   • Whether the action was taken bona fide and duly verified.
3. Constitutional Propriety: The floor of the House is the constitutionally ordained forum for testing the strength of the Ministry; it is improper to bypass it based on the Governor’s subjective satisfaction or private assessment.
4. Mala Fides: Dissolution is considered illegal and unconstitutional if the Governor acts specifically to prevent a political party from staking a claim to form the Government. The Governor cannot assume disqualification of MLAs (e.g., under the Tenth Schedule) to justify dissolution and prevent claim staking.