constitutional law ii - 14.139.60.116:8080

CONSTITUTIONAL LAW II

DR. V.N. SHUKLA *

A. JUDICIAL DECISIONS

In this survey of constitutional law cases of the years 1967 and 1968,excluding cases on the fundamental rights for which a separate survey hasbeen published, have been considered. The growing volume of constitutional law cases is clearly indicated by the fact that, even after excludingthe decisions on fundamental rights, the cases under the head 'Constitutionof India' reported in the A.I.R. 1967 S.C. and A.I.R. 1968 S.C., areas manyas 190, covering 1516 pages out of a total of 3440 pages (covrering 677judgements) which those repor.s have devotedin publishing the judgements of theSupreme Court of India in two years on all enactments, laws and the Constitution. It is remarkable that out of 223 opinions covered by this survey,166 are unanimous, 25 majority, 12 minority and 22 dissenting judgements,'The subject-wise number of these cases is as follows :-

I.-Union and State Executives 9; II-Union and State Legislatures 7;III-Union and State Judiciary 52; IV-Administrative Law 91; V-Federa-

*LL.M., Ph.D. (London), Head, Department ofLaw, Lucknow University, Lucknow,

1. P.B. Gajendragadkar, C. J. (since retired) wrote in all 3 judgements of which 2were unaniomous and 1 majority; A.K. Sarkar, C.J., delivered 6 opinions, 5 unanimousand 1 minority; Chief Justice K. Subha Rao (from 30.6.1966 to 11.4.1967) made 13pronouncements, 9 unanimous, 4 majority and unlike previous years no dissenting opinionwas delivered by him in 1967, 1968. K. N. Wanchoo, C.J., wrote 19 opinions of which16 were unanimous, 2 majority and 1 dissenting. M. Hidayatullah, C.J., delivered in all23 judgements, 13 unanimous, 1 majority, 3 minority and the largest number of dissentingopinions, i.e., 6. J. C. Shah J. wrote 24 of which 19, the largest number of unanimousdecisions, 2 majority, 1 minority and 2 dissenting ones. S.M. Sikri, J., delivered 16, 11unanimous, 3 majority, 1 minority and 2 dissenting ones. R.S. Bachawat, J., has thedistinction of delivering the largest number ofjudgements, viz., 28 of which 16 were unanimous, 2 minority and 5 each, minority and dissenting opinions. V. Ramaswami, J., deliveredin all 20 judgments of which 18 were unanimous, 1 majority and 1 dissenting. J.H. Shelat,J., wrote 19, 13 unanimous, 4 majority and 2 dissenting opinions, V. Bhargava, J.,pronounced 17 of which 16 were unanimous and 1 dissenting. J.K. Mitter J., delivered10 of which 8 unanimous and 2 were majority opinions. G.A~ Vaidialingam, J., wrote7 judgements, 6 unanimous and 1 majority; K.S. Hegde, J., (appointed on 17-7..1967)wrote 9 decisions, 7 unanimous and 2 dissenting, S.K. Das, J., wrote 3 unanimous judgements. J.R. Mudholkar, J. (since retired) could write only 1 dissenting judgement.Justices N. Rajagopala Ayyangar, K.C. Das Gupta and J.L. Kapoor (all since retired)each wrote 1 unanimous judgement. AI.N. Grover wrote only one unanimous decision,Raghubar Dayal. K.• (since retired) eQuId write only two majority judgements,

www.ili.ac.in The Indian Law Institute

Constitutional Law II 53

lism 28 and VI-Constitutional Amendment I. Appended at the end of thissurvey is a note on the constitutional amendments, Statutes and Rulesconcerning the Constitution of India.

I. Union and State Executives

A. President of India

1. Election of the President

Baburao v, Dr. Zakir Hussain' came before the Supreme Court ofIndia as a sequel to the declaration of the election result of 1967 in whichDr. Zakir Hussain was declared elected to the high office of the Presidentof India. In the instant case the said election was challenged principallyon two grounds, namely, first, that article 58 of the Constitution whichprovides for the requisite qualifications of the candidates for the Presidentship of the Indian Union was violated inasmuch as that article requiresthat in addition to the qualifications of age and citizenship, such candidatesmust have all those qualifications which are required of the candidatesseeking election to the House of the People. Art. 84, which prescribesqualifications for membership of the House of the People, provides, amongothers, that no person shall be qualified to contest the said election unlesshe takes an oath of allegiance to the Constitution of India. As Dr. ZakirHussain did not take such an oath, he did not qualify himself to contest forthe membership of the House of the people and thereby was disqualified tocontest for the office of the President too. Secondly, that the proprietyand constitutionality of the election was vitiated by the fact of undueinfluence used by the ruling party in the form of party whip issued at thebehest of the Prime Minister to vote for the candidate of her own party.

Both these allegations were denied on behalf of the respondent: Nooath was necessary and no undue influence had been exercised.

The Supreme Court in a unanimous judgement decided both the issuesin favour of the respondent. Considering the first contention relating to theoath, Chief Justice Wanchoo stated that though the argument looked attractive, it really had no substance. The reason is that what art. 53 providesis a complete code governing the qualifications of the Presidential election,except such other qualifications which under clause (c) of art. 84 Parliamentmay prescribe for membership of Parliament shall be applicable in the caseof the President also. The requirement of oath as a necessary condition formembership of Parliament was prescribed under the Constitution (Sixteenth

2. A.I.R. 1968 S.C. 904. As to the applicability of arts. 84 and 173 to membersof the Houses only, See also Pashupati Nath vs. Harihar Prasad, A.I.R. 1968 S.C. 1064and Amrit Lal VB. Himatbhai, A.I.R. 1968 S.C. 1455.


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Amendment) Act, 1963 amending art. 84(a) but no similar amendmentwas inserted in art. 58 (a) of the Constitution relating to the qualificationsof the President. This showed the clear intent of Parliament that the require..ment of oath shall not be necessary in the case of election to the office of thePresident. The prayer of the petitioner that on this ground Sri Subha Rao.one of the contesting candidates, should be declared elected was thus rejected. It is to be noted that Subha Rao also did not take the said oath.There was no difficulty in brushing aside the other argument relating to un ..due influence. The Chief Justice cited a large number of judicial precedentsto show that in a parliamentary system of government the ministers, ofnecessity, have dual capacity: one, by virtue of being in the ruling executiveand the other being primarily a member of some party. It would be undueinfluence only when the party candidates are supported by abusing theirformer capacity. What in the instant case was done was that the leader ofthe Congress Parliamentary Party issued a whip to the Congress electors tovote for the party candidate. This did not amount to the use of undueinfluence. On the contrary the leaders of a party will be deemed to exercisetheir due influence if they ask the electors to vote for a particular candidate.

It would appear that the Supreme Court in this case has applied awell-recognised rule of interpretation on which all statutes, constitutionalor otherwise, are construed, viz., expresss mention of a thing excludes theoperation of other things: (expressio unius est exclusio alterious). If theprovisions relating to a particular election have been separately given,the duty of the court is only to see whether those provisions have beenobserved or not.

2. Emergency Powers

The real import of the words used in art. 359 of the Constitution wasconsidered by a divided Court in Mohammad Yaqub v, State of Jammu andKashmlrs In this case twenty one habeas corpus writ petitions were filedto test the validity of arrests made under Rule 30(1), Defence of India Rules,1962, and the order of the President under art. 359, suspending the enforce-



Both the arguments were rejected by the majority judgement. Firstly,because even if the order of the President is considered "law" under art.13(2), that article under the rule of harmonious construction and avoidanceof conflict, cannot be so applied as to make the operation of art. 359 nugatory. An order made under art. 359 derived its force from that articleand was not affected by art. 13(2). The Court categorically overruled thedecision in Ghulam Sarwar v. Union of India,4 in which art. 359 was takento be subject to art. 13(2) by arguing in a circle.

The other contention of the petitioner, namely, that the President couldsuspend only those fundamental rights which had a nexus with the emergencywas held to have no force. It is implicit in art. 359 that the President wouldexercise the power for the sake of security of the country and may, therefore,suspend any fundamental rights which he thinks necessary. The matteris for the subjective determination of the President and he cannot be calledupon to justify his action in a court of law.

In the minority judgement delivered by Hidayatullah, J. he urgedthat the width of the language interpreting art. 359 must be circumscribedin at least those theoretically possible cases where the power may be misused or exercised mala fide. For that purpose, room should be left for theoperation of art 14. It is submitted with great respect that this suggestionwould unduly circumvent the ambit of art. 359.5 If once it is acceptedthat any fundamental right can be suspended, then what remains inthe fundamental ~right in question to scrutinise the action under art. 359 ?Further, there has always been a remedy against malafide acts of the executive." It has already been decided? that it is only the right to move the Courtduring the emergency that is suspended and not the right which, togetherwith the executive action, would be subject to judicial review after theemergency has been lifted.

3. Executive Procedures

The presumption of regularity of official business (omnia praesumuntur rite acte) expressed in Section 114(c) of the Evidence Act, 1878~ was

4. A.l.R. 1967 S.C. 1335. Similarly the categories of Scheduled Castes andScheduled Tribes exclusively to be determined by the President under his constitutionalpower. Hence the Constitution (Scheduled Tribes) Order, 1950, is beyond the jurisdictionof High Courts so as to contradict it : Sidappa v. Chandappa, A.I.R. 1968 S.C. 929.

5. The Bombay High Court in a recent decision in Rao Birinder Singh v, Union ofIndia (A.I.R. 1968 S.C. 44) has held that emergency power is the President's constitutionalpower and not the exercise of the executive power.

6. Jai Chand v. State of W. Bengal, A.I.R. 1967 S.C. 433. Pratap Singh v. AtmaRam, A.I.R. 1951 S.C. 157.

7. Makhan Singh v, State ofPunjab, A.LR. 1964 S.C. 381.


S6 Annual Survey 0/ Indian Law 1967 and 1968

held entitled to constitutional status also, in so far as the government business was concerned, in view of art. 166 of the Constitution. In Ishwarlalv. State of Gujarat." the Under Secretary, on behalf of the Governor, issuednotifications under the Land Acquisition Act, 1894, declaring the acquisitionof the petitioners' lands necessary for public purpose. The notificationswere challenged mainly on the grounds that under sec. 6 of the Act theycould be issued by "the Secretary" of the department only and that in thenotifications nowhere was it mentioned how the government had come tothe conclusion that the lands in question were needed for a public purpose.

Both these pleas were decided against the petitioners. As to the formerthe unanimous Court, speaking through Hidayatullah, J., pointed out thatthough sec. 6 of the Land Acquisition Act, uses the word "the Secretary"but the Act has nowhere defined this term. On the other hand the Rules ofGovernment Business made under art. 166 clearly provide that departmentalorders or instruments may, on behalf of the Governor, be authenticated by aSecretary, an Additional Secretary, a Joint Secretary, a Deputy Secretary,an Under Secretary or an Assistant Secretary or any other officer speciallyso empowered. As to the other objection, the Court ruled that the Government was not bound to give reasons or facts which led to the formationof opinion about the need of acquisition.

It is submitted that the matter in question being purely an executiveact and for the subjective determination of the Government, it had not underthe well established distinction between executive and judicial or quasijudicial procedures to be justified objectively."

Again there is a real and substantial though fine distinction betweenstatutory rules which are justiciable and mere administrative instructionswhich are not justiciable. In G. J. Fernadez v, State of Mysorel" theappellant's tender was rejected by the Public Works Department. Hismain contention was that the tender of the respondent No.3 was acceptedin violation of the P.W.D. Code which was binding upon the Governmentunder art. 162 of the Constitution. Wanchoo C.J., who spoke for theunanimous Court, dismissed the appeal on the ground that what art. 162does is to prescribe that the executive power of the State shall coincide withthe legislative power. It is not a source by itself of any legislative power.Directions or instructions made in the exercise of such executive powerhave no statutory force; they confer no rights on anybody. They existonly as a guide for official purpose. Their violation is thus not justiciable

8. A.I.R. 1968 S.C. 870. Also on the similar issue see B.L. Cotton Mills vs. State ofw. Bengal, A.I.R. 1967, S.C. 1145.

9. See province ofBombay v. Khushaldas Advani, A.I.R. 1950 S.C. 222.10. A.I.R. 1967 S.C4 1753.


Constitutional Law 11 57

in a law court under art. 226. While administrative instructions arenot justiciable in a court of law; there is no prohibition against makingthem and they would be recognised and given effect to provided theyare not inconsistent with statutory rules or orders. Thus in Sant Ramv, State ofRajasthanr» the ptitionenwas selected as a member of the IndianPolice Service in 1952. In the gradation list of the existing officers hisname was first. Subsequently, in the impugned appointment the petitionerpleaded that the r respondent No. 3 was promoted as the Inspector-Generalof Police, Rajasthan, ignoring the petitioner's claim. The Court dismissedthe petition on the ground that, in the absence of the statutory rules forpromotion, the Government was not bound by the seniority list (Gradation)alone. Promotions to selection posts have always been made on merit.It is only when the merit is equal that seniority is considered for promotion.Promotion to selection grade posts not being automatic on the basis of theseniority list, the administrative practice of the departmental promotionson merit is quite intra vires.

II. Union and State Legislatures

A. Legislative Directives

Constitutional directives contained in arts. 39 (equality in pay)and 43 (living wages) and the "social engineering" behind these were fullydiscussed in Hindustan Antibiotics v, WorkmenP The company was a fullpublic sector concern. Its dispute with the employees relating to the mergerof dearness allowance with the cost of living index and perity in pay of publicundertaking employees with private undertaking employees was referredto the Industrial Tribunal. Its award was challenged by both the partiesin the instant cross-appeals. The recommendation or the award for paritywas readily accepted by the Court but its findings for merger of pay and thedearness allowance was not accepted. The philosophical premise uponwhich the Court worked out is succinctly stated in the following observationof Chief Justice Suba Rao :13

"The object of industrial law is two-fold, namely, (i) to improve theservice conditions of industrial labour so as to provide for them the ordinaryamenities of life, and (ii) by that process, to bring about industrial peacewhich would in its turn accelerate productive activity of the country resultingin its prospertity."

11. A.I.R. 1967 S.C. 1910.

12. A.1.R. 1967 S.C. 948.13. For the unanimous Court at p, 954.


58 Annual Survey of Indian law 1967 and 1968

Accepting the specific argument relating to the parity of payin public and private sectors the Court brushed aside the argument ofthe company that a distinction between the two should be maintained becauseconcerns in the private sector work with profit motive while those in the publicsector did not work with that motive. Lhe reply given by the Court was thatfrom the standpoint of the employees who have to put in labour it wasirrelevant who the employer was. Further, the constitutional directivescontained in arts. 39 and 43 would certainly be disobeyed if this distinction was maintained for the directives throughout envisaged social justiceand equality.l!

B. Composition of Legislature

1. Resignation by Returned Candidate

In Sanjeevayya v. Election TribunalP" the appellant was declared electedas a member of the State Legislative Assembly. His election was challenged on the ground of use of corrupt practices at the election. The appellanthad before the Election Tribunal raised various objections which were overruled by the latter. However, during the pendency of the election petition,the President of India appointed the appellant as Minister of Labour andEmployment in the Union Cabinet. Thereafter he was elected as a memberof the Rajya Sabha and he resigned his State Legislature seat. In a writ petitionbefore the High Court he prayed that the Election Commission be directedimmediately to declare his seat vacant, hold a fresh election and close thepending proceedings of the impugned election.

The High Court, as also the Supreme Court, dismissed the writ petition. It was pointed out that by merely resigning the State Legislature seatthe appellant did not become entitled to claim that a bye-election to thatseat must immediately follow. The Election Tribunal was seized of thematter relating to the impugned election and that the matter had got to bedealt with according to the law. Further, if the impugned election is foundinvalid and the candidate who secured the highest votes next to the appellantis declared elected, then also there may not be any need to hold a bye-election.The matter had got to be dealt with according to the law.

2. Bifurcation of a Legislature

Whether the Punjab Reorganisation Act, 1966 which bifurcated theexisting Punjab Legislature to create two legislatures-one for Punjab

14. The court heavilyrelied upon the three concepts of minimum wage, fair wageand living wage as set out in the Judgement ofDas Gupta, J., in A.I.R. 1964 S.C. 1886.

14a. A.I.R. 1967 S.C. 1211.



(bicameral) with 87 members, and the other for Haryana (unicameral) with54 members, is constitutionally valid? In Mangal Singh v. Union of Indial"the main plank of attack upon the Act was art. 170 (1) which providesthat members of a Legislative Assembly shall be directly elected from theterritorial constituencies and that no Legislature shall consist of less thansixty members. Further there was denial ofequality because certain memberswere unseated because of the provision of only a unicameral Legislature forHaryana.

By a unanimous judgement the writ and the appeal were dismissed.It is interesting that to sustain the validity of the Act, the Court took helpfrom the provisions of arts. 2, 3 and 4 of the Constitution which wereheld sufficient to validate such temporary adjustments. It was held,therefore, that art. 170(1) is not the only provision which has a bearingupon the composition of legislatures. But in terms of arts. 2 and 3Parliament may by law, which shall not be deemed to be an amendmentof tire Constitution (art. 4), admit or establish or form new states ascontemplated by the Constitution. Since the composition of necessarylegislatures for new or reorganised States is a supplemental, incidental orconsequential matter, the necessary power for such steps must be foundimplicit in arts. 2, 3 and 4 of the Constitution. As to the ground ofdenial of equality, it was held that the impugned event was reasonablyneccessary and that, therefore, there was no discrimination.

c. Union TerritoriesUnder art. 246 Parliament has power to legislate on matters on

the State List for a Union Territory. Under art. 240 the President alsohas power to promulgate regulations for peace, progress and goodgovernment of any Union Territory. What is the real import of the phrase'peace, progress and good government' and of the relation of the legislative powers of the Parliament and the President occupying the samefield? These two questions were authoritatively dealt with by theSupreme Court in T. M. Kanniyan v. I. T. OfficerI" In the four writ petitionsa common challenge was thrown upon the constitutionality of the TaxationLaws (Extension to Union Territories) Regulation No. 3 of 1963. Theirmain contention was that Parliament had already enacted the PondicherryAdministration Act, 1962 which provided that all taxes, duties, cesses andfees which were lawfully levied immediately before the Act, shall continueto be levied until provision was made otherwise by the competent legislature.Since no such legislature had come into existence, the petitioners pleadedthat they were still subject to the existing French income-tax laws.

15. A.I.R. 1967 S.C. 944.16. A.I.R. 1968 S.C. 637.



The Supreme Court rejected the plea of the petitioners on two grounds.Firstly, the phrase 'peace, progress and good government' occurring in art.240 covered the impugned Regulation. These words are of the widestsignificance and it is not open to a court of law to consider with regard toany particular piece of legislation whether in fact it is meritorious in thesense that it will conduce to peace or to good government." Secondly,under art. 240 the power of the President to make such regulations is coextensive with the power of Parliament to make laws and such overlappingin fact does not, in a parliamentary system of government, lead to clashbetween the two organs. The Court said, "In the Cabinet system of Government the President acts on the advice of the Ministers who are responsibleto Parliament."18

Besides this, it is submitted that if the plea for applicability of theFrench tax laws were to be admitted, the high object of constitutionalintegration of Indian territories would have been impeded or delayed.

ID. Union And State Judiciary

A. Authority of the Supreme Court Decisions

When under the doctrine of precedent the highest Court would bejustified in re-considering its earlier pronouncements has always been a thickwood of controversy from the practical point of view. One such difficultyis shown by the judgement of a divided Supreme Court in I. T. Officer,Tuticorin v. T.S.D. NadarP The facts briefly stated were that the respondents were re-assessed for the concealed income from a firm after theproceedings of rectification had been taken under sec. 35 of the IncomeTax Act, 1922. The respondent's plea was that in view of the decision ofthe Supreme Court in Additional Income Tax Officer v. Atmala Nagaras"the accounts of the firm could not be looked into for the purposes of assessment or rectification of a person's account as an individual. The majority.s!on whose behalf Justice Mitter delivered the judgement, was very frank inexpressing disapproval to the above mentioned decision. As to the policybehind the reconsideration of earlier decisions the majority stated:"It is only when this Court finds itself unable to accept the earlier view thatit would be justified in deciding appeals in a different way,"22 Hegde J.,

17. Quoted from Rankin's judgment in Girindra Nath Banerjee v. Blrendra Nath Pal,A.l.R. 1927 Cal. 496 at p, 499.

18. Bachawat, J. (for the Court) at p. 641.19. A.I.R. 1968 S.C. 623 .20. (1962) 46 I.T.R. 609 (S.C.).21. Wanchoo, C.J., Bachawat, Ramaswami and Mitter J.1.22. A.J.R. 1968 S.C. 623 at 627.



however, who delivered a dissenting judgement, made the following observations :

"Even assuming that Sec. 35(5) can receive a different interpretationand that interpretation is more reasonable than that adopted by thisCourt in Atmala Nagaraj's case (1962) 46 I.T.R. 609 (S.C.) in thatevent also this Court would not be justified in overrulling its previousdecision, which has the force of law in view of art 141 of theConstitution."23

It is submitted that Mr. Justice Hegde has not been consistent inregard to the binding nature of the precedent. In V.D. Dhanwatey v.C.I.T.,24 the appellant, the karta of a Hindu undivided family, was a partnerin a firm also. Since his share capital was provided by the joint familyfunds, the income-tax department in computing the income of the familyalso added Rs. 18,000 which the karta earned as his share of the firm'sprofits. The majority in the Supreme Court relying on undoubted rules inthe Yajnavalkya Smriti and the Mitakshara held that the appeal must bedismissed inasmuch as Rs, 18,000 were earned out of the nucleus providedby the family and the same was not the separate property of the appellant..Hegde J., however, disagreeing with the stand taken in the earlier case,pleaded for change. "Law is a social mechanism to be used for the advancement of the Society. It should not be allowed to be a dead weight on thesociety. .. The Supreme Court's role in that regard is recognised by Art.141 of our Constitution." Ours is a fast changing heterogeneous society.The strict common law doctrine of stare decisis is almost dead even inits place of origin due to its incompatibility with the administrative exigenciesand partly because of the great reluctance of the highest Courts to be boundby their previous decisions. To say, therefore, that the Court is not entitledto review its earlier decision if it is convinced by a fresh and more reasonableinterpretation is not only to pay too much lip service to the carcass ofprecedent but is also to doubt the wisdom of higher courts as welL

B. Appeal

I. Certificate of Fitness

In regard to appeals under articles 133 and 134 it is provided that aparty can invoke the appellate jurisdiction of the Supreme Court otherwisealso if the High Court certifies that the case is a fit one for appeals to theSupreme Court. The limits of power of the High Court in this behalf were

23. p, 636.24. A.I.R~ 1968 S.C. 683,



tested in Mohan Lal v, State of Gujarat.25 In a criminal case the Magistratehad ordered the filing of a complaint against the appellant under sections205,467 and 468 of the Penal Code read with S. 114. In appeal, the sessionsjudge held that the complaint was justified only in respect of the offence undersection 205, and the High Court dismissed the revision against the appeal.The High Court, however, gave a certificate under art. 134(1)(c) for appealto the Supreme Court.

The Supreme Court, both in its majority as well as minority opinions,held that the certificate was incompetently granted. But the Court wasdivided on the reasons therefor. According to the majority led by ShelatJ., though the order of the High Court in revision was a 'final order', but thequestion relating to commission of crime being one of 'fact' and not of 'law'(much less substantial question of law), the certificate was not proper. Inthe minority judgement, Bachawat J., however, held that though the questionwas one of 'law' and not 'fact', but since the order in revision was merelyan 'interlocutory order' and not a 'final order', which in terms of the articleswas necessary, the certificate was not in order..

2.. New Plea or Concurrent Findings of Fact

It needs no emphasis that in dealing with appeals of all types generallywhether civil, criminal, constitutional or by way of special1eave, the SupremeCourt has always been consistent in refusing to hear an entirely new case,26

25. A.I.R.1968 S.C. 733. But such cases are covered under art. 136. See CollectorVaranasi v. Gauri Shanker, A.I.R. 1968 S.C. 384.

26. Ramprasad v. Vijaya Kumar, A.I.R. 1967 S.C~ 276.Ganeshi Ram v. Dist. Magistrate, A.~.R. 1967 S.C. 356.Commissioner, Mysore v. Canara Bank. A.I.R. 1967 S.C. 417.Kesar Singh v. Balwant Singh, A.I.R. 1967 S.C. 487.Charan SIngh v. State of V.P. A.I.R. 1967 S.C. 520.A. Perumalakkal v. Kumaresan Balakrishnan A.I.R. 1967 S.C. 569.G. Tatayya v. Tagapathiraju, A.I.R. 1967 S.C. 647.Bakhshish Singh v. State of Punjab A.I.R. 1967 S.C. 752.Chandra Bhan v, State of Orissa, A.I.R. 1967 S.C. 767.Commr. of LT., Bombay, v. K.W~ Trust, Bombay, A.LR~ 1967 S.C. 844.Ajit Singh v. State of Punjab, A.I.R. 1967 S.C. 856Gomathinyagam PIllai v. Palaniswami Nadar A.I.R. 1967 S.C. 868.M.P. Shreevastava v. Veena A.I.R. 1967 S.C. 1193.Kuppuswami v. Arumugam, A.I.R. 1967 S.C. 1395.Kushan Kumar v. J. & K. State A.I.R. 1967 S.C. 1368.Madan La] v. State of Punjab A.I.R. 1967 S.C. 1890.Mis Dabur, Deoghar, Bihar v. Workmen A.I.R. 1967 S.C. 17.N.B. Industries v. Hanuman A.l.R. 1967 S.C. 33.Union Co-op. Insur. Society v. I.T. Commr., Bombay) A~LR. 1967 S.C. 78.Union of India v, Kamalabai, A.I.R. 1968 S.C. 377.



a new plea to appreciate further factual evidence in appeal or to disturbconcurrent findings of fact unless it is fully shown that the courts belowwere palpably wrong in their findings or appreciation of evidence.To take one instance, in Mangal Singh v. Smt. RattnoP one HarnamKaur, on the death of her husband in 1917, entered into possessionof his lands and continued into possession till 1954, when one of thecollaterals, alleging that Smt. Harnam Kaur had lost her right becauseshe entered into a Karewa marriage with a person, dispossessed her.Smt. Harnam Kaur instituted a suit for possession and denied any suchremarriage, Soon thereafter the Hindu Succession Act, 1956 came intoforce. The trial court gave the finding that the alleged Karewa marriagehad not been proved and held that, though the widow was out of actualpossession even before the Hindu succession Act, 1956 came into force,but since she had an interest in the property for which the suit was pendingwhen the Act came into being, that interest would get converted intoan absolute right in terms of sec. 14 (1) of the Act. Appeal to theDistrict Judge, and the High Court having been dismissed, the appellants,under special leave granted to them, prayed to the Supreme Court to reconsider the finding on the Karewa marriage. The Supreme Court rigidly excluded this plea:

The first appellate Court, which was the final court for decidingquestions of fact, clearly recorded a finding that the Karewamarriage . . . by the plaintiff... was not proved. That finding offact was binding on the High Court and was rightly accepted by it. Itis no longer open to the appellants to challenge that finding of fact inthis Court. 28

Accepting the concurrent finding, the appeal was dismissed by theSupreme Court) because otherwise it would convert an appellate Courtinto a regular Court of fact. 29

Ganga Bishnu v, Cal Pinjrapole Society, A.I.R. 1968 S.C. 615.Century S. & M. Co. v. Ulhasnagar Municipality, A.I.R. 1968 S.C. 857.Thenappa Chettiar v, Karuppan Chettiar, A.I.R. 1968 S.C. 915.L. Choraria v. State of Maharashtra A.I.R. 1968 S.C. 938.I.T. Commr., Bombay v. Ciba of India Ltd. A.I.R. 1968 S.C. 1131.ChiefCommr. Delhi v. C.M. Transport Co. A.I.R. 1968 S.C. 1199.Karnesh Kumar v. State of U.P. 1968 A.I.R. 1968 S.C. 1402.T.K. Lakshmana v, State of Madras, A.I.R. 1968 S.C. 1489.Kishan Chand v, S.T.A. Authority, A.l.R. 1968 S.C. 1461.Bhupendra Singh v. State of Punjab A.J.R. 1968 S.C. 1438.

27. A.I.R. 1967 S.C. 1786.28. Per Bhargava J. for the unanimous Court at 1789.29. Also Union of India v, Indian Sugar Mills, A.I.R. 1968 S.C. 22 at 28.



3. New Plea of Law

The position, however, with regard to the legal argument for the firsttime raised in the Supreme Court is not so rigid. The rationale behindallowing new legal pleas is neatly stated by Lord Watson in connection withFire Insurance Co. v. Kavanagh:

"When a question of law is raised for the first time in a Court of las1resort upon the construction of a document or upon facts eitheradmitted or proved beyond controversy, it is not only competent butexpedient in the interest of justice to entertain the plea. "30

An instance of the application of the above principle is furnished whenthe courts below have not noticed the relevant law at all. In Giriwar Prasadv, Dukhu Lal,31 the appellant (defendant) had leased his land to the respondents (plaintiffs). In the meantime the Bihar Land Reforms Act, 1950declared the appellant's property to have vested in the State. The plaintiffsdenied their liability to pay lease rent to the defendant, but on demanddeposited the same under protest and later on sued to recover the samepleading that the defendant was not entitled to the rent as the proepertyhad passed on to the State. The defendant, on the other hand, contendedboth before the trial court and the High Court that the vesting order publishedin the Gazette was incompetent because the Act provided that before thevesting could take place the notification should have been published in theGovernment Gazette as well as in two issues of two newspapers and no suchnotification was ever published in newspapers. But this plea was rejectedby both courts below on the ground that by a subsequent amendment ofthe Act the requirement of publication in two newspapers had been retrospectively omitted. The amending Act, however, had no retrospective effect andthis mistake was discovered only before the Supreme Court. The SupremeCourt allowed the appeal as the lower courts did not give due importanceto this pure question of law.

New legal plea can also be allowed to be raised before the SupremeCourt if, though the plea was not raised before the High Court, the HighCourt dealt with that plea,32 or the High Court in its judgement undulystressed one aspect only but not the other aspects of a composite plea,s8or when the plea concerned jurisdiction of the lower court itself.34

30. (1892) A.C. 473. However, mixed questions of law and fact should generallybe treated as questions of fact. See Lloyds Bank v, Panna Lal, AJ.R. 1967 S.C. 428.

31. A.I.R. 1968 S.C. 90.32. Raghubans Narain v, Govt. of U.P., A.I.R. 1967 S.C. 465.33. Income Tax Commr. v. Hukum Chand Mills, A.I.R. 1967 S.C. 1907.34. Hira/a/ v, Kasturbhai, A.I,R, 1967 S.C. 1653,


Constitutional Law II

(iv) Civil Appeals (Art. 133)

65

It is settled law that the term "civil proceeding" used in art. 133 forwhich a civil appeal can be preferred is of wide import. It is not restrictedto cases for which a suit can be filed in the civil court. It includes all casesand proceedings which directly affect civil rights. It has already been heldthat "tax proceedings" are covered under it.35 In Arbind Kaur v. NandKishorew proceedings in motor vehicles cases were held 'civil proceedings'for the purposes of art. 133 in an appeal against the disposal of writ petitionby the High Court under Art. 226.

V-Appeals by Special Leave (Art. 136)

This delicate source of appeal-its nature and extent-was againreviewed by the Supreme Court in several cases. While all cases having abearing on art. 136 like on any other procedural provision can obviouslynot be discussed in a a review like the present one, important principleselucidating the above provision are briefly mentioned here.

It is well settled that limitations on power to grant special leave underart. 136 are and can only be self-imposed limitations. One such limitationis that save in exceptional and special circumstances the Supreme Courtwould be very reluctant to grant special leave the effect of which would beto by-pass the decision of a High Court." Accordingly the Supreme Courthas refused to interfere where the accused's bail was cancelled by the courtbecause he tried to tamper with the prosecution witnesses or where thetribunal has exercised its discretion judiciously and according to law.3s

Further, where other remedies have not been exhausted leave may be refused,or where the appellant has been guilty of cancealment of material facts leavealready granted may also be revoked." But if resort to other remedieswould have been obviously futile the Court would not press for the formality.40

The gist of the decided cases, therefore, is that leave is granted to partynot as of right but because his case needs justice. In Chandra Mohini v,Avinash Prasadv-i-e case for dissolution ofmarriage on the ground ofadultery.

35. A long-standing controversy in High Courts was settled by holding that "Civilproceedings" may embrace causes tried by High Courts under Art. 226. Sec Narayan Rao v,Ishwarlal A.I.R. 1965 S.C. (1818) reviewed in Annual Survey (1965) 'Constitutional Law.J.I.L.I. p. 35.

36. A.I.R. 1968 S C. 1227 per Shah J. for the Court.37. Chandi Prasad v. State ofBIhar, A.I.R. 1961 S.C. 1708, Income-Tax Commr, v,

Lakhiram, A.I.R. 1967 S.C. 338.38. N.E. Industries v. Workmen, A.I.R. 1968 S.C. 538.39. P.D. Sharma v. State Bank, AIR 1968 S.C. 935.40. L E. Works v. Asstt, Commr., AIR 1968 S.C, 488,41. AIR 1967 S.C. 581.



the trial court dismissed the suit of the husband because the two love letterswritten by one Chandra Prakash Srivastva who was a close relation of theparties, to the defendant (wife) were by themselves held insufficient to provethe charge of adultery. The High Court relying on those letters grantedjudicial separation under Sec. 10(1)([) of the Hindu Marriage Act, 1955and using the D.P. Amendment (No. 13 of 1962) to Sec.13(1)(vii), the HighCourt without waiting for two years, dissolved the marriage. Under thebelief that the time for filing appeal had expired, the plaintiff re-marriedanother lady and the new wife gave birth to a son. In the meantime thedefendant, the former wife, applied and got special leave from the SupremeCourt against the decision of the High Court, Arguments of the plaintiff(respondent) were: firstly, leave should be revoked because before she appliedfor special1eave she did not inform him and therefore the remarriage tookplace. Secondly, under Sections 15 and 28 of the Hindu Marriage Act, 1955there can be no remarriage of the separated spouses so long as the otherparty has a right or time for appeal. And in the instant case time for regularappeal, as of right, had already expired, and special leave to appeal not beinga right, did not hinder a remarriage and thirdly, in any case leave grantedshould be revoked otherwise its effect would be to make the newly bornchild illegitimate. The Supreme Court in a unanimous judgement notonly refused to revoke the leave granted but after trying it on meritsalso allowed the appeal of the separated lady and declared the secondmarriage invalid.

"Even though Sec. 15 may not apply in terms ... we still thinkthat it was for the respondent to make sure whether an appli..cation for special leave had been filed in this Court and couldnot by remarrying immediately after the High Court's decreedeprive the appellant of the chance to present a special leavepetition to this Court. If a person does so he takes a risk ...."43

The application for revocation of the special leave on the ground of possibleillegitimacy of the child born to the new wife was also rejected becausein such a situation Sec. 19 of the Act could come to the aid of the newchild.

Finally, in Gurbux Singh v. State of Punjab)43 the Supreme Court inan appeal against dismissal of a writ by the High Court involving art. 31of the Constitution ruled that the scope of appeal to the Supreme Courtshould necessarily be confined to the ambit of writ petition in the High

42. Wanchoo, J. (as he then was) for theCourt Id. at 583.43. A.I.R. 1968 S.C. 202.



Court, whatever be the nature ot appeal in the Supreme Court.

VI-Administrative Law

67

A. Judicial Control

Decisions of the Supreme Court relating to judicial control whichhigher courts exercise over lower courts under their ordinary appellatejurisdiction have already been reviewed above. Under the following threeextraordinary jurisdictions superior courts are empowered to exercise judicialcontrol over or in relation to the subordinate judicial, quasi-judicial oradministrative bodies.

1. Supervisory Control (Arts. (144, 227 and 228)

Lonand Gram Panchayat v. Ramgiriw elucidates the nature and extentof the power of superintendence over inferior courts given to the HighCourt under art. 227 of the Constitution. In this case certain emplcyeesof the appellant claimed wages for the overtime work. Under the law(Minimum Wages Act, 1948) an authority was constituted for the purpose.Jt was provided that such applications must be made to the Authority withinsix months of the accrual of the claim provided that some delay in deservingcases may be condoned. In a few cases the Authority condoned the delay.As against this, the appellant in a petition challenged the condonation underart. 227, which being dismissed, the appellant came before the SupremeCourt by special leave. The Supreme Court also dismissed the appeal.Regarding the nature of the judicial superintendence of the High Courtsunder art. 227, the Court pointed out that this power is not greater than thepower under art. 226 and is limited to seeing that the tribunal functionswithin the limits of its authority "The High Court will not review the discretion of the Authority judicially exercised, but it may interfere if the exerciseof the discretion is capricious or perverse or ultrra vires ... or in errorapparent on the face of the record."45

2. Contempt of Courts (Arts. 129, 215)

By virtue of these two articles the Supreme Court and the High Courtsrespectively have been made Courts of Record competent to punish personsguilty of contempt of court. The ptocedure through which contemptproceedings in connection with lower courts and tribunals may be launchedis set out in the Contempt of Courts Act, 1952, the gist to which is that thesubordinate tribunal has to pray to the High Court of which it is subordinate,that in view of the given facts contempt proceedings may be launched againstthe specific offender or offenders. It is, therefore, in the fitness of things

44. A.I.R. 1968 S.C. 222.4$. Per Bachawat, I, for the unanimous Court at pp. 223, 224,



that this topic may be treated under 'Judicial Control.' The extent of judicialcontrol through contempt of court was authoritatively dealt with by theSupreme Court in Jugal Kishore v, S. Central Coop. Bank.46 In that casethe appellant was the Chairman of a co-operative society. The Chairmanentrusted certain moneys to a person for supplying coal etc. out of which aportion could not be realised. The Cooperative Bank started surchargeproceedings against the Chairman before the Assistant Registrar Co-operativeSocieties exercising functions of the Registrar. The Assistant Registrarheld the Chairman personally liable to pay the amount. The appellantpreferred an appeal to the joint Registrar of Co-operative societies againstthe order of the Assistant Registrar. Before the Joint Registrar the appellantsaid that the Assistant Registrar in dealing with his case used "doublestandard" and that the order was"mala fide" "illegal" and "without jurisdiction." The Bank prayed to the High Court of Patna to start contemptproceedings against the appellant.

The High Court convicted him for calculated contempt treating theAssistant Registrar a "court." The Supreme Court agreed in appealfiled under art. 134(1)(c) with the decision of the High Court. The followingprinciples can be deducted from the judgement of the Supreme Court.Firstly, contempt proceedings are criminal in nature. Hitherto they havebeen treated as quasi-ciminal proceedings. Secondly, the term 'contemptof court' has nowhere been defined either 'in the Contempt of CourtsAct,1952 or in the Constitution or the Cr. P.C. Generally speaking "any conductthat tends to bring the authority and administration of the law into disrespector disregard or to interfere with or prejudice party litigants or otheir witnesses during their litigation.?" amounts to contempt of court. In short, itis casting aspertaions on the probity of the judges. Thirdly, for purposes ofcontempt, any authority which has trappings of a court should be deemeda 'court' subordinate to the High Court and thereby all judicial as well asquasi-judicial authorities having the trappings of a court can pray to the HighCourt to exercise its powers in matters of contempt of court. Fourthly,judicial and quasi-judicial authorities and tribunals should be deemedsubordinate to the High Court if the High Court has power of superinten-dence under art. 227 over the authority in question.

But how far contempt proceedings have indicea of criminal proceedings especially when the offence is alleged to have been committed by a courtsubordinate to the High Court was considered in Bunna Prasad v. State ofU.P.48 A Nyaya Panehayat was dealing with a complaint case when one

46. A.I.R. 1967 S.C. 1494 also Govind Sahai v. State of U.P., A.I.R. 1968 S.C. 1513.47. Per Mitter, J. for the Court at p. 1504 citing Halsbury and Oswald on contempts,~~. A.I.R. 1968 S.C. 1~48. .


Constitutional Law /1 69

Mahabir got a stay of the proceedings from the High Court but the stayorder could not be officially served. Mahabir himself informed it througha telegram and submitted before the Nyaya Panchayat a paper stating onoath about the stay but the paper was not an affidavit. The Nyaya Panchayatignored the information and continued the proceedings. The High Courtconvicted the Panchs for committing contempt by disobeying the stay order,The Supreme Court, however, allowed the appeal and laid down: firstly,in order to justify committal for breach of prohibitive order actual serviceof the order need not be proved but its knowledge to the person guilty ofcontempt is necessary. Bonafide belief that such information is not authentic entitles the accused to acquittal. Secondly, the great principle of criminaljurisprudence relating to benefit of doubt must be held applicable to theoffence of contempt of court. Thirdly, contempt of court being a seriousmatter, the High Court should be chary of finding a judicial officer guiltyof contempt of court for disobeying its orders unless there is unimpeachableevidence that the judicial officer had knowledge of the order of the HighCourt. Lastly the burden lies on him who asserts that the accused hadknowledge of the order to prove the fact beyond all reasonable doubt.

3. Writ Jurisdiction (Arts. 32, 226)

General Extent and Nature :-Among the constitutional remediesthe judicial control which the Supreme Court under art. 32, and the HighCourts under art. 226 exercise in issuing high prerogative writs ororders is most expeditious and efficacious. It may be added that theSupreme Court in Custodian v. Jafran Begum,49 has held that Acts and statutespassed in pursuance to ordinary legislative power can in no way bar the writejurisdiction of High Courts for that is a power granted by the Constituion,It is submitted that in this way the plenary power of the Supreme Courtto grant special leave to appeal'" and the writ jurisdiction of High Courtshave been equated.

In Naresh v. State of Maharashtras- issues relating to the functioningof courts and vires of the appellate and writ jurisdictions were extensivelydiscussed. In this well-known case against R. K. Karanjia, editor of Blitz,Rs. 3 lakhs were claimed as damages by one Mr. Thackersey for publicationof an alleged malicious libel "Scandal Bigger than Mundhra". In thisarticle Mr. Thackersey was alleged to have obtained silk import licencesin the name of a fraudulent firm, China Cotton Exporters, for which oneMr. Gada stood as surety. In an insolvency proceeding the said Goda

49. A.I.R. 1968 S.C. 169.50. DUTga Shankar v, Raghuraj Singh, A.I.R. 1954 S.C. 520..51. A.I.R. 1967 S.C. 1.



stated in the affidavit certain facts which appeared to corroborate the Blitzstory. But in the instant suit for damages when Karanjia called Mr. Godaas his defence witness, Mr. Goda denied his statements. Later Mr. Karanjiacollected certain other statements which Mr. Gada had made to the Incometax authorities, and after getting permission from the judge trying the case,called again Mr. Goda to the witness box. When Mr. Gada appeared in thewitness-box, he requested that the Court should order that his statementwould not be published. The Judge through an oral order acceded to therequest and directed the petitioner, a reporter of the weekly Blitz, not topublish the report of Mr. Goda's evidence in the Blitz.

The petitioner challenged the oral order of Justice Tarkunde by awrit under art. 226 but the High Court rejected the petition holding thatjudicial orders of the Judge were not amenable to a writ. The pertitionerand three others reporters moved the Supreme Court, each by a separatepetition under art. 32, on the plea that the order of Tarkunde J., violatedtheir right of free speech and expressi on under art. 19(1)(a) of theConstitution because the order of the Judge prohibited them from publishingthe proceedings of the Court as seen and heard by them.

A large Constitution Bench consisting of nine Judges was constitutedto hear the petitions. Five judges who constituted the majority spokethrough the Chief Justice but Sarkar, Bachawat and Shah JI., delivered separate but concurring opinions, while the judgement of Hidayatullah J.,was a dissenting one. The Court by a majority held that no writ under article32 could be issued.

As pointed out above, the leading judgment for the majority waswritten by Gajendragadkar C.J. At thea utset the learned Chief Justice statedthat the scope of the enquiry in the instant case is to be whether a judicialdecision passed by a court of competent jurisdiction can be attacked on theground that it violates the fundamental right of a citizen under art.19 (l)(a). Before dealing with this question, the learned Chief Justicereferred to what he described as an 'incidental aspect' of the matter onwhich the petitioners had greatly relied. The question was : were thereany exceptions to the well settled principle that all cases brought beforethe courts must be heard in open court? On this point his decision was thatthe High Court has inherent jurisdiction to hold a trial in camera if the endsof justice clearly and necessarily require the adoption of that course.

Having disposed of the incidental aspect of the case the learned ChiefJustice considered the question whether a judicial decision passed by a courtof competent jurisdiction can be attacked on the ground that it violates thefundamental right of a citizen under art. 19(1)(a) and said that whena judge deals with matters brought before him for his adjudication, he



first decides questions of fact on which the parties are at issue, and thenapplies the relevant law to the said facts. Whether the findings of factrecorded by the Judge are right orwrong, and whether the conclusion of lawdrawn by him suffers from any infirmity, can be considered and decided ifthe party aggrieved by the decision of the Judge takes the matter up beforethe appellate Court and that it is singularly inappropriate to assume that ajudicial decision pronounced by a judge of competent jurisdiction in or inrelation to a matter brought before him for adjudication can affect the fund amental rights of the citizens under art. 19(1).

In the course of his judgement, Gajendragadakar C.J., made, interalia, the following observation :

"What the judicial decision purports to do is to decide thecontroversy between the parties brought before the court andnothing more. If this basic and essential aspect of the judicialprocess is borne in mind it would be plain that the judicial verdictpronounced by the court in or in relation to a matter broughtbefore it for its decision cannot be said to affect the fundamentalrights of citizens under Article 19(1)."

He made it clear that although the order of the High Court prohibit...ing the reporting of Mr. Goda's evidence was of a collateral nature, since ithad no direct relation with the decision of the dispute, it was all the samea judicial order incidental to the proceedings and could, therefore, be challenged like any other judicial order in appeal under article 136 of the Constitution. The petitioners were not parties to the defamation suit.

Having enunciatd the above proposition, he considered, assumingthat the impugned order could affect fundamental rights of the petitionersunder article 19(1)(a), the impact of the decision of the Judge on theirrights and held that the impact was only indirect and incidental and referredto A. K" Gopalan v, State of Madras,52 where Kania C"],,, had ruled thatarticle 19(1)(a) applied only when it directly infringed the right of freespeech. Indirect and incidental effect would not amount to the violationof the right

To the contention of the petitioner built on Budhan Chaudhary v.State ofBihar,53 namely that a judicial order based on the exercise of judicialdiscretion may contraven art 14 and thereby may become invalid, thelearned Chief Justice said that nothing in that judgement could be taken tohave decided that a judicial decision pronounced by the court could in

52. A r.n. 1950 S.C. 27.53. A.I.R. 1955 S"C" 191.



normal circumstances be attacked on the ground that it violated art. 14.The ruling in Prem Chand Garg v, Excise Commissioner,54 was distinguishedon the ground that in the case it was not a judicial decision but a rule madein the exercise of rule-making power that was challenged before the court.The court, when exercising subordinate legislative functions, would beamenable to the writ jurisdiction but not in respect of a judicial decision.He emphatically noted that there was no decision of the Supreme Courtwhich held that a judicial order passed by the High Court in or in relationto proceedings brought before it for its adjudication, could become thesubject matter of writ-jurisdiction in the Supreme Court.

Lastly, although incidentally, he adverted to the question whethera writ of certiorari can be issued to inferior civil courts. After quotingfrom Halsbury's Laws ofEngland, he pointed out that in England 'certioraridoes not lie to quash the judgements of inferior courts of civil jurisdiction.'

Sarkar J. practically concurred with the majority but added that awrit of certiorari would also not lie because the High Court was not an'inferior court'. Hidayatullah J., dissented from the majority judgement.He took the view that judicial verdicts may violate fundamental rights andthere is no reason why in such cases writ of certiorari should not be issued.He relied on articles 20, 21, and 22(1) of the Constitution to show that atany rate the fundamental rights under those articles could well be violatedby courts. In support of his conclusion, he cited the example of a judgewho without any reason, orders the members of a particular political partyto go out of his court and said that in such a case they can enforce theirfundamental rights by writs of certiorari. Shah J., agreed with the learnedChief Justice and said that there is no distinction in this behalf between anorder passed by a subordinate court and the High Court. He observed:

"I am unable, however, to agree that in the matter of exercise ofpowers of this Court to issue writs against the orders of courtswhich are alleged to infringe a fundamental right under article 19any distinction between the High Court and subordinate courtsmay be made. Orders made by subordinate courts... are as muchexempt from challenge in enforcement of an alleged fundamental right under art. 19 by a petition under art. 32 of theConstitution as the orders of the High Court are."

As regards the question whether by a judicial order the fundamentalrights under arts. 20, 21, and 22(1) could be violated, and relief under article32 or under article 226 obtained, Shah J., did not express any categorical

54. A.I.R. 1963 S.C. 996.


Constitutional Law /1

opinion. Bachawat J., on the whole, agreed with the majority judgement.

Thus this judgement holds that a judicial order passed by the HighCourt cannot be attacked in proceeding under art. 23 on the ground thatthe order violates the fundamental right of a citizen under art. 19(1)(a)of the Constitution.

Further it may be inferred from the judgement that neither the HighCourt nor the Supreme Court may quash even an order of an inferior courtof competent jurisdiction on the ground that the order violates the fundamental right under art. 19"

In regard to the inference drawn from the judgement that a writ wouldnot issue to a subordinate civil court also, it has been contended" that thestatement of law made by the Chief Justice on the authority of Halsbury'sLaws ofEngland that there is no case where the decision of a civil court ofplenary jurisdiction was brought up for being quashed on certiorari, inview of the decision of the Court of Appeal in R v. Judge Sir Deonald Hurst,is erroneous." In that case the decision of a country court was quashed oncertiorari and thereby setteled the point, namely, that the Court can issuea writ of certiorari and quash a decision of a civil court on the ground ofwant of jurisdiction." The Supreme Court has yet to determine finallyif all courts of civil jurisdiction also are not amenable to writs of certiorariP

(i) Finding of Fact

As a general rule, since a writ court is not a regular court of appealcompetent to deal with questions of fact, the judges have in a number of decisions discouraged parties from praying for a reappraisal of evidence. 59 In otherwords, only questions of law especially those related to jurisdictional flawalone can be pressed. It is only when the finding is a mixed question of lawand fact," or the finding is a wrong conclusion of facts that questions of factassume the shape of legal questions and are allowed to be canvassed beforethe Court dealing with a writ petition. Similarly laches and delay"on the part of the petitioner may be fatal but the fact that other remedywhich is open has not been resorted to or exhausted may not be a bar if the

55. See. S N. Koya v, Union Territory L.M. E. A.Island, A.I.R. 1967 Ker. 259.56. (1960) 2. All. E.R. 385.57. See also Halsbury's Laws ofEngland Vol. 2 p. 122.58. Mathew J., in S.N. Koya v, UnionTerritory (Supra) saw no logical justification

in excluding civil courts from the operation of the writ.59. I.T.O. v. Ptllaiah, A.I.R. 1968 S.C. 260.60. Sri T.V. v, Commr. 0/ Income-Tax. A.I.R. 1968 S.C. 784. Raja v State of U.P.~

A.I.R. 1967 S.C. 1081.61. Ajit v, State 0/Punjab, A.I.R. 1967 S.C. 856.



other remedy is not equally efficacious in a given case.62

(ii) Res Judicata

In Virudhunagar Mills v. Madras GovernmentP the petitioner's writpetition as well as letters patent appeal claiming that they were notliable to paytax on electicity were dismissed. As against the dismissalof appeal they filed a writ petition under art. 32. It would be recalledthat in the leading case of Daryao v. State of U.P.,64 it was laid down thatif under a speaking order a High Court has disposed of a writ petitionon merits, it would bar a petition under art. 32. The petitioner's writ petition was disposed of by the High Court on merits, though without issuingnotice to the opposite parties. Therefore the petitioners pleaded that ifin the High Court the petition was disposed of without notice to oppositeparties, the principle in the Daryao case should not apply because thepetition could not be said to have been contested. The Supreme Courtdismissed the petition and clarified that the principle of res judicataenunciated by the Daryao case applies wherere the High Court hasdecided the petition on merits and given a speaking order because thepetition would be deemed to have then been contested, irrespective ofthe fact that notice was not issued to the other party. The proper remedywas appeal against the judgment of the High Court dismissing the appealIt is submitted that the instant case has extended the principle in the Daryaocase. The Daryao case barred remedy under Art. 32, if the petition underart. 226 had been dismissed. The instant case was a petition under art. 32against the dismissal first of the writ petition and then the appeal by theHigh Court, and the Court refused to draw any distinction. The position,therefore, now is that whether the High Court has dismissed a petitionunder art. 226 or on an appeal, the principle of res judicata is applicable toa petition filed under art. 32 from the decision of the High Court in the case.

Application of the Jurisdiction

The application of the writ jurisdiction is built upon the edifice ofsome legal right of the petitioner." The rights may be of various types andthe circumstances and conditions diverse. We shall here consider decisionspertaining to the nature and scope of the several writs and orders whichthe Supreme Court or High Courts issue under articles 32 and 226.

62. Col/ector 01 Customs v. A.S. Bawa, A.I.R. 1968 S,C. 13.63. A.I.R. 1968 S.C. 11996.64. A.I.R. 1961 B.C. 1457 not applicable to habeas corpus.65. Ambalal v, Ahmedabad Municipality, A.I.R. 1968 S.C. 1223.


Constitutional Law 1/ is

(i) Habeas Corpus : Successive Petitions and res judicata

In Ghulam Sarwar v. Union of India,66 a case of detention under theemergency legislation, the petitioner's habeas corpus petition was dismissedby the High Court and his petition to the Supreme Court under art. 32on the same facts was contested by the State, inter alia, on the preliminaryground that the petition was not entertainable because of the principle ofres judicata enunciated by the Daryao case." The Supreme Court inthis case has partially modified the doctrine of res judicata in its applicationto writ petitions for habeas corpus and laid down thatr'though successivepetition in the same High Court on the same facts would be barred, thesame petition would not be barred in the Supreme Court. Speaking for themajority, Subha Rao, C.J., stated: "The order of the High Court inthe said writ is not res judicata . . . because it is not a judgement orbecause the principle of resjudicata is not applicable to a fundamentallylawless order.?"

The minority opinion of Bachawat J., however, did not favour anunrestricted right of second petition to the Supreme Court. He said :

"The previous dismissal of a petition for a writ ofhabeas corpus bya High Court is one of the matters which this Court may takeinto consideration at the preliminary hearing of the writ petitionunder Art. 32 in forming the opinion whether a prima facie casefor granting the petition is made out, and if on a consideration ofall the materials the Court comes to the conclusion that a primafacie case is not made out, the Court may refuse to issue a rule nisiunder O. 35, R. 4."69

(ii) Mandamus-(a) Conditions

One of the basic condition, for issuance of the writ of mandamusis that the authority has committed breach of some mandatory public dutyby some act of omission or commission to the detriment of the petitioner.But harm suffered by a person because of the execution either of some purelyadministrative duty, i.e., a duty cast upon the executive to carry out the policylaid down by the Legislature or of even a discretionary duty, i.e., power ofthe executive to carry out legal duty by showing indulgance to the petitioneror otherwise, can neither be called a violation of a legal right nor a breach of

66. A I R. 1967 S C. 1335 noted Supra, note 5.67. A I R. 1961 S C. 1457.68. Per Subha Rao, c.r., at p. 1337.69. ld .at 1341.


16 Annual Survery 01 Indian Law 1967 and 1968

duty, unless the petitioner establishes arbitrariness in the executive act.Thus in T. G. Gaokar v, R. N. Shukla.i" where a criminal case of smugglingwas pending in a criminal court and the customs authorities having discretion in such cases either to stay or to pursue departmental proceedings leading to the imposition of penalty opted to pursue the proceedings and in Rajalakshmiah v, State of Mysore." where some ad hoc concession was givenby the Government to a particular batch of engineers but not to other batch, itwas held that mandamus could not be issued to exercise discretion by stayingproceedings in the former case, and to command that ad hoc indulgence bemeted out to the petitioners in the latter case, in the absence of any proofthat the authority acted arbitrarily or had transgressed any rule in exercisingdiscretion.

(b) Abuse of Discretion

The courts will intervene in the exercise of administrative discretionif it has been exercised on grounds extraneous to the legislation, even ifthere be no mala fide or oblique motive, is demonstrated in the majorityjudgements that were delivered in the well known case of Barium ChemicalsLtd. v, Company Law Board. 72 The material facts were the following.Section 237(b) of the Indian Companies Act, 1956 provides that the CentralGovernment may investigate any company if in the opinion of the Government there are circumstances to suggest, inter alia, fraudulent running ofthe concern. On behalf of the Central Government the Secretary of theCompany Law Board appointed four Inspectors to investigate about theappellant company. As against this order, writs were filed to quash it and todirect the Inspectors not to give effect to it. The grounds, inter alia, were:

(a) the order was mala fide because one of the respondents Mr. T. T.Krishnamachari, Union Finance Minister, was interested in the prosperityof a rival company where his son was in service and he had exercised undueinfluence on the Board in passing the impugned order.

(b) The order was based on extraneous matter, i.e., in arriving at theconclusion whether order should be issued the Board did not form an honestopinion.

The minority opinion of Mudholkar J. would treat the process anadministrative one which could be vitiated only on the ground of mala fideor illegal exercise of the power. According to him the plea of mala fide

70. AJ.R. 1968 S.C. 1050.71. A.I.R. 1967 S.C. 993.72. A.I.R. 1967 S.c. 295 : Also Lakhanpa/ v. Union ofIndia, 1967,A.I.R. S.C. 1507.



was narrow and limited to personal considerations. His judgement concluded that once an opinion had been formed on certain grounds, that opinionbeing subjective, could not be challenged on sufficiency of grounds if therewas no mala fide intent or a flaw in jurisdiction. He rejected the allegationof pressure from the Minister. On the other hand, three judges of themajority who devlivered separate judgements questioned the propriety ofthe order. Hidayatullah J. while conceding that there was no personalbias or mala fide on the part of the Chairman, held that the order was invalidbecause the facts as disclosed in the affidavit were not relevant for formingthe inference of the kind contemplated by the section. The order was in thenature of a 'fishing expedition' and clearly showed lack of honest opinionas to whether there was a fraudulent running of the concern. BachawatJ. agreed that there was no mala fide in the form of any pressure from theMinister, however, he nullified the order for defective opinion. But hewould treat it only a jurisdictional flaw. Shelat J. would not question theorder on the ground of mala fide casting personal stigma, but was of theopinion that there can be mala fide intent in discharge of legislative intentby the executive. He observed :

The words "reason to believe" or "in the opinion of" do not alwayslead to the construction that the process ofentertaining "reason tobelieve" or "the opinion" is an all together subjective process notlending itself even to a limited scrutiny by the court that such"a reason to believe" or "opinion" was not formed on relevant factsor within the limits or as Lord Radcliffe and Lord Reid calledthe restraints of the statute as an alternative safeguard to rules ofnatural justice where the function is administrative ... If it isshown that the circumstances do not exist or that they aresuch that it is impossible for anyone to form an opinion therefromsuggestive of the aforesaid things, the opinion is challengeable onthe ground of non-application of mind or perversity or on theground that it was formed on collateral grounds.'?"

(iii) Writ of Prohibition

With regard to the grounds for issuance of the writ of prohibition itis established law that they are identical to those on which certiorari isissued, the difference being only in the stages of their issuance."74 Theconditions for its grant were stated afresh in Govinda Menon v, Union ofIndia." where the petitioner, a member of the Indian Administrative Service)

73. Per Shelat J. at pp. 324 and 325.74. Hari Vishnu Kamath v, Ahmad Ishaque, A.I.R. 1955 ste, 233,75. A.I.R, 1961 S,C. 1274,


78 Annual Survey 0/ Indian Law 1967 and 1968

was proceeded against under disciplinary proceedings for misconduct in theaffairs of a religious endowment of which he was the Commissioner. Theenquiry officer recommended that the charge of misconduct was made out,and, in consequence, the Union Government issued a "show cause" notice.The petitioner asked for a writ of prohibition against the Union of Indiaon the ground that the respondent had no jurisdiction in the rna tter becausewhatever the petitioner did as Commissioner was in pursuance to the statuteand if his action which was quasi-judicial in nature was not set aside by theGovernment in accordance with the procedure laid down when it was done,he could not be subjected to any enquiry in respect of that action. The HighCourt by a majority refused to issue the writ and the Supreme Court dismissed the appeal finding no jurisdictional flaw. The Court reiterated theview that through this write the superior court supervises whether theinferior tribunals act within their jurisdiction and in conformity with the"principles of natural justice. This decision so far is intelligible. ButRamaswami J. who spoke for the Court made the following observationat p. 1277 : " ... a writ of prohibition cannot be issued to a court or aninferior tribunal for an error of law unless the error makes it go outside itsjurisdiction."

It is submitted that in the absence of qualifications this observationcan be subjected to the hazards of extended interpretation undermining theefficacy of the writ. To take one instance, in Hari Vishnu Kamath's casethere was an error of law apparent on the face of the record but there wasno question of jurisdiction of the Election Tribunal, yet the wit of certiorariwas issued. No distinction between certiorari and prohibition in this regardat least has ever been recognised. In Sewpujanrai v. Collector of Customs."where the respondent imposed conditions both legal and illegal for releaseof gold, prohibition was issued against invalid conditions.

Issuance of a writ being discretionary it is subject to only self-imposedlimitations of the court. In Income-Tax Officer v. Short Bros. Ltd.,77 theHigh Court issued a writ of prohibition against the recovery of certaintaxes which were not in conformity with the law. The appeal in the SupremeCourt on the ground that alternative and efficacious remedy of rectificationunder the Income-Tax Act had been by-passed by the High Court wasdismissed by Shah, J., holding that the Supreme Court does not interferein such cases with the discretion of the High Court.

76. A.I.R. 1958 S.C. 845.

77. A.I.R. 1967 S.C. 81.



Certiorari

79

(a) Alternative Remedy

In Bhopal Sugar Industriesv. Sales Tax Officer." the petitioner challen..ged the exigibility to sales tax in a writ petition under art. 226. The SupremeCourt dismissed the appeal against dismissal of the petition :

"The Legislature has set up an elaborate and self-containedmachinery . .. The Taxing Officer is invested with authority todetermine the nature of the transaction and its liability to tax andagainst his decision there is an appeal to the appellate authorityand a further right of revision to the Commissioner. "79

So observing, the Court rejected the prayer for ceritorari whichwas calculated to by-pass the statutory machinery.

(b) Jurisdictional Facts

The courts intervene if some fact which is a condition precedent tothe exercise of administrative power does not exist. This would be describedas non-existence of jurisdictional fact. Thus in State of M.P. v, D. K.Jadav,80 where the Government's claim to certain wells and tank was challenged by the respondent, the administrative authority subordinate to theCommissioner decreed the Government's claim. The respondent appliedfor certiorari. The Government pleaded that the High Court ought not tointerfere in the writ jurisdiction in relation to the administrative finding offact that ownership to the disputed properties belonged to the Government,but the High Court granted the writ, and the Supreme Court upheld thedecision. Ramaswami, J., observed:

"It is well..estabIished that where the jurisdiction of an administrative authority depends upon a preliminary finding of factthe High Court is entitled, in a proceeding for a writ to determineupon its own independent judgment whether or not that findingis correct. "81

(e) Duty to Act Judicially

In the classical dictum of Lord Atkin in R. v. Electricity Commissioners,82 which has been approved and adopted by the Supreme Court of

78. A.I.R. 1967 S.C. 549.79. Per Shah, J, for the Court at pp. 551...552.80. A.I.R. 1968 S.C. 1186.81. p. 1190 citing Farewell, J. in Rex v, Shoreditch Assessment Committee (1910-12)

K.B. 859 at 879.82. (1924) I.K.]J, 171 at pp. 204...205.



India," that acts in respect of which certiorari may issue has been statedthus : "Whenever any body of persons having legal authority to determinequestions affecting the rights of subjects, and having the duty to actjudicially act in excess of their legal authority." This classical definitionof Atkin L.I., has been interpreted both in England and India to mean thatit is not enough that the body should have legal authority to determinequestions affecting the rights of citizens. There must be superadded to thatcharacteristic the further characteristic that the body has the duty to actjudicially." Whether there is duty to act judicially in any particular caseis to be gathered from the scheme of the statute conferring the power on thebody." While it is not necessary that the duty should have been expresslylaid down in the statute but its provisions, the conditions under which thejurisdiction may be exercised, must suggest that the authority is requiredto act in a judicial capacity. There would be no duty to act judicially ifsuch a requirement is not expressly or impliedly laid down in the statute.However, since the decision by the House of Lords in the leading case ofRidge v. Baldwin." there has been a change in the trend of interpretation."The Ridge case has held that the duty to act judicially need not be someexcessive or additional requirement over and above to the authority todetermine the dispute. If the exercise of administrative power would affectcivil rights of a person a duty to act judicially is implicit. The three followingdecisions have held that there was a duty to act judicially, although the statuewhich conferred the power did not expressly or impliedly super-add theduty. In State ofOrissa v. Binapani Deis8 the respondent was in the medicalservice of the State since 1938. Her date of birth according to the documentary evidence given at the time of appointment was accepted and recordedin the Government registers. Subsequently on the basis of some anonymousletters and forged documents of the college, the Government issued a showcause..notice to her in reply to which she pleaded that her date of birth inthe Government papers was rightly recorded. The Government, however,in a letter informed her that her date of birth had been changed. The HighCourt issued certiorari and mandamus and the Supreme Court agreed, onthe ground that the report of the Enquiry Officer was never disclosed to her,not her reply to show cause notice was ever contradicted by any evidence.As to the argument of the State that the order was administrative in nature,

83. Province ofBombay v. Khushaldas S. Advani, A.I.R. 1950 S.C. 222.84. Rex. v. Legislative Committee of the Church Assembly (1928) 2 k.B. 411

Nakuda Ail v. Jayaratne, 1951 A.C.66.85~ Sadhu Singh v, Delhi Administration, A.I.R. 1966 S.C..86. (1964) A.C. 40.87. Associated Cement Companies Ltd. v. P.N. Sharma, A.I.R. 91.1958 S.C. 1595:

Sri Bhagwan v. Ramchand, A.l.R. 1965 S.C. 1767. D.L. Board Calcutta v, ZalarImam, A.I.R. 1966 S.C. 283.

88. A.I.R.. 1967 S.C. 1269.



it was pointed out that even an administrative order which involved civilconsequences, had to be made consistently with the rules of natural justice.""If there is power to decide and determine to the prejudice of a person,duty to act judicially is implicit in the exercise of such power. "89

Upon the question whether and when the same function of the executive which first starts as purely administrative one and then converts into aquasi-judicial function the case of P. L. Lakhan Pal v, Union of India,9o isinteresting as well as noveL The petitioner was placed under preventivearrest under Rule 30(1)(b) of the D.T.R. Rule 30 A(9) provides that withinevery six months after the arrest, the detention shall be reviewed and theGovernment "shall decide" whether the detention should continue. After theoriginal detention, two orders each communicating continuance of the detention were served. The petitioner under Art. 32 prayed to the Court to quashthe detention continuation order because under the provisions the Governmenthad a "duty to act judicially." That being so, the order was vitiated becausehe was given no opportunity to correct or contradict the evidence on whichthe authority decided to continue the order of detention. The Court grantedthe writ, quashed the order continuing the detention, land held that therewas a breach of duty to act judicially. In a unanimous judgement Shelat,J., after referring to the most cherished right relating to personal liberty andthe concept of quasi-judicial duty, observed at p. 1512 :

"In our view, whereas the function under R. 30(1)(b) is executive(original arrest) the one under R. 30A(9) (continuance of samedetention) is quasi-judicial and, therefore, in exercising it therules of natural justice have to be complied with .... Thatdecision (continuance) has to be arrived at, firstly, on the assessment of the evidence placed before the authority and not on itssubjective satisfaction and, secondly, in the light of the factswhich have occurred or developed since then."

It is submitted that this is a happy modification by the SupremeCourt of the principle of subjectivity of preventive arrests laid down by theHouse of Lords in Liversidge v, John Anderson." and Rex v, HallidaywAs to the plea that disclosure of facts may be prejudicial to national security,the court emphatically said that on this ground the right of representationcannot be denied. For it the proper course should be to enact a rule where-

89. Shah, J., for the Court at p. 1271.90. A.I.R. 1967 S.C. 1507. It was followed in Avt(lr Singh v. State of J. E K.;

,A.I.R. 1967 S.C. 1797.91. (1942) A.C. 20692. (1917) A.C. 260 respectively,



under the authority in suitable cases can claim privilege against such disclosure.

In Gopal Krishna v. State of M.P.,93 the rules provided that if a suspended employee bas been fully exonerated of the charges he shall be givenfull pay. The department did not give full pay on the ground that thesuspension was not "wholly unjustified". The order was quashed by theCourt. The very nature of the function "implies" the duty to act judicially.In such a case if an opportunity to show cause against the action proposedis not offered. . . the order is liable to be struck down as invalid on theground that it is one in breach of the principles of natural justice."

C. Grounds for Writ

(i) Error of Law Apparent on the Face of Records

It has been reiterated that if the inferior court or quasi-judicial bodyhad decided in error of law apparent on the face of the record a writ shalllie.95 Such an error of law to be justiciable must not only be convincing butalso be apparent on the face of the record. Thus in MIs. Bharat Barrel Co.v. L, K. Bose,98 the respondents had invoiced for iron sheets to be suppliedto the appellants but had charged in excess of the price fixed by the Controller.The Controller by his order to the respondent asked him to charge the controlled price and by another order intimated to the appellant that if he failedto take delivery of goods within the specified time, the quota allotted to himshall be cancelled. The respondent did not deduct the amount charged inexcess, and the appellant failed to take delivery with the consequence thatthe Controller allotted the appellant's quota to another firm. The HighCourt declined to issue certiorari on the ground of error of law apparenton the record. The Supreme Court concurred with the decision of theHigh Court. In the judgement the Court heavily relied upon the followingobservation of Lord Dunedin:

"An error on the face of an award means that the Court mustfirst find whether there is any legal proposition which is the basis ofsuch an award ... where an award is challenged upon such aground it is not permissible to read words into it or to drawinferences and the award or the order must be taken as itstands."97

93. AIR 1967 S.C. 240.94. [d. at p. 243.95. Tata E/ec. Co. v. Assistant Commissioner, A.I.R. 1967 S.C. 1401.

Bishwabahan v. Gopen Chandra, A.I.R. 1967 S.C. 895.96. A.I.R. 2967 S.C. 361.97. Champsey v. Jivraj S.W. Co., A.I.R. 1923 P,C. 66 cited by Shelat, J. at p. ~6R.



The order of the Controller was held not vitiated by error of such a natureas to justify the invoking of writ jurisdiction.

2. Natural Justice

(a) Opportunity for Hearing98

Although it is a normal rule that whenever the law places an authorityunder a duty to act judicially, a provision for an opportunity of hearing isimplicit under the law but, unless 'the statute expressly requires the principlesof natural justice do not confer a right of personal hearing. In State ofAssam v. Gauhati Municipality,99 the State Government under the AssamMunicipalities Act, 1957 was empowered to supersede a municipality afterissuing a notice if "it is of the opinion" that a Board is incompetent. TheState Government issued such a notice, and the respondent's explanationof the charges being considered insufficient, the latter was superseded. TheMunicipality applied for a writ to quash the supersession on the ground thatthe right to personal hearing was denied. The High Court granted the writ,but the Supreme Court "regretted" that the High Court "erred" in concludingthat there has been a breach of the principles of natural justice. Wanchoo,J. said that in the opinion of the Court the Board had adequate opportunityof being heard when it was required to give explanation. Further, therehadbeen total compliance with the law and it could be said that the principle ofnatural justice was violated in the absence of any further demand for hearingby the Board.

(b) Reasoned Decisions

In Income-Tax Commissioner v, Walchand & CO.,100 Shah, J., disapproved the order of the Tribunal in partially disallowing the assessee'sclaim for allowance because it was not supported by reason. It was heldthat the Tribunal had no jurisdiction to pass orders which were not judicial.

"Authority to pass such orders as it thinks fit" ... is not arbitrary:the expression is intended to define the jurisdiction of theTribunal to deal with and determine questions which arise outof the subject-matter of the appeal in the light of the evidenceand consistently with the justice of the case. In the hierarchy ofauthorities the Tribunal is the final fact-finding body: its decisionson questions of fact are not liable to be questioned before theHigh Court. The nature of the jurisdiction predicates that the

98. Cases relating to Government servants have been reviewed under the head.Civil Service. On hearing before Investigatory bodies. see 'Commission of Inquiry,'

99. A.I.R. 867 S.C. 1398.JOO. A.I.R. 1967 S.C. 14~~,



Tribunal will approach and decide disputed questions before itwith evidence pro and can and record its reasons in support of thedecision. The practice of recording a decision without reasons insupport cannot but be severly deprecated."IOl

But it has been held that taking it for granted that the order of thedomestic tribunal or any administrative tribunal is reasoned, the order willnot be set aside merely on the ground that the order consisted cf the groundssome of which were relevant but others irrelevant. So holding, the SupremeCourt in State of Maharashtra v. B. K. Takkamorerv» upheld the validity ofthe order of supersession of the Nagpur Municipal Corporation inasmuchas the existing ground was sufficient for the purpose. It seems that thedoctrine of severability is applicable in finding out the sufficiency of reasonsin an administrative order.

(c) Rules ofEvidence

Rules of evidence cannot be expected to be applicable with equalforce in an administrative enquiry. In Firestone Tyre Co. v. Workmenv'"the management after investigation charge-sheeted a workman and producedhim before a domestic enquiry tribunal who, after hearing him, advisedhis dismissal. The advice of the tribunal was held "perverse" by the labourcourt (an administrative tribunal) as it did not follow the rules of evidence relating to the examination and cross-examination of witnesses. The SupremeCourt upheld the advice of the domestic tribunal and reversed the order ofthe labour court holding that it had exceeded its jurisdiction by becomingan appellate authority and in going into immaterial facts and avoidabler ulesof evidence. Hidayatullah, J. stated that so long as the rules of naturaljustice and fair play were observed the domestic enquiry cannot be said to bevitiated. He observed that in matters of the records of a domestic enquirytribunal "too much legalism cannot be expected." Similarly, short but notinordinate delays by the citizen in challenging the jurisdiction of the Tribunalcan be excused.t'"

(d) Bias in Domestic Enquiry Tribunals

The charge of bias is so serious that no administrative body havingjudicial or quasi-judicial functions can circumvent it by saying that they areimmune from detailed procedural wrangIings as it violates that canon ofnatural justice which must pierce into every enquiry" namely, "Judges like

101. u. at 1437,102. A.I.R. 1967 S.C. 1353.103. A.I.R. 1963 S.C. 236.104. Khub Chand v. State 01 Rajasthan, A.I.R. 1967 S.C. 1074~



Caeser's wife should be above suspicion' or 'No one can be judge in hisown cause' (nemo debet esse judex in propria cause).

In AndhraScientific Co. v. SeshagiriRao,105 where in a domestic enquiryagainst a manager by the General Manager the Managing Director tookover enquiry to enable the General Manager to give his testimony as awitness and the Managing Director himself actively procured evidence,it was held that both the Manager and the Managing Director, thoughdifferent persons, in substance practically constituted a single entity. Theadministrative Tribunal (Labour Court) was held entitled to go into thefindings of fact to consider the jurisdiction of the enquiring body and theSupreme Court held that the High Court was justified in refusing to entertainan appeal against the decision of the Labour Tribunal.

(e) Commissions of Inquiry

Just as other administrative tribunals so also commissions of enquiryset up under a law are, for reasons of expediency, not bound strictly bydetailed rules of evidence and procedure, yet their report has evidentiaryvalue and can be used by the administrative department after giving an opportunity to the person affected to represent or tender evidence against the affirmation of the recitals contained therein. Suchjurisdiction of investigatory bodiesis not outlawed merely because a few provisions of the Investigation Commission Act were found to be inoperative.v" In another case of the same yearState of J. & K. v, Bakshi Ghulam Mohammadw' a Commission of Inquiryunder the J. & K. Commission of Inquiry Act, 1962 was constituted toenquire how far, if at all, a former prime minister of that State by abusinghis official position had amassed wealth, as it was a question of publicimportance for which a body under the Act could be constituted. Thejurisdiction of the Commission was impeached on the ground that the subjectmatter of enquiry was not a matter of public imporance but only a privatematter, and its procedure was impeached on the ground of the violation ofnatural justice because the Commission did not give the prime ministera right to cross-examine the witnesses who had filed affidavits againsthim.

Both the arguments were set aside. As to the first, it was pointedout that it matters little that on the date the Commission was appointed,the former prime minister did not hold any office. The jurisdiction of theCommission related to past acts of the former prime minister. As to the

105. A.I.R. 1967 S.C. 408.106. Income Tax Com. v. E.C. Commercial Co. A.I.R. 1967 S.C. 768. at p, 772.107. A.I.R. 1967 S.C. 122.


86 AnnualSurvey of Indian taw 1967 and1968

second, it was pointed out that once the right of representation has beengiven, the requirement of justice is complied with. The right does notinclude a right to cross-examine the witnesses. Further, referring to thenature of the jurisdiction, Chief Justice Sarkar clarified:

"The Commission of Inquiry under the Act is for fact findingpurposes. The Report of the Commission has no forceproprio vigore. This aspect is important in deciding the rules ofnatural justice reasonably applicable to proceedings of theCommission ...."108

It may be added here that the jurisdiction of a judge under the Commission of Inquiry Act is not affected merely because he is performing thefunctions of a High Court judge as well. This was approved by the SupremeCourt in Alok Kumar v. S. N. Sarma, A.I.R. 1968 S.C. 453.

IV-Quo Warranto

The meaning of "wrong occ upation of public office" was consideredin State ofAssam v. Ranga MuhammadP" In two writ petitions one RangaMohammad contended that in view of the ruling in Chandra Mohan v.State of U.P.l10 the 'transfer' and 'posting' of two District Judges by theState Government being unconstitutional, they were illegal usurpers of thesaid public offices. While the High Court and the Supreme Court agreedthat 'transfer' of a District Judge falls within the exclusive jurisdiction of theHigh Court and in 'posting' such judges the High Court must be consultedand their advice cannot be easily by-passed as the High Court is best suitedto judge these matters, yet in the opinion of the Court the petition for quowarranto was not entertainable as the irregularity was not of such a natureas could justify the issuance of the writ. It was pointed out that for such awrit there must be "wrong occupation" of the public office as opposed tomere 'irregularity.'

It is submitted that there was no occasion for the writ also because ofthe fact that soon after the Chandra Mohan case the Constitution (Twentieth)Amendment Act, 1966 was passed to validate such irregularities as hadcrept in the past.P!

B. Service

Constitutional provisions relating to the State judicial service and

108. Id. at 132.109. A.I.R. 1967 S.C. 903 also Statesman (P)Ltd. v. H.R. Deb., A.I.R. 1968 S.C.

1495.110. A.I.R. 1966 S.C. 1987.111. SeePrem Nath v, State of Rajasthan A.I.R 1967 S.C. 1599 See supra note

110 also.



those relating to the Union and State civil services are respectively embodiedin articles 233 to 237 and articles 308 to 323 of the Constitution. Underthis head, cases of the Supreme Court clarifying the administrative positionof judicial service and civil service have been reviewed. A case relating tothe service conditions of the vice-chancellor of a university is also includedherein.

1. Judicial Services

Administrative vires of the High Court and the State Government inmatters of their jurisdiction over senior judicial officers came up for consideration in an unhappy conflict between the two organs of the State constitutional machinery in State of Orissa v. Sudhansu Sekhar Misra. 112 In thiscase three of the District Judges were respectively posted as Law Secretary,Legal Remembrancer and Member of the Sales Tax Tribunal. The HighCourt thereafter formulated a rule that after completing three years suchofficers shall come back to their regular cadre so that they may not be outof touch with judicial work for long periods. The High Court in courseof time requested the Government to release those officers but the latterturned down the request. Thereafter, as a consequence of the SupremeCourt decision in Ranga Muhammad's case the High Court bytaking a precipitate action ordered those officers to resume their duties bytransferring them from the Secretariat and posted certain other JudicialOfficers to the Secretariat. The Supreme Court upheld the former orderof recall of the officers but set aside the other order by which it filled certainposts in the Secretariat. Hegde, J., gave a balanced judgement regarding theadministrative policy behind such appointments :

Our Constitution expects all of them (State organs) to work inharmony in a spirit of service . .. Just as the executive cannotknow the requirements of a particular court, the High Court alsocannot know the requirements of any post in the Secretariat ...The High Court cannot ... foist any officer on the Government.I I 3

2. Civil Service

Despite vast powers both legislative as well as administrative grantedby Art. 309, the Government lost in a majority of cases under review. Thereasons mainly were, either that the service rules were violative of someconstitutional provision or that their implementation was faulty.

112. A.I.R. 1968 S.C. 647.113. u. at p. 652.



(a) Doctrine of Pleasure

The true implication of this doctrine and the nature of service contractwhich a Government servant enters into was for the first time jurisprudentially considered in the celebrated case of Roshan Lal v. Union 0.[ India.114

In this case the Government amended a service rule to provide a morefavourable treatment to direct recruits as compared to the promotees inone grade. The petitioner, a promotee, challenged the legality of the ruleon two grounds. Firstly, all services, including Government service, arecontracts and therefore their terms are alterable only with the consent ofboth the parties. Secondly, the impugned rule was discriminatory.

The first argument was held based on a fallacy. In support of thisconclusion Ramaswami, J., used the classical concept of Sir Henery Maine(Ancient Law, though without citing this work) and Salmond and Williamstreatise on Contracts, that the position of a civil servant is more of statusthan of contract:

"It is true that the origin of Government service is contractual.There is an offer and acceptance in every case. But onceappointed to his post or office the Government Servant acquires astatus and his rights and obligations are no longer determined byconsent of both parties, but by statute or statutory rules whichmay be framed and altered unilaterally by the Government ...The hallmark of status is the attachment to a legal relationship of rights and duties imposed by the public law and not

~ by mere agreement of the parties. "115

It is submitted that while this is true, the doctrine of pleasure is atleast to some extent governed by principles of contract and is undoubtedlysubject to overriding provisions of the Constitution, namely, Art. 311 and theequality provisions etc. As in this case itself ultimately the Supreme Courtheld that the impugned rule of promotion was violative of Articles 14 and16.116

Further, once the contract of service with the consent of both theparties has been entered into, the contractual rules of implied consent inall those matters can be presumed which are not subject to contrary rulesof service. For instance in State of Punjab v. Dharam Singh where under

114. A.l.R. 1967 S.C. 1889.115. Per Ramaswami, L, at p. 1894. Also seeTarak Nath v. State a/Bihar, A.I.R.

1968 S.C. 1372.116" See also. D.R. Nim v, Union ofIndia, A.I.R. 1967 S.C. 1301.


Constitutional Law /1

the rule the maximum period of probation was three years but the authoritydid not give the employee the order of confirmation and allowed him towork on that post even after three years but thereafter he was sought tobe removed on the ground that his conduct during probation was unsatisfactory, the action of the authority was held illegal. It was pointed out thatif the authority does not give a confirmation order it does not mean that byimplication the period of probation is extended. Accordingly, he was"deemed" to be permanent after three years, and the action of the authorityamounted to "removal" for which mandatory provisions of article 311 musthave been followed. But an express order of confirmation is necessary wherethe conditions of service of the employee permit extension of the probationary period for an indefinite time and there is no service role for bidingits extension beyond a certain maximum period.

(b) Constitutional Protection: Right of Representation

The rule under article 311 that a Government employee who has a rightto a post, i.e., an office subject to the administrative control of the Government, cannot be subject to punishment i.e. evil consequences of the proposedaction, without being given reasonable opportunity of hearing, is a rule ofnatural justice found concretised in the form of a constitutional provision.For this protection it is immaterial whether the rules expressly provide fora right to opportunity.

Further, the right is not limited to cases of dismissal, removal orreduction in rank of a civil servant but extends to other proposed actionsof civil consequences. Thus in Gopal Krishana v, State of M. P.117 the servicerules permitted the authority, if the servant had not been fully exonerated,not to give full pay for the period during which he remained under suspension.Since the order was to affect his civil rights, the Supreme Court, althoughthe rule did not expressly say so, held that before the decision not to givefull pay was made, the affected person should be given an opportunity ofrespresentation.

3. Universities

Express and specific power of appointment of the vice-chancellor ofa university carries with it the ancillary power of termination from servicebut in accordance with the rules of natural justice. This was madeclear by the Supreme Court in Bool Chand v, Kurukshetra UniversityP"

117. A.I.R. 1968 S.C. 240. Also see A.I.R. 1967 S.c. 1260, A.I.R. 1968S.C. 158.118. A.I.R. 1968 S.C. 292.



In this case Dr. Bool Chand, a member of the I.A.S., was, on the groundof misconduct, ordered by the President of India to be compulsorily retired.Thereafter he was appointed as Professor of political science in the Kurukshetra University and then its vice-chancellor. Subsequently the chancellor,after issuing a show cause notice and after considering the representationmade by the vice-chancellor, ordered that his services be terminated withimmediate effect. As against this order of the chancellor the appellantapplied for writs of mandamus and certiorari on the ground that under therelevant provisions of the University Act nowhere was it written that thevice-chancellor's services could be terminated before expiry of the normalterm.

The High Court, as also the Supreme Court, rejected the plea. Shah,1., stated:

"In the very scheme of our educational set-up at the Universitylevel the post of Vice-Chancellor is of very great importance, andif the Chancellor was of the view after making due inquiry that aperson of the antecedents of the appellant was unfit to continue asVice-Chancellor, it would be impossible, unless the plea that theChancellor acted maliciously or for a collateral purpose is madeout, to declare that order ineffective.' '119

It is submitted that in view of this decision in matters of universityappointments where no rules for termination are prescribed the agreementcannot be terminated without following the rules of justice and fair play.The Court however recognised the right of the appellant to claim compensation under section 73 of the Indian Contract Act, 1872 for the breach ofcontract, if any.

c. Delegation of Powers

Delegations of power may be either by the legislature or the executive.Cases may, accordingly, be noted under the headings (1) executive ordersand (2) delegated legislation.

(1) Executive Orders

(a) Conditions

By its very nature an executive order is that source of administrationwhich seeks to implement legislative policy. The extent of the executivepower of the Union and the States as indicated by articles 162 and 73 is

119. Per Shah, I., at p, 300.


Constitutional taw II 91

respectively confined to the legislative powers of Parliament and of the StateLegislatures respectively. These provisions are not the source of anylegislative power. It was for this reason that the Supreme Court in Stateof M.P. v, Bharat Singh,120 where the executive action affecting thefundamental right to personal liberty was sought to be justified under anexecutive order in the absence of a valid law authorising the action,held that the executive order was unconstitutional and could haveno operation. The observations of Mukherjee, C.J., in Ram Jawayyav. State ofPunjab121 to the effect that the executive order to the extent oflegislative authority is valid even without legislation, was held confined tocases where no right of the citizen was involved.

(b) Sub-delegation

The fundamental principle of the contract of agency 'Delegatus nonpotest delegare' is applicable to executive orders. In Mangalal v. Mani La/,122the respondent was prosecuted by the Inspector (appellant) under the authority delegated by the Medical Officer. The Act, however, authorised theCommissioner to delegate the function of prosecution to any MunicipalOfficer. It was held, that since the Medical Officer himself was a delegate,he could not further delegate the executive work. But while sub-delegation would be struck down under this maxim, it has been held that themaxim has no application where there is mere delegation and no self-effacement of the executive authority. Assistance taken by the Centre from theStates under the States Reorganisation Act, 1956 was held in consonancewith the maxim in Union of India v. P.K. Roy.123

2. Delegated Legislation

Legislation by the executive branch under the authority of a competentLegislature is called delegated legislation which is subject to three controls:

(0) Constitutional Control

"The Constitution confers a power and imposes a duty on thelegislature to make laws .... But in view of the multifarious activitiesof a welfare State, it cannot presumably work out all the details to suitthe varying aspects of a complex situation. It must necessarily delegate

120. A.I.R. 1967 S.C. 1170.121. A.I.R. 1955 S.C. 549.122. A.I.R. 1968 S.C. 822.123. A.l.R. 1968 S.C. 850.



the working out of details to the excecutive or any other agency.I!4 "Nowthe authorities are clear that it is not unconstitutional for the Legislatureto leave it to the executive to determine details..... "125 Taking it forgranted that the institution of delegated legislation has the sanction of theConstitution, the term 'constitutionality' in reference thereto seeks todetermine the vires of the 'output' and not the 'institution' itself on the anvilof the Constitution. Upon this hypothesis, in various cases under this review, as in the past decisions also, delegated legislation has been held ultravires for abdication of essential legislative function. "Essential legislativefunction is the determination of the Iegislativc policv and its formulation asa rule of conduct. "126 In essence the constitutionahty consists in whetherthe legislature still retains material control over the executive in matters oflegislation. The constitutionality of vires and fides of delegated legislation is tested through the remaining two controls-parliamentary andjudicial.

(b) Parliamentary Control

Control over delegated legislation through the forum 0 f Parliamentmay mean procedural control through the parliamentary procedures relatingto laying etc. or it may be in the form of testing by parliament itself by modifying or validating Acts after examining whether the executive has followed thedirections and observed the limits prescribed under the parent Acts. Whilethere has been no case upon the form ermeaning on account of the exclusivenessof the authority of Parliament upon the question, there have been casesrelating to the latter. Subba Rao C.]. speaking for such a safeguard againstthe danger said,127 "An overburdened Legislature or one controlled by apowerful executive may unduly overstep the limits of delegation" ...."Reserving for itself control over subordinate legislation" has therefore beenheld a necessary safeguard against self-effacement. In several cases suchcontrol has been held sufficient as there was no excessive delegation.v"

(c) Judicial Control

Again, the courts under their inherent power of judicial review haveauthority to test the viresof the rules on the basis of the Constitution and theparent Act. The task of judicial review of delegated legislation is a highly

124. MIs. Devi Das v, State ofPunjab, A.I.R. 1967 S.C. 1895 per Subha Rao, C.I.at 1901.

125. Kalawati Devi v. L. T. Com., AJ.R. 1968 S.C. 162 per Sikri, J., at p, 168.126. Per Subharao, C.J., in the Devi Das case (Supra) at p. 1901.127. Ibid at p. 1901.128 e.g. A.I.R. 1967 S.C. 212, and A.I.R. 1968 S.C. 754.


delicate task.


(i) Judicial Review ofConstitutionality: Permissive Delegation

The policy of the Courts in this respect can not be better expressed thanin the words of Chief Justice Subba Rao.12t

"It is for a Court to hold on a fair, generous and liberalconstruction of an impugned statute whether the legislatureexceeded such limits. But the said liberal construction shouldnot be carried by the Courts to the extent of always trying todiscover a dorment or latent legislative policy to sustain anarbitrary power conferred on executive authorities."199

The fact that in such matters there can be two views are indicated inthe judgments of the Court itself.

Delhi Municipality v. B.C.S. & W. Mi/ls,130 shows the fineness of theapproach in the majority, as one diss nting and two separate minorityjudgments were delivered in the' case. The Delhi Municipal CorporationAct, 1957 passed by Parliament provided that certain optional taxes may beimposed by the Corporation provided the maximum rate to be imposed isspecified in the Resolution and such Resolution is sanctioned by the CentralGovernment (8. 150). In the impugned resolution maximum rates werenot given but only rates actually imposable were given. Therefore theGovernment modified the rates in accordance with which notices for realisation of electricity tax were served on the petitioners (respondents). Theycontended that the Government could either sanction those rates or withhold sanction but could not modify. The High Court dismissed the petition. However, Parliament later on passed the Delhi Municipal Corporation (Validation of Electricity Tax) Act, 1966to validate the tax and this timea higher rate was fixed. This was again challenged, firstly, on the groundthat the levy particularly the increase was unwarranted because the Actsuffered from the vice of excessive delegation in as much as it did not providesufficient guidance to the Corporation in the matter of the rates of optionaltaxes and levying them, and secondly, the Validation Act was unconstitutional. The High Court held that while the Validation Act was valid butthe levy and collection was invalid. The judgment of the High Court wasby a majority, which was reversed, and the appeal allowed. Themajority was of the definite opinion that the parent Act retained sufficientcontrol in matters of levy, rate and collection of tax in the form of 'guidance

129. Devi Das case A.I.R. 1967 S•.C. 1895 at p. 1971.130. A,.I.R. 1968 S,C. 1232



about the maximum rate. ' Conceding that the guidance was in general terms,the majority upheld it as sufficient also because it was a practice of longstanding. Hidayatullah, J., agreed with this conclusion but pointed out thatthe growing needs of administration must get concession from the doctrineof separation of powers in matters of delegation and less safeguards shouldbe expected today than they were expected in the past. In his opinion so-longas the will of the legislature is reflected in the rule, there should be-no argument of fear for there is sufficient parliamentary and judicial control.PtSikri, J., in his one page judgment was content to support the majority andsaid that fears must be allayed particularly because the Corporation is aa body also controlled by the public directly. It was Shah, J., who onbehalf of Vaidialingam, J., and on his own behalf delivered a leading dissenting judgment. Relying heavily on the Delhi Laws Act132 case, hewas of the view that Parliament has undoubtedly a "power" of legislation inthis regard but "power" does not mean "authority to delegate" legislativefunctions. Power to tax the citizen is a classical example of essentiallegislative function, the delegation of which in his opinion, was plainlyagainst the constitutional provisions and it could not be permitted merelybecause the taxing power of the Corporation was of long standing or thatthere was sufficient parliamentary and judicial control..

A careful perusal of the judgment reveals that the question whethersufficient guidance was given under the parent Act before conferral of thepower was the bone of contention. The majority view which upheld in thisregard the practice of general entrustment fortified by controls from outsideagencies, is certainly a progressive view. The judgment of Shah, J., howeveris legalistic and traditional one. But all the judges were unanimous inholding that the Validation Act was passed by way of abundant cautionand was intra vires.

(ii) Consequences of Unconstitutionality

Exercise of delegable powers which suffers from the vice of excessivedelegation, abdication or unconstitutionality may first, as a general rule,be cured by a validating ACt.133 The invalid rule that is validated can alsonot be held to have been still born, if it is capable of becoming subject to thedoctrine of severability. Thus in State of Punjab v. Sansari Lal,134 where

131. ld. at pp. 1253, 1254.132. A.1.R. 1951 S.C. 332.133. Udai Ram v. Union of India, A.I.R. 1968 S.C. 1138.134, A.I.R. 1968 S.C. 331 Bhargava and Shah, J.J., dissenting.



only one provision of the Sales Tax Act was held void for excessive delegation, it was unanimously held that the section was not still-born and waswith retrospective effect by the validation Act.

It is only when the vice is of such nature that effectively questions thecompetency of the Legislature itself and the impugned section is the coreof the Act, then the provision can be called still-born. In Shama Rao v,Union Territoryw" since the charging section of the taxing law suffered fromself-effacement, it was held that the Act was still-born. But in Devi Das v.State where another section, but not the charging section, suffered from theabsence of guidelines, it was unanimously held that the section alone andnot the Act, was ineffective till validated. The section could be revivifiedrevivified either prospectively or retrospectively.

D. Government as Litigant

I. Enforceability ofStatutes on the Government (Arts. 300, 372).

The important question whether the royal prerogative that theCrown is not bound by a statute in the absence of a clear provision to thecontrary in the Act is the law in India was again considered authoritativelyby the Supreme Court in State of West Bengal v. Corporation of Calcuttav".The relevant facts were that the Corporation of Calcutta prosecuted theState of West Bengal for carrying on a trade in the municipal market withoutobtaining a licence from the Corporation. The Magistrate relying on themajority decision in Director of Rationing v. Corporation of CalcuttaP"acquitted the State. The High Court being bound by the decision, distinguished that case from the present one saying that in the former case theexemption was granted because the State was engaged in the sovereign function of rationing of food but since the present case was of the State's"commercial activity", the State must be convicted and must pay fine to theCorporation. The Supreme Court upheld the conviction but held that thedistinction made by the High Court was irrelevant.

The Court, after citing comparative judicial and academic authorities,found that the precise question is whether the Privy Council ruling inProvince ofBombay v. Municipal Corporation.v- transplanting the said royalprerogative to India was a "law" vouchsafed by article 372 of the Con...stitution, or merely a rule of interpretation of statutes which the Court has

135. A.I.R. 1967 s.c. 1895.136. A.I.R. 1967 s.c. 997.137. A.I.R. 1960 s.c. 1355.138. A.I.R. 1947 P.C. 34.



power to accept or to reject. Undeterred by the principle of stare dieisIS,

a strong Court of 7 judges led by Subba Rao, C.l., overruled the 1960 caseand laid down that unless expressly or impliedly mentioned, there is nogeneral immunity to the state from the operation of any Act under the constitutional set up of the present day. The decision of the majority, it issubmitted, has indicated policy factors why the traditional immunity be notgranted, e.g., it is not "just" or "reasonable" in a "welfare State" or in "public good"139 etc. It would have been better if the Court had rested on andborrowed the reasoning of Wanchoc, J.'s dissent in the 1960 case. Themajority undoubtedly referred to that decision but gave reasons based onpolicy factors. Wanchoo, J., in that case gave the following reasons todisregard the plea of royal prerogative:

Two things are clear from this modern conception of royalprerogative, namely, (1) that there must be a Crown or King towhom the royal prerogative attaches, and (2) that the prerogativemust be part of the common law of England. Both these conditions existed when the Privy Council gave its decision"(namely, the Province ofBombay case) In our country theRule of law is that the State, no less than its citizens and others,is bound by the laws of the land.140

Bachawat, J., concurred but gave slightly different reasons. Hisconclusion was that the Royal prerogative was never applied in the Mufassil.It was applied even in the Presidency towns in a restricted manner. Therefore, it was not a "law" within the meaning of article 372 of the Constitution.

Mr. Justice Shah who was a member of the Constitution Bench whichdecided the 1960 case was constrained to pronounce a dissenting opinionin the instant case and adhered to his earlier view treating the rule of construction in question as a rule of "law" under Art. 372. But it is submittedthat his dissent in this case was no more than the lip service to the archaicrule because of the conspicuous absence of any dissent from him in the caseof Union of India v. Jubbir» in which he was a party to the unanimousdecision. In this decision the respondent made an application under sec. 11of the Himachal Pradesh Abolition of Big Landed Estates and Land ReformsAct, 1953 claiming that he had been cultivating certain government landsince long and had been paying land revenue annually and had thus acquiredproprietary rights in the land against the State as landlord and he was pre ..pared to pay compensation for such rights. The State pleaded that the

139. Supra, note 136 at 1013 -1014.140. Wanchoo, J. in A.I.R. 1960 S,C, 13~S at 1365.141. A.I.R, 1968 S.C. 360.



Union of India being the paramount owner, could not li£ likened to anordinary landlord and that the Government was not bound by the Actbecause it was. not named therein either expressly or impliedly. TheGovernment throughout lost the case. Shelat, J., who spoke on behalf ofhimself, Sikri and Shah, JJ., stated, "A Statute applies to the State as muchas it does to a citizen unless it expressly or by necessary implication exemptsthe State from its operation."142

It would thus appear that the prerogative was a manifestation ofthe Austinian theory of sovereignty which has since been discarded asinapplicable to modern democratic constitutions especially federal ones.If immunity can at all be claimed, it can be claimed by the Constitutionwhich is supreme in a federal set up, from any action in which it is sought tobe branded as not founded on law. Another point to be kept in view is that insuch cases the argument that what the State would pay by one hand it wouldtake it back by the other is irrelevent because, there may be a case where theliability of the Government may be towards private persons.

2. Contractual Liability ofGovernment

(a) Formalities

It isestablished law that in matters ofcontract the position of the State isequal to that of an ordinary person.>" It is also equally true that a Governmentcontract not in conformity with the formal requirements under Article 299ofthe Constitution is void ab initio. In so far as the law of contract is concerned,it is submitted that such agreements would be categorised as 'unlawfulagreements' i.e., those agreements the object of 'which is against publicpolicy or to defeat the provision of any law (See Sec. 23, Indian ContractAct, 1872). An interesting question whether a Government contract whichviolates article 299 and is therefore void, can be called an implied contract within the meaning ofSec. 9 of the Indian Contract Act, was answered in the negative by the Supreme Court in a unanimousd ecisionin K.P. Chowdhry \I. Stateof M.P.144 In this case the appellant purchased in a Government auction of theagreement, certain forest trees. But before the formal execution of the agreement he raised the dispute that the auction was defective as the trees were notmarked. The time for the formal execution of the auction agreement baving inthe meantime expired the Government under the rules re-auctioned the trees.Since this time the Government could not fetch as much amount as in thefirst auction. the Government sued the appellant to pay the deficiency under

142. [d. at p. 36.143. ArL,298 provides that executive power of the Government includes contracts.

144, A,I,R, 1967 S.C. 203.


9S Annual Sur ..'ey of Indian Law 1967 and 1968

the head 'implied contract'. The High Court held the appellant liable.The Supreme Court overruling this decision held:

"In view of Art 299(1) there can be no implied contractbetween the Government and another person, the reason beingthat if such implied contracts between the Government andanother person were allowed, they would in effect make Art. 299(1)useless. "145

It is submitted that though the party in such cases cannot enforce theobligation ex-contractu, it can be enforced otherwise, for instance, underquasi-contract or under the American concept of restitution, a law which issupposed to be an independent branch of liability, has nothing to do withexpress or implied contracts. The Court in the instant case indicated thiscourse but did not elaborate it and remanded the case to the High Court todetermine after hearing both parties whether there is any other provision oflaw or rules which would permit the recovery.t-"

(b) Unjust Enrichment

The juristic basis of the liability of the State under section 70 of theIndian Contract Act was made clear in Mulam Chandv, State of M.P.,147 wherethe appellant had sold the right to collect leaves from Government forests, butsubsequently, consequent upon the vesting of all lands etc. in the State onaccount of the Madhya Pradesh Abolition of Proprietary Rights Act, 1950,the contract could not be fully performed. It was admitted that conditionsunder Art. 299 were not fully complied with. The appellant's plea was thathis money should be refunded under section 70 of the Indian ContractAct. The State pleaded that its liability did not arise in view of the admittedpleading that, even after coming into force of the Act, the appellant collectedleaves and the Government permitted it and thereby the Government ratifiedthe transaction and since the appellant had acted upon the representation ofthe Government ratifying it, there could be estoppel against the appellantagainst his plea of the agreement and the claim being void. Ramaswami, J.,made it clear that:

"Where a contract is void for non-compliance with Art. 299(1 )...and a claim for compensation is made by one person againstanother under Sec. 70, the juristic basis of the obligation is not

145. Wanchoo, J., at p, 206.

146. [d. at 207.

147. A.l.R. 1968 SIC. 1218.



founded upon any contract or tort but upon a third category ofJaw, namely, quasi-contract or restitution. "148

But since there was no evidence as to what extent the appellant hadworked and what was the balance as regards the liability of the State, he hadnot discharged his duty to account which was essential under the doctrineof restitution. The claim was dismissed.

(c) Estoppel and Ratification

However, during the judgment the Court went to great lengths to dispelthese two pleas. Pointing out that the conditions under Art. 299(1) have notbeen enacted for the sake of mere form but for the higher object of publicpolicy to protect State funds from unauthorised contracts, the judgmentconcluded: "If the plea ofestoppel or ratification is admitted that would meanin effect the repeal of an important constitutional provision intended for theprotection of the general public. "149

The rationale of this principle is understandable (for obviously a voidcontract is a nullity incapable of such pleas) but for a seemingly contradictory judgment of the same Court. In Union of India v, Anglo AfganAgencies's" the Government in its Export Promotion Scheme promised togive import facilities with respect to certain articles. Later on the TextileCommissioner gave import certificate for a lesser amount and not of thefull amount promised. The respondent's appeal in the High Court succeededand in the appeal before the Supreme Court the Union of India pleaded thatthe promise of the Government was not enforceable because for breach of acontractual promise, the provisions of Art. 299(1) must be complied withand the plea of Government representation and the consequent estoppelmust be rejected. Shah, J., in a unanimous decision dismissed the appealand said:

"Even though the case did not fall within the terms of Sec.115 of the Evidence Act, it was still open to a party who hadacted on a representation made by the Government to claim thatthe Government shall be" bound to carry out the promise eventhough the promise was not recorded in the form of a formalcontract as required by Art. 299 of the Constitution. "151

Though the observation may otherwise have done justice in thisindividual case, it is open to obvious hazard of wide interpretation.

148. ld. at 1222.149~ Per Ramaswami. J., at p, 1222.150. A.I~R. 1968 S.C. 718.151. Per Shah, J., at p. 719.



The Court could have well avoided it because the appeal could also havebeen dismissed on the ground that the Textile Commissioner had rejectedthe respondent's application for an import licence of higher value withouthearing him further.F'

(d) Executis e Necessity

It has been claimed that in England the Crown cannot bind itself so asto fetter its executive action, and therefore the Government may refuse tocarry out the contract made by it if the altered circumstances necessitatedsuch action. The justification is the executive necessity. The well-knowncase cited in support is of Rederiaktiebolaget Amphitrite v. the King. 153

In that case during the First World War the Swedish (neutral) owners of theship, S.S. Amphitrite obtained an undertaking from the British Governmentthat if the ship owners sent a particular ship to the United Kingdomwith a cargo of approved goods she would not be detained. The ship wasnevertheless refused a clearance and the owners brought an action for damages for breach of contract. The Court gave the judgmet for the Crown,holing that the Government's undertaking was not enforceable in a courtof law, it not being within the competence of the Crown to make a contractwhich would have the effect of limiting its power of executive action in thefuture. The judgment was an unconsidered one and no authorities werecited. The doctrine has been subsequently doubted.v- That the doctrine hasno place in India was made quite clear by Shah J., when he said in Unionof India v, Afghan Agencies: "155

"We are unable to accede to the contention that the executivenecessity releases the Government from honouring its solemnpromises relying on which citizens have acted to their detriment. Under our constitutional set-up, no person may bedeprived of his right or liberty except in due course of and byauthority of law."156

152. See para 7 (p, 721) of the judgement.153. (1921) 3 k, B. 500.154. Robertson v. Minister of Pensions (1949) 1 K.B. 2'].7 and Reilly v. The King

1934 A.C. 176155. A.T.R. 1968 S.C. 718 (Supra).156. Id. at 723.


Constitutional Law 11

V. FEDERALISM (part XI)

A. Federal Legislative Relations

1. Interpretation

101

The well-recognised rule of interpretation of legislative lists, namely,the rule of avoidance of contlict, was reiterated in O.N. Mahindroo v. BarCouncil.157 The case raised the constitutional validity of the AdvocatesAct, 1961, a Central Act concerning the qualifications, enrolment, rightto practise and discipline of the advocates. The question for decisionwas whether the impugned Act fell under entry 26 in List 3 or under entries77 and 78 ofList 1. The former List provides for laws with respect to "legal,medical and other professions" and the latter, inter alia, "for persons entitledto practise" before the Supreme Court or the High Courts. The Court heldthat the matter fell exclusively within the Union List. Shelat, J., speakingfor the unanimous Court, said:

"It is a well recognised rule of construction that the Court whileconstruing entries must assume that the distribution of legislative powers in the three Lists could not have been intended tobe in conflict with one another where there is a seemingconflict between one entry in one List and another entry inanother List, an attempt should always be made to avoid (Sic) tosee whether the two entries can be harmonised to avoid such a conflict of Jurisdiction.">"

In the instant case the conflict could be well harmonised if the powerto legislate in regard to the persons entitled to practise before the SupremeCourt and the High Courts is made the exclusive field for legislation byParliament under entries 77 and 78 of List 1. Barring those entitled topractise in the Supreme Court or the High Court, power to legislate withrespect to the rest of practitioners fell under entry 26 of List 1. Such aninterpretation, the Court held did, no violence to the natural language of theentries.

2. Competency: Residuary Power

Legislative competence ofvarious enactments passed by the Parliamentand "theState Legislatures was tested in many cases of the years under review.Because of the completeness of the Lists, the Parliament has to make use of itsresiduary power only very rarely. The question oflegislative vires ofthe Parliament and the State Legislatures, arose in Jalan Trading Co. v. Mill Mazdoor

157. A.I.R. 1968 S.C. 888.158. Id. at 891.



Sabha. 158a In 1965 the President of India issued, the Payment of Bonus Ordinance, later replaced by the Act, which provided that the employers would beliable to pay certain amount as bonus whether there was profit or loss in theindustry. It was challenged as unconstitutional because (1) the provisionswere a colourable exercise of power as they were inconsistent with theprinciples laid down by the Supreme Court in Express Newspaper v, Unionof India159 (2) because it was incompetent for the legislature to order payment where the industry was losing, as loss is repugnant to the concept ofbonus which means profit sharing and (3) because the Act was made applicable to the cases which were pending in the Courts.

It is upon this third argument that the minority judgment dissented.According to the maj ority, those provisions which gave retrospective effect andcovered cases pending in the Courts by the new formula were discriminatory.In his dissenting opinions HidayatulIah, J., however, .felt that such casesmay be treated as a distinct class to lend validity to those provisions of theAct, and to save the Act from the charges of being a fraud on the Constitutionor a colourable exercise of power.

Barring this plea, both the majority judges, as well as those in thedissent, were unanimous that the Act itself was within the competence of theParliament. As to the first argument, Shah, J., stated that the mere factthat certain provisions modified a Supreme Court decision, did not meanfraud on the Constitution or a colourable exercise of power so long as theParliament has competence to enact the law. The whole matter, therefore,depended upon whether payment of a minimum amount in any case is bonusand whether the Parliament is competent? The majority was ofthe view that anestablishment may suffer loss in one year and make profit in another. Since"the object of the Act is to make an equitable distribution of the surplusprofits of the establishment with a view to maintainning peace and harmonybetween the three agencies (capital, labour and management) which contribute to the earning of profits,"160 it was valid. Hidayatullah, J., agreed thatthe Act was valid for it concerned trade unions, labour welfare, anddisputes etc.-a power conferred by entries 22, and 24 of List III.Hidayatullah, J., would go a step further to sustain the constitutionalvires:

"Under any of these powers, or all of them viewed together,the fixation of minimum bonus is legal and if these topics oflegislation were found to be insufficient the residuary power of

158a. A.I.R. 1967 S.C. 691.159. A.I.R. 1958 S.C. 578.160. Per majority ld. at 705.



Parliament must lend validity to the enactment."161

This case, therefore, consititutes a high water-mark in recognising thecompetence of our legislative bodies to give effect to socialist philosophyof equal distribution of national resources directed under article 43.

3. Repugnant Legislation

In three cases the State enactments were challenged as repugnant to Centrallaws and, therefore, the Court was called upon to consider whether article254 was applicable so as to make them void to the extent of inconsistency.The Supreme Court in Ahmedabad M.O. Asson. v.I. G Thakore.v" reiteratedthe completeness of the three tests of repugnancy succinctly laid down bySubba Rao, J. in Deep Chand v. State of U.P.IG3 In the instant case theBombay Industrial Disputes Act, 1938 provided the procedure for establishing relations between employer and employees. The Court, therefore, foundnothing in the impugned Act relating to industrial disputes which is amatter in the Concurrent List-the subject-matter of an exhaustive legislation by the Centre, i.e., the Industrial Disputes Act, 1947-therefore, thevalidity of the State law was not affected. It would seem that even thoughthe Central and the State laws bear an identical name, the Court must keep inview the actual provisions of the State Act in determining repugnancy.But in Bhawani Cotton Mills v, State of Punjab,164 Sec. 5 of the PunjabGeneral Sales Tax Act, 1948 was struck down for taxing sale at more thanone stage. The case is interesting because what seemed to the majority to bea case of direct clash, was not so to the dissenting judges, because, accordingto them, the Central law prohibited levy more than once at the same stageof sale, and not at different stages. State of ASSQ111 v. Horizon UnioJl,164apresents repugnancy in the form of 'occupied field' and the covert repealof repugnant State law. In this case an Act of the Assam Legislature of1962 prescribed that the Presiding Officer of the Industrial Tribunal shallbe a person who has worked as District Judge for not less than three yearsand shall be appointed in consultation with the High Court. But in theCentral Act passed by the Parliament in 1964 on the same subject, there wasno condition of consultation with the High Court. It was held that theCentral Act was intended to be an exhaustive Code on the subject-matter.The Central Act occupied the field, and accordingly the Assam Act on thesubject was repugnant to the Central law.

161. Per Hidayatullah, J., ld. at 717.162. A.I.R.1967 S.C. 1091.163. A.I.R. 1959 S.C. 648.164. A.I.R. 1967 S.C. 1616.1640. A.I.R. 1967 S.C. 442.



B. Federal Finance

I. Taxation

Taxation as one of the three attributes of sovereignty is no longer anaboslute power nor can it be absolute in a federal polity where all powersare made subject to the limitations imposed by the Constitution which aloneis sovereign expressing the will of the community. Our Constitution has alsoplaced certain limitations upon the taxing powers of the Union and theStates-some of these came for consideration in the cases under review.

(a) Authority of Law (Art. 265).

The executive cannot impose a tax otherwise within the power of theCentre or the States without a valid legislative authorisation by the Parliamentor the State Legislature, as the case may be. What is interesting in ZilaParishad v, K. S. Mills, l 65 is that the word 'law' in article 245 does not onlysignify a valid law but also due executive procedure including notificationetc; which must be followed. Accordingly, where the District Board levieda tax under pre-Constitution law without due procedure it could not beheard to say that the new constitutionallimitations were inapplicable. Againin Kanti Lal v, H. C. Pate/,I66 where the dealer had collected unauthorisedsales tax on sales outside the State, the officer proceeded to forfeit the amountin favour of the Government under Sec. 12 of the Act and to penalise him.Hegde, J., holding that the section was ultra vires, ordered that the moneyshould be refunded and, since the section itself was ultra vires, the penalaction was without the authority of law. It was pointed out that Sec. 12could not be saved on the ground that it was a power ancillary to sales taxfor it was an unsustainable taxation measure. These cases show thatthe rule of construction in taxation Statues is very strict and benefit mustalways go to the assessee where there is defect in authority. Similarlyin Board of Revenue v. R. S. JahavarP" where the authorities raided thebusiness premises of the respondent and under the power conferred by theStatute the department tried to confiscate books and other goods withoutcaring for the protests, it was held that the necessary safeguards providedunder the Cr. P.C. were not followed. The search and seizure was defectiveand the effects recovered were to be returned forth with. As to the pleathat it was necessary to check tax evasion, Wanchoo, C.J., stated, "Nowit has not been and cannot be disputed that entries in the various lists of the

165. A.I.R. 1968 S.C. 98.166. A.I.R. 1968 S.C. 445.167. A.I.R. 1968 S.C. 59.


Constitutional Law 11 lOS

Seventh Schedule must be given the widest possible interpretation." 167a Heconceded that particularly with regard to the vice of tax evasion, the provisions of search and seizure must always be deemed ancillary and incidental.Even so, the power should have been discretely exercised in the mannerprovided under the Code of Criminal Procedure through a proper warrant.

(b) Inter-State Sales (Art. 286).

Since the term 'Sale of Goods' has not been defined, it has beenheld 168 that an activity to be taxable as 'sale ofgoods' must have all the elements of a 'sale' as required by the Indian Sale of Goods Act, 1930, viz., anagreement, transfer of property in goods, consideration as price in terms ofmoney and delivery of goods.

What the actual import of the Explanation added to article 286 wasbefore its deletion by the Sixth Amendment 1956 came again for consideration before the Supreme Court in two cases, B.T. Trading Co. v, CommercialSales Tax Officer, M.P.,169 and State ofMadras v. Habihur RahmanP? In boththe cases on the findings of fact that the goods were actually delivered at placesoutside the State, it was held that they were sales covered by the Explanationand hence beyond the competence of the State Legislature. The plea ofthe State in the former case that in the intermediate stations the contractorwas required to show the goods for inspection was of no avail and the Courtrejected the plea of the State in the latter case that the finding may be reassessed. The ratio of these cases, therefore, is that the Explanation doesnot confer a fresh power of taxation vis-a-vis inter-state sales. The Courtswere, therefore, guided by the leading case, Bengal Immunity Co. v, Stateof Bihar,!7! wherein the function of the Explanation was precisely statedthus

"The shifting of the situs of a sale or purchase from its actualsitus under the general law to a functional situs under the Explanation takes the sale or purchase out of the taxing power of allStates other than the State where the situs is fictionally fixed."

What is material is the exclusive taxing right of the State where goodsare delivered for consumption.

c. Federal Commerce (Arts. 301-307)

It is now well settled that the essential federal commercial freedom

167a. Id. at 64.168. Dy. Conm. Tax Officer v, Enfield India us., A.I.R. 1968 S.C. 838.169. A.I.R. 1967 S.C. 1348.170. A.I.R. 1968 S.C. 339.171. A.I.R. 1955 S.C. 661 at pp. 681..682.


106 Annual Survey 0/ Indian Law 1967 and 1968

is subject to regulatory measures. But it cannot be denied that the consideration of what is mere 'regulation' coupled with its factual reasonablenesshas always baffled the courts in a federal country in giving effect to thisgreat national freedom. This inherent difficulty in the provisions relatingto 'trade, commerce and intercourse' is well demonstrated by the followingdecisions.

1. Tax Restrictions

In State of Assam v. Labanya ProbhaP" the Assam Motor VehiclesTaxation Act, 1936 was challenged, inter alia, on the ground that irrespectiveof the conditition of roads, good or bad, or the distance covered by a particular vehicle, the tax imposed at the rate of rupees 56 per cent was unreasonable. The Court brushed aside the plea as vague for it was practically notpossible in cases of vehicle tax to provide a mathematically accurate taxstructure. The tax was admittedly regulatory or compensatory for the Statehas to maintain highways.

In Andhra Sugar Ltd. v. State of A.P.,173 the tax liability was denouncedin an interesting way. The A.P. Sugarcane (Regulation of Supply andPurchase) Act, 1961 provided that if the canegrower offers cane to the factorywithin whose zone the canefiled is situated at a price fixed by the Governmentthe factory cannot refuse to purchase and upon such purchases a tax wouldbe imposed. The petitioners pleaded in a circuitous way thus: (1 Theterms 'sale' and 'purchase' of goods admittedly have the same meaning as inthe Sale of Goods Act, 1930 ; (2) that being so the transaction shouldoriginate in contract, (3) that statutory sale in the impugned Act lacks therIassicaI requirement of contractual consent; (4) the tax is, therefore, incompetent, and, therefore, (5) the tax is hit by article 301 of the Constitution.

The crux of the problem was whether there has been any change in theclassical view of contract in this welfare era. The Court unhesitatinglysaid that a compulsory bargain does not vitiate the agreement with coercion.

"there has been a gradual erosion of the laissez-faire concept ....Cheshire and Fifoot in their law of contract (6th ed.) p. 23 observe that forreasons of social security the State may compel persons to make contracts. "174

That being so, the question was whether the tax impedes commercial intercourse. It was held that the tax restriction would be objectionable only if it"imposes any direct restrictions on the very movement of such goods ... andits validity can be sustained only ifit satisfies the requirements of article 302

172. A.I.R. 1967 S.C. 1575.173. A.I.R. 1968 S.C. 559.174. Per Bachawat, J., [d. at 604.


or 301:'176


3. Other Restrictions

The rules made under the Mysore Forest Act, 1900 imposed manyconditions for transit of forest produce, one of which was a total prohibitionof the movement of goods during the period between sun-set and sun-rise.Holding the rule as infringing the freedom, Shah, J., in State of Mysorev. H. SanjeeviahF" stated, "The power conferred upon the State Government is merely to regulate the transit of forest produce and not to restrictit."

The rationale for permitting regulations, as opposed to restrictions,was best stated by Subba Rao, J., in Automobile Transport Ltd. v. State ofRaiasthanr" thus: "Restrictions obstruct the freedom, whereas regulationspromote it." It is thus ultimately for the Court to find out when theregulation or a compensatory measure passes the limit of reasonableness tobecome an objectionable restriction.

D. Act of State (Arts. 291-297)

The process of transference of sovereignty to the federation isgoverned by the relevant rules of international law. Our federal Constitution has not left such matters to be determined by customary rules of international law for the obvious reasons of speedy political integration of theformely independent states. Still the constitutionalprovisions relevant theretoare similar to those recognised by the rules of international law,

I. State Succession

(a) Contracts

In Firm Bansidhar v. State of Rajasthan.v" where he former erstwhileState had granted certain tax concessions to start a market and the respondent state after the merger agreement repudiated this agreement, the appellantpleaded that the repudiation constituted a breach of the contractual liabilitydevolved on the respondent by succession. The Supreme Court ConstitutionBench, after citing almost all the judicial authorities right from the Tajor Rajcase,179 unanimounly dismissed the appeal and stated:

". . .. accession of one state to another is an 'act of State" ...there is no question of subrogation. The successor state is not

175. Id. at 608.176. AJ.R. 1967 S.C. 1189 at 1191.177. A.I.R. 1962 S.C. 1406.178. A.l.R. 1967 S.C. 40179. (1857-59) 7 M.I.A. 476.


108 Annual Survey of Indian Law 1967 and 1~68

subrogated ipso jure to the contracts with the merged State . . ..Such contracts terminate with the change of sovereignty unless thecontract is ratified by the succeeding sovereign State."180

The Court did not in this case find either express or implied recognitionof the liability in question. The appellants' plea that the concession in taxwas 'existing law' within the meaning of Article 306 so that it could continue was readily rejected for a contract may be law for the parties to it but itcould not be called' existing law' or any 'law'.

(b) Grants

In Darbar Vadia v. State of Saurashtra,181 the erstwhile Raja grantedcertain territory to the younger of his two sons because the elder, oneaccording to the rule of primogeniture, was the heir apparent. After thedeath of the Raja and of his elder son, the younger son succeeded to thethrone and the Government, after the merger of the State with the Dominion ofIndia recognised him as the ruler for the purpose of privy purse, but notifiedthat consequent upon his becoming the ruler the earlier grant of certain territory made by the previous ruler was being discontinued. The Supreme Court.dismissing the appeal pointed out that the grant in question was not a vestedright but only an act of grace shown to the younger son by the ruler forkeeping up the dignity of the younger son and the rule of primogeniture.Since, after the death of the ruler and that of the elder son, the appellanthimself became ruler, the question of any vested right, grace or grant didnot arise.

It is submitted that such moves for greater recognition of their statusmust be discouraged as they are inconsistent with the basic philosophy ofequality enshrined in the Preamble and other concrete provisions of theConstitution.

VI-Amendment of the Constitution (Part XX)

Go/ak Nath v. State of Punjab,S2 is definitely the most importantpronouncement of the years under review. The facts of the case are not indispute. The petitioners were the sons, daughters and grand daughtersof one late Henry Golak Nath who felt aggrieved with the order of the Financial Commissioner against the order of the Additional Commissioner,Jullundur Division, that an area of 418 standard acres and 911 units wassurplus in the hands of the petitioners under the provisions of the Punjab

180. Per Ramaswami. J., supra, note 178 at 42.181. A.I.R. 1967 S.C. 346.182. A.I.R. 1967 S.C. 1643.



Security of Land Tenures Act of 1953. The precise plea of the petitionerswas that their property allegedly surplus could not be taken as it wouldviolate their fundamental rights under articles 14 and 19 (f) (g) and that thePunjab Act together with the Constitution First.. Fourth and SeventeenthAmendment Acts ... 1951, 1955, and 1964 respectively were vcid because theywere beyond the power of the Parliament. Other petitioners had different facts,namely those related to ceiling of land. But the point of law involved inall of them was the same. An unusually larger Constitution Bench of 11Judges was constituted by the Chief Justice to hear these petitions. Allthe 11 judges were unanimous in their actual decision that the petitions mustbe dismissed. Still in course of the judgment the majority-'" of 6 to 5held that the three above mentioned Amendment Acts amending article 31 wereincompetently enacted. The majority further proceeded and, concedingthe legal plea of the petitioners, held that the Parliament has no "power"to amend articles 12 to 35 of the Constitution of India so as to abridge thefundamental rights. The majority decision itself is bifurcated into twojudgments, one given by the learned Chief Justice, and the other byHidayatullah, J. The minority judgements were delivered by Wanchoo,Bachawat and Ramaswami, JJ., who conceded to the respondent's plea thatthe power to amend the Constitution given to the Parliament is all embracing.

The main argument of the Chief Justice was that Part XX 'Amendment of the Constitution' deals with the "procedure" for passing Constitution amending Bills. What provisions can be amended is a question of"power" of the Parliament. Having nothing to do with the procedure, itmust be found elsewhere. According to the learned Chief Justice, this powermust be found where the federal power of "law making" is given to theParliament viz. articles 245, 246 and 248 read with the Seventh Schedule. Soread, the "power" is to be found under the last residuary item 97 of List I. Itwas in this connection that the majority pointed out that since it is an ordinarytopic of legislation it would be caught by the clutches of article 13(2) if theamendment infringes, as opposed to its enlargement.. any fundamental right.But concluding, the Chief Justice held that the operation of the majorityjudgment would be confined to future amendments but the three impugnedpast amendments, though invalid, would not be obliterated from the statutebook. While Subha Rao, C.l., didnot express any final opinion upon thepolitical question of a referendum, Hidayatullah, J., added that under item 97of List I residuary powers of the Parliament may also be used to convoke anew constituent assembly to redraft a new constitution, so as to givepower to the Parliament to affect fundamental rights of this Constitution.

183. Per Subba Rao, C.J., and Sikri, Shah, Shelat and Vaidialingam, andHidayatullah, JJ,



All these six judges, however, were of the opinion that the decisions inShankari Prasadvs and Sajjan Singh v. State,185 which stood in the way of suchinterpretation were no longer good law.

On the other hand the minority of five judges decided that the petitionsshould be dismissed because the impugned Act fortified by the impugnedAmendments was competently enacted. "The power to amend the Constitutionis conferred by article 368 itself for there is a distinction between ordinarylegislative power and the constituent power. So article 13 (2) cannotoperate upon constitutional amendments. In view thereof the questionof setting aside previous decisions or impugned Amendments or Acts didnot arise. While Bachawat, J., in his separate minority judgement statedthat the value of Constitutuent Assembly debates is only to find out thehistorical background of a provision, Ramaswami, J., was of the opinionthat it is doubtful whether the new Constituent Assembly and its deliberationswould have a legal foundation.

It will be observed that it was because of the fact that many judgesin the instant decision were also parties to the majority decision in SajjanSingh's case that an unusually large Bench had to be constituted. In spiteof that, the majority excelled the minority only by a single vote.

It is submitted that the majority decision is unfortunate for reasonsmore than one. Firstly, it is doubtful whether it was proper for the majorityto have cast its aspersions on the correctness of the decision in the ShankariPrasad case and the Sajjan Singh case when the decision in Sajjan Singh'scase is still an authority for the view that the 17th Amendment is constitutionally competent. The majority of 5 judges Jed by Subha Rao, C. J.,itself admitted that the Act remains in the statute book as a whole, it is onlyHidayatullah, J., who held that Sec. 3 of the 17th Amendment wasultra vires. This was his personal view which he had expressly reserved inSajjan Singh's case for a proper occasion. In the present case while joiningthe majority in dismissing the petitions he deemed it a proper occasionto do away with what is known as the 'Ninth Schedule technique' adoptedin the Constitution Amendment Acts (1st, 4th and 17th). On this point,therefore, it could not be said to be the majority view. Secondly, similarly,Hidayatullah, J.'s theory of a new Constituent Assembly is a minority viewof 1 against 10 judges. Thirdly, there is no doubt that all the 11 judgeswere unanimous in holding that no fundamental rights of the petitionerswere violated, and the petitions were dismissed without reservation. Since

184. A.I.R. 1951 S.C. 458.185. A.I.R. 1965 S.C. 845.


Constitutional Law II III

the order was for dismissing the petitions it was no occasion for the majorityto hold that the acts were invalid. Therefore, it was no decision howeveraugust be the authority for obiter dicta. The minority decision of fivejudges being in consonance with the order of the Court alone is strictly themajority decision and the ratio decidendi of the case. Fourthly the doctrineof prospective overruling is repugnent to the concept of judicial reviewand on this point Subha Rao, C.l., himself is in minority for this point issupported by only five judges. HidayatuIIah, J., sustained the validity ofthe impugned Acts on grounds other than prospective overruling.Fifthly, the suggestion of Hidayatullah, J. for a new Constituent Assemblyis repugnant to the constitutional theory upon which all federal constitutionsfunction, namely, finality of its authority. Sixthly, the fact that a separatepart (part XX) has been devoted solely for the prupose of amendment meansthat "power" as well as "procedure" both must be found in that separatepart. Just as Part III can be said as a "self-contained code" on mattersrelated to it, Part XX in its sweep is unhampered by implied limitations.The words used in Part X are "Amendment of the Constitution" and not"Amendment of the Constitution except Part III." Further it is provided"An amendment of this Constitution. .. the Constitution shall standamended in accordance with the terms of the Bill." That means that if theBill provides for amendment in Part III, the procedure prescribed in article368 must be followed. Seventhly, the fact that majority of the members inthe first Parliament were also the members of the Constituent Assemblyand they at no stage raised objection at the time the Constitution (FirstAmendment) Bill was piloted and passed, is not without significance. Hadthere been any such limitation, the opposition would not have spared theGovernment, particularly where the I and IV Amendments both relatedto 'abridging' of the fundamental rights. Dr. Ambedkar was himself alivethen and it is not expected that he would have kept quiet if there had beenany travesty of constitutional provisions. Finally, the argument of fearbegs its own justification. It is not always true and guaranteed that sevenhundred and fifty persons would always give bad laws and a single judge inthe Court would be a better protector of people's rights.

Happily this controversial decision seems to have a short career fora Constitution (Amendment) Bill by an opposition member has been introduced in the Parliament with the Government's approval and as it is hopedto secure an overwhelming support, it is soon expected to find place inthe statute book.

B. Legislation

While in the year 1968 there has been no Act amending the Constitution of India, the year 1967 witnessed the Constitution (Twenty-first Amend-



ment Act, 1967,186) which is undoubtedly the most important Statute concerning the Constitution in the years under review. As is well-known, this Constitutional amendment is a sequel to a wide-spread agitation>" from theSindhi-speaking people for including their language 'Sindhi' among the languages recognised by the Constitution in the Eighth Schedule. Until this amendment there were 14 Scheduled languages. This Act has renumbered last threeScheduled languages viz., Tamil, Telugu and Urdu as 13th, 14th and 15thlanguage and has included therein the Sindhi language as the 12th one,thus satisfying the aspirations of a large section of people using this language.Apart from this amendment, there is the Official Languages (Amendment)Act (No.1) 1968.188 It is an Act further to amend the Official LanguagesAct 1963 which was passed for change over from English to Hindi as officiallanguage of the Union in pursuance of the directive contained in clauses(1) and (2) of article 343 as the term of 15 years was coming to an end. Againstthe provisions of the Constitution and this Act, there was great hue and cryfrom the non-Hindi States which took the form of federal discord particularlyafter the fall of the Congress ministries in a number of States after the fourthGeneral Elections in 1967. In order to pacify it and for the smoothadministration, the instant amendment was made to the principal Act underthe power conferred by clause (3) of article 343 to the effect that even after15 years the Parliament may provide for use of English for certain purposes.The Act, therefore, seeks to provide that though the official language of theUnion shall be Hindi but English translations would accompany the offi...cia] Hindi communications between the Union and the non-Hindi StateGovernments. Though there is a directive for the officials to have, asearly as possible a workable knowledge of Hindi yet it is specifically madeclear that the employees would not suffer in service in the period of transition nor the efficient disposal of official business should suffer on accountof it-189

In order to curb the activities of such persons who demand cession ofIndian territory and allied unlawful activities, most notably the 'Naxalite'activities.P? the Parliament has passed the Unlawful Activities (Prevention)

186. Received the assent of the President of India on 10-4-1967; and published inthe Gazette ofIndia Ext. Part H, Sec. 1 p.99.

187. See Statement of objects and reasons published in Gazette of India Ext.,Part II, Sec. 2 p. 24.

188. Received the assent of the President on 8..1-1968 and published in Gazette ofIndia Ext. Part II, Sec. I p. 1.

189. See Statement of objects and reasons, Gazette of India Ext., Part II, Sec. 2p. 1116.

190. See Statement of objects and reasons Gazette of India Ext. Part II, Sec 2.p. 392, 31-5..67. For Joint Committee Report, see Gazette of India Ext., Part II, Sec. 2p. 1121.



Act (37 of 1967).191 This Act by Sec. 3 empowers the Central Governmentto declare any association unlawful. The Act makes it mandatory by Sec.4 to refer the said notification relating to unlawful associations for objectiveadjudication and sufficiency of cause. The Act further gives power to theGovernment to prohibit such associations from using their funds for subversive purposes. This Act is, therefore, a sequel to the Constitution (Sixteenth)Amendment Act, 1963which empowered the Parliament, by amending article19(2), to pass a law imposing reasonable restrictions in the interest of thesovereignty and integrity of India. It would be recalled that in theParliament the Union Home Minister, on 20-12-68, admitted that this Actdoes not outlaw unlawful activities not prejudicial to the sovereignty andintegrity of India but hinted that necessary legislation in that regard also issoon expected to find place in the Statute book.

For the purpose''" of solving the federal disputes relating to territorial claims of the States two Statutes were passed, viz., the Bihar-V.P.(Alteration of Boundariesv") Act (No. 24 of 1968) and The AndhraPradesh and Mysore (Transfer of Territory) Act (No. 36 of 1968.194)

These Acts, it is obvious, are intended to make inter-State adjustment of theterritorial map of India under the power conferred by article 3 on the Parliament and which does not amount to an amendment of the Constitution in termsof artIcle 4. The Inter-State Water Disputes (Amendment) Act (No. 35 of1968195) further amended the principal Act of 1956 which was passed inpursuance of the authority conferred by article 262. This Act provides forconstitution of a Tribunal for adjudicating the dispute.

In the field of delegated legislation and emergency legislation and measures consequent upon the taking over of administration of certain Statesby the President under Article 356, the West Bengal (Delegation of Powers)(No.7 of 1968), the D.P. State Legislature (Delegation of Powers) Act (7 of1968), the Bihar State Legislation (Delegation of Powers) Act (39 of 1968),the Haryana State Legislature (Delegation of Powers) Act (30 of 1967) andthe consequential legislative measures, namely, the Appropriation Act, andthe Appropriation (Vote on Account) Acts, for the above named States forthe years 1967 and 1968 to authorise expenditure from the ConsolidatedFund of such States were enacted. The Civil Defence Act (27 of 1968),

191. Received the assent of the President on and 30..12-67, published in Gazette ofIndia, Ext. Part II, Sec. 1 p, 416.

192. For object and reasons see Gazette ofIndia Ext., Part II, S. 2 p. 858.193. Received the assent of President on 22-5-68, published in Gazette of India,

Ext. Part II, Sec. 1 p. 277, 22-5-68. For objects and reasons see Gazette of India, Ext.Part II, Sec. 2 p. 494.

194. Received the assent of the President on 22-8-68 See Gazette of India Ext.Part II, Sec. 1 p. 485.

195. Received the assent of the President on 2~-10-68 Gazette of India Bxt,Part II~ Sec. 1 p, 481. -



the Border Security Force Act (47 of 1968) and the Armed Forces (SpecialPowers) Continuance Act (9 of 1967), were the measures enacted bythe Parliament under the relevant entires of List I for internal and externalsecurity of the country.

The Advocates (Amendment) Act (33 of 1968) validates the admissionas advocates in the Mysore Bar Council roll up to 31-3-1964. The DelhiMunicipal Corporation (Amendment) Act (2 of 1968) made necessarychanges in the principal Act which was passed in the year 1957 for the civiladministration of the Union territory of Delhi under Schedule I read witharticle 239 of the Constitution.

The Representation of People (Amendment) Act (10 of 1967)196 seeksto validate extension of time for the poll or shifting of the dates fixed for thepoll under the principal Act of 1951 passed under article 327 ofthe Constitution. In the process of gradual erosion of the special status of the Stateof Jammu and Kashmir under article 370-a much debated provision of ourConstitution, two Statutes of the years .under review are conspicuous,namely, the Jammu and Kashmir Representation of the People (Supplementary) Act, (3 of 1968197) which has further section 116A, 116B and 116Cto the principal Act of 1951 to every orders of the Jammu and KashmirHigh Court.l'" The other Statute for the allied object199is the Central Laws(Extension to Jammu and Kashmir) Act (25 of 1968)200 which throughSec. 2 read with its Schedule made 12 Union Statutes applicable to the Stateof Jammu and Kashmir. Notable Statues among the 12 are the MotorVehicles Act, 1939, the Companies Act, 1956 and the Essential CommoditiesAct, 1955.

Similarly the Pondicherry (Extension of Laws) Act (26 of 1968)201has extended by one sweep 53 Central Acts right from 1839 down to 1936to the Union Territory of Pondicherry.v" Sec. 5 of the Act further providesthat all rules, notifications, etc., pertaining to the said Acts shall mutatismutandis apply to that State.

196. Received the assent of the President on 11-4-67, see Gazette of India Ext.,Part II., sec. 1, p. 101.

197. Received the assent of the President on 23...3-68 and published in Gazette ofIndia Ext., Part II, Sec. 1, p. 11.

198. For objects and reasons see Gazette ofIndia, Ext. Part II, Sec. 2 p. 71.199. For objects and reasons see Gazette of India, Ext. Part II. Sec 2, p. 581.200. Received the assent of the President on 24-5-68, and published in Gazette oJ:

India, Ext. Part II, Sec. 1, p, 299.201. ts. at p, 305.202. For Statement of objects and reasons see Gazette of India" Ext. Part II. S. 2:

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