Parliament of India consists of three organs. The President, the Council of States (the Rajya Sabha) and the House of the People (the Lok Sabha). Though President is not a member of either House of Parliament yet, like the British Crown, he is an integral part of the Parliament and performs certain functions relating to its proceedings. The President of America is not an integral part of the Legislature. In India, the President summons the two Houses of Parliament, dissolves the House of People and gives assent of Bills.

It is to be noted that, though the Indian Constitution provides for the parliamentary form of Government but unlike Britain, the Parliament is not supreme under the Indian Constitution. In India, the Constitution is supreme. In England, laws passed by the parliament cannot be declared unconstitutional while the Indian Constitution expressly vests this power in the courts. The Indian Parliament is the creature of the Constitution and derives all its powers from the Constitution. It is not a sovereign body. 

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Constitutional Organs - Constitutional Law I Unit III 

Parliamentary Sovereignty – Constitutional Organs

What is Sovereignty?

In its popular sense, the term sovereignty means supremacy or the right to demand obedience. 

In the British Constitution, the legislative authority alone resides in Parliament while executive authority resides in the crown.

It is to be noted that, though the Indian Constitution provides for the parliamentary form of Government but unlike Britain, the Parliament is not supreme under the Indian Constitution. In India, the Constitution is supreme. In England, laws passed by the parliament cannot be declared unconstitutional while the Indian Constitution expressly vests this power in the courts.

The Indian Parliament is the creature of the Constitution and derives all its powers from the Constitution. It is not a sovereign body.

Under the Indian Constitution, Article 53 provides that the executive power of the Indian Union is vested in the President of India. Legislative power resides in Parliament which comprises the President, the Council of States and the House of the People.

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The Constitution can be amended only when the amending bill after being duly passed as required by article 368, has received the assent of the President.

According to Austin, the sovereign possesses unlimited powers, but experience shows that there is no power on earth which can wield unlimited powers.

It is suggested that sovereignty may be located in the constitution-amending body. However, that cannot be done in India whose Constitution does not prescribe only one procedure for amending the Constitution. Some amendments can be made by Parliament itself without the concurrence of the States.

Some amendments mentioned in the Proviso to Article 368 of the Indian Constitution require in addition ratification by the legislatures of one-half of the States. As there is not one constitution-amending body for all purposes, it is not the repository of sovereign power. Moreover, the constitution-amending body functions rarely and it is artificial to ascribe sovereignty to it.

Constitutional Organs - Constitutional Law I Unit III 

Parliamentary Privileges – Constitutional Organs

Parliamentary Privileges is defined by Sir T.F.May as:

“Some of the peculiar rights enjoyed by each House collectively as a constituent part of the Parliament and by the members of each house individually, without which they could not discharge their functions and which exceed those possessed by other bodies or individuals.

The constitutional provisions regarding privileges of the state Legislature and Parliament are identical. Articles 105 and 194 provide for privileges of the Legislature in India. While Article 105 deals with Parliament Article 194 deals with State Legislatures.

The Constitution expressly mentions two privileges (a) freedom of speech in the legislature and (b) right of publication of its proceedings. Prior to the 44th Amendment with regard to other privileges Article 105 (3) provided that the powers, privileges and immunities of each House until they were defined by the Parliament shall be those of the House of Commons in England.

After the 44th Amendment Article 105 now provides that in other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament, and, until so defined, shall be those of that House and of its members and committees immediately before the coming into force of the 44th Amendment Act, 1978. 

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Freedom of Speech:-

In England this privilege of the House of Commons is well established. It has been given statutory recognition by Bill of Rights in 1689 which says that the freedom of speech or debates in Parliament ought not to be impeached or questioned in any court or out of Parliament.

The Indian Constitution expressly guarantees this privilege in Article 105 which says—

“There shall be freedom of speech in Parliament and that no Member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any Committee thereof.”

This article thus gives absolute immunity from Courts for anything said within the four walls of the House during the course of proceedings of the House or its Committees.

So what is protected is the speech within the House. Outside the House a member of House is a good as any other citizen and if a member repeats or publishes a defamatory speech made by him within the House, he does so on his own responsibility and risk and will be held liable for prosecution under Section 500 of the Indian Penal Code.

Constitutional Organs - Constitutional Law I Unit III 

Anti Defection Law – Constitutional Organs

The 10th Schedule to the Constitution, popularly referred to as the ‘Anti-Defection Law,’ was inserted by the 52nd Amendment in 1985.

The grounds of disqualification are specified in Paragraph 2 of the 10th Schedule.

A member would incur a disqualification under paragraph 2 (1) (a) when he “voluntarily gives up his membership of a party”  and under 2 (1) (b) when he/she votes (or abstains from voting) contrary to the directive issued by the party. 

Two important questions arise in this regard: what would constitute the member ‘voluntarily’ giving up of membership of a party? And, what is the full import of 2 (1) (b), wherein voting/abstention from voting against the party is mentioned?

The Supreme Court, in the Ravi Naik vs. Union of India case, has interpreted the phrase ‘voluntarily gives up his membership.’ It says: “The words ‘voluntarily gives up his membership’ are not synonymous with ‘resignation’ and have a wider connotation. A person may voluntarily give up his membership of a political party even though he has not tendered his resignation from the membership of that party. 

“Even in the absence of a formal resignation from membership, an inference can be drawn from the conduct of a member that he has voluntarily given up his membership of the political party to which he belongs.”

In another judgment in the case of Rajendra Singh Rana vs. Swami Prasad Maurya and Others, the Supreme Court held that the act of giving a letter requesting the Governor to call upon the leader of the other side to form a Government itself would amount to an act of voluntarily giving up membership of the party on whose ticket the said members had got elected.

The anti-defection law was passed by parliament in 1985. Twenty-five years down the road, it is pertinent to trace the several modifications and to evaluate how well the law has worked.

The 52nd amendment to the Constitution added the Tenth Schedule which laid down the process by which legislators may be disqualified on grounds of defection. A member of parliament or state legislature was deemed to have defected if he either voluntarily resigned from his party or disobeyed the directives of the party leadership on a vote. That is, they may not vote on any issue in contravention to the party’s whip.  Independent members would be disqualified if they joined a political party.

Nominated members who were not members of a party could choose to join a party within six months; after that period, they were treated as a party member or independent member.

The law also made a few exceptions. Any person elected as speaker or chairman could resign from his party, and rejoin the party if he demitted that post. A party could be merged into another if at least two-thirds of its party legislators voted for the merger. The law initially permitted splitting of parties, but that has now been outlawed. 

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Experience so far

In the 24 years of this law, complaints have been made against 62 Lok Sabha MPs. Of these, 26 were disqualified. It is pertinent to note that ten of these disqualifications were after the trust vote of July 2008 (over India-US civil nuclear co-operation). Four cases were made against Rajya Sabha MPs (two in 1989 and two in 2008) and all were upheld. In state legislatures, up to 2004, out of 268 complaints, 113 were upheld. 

Challenges and Interpretations

The anti-defection law raises a number of questions, several of which have been addressed by the courts and the presiding officers.

Does the law impinge on the right of free speech of the legislators? This issue was addressed by the five-judge Constitution Bench of the Supreme Court in 1992 (Kihoto Hollohan vs Zachilhu and others). The court said that “the anti-defection law seeks to recognise the practical need to place the proprieties of political and personal conduct…above certain theoretical assumptions.” It held that the law does not violate any rights or freedoms, or the basic structure of parliamentary democracy. 

What constitutes “voluntarily” resigning from a party? Various judgements and orders indicate that a member who publicly opposes the party or states his support for another party would be deemed to have resigned from his party. News reports may be used as evidence for this purpose. 

Can the decision of the presiding officer be challenged in the courts? The law states that the decision is final and not subject to judicial review. The Supreme Court struck down part of this condition. It held that there may not be any judicial intervention until the presiding officer gives his order. However, the final decision is subject to appeal in the High Courts and Supreme Court. 

Issues for consideration

Should the law be valid for all votes or only for those that determine the stability of the government (such as the confidence and no-confidence motions)? The main intent of the law was to deter “the evil of political defections” by legislators motivated by lure of office or other similar considerations. However, loss of membership is hardly a penalty in cases ahead of the scheduled time of general elections—as seen last year. It also loses significance if the House is likely to be dissolved.

On the other hand, the voting behaviour may be affected even on issues not related to the stability of the government. A member may be unable to express his actual belief or the interests of his constituents. Therefore, a case may be made for restricting the law to confidence and no-confidence motions. The Dinesh Goswami Committee on electoral reforms (1990) recommended this change, while the Law Commission (170th report, 1999) suggested that political parties issue whips only when the government was in danger. 

Should the law apply only to pre-poll alliances? The rationale that a representative is elected on the basis of the party’s  programme can be extended to pre-poll alliances. The Law Commission proposed this change with the condition that partners of such alliances inform the Election Commission before the elections. 

Should the judgement be made by the presiding officers? Several MPs had raised this issue at the time of passage of the law. The Supreme Court upheld the law in the Kihoto Hollohon judgment.  The Goswami Committee, the Election Commission and the Venkatachaliah Commission to Review the Constitution (2002) have recommended that the decision should be made by the president or the governor on the advice of the Election Commission.  This would be similar to the process for disqualification on grounds of office of profit. 

Should there be any additional penalties on defectors? The Venkatachaliah Commission recommended that defectors should be barred from holding any ministerial or remunerative political office for the remaining term of the House. It also said that the vote of any defector should not be counted in a confidence or no-confidence motion. 

There is no ambiguity in the legality of current provisions related to these issues. Any change would require legislative action. There is, however, need for public debate on the working of the anti-defection law.

Constitutional Organs - Constitutional Law I Unit III 

Executive Power – Constitutional Organs

The Constitution has conferred extensive executive powers on the President. The executive power of the Union of India is vested in him.

He is the head of the Indian Republic. All executive functions are executed in the name of the President, authenticated in such manner as may be prescribed by rules to be made by the President (Article 77).

He has power to appoint the Prime Minister and on his advice other Ministers of the Union, the Judges of the Supreme Court, and the High Courts, the Governors of the States, the Attorney-General, the Comptroller and Auditor-General, the Chairman and Members of the Public Service Commission, the Members of the Finance Commission and Official Commissions, Special Officer for Scheduled castes and Scheduled Tribes, Commission to report on the administration of Scheduled Areas, Commission to investigate into the conditions of backward classes, Special Officer for Linguistic minorities.

The above-mentioned official holds their office during the pleasure of the President. This means that he has the power to remove them from their post. This power, however, to be exercised subject to the procedure prescribed by the Constitution. It is, however, to be noted that he has to exercise his executive powers on the advice of the Council of Ministers.

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Constitutional Organs - Constitutional Law I Unit III

Collective Responsibility of Cabinet – Constitutional Organs

The basic principle of Parliamentary form of Government is the principle of collective responsibility. In England, this principle works on well established conventions. In India, this principle ensured by marking specific provisions in the Constitution. Article 75 (3) provides that the Council of Ministers shall be collective responsibility to the Lok Sabha. The principle of collective responsibility means that the Council of Ministers is as a body responsible to the Lok Sabha for the general conduct of affairs of the Government.

The Council of Ministers work as a team and all decisions taken by the cabinet are the joint decisions of all its members. No matter whatever be their personal differences of opinion within the Cabinet, but once a decision has taken by it, it is the duty of each and every Minister to stand by it and support it both in the Legislature and outside. Lord Salisbury explained this principle of collective responsibility thus: “For all that passes in the Cabinet each member of it who does not resign is absolutely irretrievably responsible, and has no right afterward to say that he agreed in one sense to a compromise while in another he was persuaded by his colleagues.

Thus the only alternative before a Minister who is not prepared to support and defend the decision of the Cabinet is to resign. This is a great weapon in the hands of the Prime Minister through which he maintains unity and discipline in his colleagues (Cabinet). A Minister who does not agree with Prime Minster or the Cabinet has the only alternative, that is, to resign from the Cabinet. According to this rule, the Council of Ministers is collectively responsible to the Lok Sabha, hence as soon as a Ministry looses the confidence of the House or is defeated on any question of policy, it must resign.

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Constitutional Organs - Constitutional Law I Unit III

Judiciary – Jurisdiction of Supreme Court and High Courts

Supreme Court—the Guardian of the Constitution:

The Supreme Court under our Constitution is such arbitration. It is the final interpreter and guardian of the Constitution. In addition, to the above function of maintaining the supremacy of the Constitution, the Supreme Court is also the guardian of the Fundamental rights of the people.

Jurisdiction of the Supreme Court:

A Court of Record: Article 129 makes the Supreme Court a ‘Court of Record’ and confers all the powers of such a court including the power to punish for its contempt. A Court of Record is a court whose records are admitted to be of evidentiary value and they are not to be questioned when they are produced before the court.

Once a court is made a Court of Record, its power to punish for contempt necessarily follows from that position. The power to punish for contempt of court has been expressly conferred on the Supreme Court by our Constitution. This extraordinary power must be sparingly exercised only where the public interest demands.

Original Jurisdiction—Article 131:

The Supreme Court has original jurisdiction in any dispute:-

  • Between the Government of India and one or more States;
  • Between the Government of India and any State or States on one side one or more other States on the other;
  • Between two or more States.

The Supreme Court in its original jurisdiction cannot entertain any suits brought by private individuals against the Government of India. The dispute relating to the original jurisdiction of the Court must involve a question of law or fact on which the existence of legal right depends. This means that the Court has no jurisdiction in matters of political nature.

The term ‘legal right’ means a right recognized by law and capable of being enforced by the power of a State but not necessarily in a court of law.

The original jurisdiction of the Supreme Court, however, does not extend to the following matters:

  • Article 131 of the Constitution says, that, the jurisdiction of the Supreme Court shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which was executed before the commencement of the Constitution and continues to be in operation or which provides that the jurisdiction of the Supreme Court shall not extend to such a dispute.
  • Under Article 264 Parliament may by law exclude the jurisdiction of the Supreme Court in disputes with respect to the use, distribution or control of the water of any inter-State river or river-valley.
  • Matters referred to the Finance Commission (Article 280
  • The adjustment of certain expenses between the Union and the State (Article 290).

Appellate Jurisdiction—Article 132:

The Supreme Court is the highest Court of Appeal in the country. The writ and decrees of the Court run throughout the country. It can be truly said that the jurisdiction and powers of the Supreme Court in their nature and extent are wider than those exercised by the High Courts of any country in the Commonwealth or by the Supreme Court of the U.S.A.

The Appellate Jurisdiction of the Supreme Court can be divided into four main categories:-

  • Constitutional matters,
  • Civil matters,
  • Criminal matters,
  • Special leave to appeal.

Power of the Supreme Court to withdraw and transfer cases –article 139-A:

Article 139-A (1) provides that if on an application made by the Attorney-General of India or by a party or on its own motion the Supreme Court is satisfied that cases involving the same or substantially the same question of law are pending before the supreme Court and one or more High Courts or before two or more High Courts and that such questions are substantially question of general importance, it may withdraw them and dispose them itself. It may after disposing of the said question of law return any case to the High Court with a copy of its judgment and then the High Court will dispose of the case in accordance with such judgment.

Clause (2) of Article 139-A empowers the Supreme Court to transfer cases, appeals or other proceedings from any High Court to another High Court it thinks it expedient to do so for the end of justice.

Advisory Jurisdiction of the Supreme Court—Article 143:

Article 143 provides that if at any time it appears to the President that—(a) a question of law or fact has arisen or is likely to arise, and (b) the question is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question for the Advisory opinion of the Court and the Court may after such hearing as it thinks fit, report to the President its opinion thereon.

Under clause (2), if the President refers to the Supreme Court matters which are excluded from its jurisdiction under the provision to Article 131, the Court shall be bound to give its opinion there on.

Law declared by the Supreme Court to be binding on all courts—Article 141:

The judgment of the Supreme Court will be binding on all courts in India. The expression “all courts, within the territory of India” clearly means courts other than the Supreme Court. Thus the Supreme Court is not bound by its own decisions and may in proper case reverse its previous decisions.

Jurisdiction of the High Courts:

A Court of Record:-

 Article 215 declares that every High Court shall be a Court of Record and shall have all powers of such a court including the power to punish to punish for its contempt. The scope and nature of the power of High Court under this Article is similar to the powers of the Supreme Court under Article 129.

General Jurisdiction:

Article 225 says that subject to the provisions of the Constitution and to the provision of any law of the appropriate Legislature (a) the jurisdiction of the High Court, (b) the law administered in the existing High Court, (c) the powers of the judges in relation to the administration of justice in the courts, (d) the power to make rule of the High Court shall be the same as immediately before the commencement of this Constitution. Thus the pre-Constitutional jurisdiction of the High Court is preserved by the Constitution.

Article 225 thus gives jurisdiction over revenue matters. In pre-Constitution period the decisions of the Privy Council were binding on all the High Courts under Section 212 of the Government of India Act. The effect of the present Article is the same and they are still binding on the High Courts unless it is reversed by the Supreme Court or by a law of the appropriate legislature.

This means that the jurisdiction and powers of the High Courts can be changed both by the Union Parliament and the State Legislatures.

 Power of superintendence over all courts by the High Courts:

Under Article 227 every High Court has the power of the superintendence over all courts and tribunals throughout the territory in relation to which it exercises jurisdiction. For this purpose, the High Court may call returns from them, make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts and prescribe forms in which books, entries and accounts are to be kept by the officers of such courts, and settle table of fees to be given to the sheriff, clerks, attorneys, advocates and pleaders.

However this power has given for superintendence of High Court does not extend over any Court or Tribunal constituted by law relating to the Armed Forces.

Transfer of certain cases to High Courts:

Under 228 the High Court has power to withdraw a case from a subordinate Court, if it satisfied that a case pending in a subordinate Court involves a substantial question of law as to the interpretation of the Constitution. It may then either dispose of the case itself or may determine the said question of law and return the case to the subordinate Court with a copy of its judgment. The subordinate Court will then decide the case in conformity with the High Court’s judgment.

Writ Jurisdiction of the High Court (Article 226):

Article 226 provides that not withstanding anything in Article 32 every High Court shall have power, throughout the territorial limits in relation to which it exercises jurisdiction to issue to any person or authority including the appropriate cases, any government, within those territories, directions, orders of writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them –(a) for the enforcement of fundamental rights conferred by Part III, and (b) for ‘any other purpose’.

Thus the jurisdiction of a High Court is not limited to the protection of the fundamental rights but also other legal rights as is clear from the words “any other purpose”. Those words make the jurisdiction of the High Court more extensive than that of the Supreme Court which is confined to only for the enforcement of fundamental rights.

The words “for any other purpose”, refer to enforcement of a legal right or legal duty. They do not mean that a High Court can issue writs for any purpose it pleases.

Extension of jurisdiction of High Court:

Under article 230, Parliament can by law extend or exclude jurisdiction of a high Court over any Union Territory. The Legislature of a State cannot increase, restrict or abolish the jurisdiction.

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Constitutional Organs - Constitutional Law I Unit III

Independence of Judiciary – Constitutional Organs

Independence of judiciary—Under the Constitution:

Only an impartial and independent judiciary can protect the rights of the individual and provide equal justice without fear or favor. It is, therefore, very necessary that the Supreme Court should be allowed to perform its functions in an atmosphere of independence and be free from all kinds of political pressures. The Constitution has made several provisions to ensure independence of Judiciary.

Security of tenure:

The Judges of the Supreme Court have security of tenure. They cannot be removed from office except by an order of the President and that also only on the ground of proved misbehavior or incapacity, supported by a resolution adopted by a majority of total membership of each House and also by a majority of not less than 2/3 of the members of the House present and voting.

Parliament may, however, regulate the procedure for presentation of the address and for investigation and proof of the misbehavior or incapacity of a Judge. But Parliament cannot misuse this power, because the special procedure for their removal must be followed.

The following are some of other important grounds explaining independence of Judiciary:-

  1. Salary of Judges fixed, not subject to vote of Legislature,
  2. Parliament can extend, but cannot curtail the jurisdiction and power of the Supreme Court,
  3. No discussion in Legislature on the conduct of the Judges,
  4. Power to punish for its contempt,
  5. Separation of Judiciary from executive,
  6. Judges of the Supreme Court are appointed by the Executive with the consultation of Legal Experts,
  7. Prohibition on Practice after Retirement.

Thus the position of the Supreme Court is very strong and its independence is adequately guaranteed. However, there are certain disturbing trends which are likely to threaten the independence of judiciary at present.

  • Although Article 124 vests the legal power of appointment in the executive but the executive is required to ‘consult’ legal experts i.e., judges of the Supreme Court and High Courts in appointing judges of the higher courts. But unfortunately, the Supreme Court interpreted the word ‘consultation’ in such a literal manner that it gave virtually discretion in the matter. In judges transfer case I (S.P.Gupta Vs Union of India) the Supreme Court held that the word “consultation”, did not mean concurrence and the Executive was not bound by the advice given by the judges. The Government may completely ignore the advice of legal experts. Thus the power of appointment of the Judges of the Supreme Court and the transfer of the High court Judges was solely vested in the Executive from whose dominance the Judiciary was expected to be free. By conceding the power of appointment exclusively to the Executive, it is submitted, the court had itself put the independence of the judiciary into danger. Mr. Justice Bhagwati of the Supreme Court in the S.P.Gupta’s case had suggested for establishment of a judicial commission for recommending the names of persons for the appointment of the Judges of the Supreme Court and High Courts.
  • The power of the President under article222 to transfer a judge from one High Court to another may also be used to undermine the independence of the judiciary.

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Constitutional Organs - Constitutional Law I Unit III

Public interest litigation – Constitutional Organs

Law-making has assumed new dimensions through judicial activism of law courts. Public Interest Litigation (PIL) or Social Action Litigation introduced by the Supreme Court of India in the Constitutional jurisprudence is a major example of Supreme Court’s judicial activism. 

Hitherto,  the  rigidity  of  the  locus stand  rule  deprived  the  poorer  sections  of  the society from approaching the courts for enforcement of their fundamental rights against the rich  and  affluent  class  of  society  but  now  the  public  interest  litigation  has  liberalized  the locus standee  rule  to  such an extent  that  it  has opened  new vistas  for  the  redressed  of the social problems.

About the PIL the Supreme Court has written, “The question “What PIL means and is”?  has  been  deeply  surveyed,  explored  and  explained  not  only  by  various  judicial pronouncements  in  many  countries,  but  also  by  eminent  judges,  jurists,  activist  lawyers, outstanding scholars, journalists and social scientists etc. with a vast erudition.

Basically, the meaning  of  the  words  ‘Public  Interest’  is  defined  in  the  OXFORD  ENGLISH DICTIONARY, as “the common well being is also public welfare”. 

PIL means a legal action initiated in the Court of Law for the enforcement of public interest  or  general  interest  in  which  the  public  or  a  class  or  community  have  pecuniary interest or some interest by which their legal rights or liabilities are effected. 

PIL originated from the United States where it was firmly established around 1965. In England, it was started in the name of Citizens’ Action wherein any citizen could file a writ against public authorities for the cause of common man. 

In India, the seeds of PIL were sown by the Justice Krishna Iyer in 1976 in the case of Mumbai Kamgar Sabha v. Abdulbhai. In this case, while disposing of an industrial dispute in regards to the payment of bonus, he observed: 

“Our  adjectival  branch  of  jurisprudence  by  and  large  deals  not  with  sophisticated litigants but the rural poor, the urban lay and the weaker societal segments for whom law will be an added  terror  if  technical  mis-descriptions  and  deficiencies  in  drafting  pleadings  and setting  out  the  cause  title  create  a  secret  weapon  to  non-suit  a  party.  Where  foul  play  is absent,  and  fairness  is  not  faulted,  latitude  is  grace  of  procedural  justice. 

Test  litigations, representative actions, pro bono public and like broadened forms of legal proceedings are in keeping with the current accent on justice to the common man and a necessary disincentive to those who  wish to  by-pass  the  real issues  on  the  merits  by  suspect  reliance  on  peripheral procedural  shortcomings. 

Even  Art 226, viewed on  wider perspective, may be  amenable to ventilation of collective or common grievances, as distinguished from assertion of individual rights  although  the  traditional  view,  backed  by  precedents  has  opted  for  the  narrower alternative.  Public  interest  is  promoted  by  a  spacious  construction  of  locus  standi  in  our socioeconomic circumstances, and conceptual latitudinarianism permits taking liberties with individualization  of  the  right to invoke the  higher  courts  where  the  remedy  is shared  by  a considerable number, particularly when they are weaker. Less litigation, consistent with fair process, is the aim of adjectival law”.

The court permits public interest litigation at the instance of ‘public spirited citizens’ for the enforcement of the Constitutional and legal rights of any person or groups of persons who because of their poverty or socially or economically disadvantaged position are unable to approach the court for relief.

In A.B.S.K. Sangh (Rly) v. Union of India, it was held that the Akhil Bhartiya Soshit Karamchari  Sangh (Rly)  though an unregistered association could  maintain a writ  petition under  Art  32  for  the  redressal of  a  common  grievance. KRISHNA IYER,  J,  declared  that access  to  justice  through  ‘class  actions’,  ‘ public  interest  litigation’  and  ‘representative proceedings’ is the present Constitutional jurisprudence.

In the Judges Transfer Case the rule regarding the PIL was firmly established.  The court held that any member of the public having “sufficient interest” can approach the court for  enforcing  Constitutional  or  legal  rights  of  other  persons  and  redressal  of  a  common grievance.

BHAGWATI, J., observed: “Where a legal wrong or legal injury is caused to person or to a determinate class of persons  by  reason  of  violation  of  any  Constitutional  or  legal  right  and  such  person  or determinate class of persons is by reason of poverty, helplessness or disability or socially or economically disadvantaged position unable to approach the court for relief, any member  of the  public can  maintain  an  application  for  an  appropriate direction  or  order  or  writ  in  the High  Court under Article 226 or  in  case  of breach  of any  Fundamental Right to  this  court under  Article 32.

Where the weaker sections of the community are concerned such as under-trial prisoners languishing in jails without trial, inmates of the Protective Home in Agra or Harijan  workers  engaged  in  road  construction  in  the  District  of  Ajmer,  who  are  living  in poverty and desolation, who are barely eking out a miserable existence with their sweet and toil, who are helpless victims of an exploitative society and who do not have easy access to justice, the Supreme Court will not insist on a regular writ petition to be filed by the public spirited individual espousing their  cause and seeking relief  for them.

The Supreme Court will readily respond to a letter addressed by such individual acting pro bono public. It is true that there are rules made by the Supreme Court prescribing the procedure for  moving it for relief under   Article  32  and  they  require  various  formalities  to  be  of  one  through  by  a  person seeking  to  approach  it.  But  it  must  not  be  forgotten  that  procedure  is  but  a  handmade  of justice  and  the  cause  of  justice  may  never  be  allowed  to  be  wasted  by  any  procedural technicalities. 

The  Court  will  therefore  unhesitatingly  cast  aside  the  technical  rules  of procedure in the exercising of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it”. 

Certain guidelines for taking precaution against misuse of PIL have also been given by BHAGWATI, C.J. In his words:

“But we  must  be careful to  see  that the member  of the  public, who approaches the court in case of  this  kind,  is acting bonafide  and  not  for  personal gain  or private  profit or political motivation or other oblique consideration. The court must not allow its process to be abused by politicians and others……” 

For example, in the case of Janta  Dal  v.  H.S. Chowdhari  ‘  (Bofors  Gun  case),  the petitioner  tried  to  abuse  the  Public  Interest  Litigation  for  political  purposes. Similarly, Krishna Swami V/s. Union of India,  Simranjit  Singh  Mann  v. Union of India  can  also  be included  in  this  category.  PIL jurisdiction has been actually evolved for socio-economic justice. Supreme Court has pointed out that “the compulsion for the judicial innovation of the technique of a public interest action is the Constitutional promise of a social and economic transformation to usher in an egalitarian social order and a welfare State. Effective solutions to the  problems  peculiar  to  this  transformation  are  not  available  in  the  traditional  judicial system.

The proceedings in a public interest litigation are, therefore, intended to vindicate and effectuate  the  public  interest  by  prevention  of  violation  of  the  rights,  Constitutional  or statutory, of sizeable segments of the society, which owing to poverty, ignorance, social and economic  disadvantages  cannot themselves assert and quite  often not even  aware  of  those rights. The  technique  of  public  interest  litigation  serves  to  provide an  effective remedy  to enforce these rights and interests”.

Thus under this jurisdiction Supreme Court proceeded to secure social justice to the weaker section of the society. It observed in People’s Union for Democratic Rights v. Union of India.

“The time has now come when the courts must become the courts for the poor and struggling masses of this country.  They must shed their character as upholders of the established order and the status quo. They must be sensitized to the need of doing justice to the larger masses of people to whom justice has been denied by a cruel and heartless society for generations. It is through public interest litigation that the problems of the poor are now coming  to  the  forefront  and the  entire  theatre  of the  law  is  changing.  It holds out greater possibilities for the future. 

Main grounds on which PIL is available are as follows:

 Protection of weaker sections of society.-

Public or  social interest  litigation  is innovative strategy  which  has been evolved  by the Supreme Court for the purpose of providing easy access to justice to the weaker sections of Indian humanity and it is a powerful tool in the hands of public inspired individuals and social  action  groups  for  combating  exploitation  and  injustice  and  securing  for  the underprivileged segments of society, their social and economic entitlements.

In Lakshmi Kant Pandey v. Union of India a writ petition was filed on the basis of a letter complaining of malpractices indulged in by social organizations and voluntary agencies engaged  in  the  work  of  offering  Indian  children  in  adoption  to  foreign  parents.  Certain principles and norms were laid down in this case which were to be followed in determining whether a child should be allowed to be adopted by foreign parents.

In M.C. Mehta Vs Union of India it was held that the children cannot be employed in match  factories  which  are  directly  connected  with  the  manufacturing  process  as  it  is  a hazardous  employment  within  the  meaning  of  the  Employment  of  Children  Act,  1938.  In many  cases  Supreme  Court  has  passed  orders  and  issued  directions  for  the  welfare  and protection of labor.

The  court  also  has  the  power  under  Article  32  to  award  costs  of  public  interest petition  to  the  petitioner  who  was not in legal profession  but  brought an important  matter before the court for its consideration. In Sheela Barse v. Union of India the Court directed the Central Government to pay to the petitioner, a social worker, Rs. 10,000 for the expenses and to extend all necessary assistance to him as he offered to personally visit different parts of the country to verify whether the information submitted by the Authorities regarding children bellow the age of 18 years detained in jails in different States of the country was correct.

Similarly, in D.C Wadhwa V/s  State of  Bihar  the petitioner,  a  Professor of  Political Science  who had  done  substantial  research  and  was  deeply  interested  in  ensuring  proper implementation  of  the  Constitutional  provisions,  challenged  the  practice  followed  by  the State of Bihar in re promulgating a number of ordinances without getting the approval of the legislature. The Court held that the petitioner as a member of public has ‘sufficient interest’ to maintain a petition under Art. 32. The Court directed the State of Bihar to pay Rs. 10,000 to Dr. Wadhwa whose research brought to light this repressive practice.

In Bandhua Mukti Morcha v. Union of India the Supreme Court issued directions to Government to ensure the welfare of bonded labourers.

In Consumer Education and Research Center V/S. Union of India” the Supreme Court held asbestos factories or companies to be bound to compensate the workmen for the health hazards which were the cause for disease a workman was suffering from.

 Protection of ecology and environmental pollution.-

In Rural Litigation and Entitlement Kendra v/s State of U.P.,  the  Court  ordered  the  closure  of  certain  lime  stone quarries on  the  ground that there  were  serious deficiencies  regarding safety and  hazards in them.

Similarly,  in  Shriram  Food  and  Fertilizer   case,  the  Supreme  Court  directed  the company  manufacturing hazardous and lethal  chemicals and  gases  posing danger to health and  life  of  workmen  and  people  living  in  its  neighborhood,  to  take  all  necessary  safety measures before reopening the plant.

litigation was  instituted  to  check invasion  of  the right  to  life  of  individuals  by  pollution caused  by private sector companies. In India Council for Enviro Legal Action v. Union of India a public interest litigation was  instituted  to  check invasion  of  the right  to  life  of  individuals  by  pollution caused  by private sector companies. 

In M.C Mehta V/s. Union  of  India,”  the  Supreme  Court  ordered  the  closure  of  the tanneries at Jajmau near Kanpur, polluting the Ganga; the matter  was brought to the notice of the court by the petitioner, a social worker, through public interest litigation.

In M C. Mehta v. Union of India, the Supreme Court directed that hazardous and noxious industries to be shifted away from Delhi as per provision of the Master Plan prepared under National Capital Region Planning Board Act.

In M.C. Mehta v. Union of India, the Supreme Court directed the closure of mining operations within 2 km.  radius of  Badkhal  Lake  and  Suraj  Kund  and  further  directed  that mining leases within areas of 2 to 5 km. should not be renewed unless no objection of State and Central Pollution Control Board was obtained.

Securing human rights and human dignity.-

In  Ramesh  v. Union  of  India”  it  has been  held  that  public  interest  litigation  for  ensuring  communal  harmony  is  maintainable under  Art 32 of the Constitution.

In a judgment of far reaching importance in Parmanand Katara v. Union of India the Supreme Court held that it is a paramount obligation of every member of medical profession (Private  or Government)  to give medical  aid to  every  injured citizen  brought  for  treatment immediately  without  waiting  for  procedural  formalities  to  be  completed  in  order   to  avoid negligent death. The matter was brought to the notice of the court by petitioner, a human right activist, fighting for general public interest.

In an important judgment in National Federation of Blind V/s U.P.S.C. the Supreme Court  held 

that  the  visually  handicapped  persons  are  eligible  to  compete  and  take  civil services examination in the categories of Group ‘A’  and ‘B’ posts which are suitable for the handicapped in Braille script or with the help of a scribe. 

In National Human Rights Commission v. State of Arunachal Pradesh public interest litigation was instituted to restrain the Government of Arunachal Pradesh driving away from the State Chakma Refugees from Bangla Desh. In this case, the Supreme Court held that the right  to  life  and  equality  clause  is  applicable  to  every  person  whether  he  be  a  citizen  or otherwise. 

Epistolary  jurisdiction  of  the  Supreme  Court  and  the  High  Court  is  added  new dimensions

to the  scope  of PIL  in  India. Under this jurisdiction, even ordinary letters and newspaper cuttings have been treated as writ petitions and the courts have initiated suo motu action against the erring Authorities.

In Bandhua Mukti Morcha v. Union of India, an organization dedicated to the cause of release of bonded labors’ informed the Supreme Court through a letter that they conducted a survey of the stonequarries situated in Faridabad District of the State of Haryana and found that there  were a  large number  of laborers working in these stone-quarries  under “inhuman and  intolerable  conditions”  and  many  of  them  were  bonded  laborers.  The Supreme Court said: “Article 21 assures the right to live with human dignity, free from exploitation. The State is under a Constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Both the Central Government and the State Government are, therefore, bound to ensure observance  of  social  welfare  and  labor  laws  enacted  by  Parliament  for  the  purpose  of securing  to  the  workman  a  life  of  basic  human  dignity  in  compliance  with  the  Directive Principles of State Policy”.

In Consumer Education and Research Centre v. Union of India the court said that the right to life ensures to workmen right to health and medical care.  Matters of public interest.-

In  Vineet Narain v. Union of  India  (Hawala case), the Supreme  Court  directed  CBI  and  revenue  authorities  to  properly  and  expeditiously investigate the matter. The Supreme Court has been exercising this jurisdiction to check arbitrary and mala fide acts by public servants. In Common Cause a, Registered Society v. Union of India, a PIL was  filed  challenging  the  allotment  of  petrol  pumps  made  by  Minister  for  Petroleum  and Natural Gas, Captain Satish Sharma, from discretionary quota as arbitrary and mala fide and illegal. The Supreme Court found the allotments to be arbitrary, discriminatory, mala fide and illegal and directed the Minister to pay a sum of Rs 50 lakhs as exemplary damages to the Government Exchequer. However, the direction as to payment of exemplary damages was set aside in judicial review.

Similarly in Shiva Sagar Tiwari v. Union of India the Minister for Housing and Urban Development was held liable to pay Rs 60 lakhs as exemplary damages to the Government Exchequer for the arbitrary, mala fide and unconstitutional allotment of shops/stalls by the Minister to his own relatives/employees/domestic servants out of discretionary quota.

 Granting of reliefs.-

In Delhi Judicial Service  Associations  v. State  of Gujarat” the petitioner  had  filed  a  PIL  before  the  Supreme  Court  that  the  Chief  Judicial  Magistrate  of Nadiad, Gujarat  had  been  arrested, assaulted,  handcuffed and  humiliated  by police  officers and prayed for taking action against the police officers for committing contempt of court and for saving the dignity and honor of judiciary. The Supreme

Court on finding the truth sent those police officers to jail. The area of PIL has been growingly widening.  The  rule  of  locus  standi  has  been further  relaxed  and  High  Courts  are  also  exercising  jurisdiction  under  Article  226  of  the Constitution in this matter.

 Interaction of social forces and law

In  all  societies  intersection  of  social  forces  and  law  tend  to  mould  each  other.  In democratic societies it is articulate and clearly discernible. In the words of Friedmann, “In a democracy the interplay between social opinion and the law moulding activities of the State is more obvious and articulate one. Public opinion on vital social issues constantly expresses itself  not  only  through  elected  representatives  in  the  Legislative  Assemblies,  but  through public  discussion  in  press,  radio,  public  lectures,  pressure  groups  and,  on  a  more sophisticated  level,  through  scientific  and  professional  associations,  universities  and  a multitude of other channels.

Because of this constant interaction between the articulation of public opinion and the legislative process,  the  tension  between  the  legal and the  social  norms  can  seldom be  too great.  It  is  not  possible  in  a  democratic  system  to  impose  a  law  on  an  utterly  hostile community.  But,  a  strong  social  ground-swell  sooner   or  later  compel  the  legal  action. Between  these  two  extremes,  there  is  a  great  variety  of  the  patterns  of  challenge  and response.  On the one hand, law may an irresistible tide of social habit or opinion. 

On  the other hand, a determined and courageous individual or small minority group may initiate and pursue  a  legal  change  in  the  face  of  governmental  or  Parliamentary  lethargy,  and  an indifferent  public  opinion.  Such legislation as now exists in many countries for the preservation of forests or wild life, or the conservation of other vital resources has been the belated result of the determined efforts of small group of men who saw beyond the immediate interest not only of vested interests but of the ordinary legislator and government execution”.

Constitutional Organs – Constitutional Law I Unit III Constitutional Organs – Constitutional Law I Unit III 

Constitutional Organs - Constitutional Law I Unit III

Power of Judicial Review – Constitutional Organs

Article 13 in fact provides for the ‘judicial review’ of all legislations in India, past as well as future. This power has been conferred on the High Courts and the Supreme Court of India (Article 226, Article32) which can declare a law unconstitutional if it is inconsistent with any of the provisions of Part III of the Constitution.

Meaning and basis of Judicial Review:

‘Judicial Review” is the power of courts to pronounce upon the constitutionality of legislative acts which fall within their normal jurisdiction to enforce and power to refuse to enforce such as they find to be unconstitutional and hence void. “Judicial Review” said Khanna, J., in the Fundamental Rights case, “has thus become an integral part of our Constitutional System and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of statutes.

If the provisions of the statutes are found to be violative of any of the articles of the Constitution which is the touchstone for the validity of all laws the Supreme Court and the High Courts are empowered to strike down the said provisions”.

The doctrine of judicial review was for the first time propounded by the Supreme Court of America. Originally, the United States Constitution did not contain an express provision for judicial review. The power of judicial review was however assumed by the Supreme Court of America in the historic case of Marbury Vs Madison. 

In the Indian Constitution there is an express provision for judicial review, and in this sense it is on a more solid footing than it is in America. In The State of Madras Vs V.G.Row, Patanjali Sastri, C.J., observed, “Our Constitution contains express provisions for judicial review of legislation as to its conformity with the Constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative acts under cover of the widely interpreted ‘due process’ clause in the Fifth and Fourteenth Amendments.

If then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority and a crusader’s spirit, but in discharge of duty plainly laid upon them by the Constitution. This is especially true as regards the fundamental rights as to which the Court has been assigned the role of sentinel on the qui vive”.

But even in the absence of the provision for judicial review, the courts would have been able to invalidate a law which contravened any constitutional provision, for, such power of judicial review follows from the very nature of constitutional law. In A.K. Gopalan Vs State of Madras, Kania,C.J., pointed out that it was only by way of abundant caution that the framers of our Constitution inserted the specific provisions in Article 13.

He observed: “In India, it is the Constitution that is supreme and that a statute law to be valid, must be in all conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not.”

In Kesavananda Bharati’s case it has been held that Judicial Review is the ‘basic features’ of the Indian Constitution and, therefore, it “cannot be damaged or destroyed by amending the constitution under Article 368 of the Constitution”.

Again, in L. Chandra Kumar Vs Union of India, 1997, the Supreme Court has held that the power of judicial review of legislative action as vested in the High Court under Article 226 and in the Supreme Court under Article 32 is part of the basic structure of the Constitution and can be ousted or excluded even by the constitutional amendment.

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Constitutional Organs - Constitutional Law I Unit III

Doctrine of Political Question – Constitutional Organs

In 1962, the Supreme Court of U.S.A was seized of a matter that went down in history as one of its most important decisions ever. The matter involved a delineation of the extent of judicial review, while dealing with whether ‘equal protection of laws’ was violated by the borders of a district not being redrawn appropriately to adjust for population movement. The issue came down to whether the Court could in fact investigate and adjudicate on such issues, given the existence of a strict separation of powers.

The issue was of great political importance, perhaps the most important since Marbury v. Madison, and the conflicting views prevalent led Justice Whittaker to recuse himself from the Bench. The matter was ultimately reviewed by the Court on merits and the issue of redistricting was held reviewable, but the doctrine of political question was reaffirmed and established for posterity. This was the case of Baker v. Carr.

 The doctrine of political question in public law, essentially limits judicial review in certain areas, since the judiciary would be the inappropriate arbiter for such disputes, lacking knowledge of issues with the polity would be best acquainted with. It acts as a check to judicial power and grants latitude to the political executive as regards a certain sense of absolutism in these specifically charted areas.

 The Court, in Justice Brennan’s majority opinion identified the following as the fundamental tests to determine what issues were political questions and what were not:

■Is there a textually demonstrable constitutional commitment of the issue to a coordinate political department (i.e. foreign affairs or executive war powers)?

■Is there a lack of judicially discoverable and manageable standards for resolving the issue?

■The impossibility of deciding the issue without an initial policy determination of a kind clearly for nonjudicial discretion.

■The impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.

■Is there an unusual need for unquestioning adherence to a political decision already made?

■Would attempting to resolve the matter create the possibility of embarrassment from multifarious pronouncements by various departments on one question?

In India, the doctrine stands on somewhat shaky ground. The question has been discussed only in a string of President’s Rule cases, in the context of limits on the power of the Governor under Article 356. First discussed in cases such as State of Rajasthan v. Union of India and State of Karnataka v. Union of India, the doctrine has since been eroded by what Baxi aptly terms ‘expansion of the frontiers of judicial power’. However, after the authoritative exposition of the law in S.R. Bommai v. Union of India, the position seems to be settled on the ‘sufficiency of materials’ test alone. 

The Courts position has at all times been cognizant of the fact that in the United States of America, what is followed is a ‘strict separation of powers’, as opposed to India, where checks and balances in practice is preferred to watertight compartmentalisation (See Ram Jawaya Kapur v. State of Punjab).

However, Justices Bhagwati and Chandrachud both speak of the methaporical ‘political thicket’ as a forbidden area for judicial intervention, stating in no uncertain terms that it is one from which Judges must ‘scrupulously keep away’.

Indeed, ambivalence surrounds the position of law today, with cases like Ram Jethmalani only indicating that very often the thrill of entering the political thicket is one that the judiciary finds hard to resist. Nevertheless, the doctrine is a useful one in the context of a check on judicial power, something that is being clamoured for vehemently in the public arena even as this is written.

Also, as an aside, it is important to note that the political question doctrine is independent and different from the ‘policy decision’ jurisprudence post BALCO Employees Union v. Union of India. In fact, my previous usage of the black money case as an example of breach of the political question doctrine would be apposite to the ‘policy decision’ context rather than this one.

In either case, the doctrine is extremely relevant in the context of separation of powers and judicial activism, as well as in light of the constant passing off by the Parliament of law-making responsibility to the SC.

The Court could simply recuse itself from forced determination of such questions, since evidently it is seen only as a forum of convenience for the State. Examples of such questions abound: Vishakha, Indra Sawhney, Ashok Kumar Thakur, the Ayodhya case and even the Bhopal case in many aspects.  A notable exception would be the guidelines regarding arrest procedure laid down in DK Basu v. State of West Bengal and the recent amendment to the CrPC.

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By Hassham

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