ORDINANCES

History of Ordinances
Ordinances were included in the Constitution of India from Government of India Act, 1935,
which gave the authority to the Governor General to promulgate Ordinances. Section 42 and
43 of the said act dealt with Ordinance making power of the Governor General which states
that, If circumstances exist which render it necessary for him to take immediate action, then
only he can use this power.

Ordinance making power of the President

Article 123 of the Indian Constitution grants the President of India certain Law making
powers i.e. to Promulgate Ordinances when either of the two Houses of the Parliament is not
in session which makes it impossible for a single House to pass and enact a law. Ordinances
may relate to any subject that the parliament has the power to make law, and would be having
same limitations. Thus, the following limitations exist:-

When legislature is not in session: the President can only promulgate when
either of the House of Parliament is not in session.
Immediate action is needed: the President though has the power of promulgating
the ordinances but same cannot be done unless he is satisfied that there are
circumstances that require him to take immediate action.
Parliament should approve: after the ordinance has been passed it is required to
be approved by the parliament within six weeks of reassembling. The same will
cease to operate if disapproved by either House.

The President may withdraw an ordinance at any time. However he exercises his power with
the consent of the Council of Ministers headed by the President. The Ordinances may have
retrospective effect and may modify or repeal any act of parliament or other ordinances. It
may be used to amend a tax law but it can never amend the Constitution.

Ordinances promulgated from year 1950- 2008, are overwhelming in the areas of Finance
(129 in number), Labor (46), commerce & Industry (28), Home Affair (102) and Law and
Justice (29). Out of these a very few of them can be classified under actual emergencies, and
hence necessary as a constitutional obligation.

While the number of Ordinances issued under the supervision of first, second, third and
fourth Lok Sabha which was 39, 20, 31, and 34 respectively. The ordinances promulgated
increased thrice in the Fifth Lok Sabha, ie. 93 Ordinances were promulgated.

The up-going trend was reversed by the Janta Dal which during their three year term of
governance promulgated only 34 Ordinances from 1977-1979. The next two governments

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had promulgated an average number of 10 Ordinances per year. The Narasimha Rao
Government from year 1991-1996 had promulgated an average of 21 ordinances per year and
none of the ordinance had ever dealt with either the corruption scam or with the prevailing
political instability. In fact none of them were re-introduced as Bill in the parliament. The
National Democratic Alliance (NDA) Government from year 1998-2004 had promulgated an
average of 14.6 Ordinances per year and later the UPA Government from year 2004-2009
had promulgated an average of 6.8 Ordinances per year. The Narendra Modi government,
since coming to power in 2014, has issued 26 ordinances, of which 11 were re-promulgated.
If the Supreme Courts recent judgment in Krishna Kumar Singh vs State of Bihar, delivered
on January 2, is any indication, the re-promulgated ordinances would be considered as
unconstitutional, even during the period that they are in force.
The Specified Bank Notes (Cessation of Liabilities) Ordinance, promulgated in December to
give effect to demonetisation, faces the risk of becoming unconstitutional if re-promulgated
after the end of the next session of parliament. This is because the government has failed to
obtain sufficient support in the Rajya Sabha for the ordinance to be replaced by a Bill.
Rule 71 of the Rules of Procedure and Conduct of Business in Lok Sabha provides:
Whenever a Bill seeking to replace an Ordinance with or without modification is
introduced in the House, it shall be placed before the House along with the Bill a statement
explaining the circumstances which had necessitated immediate legislation by Ordinance.

Satisfaction of the President

One of the essentials to be kept in mind while passing an ordinance is that the President
should be satisfied; that circumstances exist that requires immediate actions on part of the
President. The apex court has not yet defined satisfaction of the President and even whether
the subjective satisfaction of the President can be questioned in the Court of Law. To clearly
clarify the said ambiguity, Indira Gandhi led Government passed the 38th Constitutional
(Amendment) Act, 1975 which has expressly excluded the subjective satisfaction of the
President outside the purview of Judicial Review. Further in 44th (Amendment) Act, 1978
deleted this clause, holding that the power of President could be challenged in the Court of
Law if it is based on bad faith, corrupt motive or had any mala fide intention.

In the case of A.K. Roy v. Union of India (1982) 1 SCC 271, the Supreme Court held that the
subjective satisfaction of the President is not completely non-justiciable. Later in case
of Venkata Reddy v. State of Andhra Pradesh (1985) 3 SCC 198, the Apex court over ruled
its own decision and held that the Satisfaction of the President cannot be called in question in
the Court of law and is out of Judicial Review.

About 615 Ordinances were issued between the years 1952 to 2006, and out of it only 1 can
be reasonably justiciable, which was introduced by the Prime Minister Moraji Desai in 1978-
where the currency notes in denominations of Rs.1000/5000/10,000 were demonetized-the
reason given was Parliament was not in session and it had to be done without letting people

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to know about it, and it was one way to deal with corruption and inflation. If people had
known about it, the same thing would have been completely failed.

Out of 615 Ordinances, an average of 214 Ordinances were promulgated just 15 days before
the Parliament was supposed to be in session while 261 were promulgated within 15 days,
when Parliament was ending its session. One of the most outrageous moves was Indira
Gandhis move to nationalize Banks through an Ordinance issued by her
Important Cases
In the case of R.C. Copper v. Union of India[1], constitution validity of the Twenty-fifth
Amendment Act, 1971 was challenged which curtailed the right of property of an individual
and permitted the acquisition of the same by the government for the public use, on the
payment of compensation which has to be determined by the Parliament and not by the court
of law. So in the said case popularly known as Bank Nationalization case, the Apex court
while examining the constitutionality of Banking Companies Ordinance, 1969 which had
sought to nationalize 14 commercial banks in India, it was held that President decision can be
challenged on the ground that no immediate action was required on his part.

In the case of A.K. Roy v. Union of India[2], the Supreme Court while examining the
constitutionality of the National Security Ordinance, 1980 which was issued to provide for
preventive detention in certain cases, the Supreme Court argued that the Presidents power of
making Ordinances is not beyond the Judicial Review of the court. However, the Court was
unable to explore the issues of the case further as the ordinance of the President was replaced
by an Act. The court also pointed out the need to exercise judicial review over the Presidents
decision only at substantial grounds and not otherwise at every casual challenge.

In the case of S.K.G.Sugar Ltd v. State of Bihar[3], it was held that promulgating of an
Ordinance by the Governor is purely upon the Subjective Satisfaction of him and he is the
sole Judge to consider the necessity to issue the Ordinance and his satisfaction is not a
justiciable matter.

In the case of T. Venkata Reddy v. State of Andhra Pradesh[4], the petitioner challenged the
constitutional validity of the Andhra Pradesh Abolition of Posts of Part-time Village Officers
Ordinances, 1984. One of the grounds was that the Ordinance is void on account of the lack
of mind used by the Governor and from the commencement of the same the state legislature
was disapproving it. The ordinance is said to take effect as soon as it is promulgated by the
President and ceases to operate by the legislative act.

One of the questions which were raised in the above mentioned case by the court
was: whether the validity of an Ordinance passed can be tested upon the similar grounds as
to those on which an executive or judicial action is tested. In answering the question the
Supreme Court cited its own earlier judgment given in K.Nagaraj v. State of

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Karnataka[5], and held that the Power of making Ordinances is a legislative action so the
same grounds as related to the law making should be challenged than challenging the
executive or judicial grounds.

Further in the case of S.R. Bommai v. Union of India[6], in this case the scope of Judicial
Review was expanded as to where the court told that where the action by the President is
taken without the relevant materials, the same would be falling under the category of
obviously perverse and the action would be considered to be in bad faith. The Supreme
Court held that the exercise of power by the President under the Article 356(1) to issue
proclamation is Justiciable and subject to Judicial Review to challenge on the ground of mala
fide.

In case of State of Orissa v. Bhupendra Kumar Bose[7], the court held that the rights and
obligations which are created by the Ordinance came into effect as soon as the Ordinance is
promulgated and the same cannot be extinguished until a proper legislature by a legislative
body extinguishes those rights and obligations of the Ordinances. However, where the
Ordinances promulgated is an abuse of power and a kind of Fraud on the constitution, then,
the state prevailing with such promulgation should immediately revive.

An ordinance would be made open to challenge on the following grounds:

1. It constitutes colorable legislation; or

2. It contravenes any of the Fundamental Rights as mentioned in our Constitution; or
3. It is violative of substantive provisions of Our Constitution such as an Article
301; or
4. Its retrospectively is unconstitutional.

Ordinances are however framed by the executive body which is said to be a single, unified
entity. The President is the head of the executive body who promulgate ordinances on the
advice of the council of ministers. The most important requirement of the promulgation of the
ordinances is the necessity to take the immediate action. Then there will be no difficulty in
ascertaining the satisfaction of the President when there is real need or necessity in
promulgating the Ordinances.

In further the case of D.C. Wadhwa v. State of Bihar[8], the State of Bihars promulgating
and re-promulgating ordinances were challenged as there was promulgation of the same in
massive scale. Between the year 1967-81, 256 ordinances were promulgated and then re-
promulgated and some among them remain into existence for up to 14 years. Chief Justice
P.N. Bhagwati observed:

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 The power to make an ordinance is to meet an extraordinary situation and it should not be
made to meet political ends of an individual. Though it is contrary to democratic norm for an
executive to make a law but this power is given to the President to meet emergencies so it
should be limited in some point of time.

The power of judicial review of ordinances was once again discussed in year 1998 in the case
of Krishna Kumar Singh v State of Bihar, in this case the Supreme Court struck down many
number of ordinances stating that no particular basis for the exercise of the Ordinance making
power of the President had been shown. It also stated: There was also no explanation
offered for promulgating one ordinance upon another.
Though the sheer profligacy in ordinance making power of the President had compelled the
Apex Court to perform some judicial review, there is still no clarity on the nature and extent
of the judicial review of the court over the ordinances made by the President or the Governor.

2/1/17 - Krishna Kumar Singh v State of Bihar.

A seven-judge Constitution Bench of the Supreme Court in Krishna Kumar Singh vs. State of
Bihar has held that re-promulgation of ordinances is a fraud on the Constitution and a
subversion of democratic legislative processes. The court also held that the satisfaction of the
President under Article 123 and of the Governor under Article 213 while issuing ordinances
is not immune from judicial review.
The bench also held that the question as to whether rights, privileges, obligations and
liabilities would survive an Ordinance which has ceased to operate must be determined as a
matter of construction.

The majority Judgment authored by Justice DY Chandrachud held that the requirement of
placing the ordinance before the Legislature is mandatory, but Justice Madan B Lokur
observed that it is directory. In this context, the Chief Justice of India, in his separate
concurring opinion, observed: I would, in that view, leave the question of interpretation of
Articles 123 (2) and 213(2) in so far as the obligation of the Government to place the
ordinance before the parliament/legislature open.".

Summary of the majority Judgment authored by Justice DY Chandrachud

1. The power which has been conferred upon the President under Article 123 and the
Governor under Article 213 is legislative in character. The power is 123 conditional in
nature: it can be exercised only when the legislature is not in session and subject to
the satisfaction of the President or, as the case may be, of the Governor that
circumstances exist which render it necessary to take immediate action.
2. An Ordinance which is promulgated under Article 123 or Article 213 has the same
force and effect as a law enacted by the legislature but it must (i) be laid before the
legislature; and (ii) it will cease to operate six weeks after the legislature ha

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 reassmebled or even earlier if a resolution disapproving it is passed. Moreover, an
Ordinance may also be withdrawn.
3. The Ordinance making power does not constitute the President or the Governor into a
parallel source of law making or an independent legislative authority.
4. Consistent with the principle of legislative supremacy, the power to promulgate
ordinances is subject to legislative control. The President or, as the case may be, the
Governor acts on the aid and advice of the Council of Ministers which owes collective
responsibility to the legislature
5. The requirement of laying an Ordinance before Parliament or the state legislature is a
mandatory constitutional obligation cast upon the government. Laying of the
ordinance before the legislature is mandatory because the legislature has to determine
(a) The need for, validity of and expediency to promulgate an ordinance; (b) Whether
the Ordinance ought to be approved or disapproved; (c) Whether an Act incorporating
the provisions of the ordinance should be enacted (with or without amendments).
6. The failure to comply with the requirement of laying an ordinance before the
legislature is a serious constitutional infraction and abuse of the constitutional
process.
7. Re-promulgation of ordinances is a fraud on the Constitution and a sub-version of
democratic legislative processes., as laid down in the judgment of the Constitution
Bench in D C Wadhwa. since it represents an effort to overreach the legislative body.
In paragraph 44, Re-promulgation of ordinances is constitutionally impermissible
since it represents an effort to overreach the legislative body which is a primary
source of law-making authority in a parliamentary democracy. Re-promulgation
defeats the constitutional scheme under which a limited power to frame ordinances
has been conferred upon the President and the Governors. The danger of re-
promulgation lies in the threat which it poses to the sovereignty of Parliament and the
state legislatures which have been constituted as primary law givers under the
Constitution. Open legislative debate and discussion provides sunshine which
separates secrecy of ordinance making from transparent and accountable governance
through law making.
8. Article 213(2)(a) provides that an ordinance promulgated under that article shall
cease to operate six weeks after the reassembling of the legislature or even earlier,
if a resolution disapproving it is passed in the legislature.... he Constitution has used
different expressions such as repeal (Articles 252, 254, 357, 372 and 395); void
(Articles 13, 245, 255 and 276); cease to have effect (Articles 358 and 372); and
cease to operate (Articles 123, 213 and 352).... Each of these expressions has a
distinct connotation. The expression cease to operate in Articles 123 and 213 does
not mean that upon the expiry of a period of six weeks of the reassembling ... of the
legislature or upon a resolution of disapproval being passed, the ordinance is rendered
void ab initio. Both Articles 123 and 213 contain a distinct provision setting out the
circumstances in which an ordinance shall be void. ... An ordinance is void in a
situation where it makes a provision which Parliament would not be competent to
enact (Article 123(3)) or which makes a provision which would not be a valid if
enacted in an act of the legislature of the state assented to by the Governor (Article

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 213(3)). The framers having used the expressions cease to operate and void
separately in the same provision, they cannot convey the same meaning.
9. The theory of enduring rights which has been laid down in the judgment in Bhupendra
Kumar Bose and followed in T Venkata Reddy by the Constitution Bench is based on
the analogy of a temporary enactment.... There is a basic difference between an
ordinance and a temporary enactment. These decisions of the Constitution Bench
which have accepted the notion of enduring rights which will survive an ordinance
which has ceased to operate do not lay down the correct position. The judgments are
also no longer good law in view of the decision in S R Bommai.
10. No express provision has been made in Article 123 and Article 213 for saving of
rights, privileges, obligations and liabilities which have arisen under an ordinance
which has ceased to operate... Such provisions are however specifically contained in
other articles of the Constitution such as Articles 249(3), 250(2), 357(2), 358 and
359(1A)... This is, however, not conclusive and the issue is essentially one of
construction; of giving content to the force and effect clause while prescribing
legislative supremacy and the rule of law
11. The question as to whether rights, privileges, obligations and liabilities would survive
an Ordinance which has ceased to operate must be determined as a matter of
construction. The appropriate test to be applied is the test of public interest and
constitutional necessity. This would include the issue as to whether the consequences
which have taken place under the Ordinance have assumed an irreversible character.
In a suitable case, it would be open to the court to mould the relief.
12. The satisfaction of the President under Article 123 and of the Governor under Article
213 is not immune from judicial review particularly after the amendment brought
about by the forty-fourth amendment to the Constitution by the deletion of clause 4 in
both the articles. The test is whether the satisfaction is based on some relevant
material. The court in the exercise of its power of judicial review will not determine
the sufficiency or adequacy of the material. The court will scrutinise whether the
satisfaction in a particular case constitutes a fraud on power or was actuated by an
oblique motive. Judicial review in other words would enquire into whether there was
no satisfaction at all.

The seminal question that came up in reference before the seven-judge Constitution Bench
led by Chief Justice of India T.S. Thakur dealt with the constitutionality of seven successive
re-promulgations of The Bihar Non-Government Sanskrit Schools (Taking Over of
Management and Control) Ordinance of 1989. The State government had approached the
Supreme Court after the High Court of Patna declared that repeated re-promulgation of the
ordinances was unconstitutional after relying on the D.C. Wadhwa judgment on the dos and
donts of promulgation of ordinances by another Constitution Bench of the Supreme Court in
1986. Confirming the High Courts view, Justice Chandrachud, supported by Chief Justice
Thakur in a separate judgment, held that re-promulgation of ordinances is a fraud on the
Constitution and a subversion of democratic legislative processes. The ruling came on the
case wherein the appointment of teachers by the Bihar government by taking ordinance route

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and it was re-promulgated about four times. However, the successor government refused to
re-promulgate the ordinance and thus the appointment of teachers got rejected.
Mandatory obligation
The requirement of laying an ordinance before Parliament or the State Legislature is a
mandatory constitutional obligation cast upon the government, Justice Chandrachud held in
the common judgment.

Conclusion
In most of the cases Power of Ordinance making is a controversial topic and a topic of
discussion. It tries to disturb the balance between the executive as well as legislative powers
by bringing into the element of arbitrariness into the Constitutional System and disturbing the
rule of law. Whenever such an ordinance making power is exercised by an Executive body it
shows disregard to the legislature. Till now only a few grounds are established to challenge
the validity of the Ordinances: (a.) directly violates a constitutional provision, (b.) president
has exceeded his constitutional power, (c.) President had made a colorable use of his power.

Table 1: Key debates on the Presidents Ordinance making power

Year Legislative Key arguments

development

1970 RC In RC Cooper vs. Union of India (1970) the Supreme Court, while
Cooper vs. Union examining the constitutionality of the Banking Companies
of India (Acquisition of Undertakings) Ordinance, 1969 which sought to
nationalise 14 of Indias largest commercial banks, held that the
Presidents decision could be challenged on the grounds that
immediate action was not required; and the Ordinance had been
passed primarily to by-pass debate and discussion in the legislature.
1975 38thConstitutional Inserted a new clause (4) in Article 123 stating that the Presidents
Amendment Act satisfaction while promulgating an Ordinance was final and could not
be questioned in any court on any ground.
1978 44thConstitutional Deleted clause (4) inserted by the 38th CAA and therefore reopened
Amendment Act the possibility for the judicial review of the Presidents decision to
promulgate an Ordinance.
1980 AK In AK Roy vs. Union of India (1982) while examining the
Roy vs. Union of constitutionality of the National Security Ordinance, 1980, which
India sought to provide for preventive detention in certain cases, the Court
argued that the Presidents Ordinance making power is not beyond
the scope of judicial review. However, it did not explore the issue
further as there was insufficient evidence before it and the Ordinance
was replaced by an Act. It also pointed out the need to exercise
judicial review over the Presidents decision only when there were
substantial grounds to challenge the decision, and not at every
casual and passing challenge.
1985 T Venkata In T Venkata Reddy vs. State of Andhra Pradesh (1985), while
Reddy vs. State of deliberating on the promulgation of the Andhra Pradesh Abolition of
Andhra Pradesh Posts of Part-time Village Officers Ordinance, 1984 which abolished

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 certain village level posts, the Court reiterated that the Ordinance
making power of the President and the Governor was a legislative
power, comparable to the legislative power of the Parliament and
state legislatures respectively. This implies that the motives behind
the exercise of this power cannot be questioned, just as is the case
with legislation by the Parliament and state legislatures.
1987 DC It was argued in DC Wadhwa vs. State of Bihar (1987) the legislative
Wadhwa vs. State power of the executive to promulgate Ordinances is to be used in
of Bihar exceptional circumstances and not as a substitute for the law making
power of the legislature. Here, the court was examining a case where
a state government (under the authority of the Governor) continued
to re-promulgate ordinances, that is, it repeatedly issued new
Ordinances to replace the old ones, instead of laying them before the
state legislature. A total of 259 Ordinances were re-promulgated,
some of them for as long as 14 years. The Supreme Court argued
that if Ordinance making was made a usual practice, creating an
Ordinance raj the courts could strike down re-promulgated
Ordinances.

JUDICIAL REVIEW OF THE EXERCISE OF DISCRETIONARY POWERS OF THE

GOVERNMENT
Appointment of the Chief Minister:
Judicial approach regarding the appointment of Chief Minister was highlighted in Mahabir
Prasad vs Prafulla Chandra in which, it was laid down that the power of Governor is
absolute with regard to appointment of Chief Minister and court cannot call in question the
same, since it is his sole discretion.

In Pratap singh Raojirao vs Governor of Goa the court held that for the purpose of the
appointment of the Chief Minister, Governor acts in his sole discretion and while taking
decision in his sole discretion he enjoys immunity under Article 361 of the Constitution.

About the appointment of a non-legislator as the Chief Minister in B.R. Kapur vs State of
Tamil Nadu, court held that a non-legislator can be made Chief Minister only if, he has the
qualification for membership of the Legislature prescribed by Article 173 of the Constitution
and is not disqualified from the membership thereof by reason of the disqualification set out
in Article 191 of the Constitution on the date of his appointment. A person convicted of any
offence and sentenced to imprisonment for not less than two years cannot be appointed as a
Chief Minister because the Constitution is superior to mandate. The Court also held that the
suspension of the execution of the sentence does not alter or affect the fact that the offender
has been convicted of a grave offence and does not remove the disqualification against the
offender. The Supreme Court quashed the appointment of Ms Jayalalitha as the Chief
Minister of Tamil Nadu. The Supreme Court has now very clearly laid down that the
Governor's discretion in the appointment of a Chief Minister is not unfettered or absolute. If
Governor appointed a person as the Chief Minister, who was not qualified to be a member of

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the State Assembly, his appointment would be ultra-virus under Article 164 of the
Constitution. The Court also laid down that, The Governor cannot in the exercise of his
discretion or otherwise, do anything that is contrary to the Constitution.

DISSOLUTION OF STATE ASSEMBLY

In S.R. Bommai vs UOI, the Supreme Court held that dissolution of the Assembly is subject
to judicial review and if the court is convinced that it is malafide, it can even revive the
Assembly, before fresh elections are held. The Supreme Court also held that the dissolution
of the Legislative Assembly is not a matter of course and that it should be resorted to only
where it is found necessary for achieving the purposes of proclamation, which is to carry on
the government of the State in accordance with the provisions of the Constitution.

RAMESHWAR PRASAD V UOI,

When the Bihar Legislative Assembly was dissolved on the basis of the Governors report,
NDA challenged the dissolution of the Bihar Assembly in the Apex Court and pleaded that it
was the responsibility of UPA Government to prove in the court that Governor Buta Singhs
report, on the basis of which the Bihar Assembly was dissolved, was neither politically
motivated, nor hasty. But the Bommai judgement specifically says that there are no judicially
discoverable and manageable standards to decide the allegation of horse-trading. The
Cabinet earlier held an emergency meeting late into the night after receipt of the Governors
report recommending dissolution of the State Assembly. The Assembly had been in
suspended animation since the imposition of Presidents Rule in the State in March after the
elections in February, 2005, which threw up a hung verdict, where no party or alliance of
parties was in a position to form the government.
On January 24, 2006 a five-judge constitutional bench, by a majority of 3-2, held that
the dissolution of the Bihar Assembly was without any evidence to show that "a majority was
being cobbled up by offering allurement and through unethical means". The majority
judgment held that there was no material, let alone relevant, with the Governor to
recommend dissolution and the drastic and extreme action of dissolution cannot be justified
on mere ipse dixit, suspicion, whims and fancies of the Governor. The five-judge bench,
while declaring the dissolution of the State Assembly as unconstitutional had however
allowed the Election Commission to hold fresh elections to constitute a new Assembly in the
facts and circumstances of the case. It did not direct status-quo ante and revival of the
Assembly because in its view the election process had been set in motion and was at an
advanced stage and judicial notice could be taken of the fact that considerable amount must
have been spent; enormous preparations made and ground works done in the process of
election.
Therefore, the court molded the relief and permitted completion of the ongoing
election process with the fond hope that the electorate may again not give a fractured verdict
and may give a clear majority to one or other political party.
The majority bench, which included Justice B. N. Aggarwal and Justice Ashok Bhan said, in
this case clearly the Governor has misled the Council of Ministers at the Centre, which is
destructive of the democratic system. When the facts of the present case are considered, the

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bench said that the challenge to the presidential proclamation made by Mr. Rameshwar
Prasad and others must succeed. The majority verdict also held that the action of the
Governor was drastic and extreme and the court could not be a silent spectator to such
subversion of the Constitution.

DISSOLUTION OF THE MINISTRY

In S.R. Bommai vs UOI, it was observed that in the circumstances of any doubt that whether
a ministry enjoys the majority, the best way of testing is the floor of the House and the
majority of the ministry is not the matter of personal opinion of the Governor.

PARDONING POWER

In Maru Ram vs UOI,1980 the Supreme Court held that all public power including
constitutional power under Articles 72 and 161 could never be exercised arbitrarily or
malafide and ordinarily guidelines for fair and equal execution are guarantors of the valid
play of power. It is also held that considerations of religion, caste, colour or political loyalty
are totally irrelevant and fraught with discrimination. The constitutional bench also
recommended the framing of guidelines for the exercise of power of pardon.
In Kehar Singh vs UOI, 1989 the constitutional bench was of the view that the
language of Article 72, itself provides sufficient guidelines for the exercise of power and
having regard to its wide amplitude and the status of the function to be discharged there
under. It was perhaps unnecessary to spell out specific guidelines since such guidelines may
not be able to conceive of all myriads kinds and categories of cases which may come up for
the exercise of such power.
In Satpal vs State of Haryana,2000 the Supreme Court held that pardoning power
being constitutional power conferred upon the Governor by the Constitution is amenable to
judicial review on certain limited grounds which are:
i) If the Governor is found to have exercised the power himself without being advised by the
government.
ii) If the Governor transgresses the jurisdiction in exercising the same.
iii) It is established that the Governor has passed the order without application of mind.
iv) The Governor has passed the order on some extraneous consideration.
In this case, Governor exercised his power to grant pardon without applying his mind. He
was not properly advised with all the relevant facts and accordingly Supreme Court quashed
the clemency order.
In Dhananjoy Chaterjee vs State of West Bengal,2004 the Supreme Court held
that an order passed by the Governor under Article 161 is subject to judicial review and he
shall not be deprived of an opportunity to exercise his powers in a fair and just manner
because court felt that all material facts including the mitigating factors were not placed
before the Governor. The Court directed the respondent authorities to put up the mercy
petition again to the Governor and bring all relevant facts to the notice of the Governor.
In Epuru Sudhakar vs Government of A.P.,2006 the Supreme Court set aside a
remission granted by the Governor of Andhra Pradesh on the ground that irrelevant and
extraneous materials had entered into the decision making. A bench consisting of Justices

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Arijit Pasayat and S.H. Kapadia made it clear that the powers of reprieve, pardon or
remission of sentence cannot be exercised on irrelevant materials. The exercise of the powers
must be for bona fide and valid reasons. The court held that judicial review of the order of the
President or the Governor granting or refusing pardon under Article 72 or Article 161 is
available and their order can be impugned on the following grounds:
i) That the order has been passed without application of mind.
ii) That the order is malafide.
iii) That the order has been passed on extraneous or wholly irrelevant
consideration.
iv) That the order suffers from arbitrariness.
The court held that if it comes to the knowledge of the government that the pardon has been
obtained on the basis of manifest mistake or patent misrepresentation or fraud, the same can
be rescinded.

In Bani Kanta Das and another vs State of Assam and others, 2009 court held that the
reason for the commutation of a sentence must be given by the Governor. In this case court
set aside the impugned order of commutation of death sentence to life imprisonment and
directed the reconsideration of the application filed by accused for commutation of sentence.
In the impugned order no reason was indicated as to why the Governor decided to commute
the death sentence to that of life imprisonment, when the accused was guilty of heinous
abominable crime. Accused had murdered brutally four persons of a family.

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 RESIDUARY POWERS OF PARLIAMENT IN INDIA
Parliament and the State legislatures have exclusive powers to legislate on items in the Union
List and the State List respectively. Both can legislate on items in the Concurrent List.
However, foreseeing the possibility of a situation in which legislation might be required on
matters that are not mentioned in any of the three Lists, the Founding Fathers made residuary
provisions in Article 248 of the Constitution and Entry 97 of the Union List. The residuary
powers of legislation are vested in Parliament.

ARTICLE 248. Residuary powers of legislation

(1) Parliament has exclusive power to make any law with respect to any matter not
enumerated in the Concurrent List or State List

(2) Such power shall include the power of making any law imposing a tax not mentioned in
either of those Lists

Article 248 vests the residuary powers in the parliament. It says that parliament has exclusive
power to make any law with respect to any matter not enumerated in the Concurrent List or
the State List. Entry 97 in the Union List also lay down that Parliament has exclusive power
to make laws with respect to any matter not mentioned in the State List or the Concurrent List
including any tax not mentioned in either of these Lists. Thus the Indian Constitution makes a
departure from the practice prevalent in U.S.A., Switzerland and Australia where residuary
powers are vested in the states. This reflects the leanings of the Constitution-makes towards a
strong Centre.

Residuary powers have been vested in the Centre so as to make the Centre strong. As was
stated in the Constituent Assembly by Jawaharlal Nehru, Chairman of the Union Powers
Committee:

We think that residuary powers should remain with the Centre. In view however of the
exhaustive nature of the three lists draw up by us, the residuary subjects could only relate to
matters which, while they may claim recognition in the future, are not at present identifiable
and cannot therefore be included now in the lists.

GENESIS OF RESIDUARY POWER

The genesis of these provisions may be traced back to the British North America Act,
186715, which gave the residuary powers to the Dominion Parliament. Section 91 of that Act
provides that it shall be lawful for the Parliament of Canada to make laws in relation to all
Matters not coming within the Classes of Subjects of this Act assigned exclusively to the
Legislatures of the Provinces. Section 104 of the Government of India Act, 1935, departing
from the Canadian pattern, vested the residuary powers in the Governor-General who could,
in his discretion, by public notification empower either the Federal Legislature or a Provincial
Legislature to enact a law with respect to any matter not enumerated in any of the Lists in the
Seventh Schedule to that Act, including a law imposing a tax not mentioned in any such
Lists.

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The scope of residuary powers is very wide. For example, under entry 3 in List III,
Parliament can legislate with respect to preventive detention in grounds mentioned therein.
Further, Parliament can legislate with respect to preventive detention under entry 9, List I, on
ground mentioned therein. But these two entries do not exhaust the entire field of preventive
detention. Parliament can legislate under its residuary power with respect to preventive
detention on any ground not mentioned in these two entries. Thus, Parliament has enacted the
Conservation of Foreign Exchange and Prevention of Smuggling Act, 1974 [COFEPOSA]
providing for preventive detention in connection with smuggling and foreign exchange
racketeering. This Act can find support from entry 36, List I (foreign exchange) and
Parliaments residuary power.

Prior to Dhillon case, the judicial view was that recourse to entry 97, Lit I, ought to be had
only when the impugned legislation did not fall in any of the three Lists. The argument was
that if the impugned legislation fell under any entry in List II, residuary power could not be
invoked. Further, if the impugned legislation fell under an entry in List I or List III, there
recourse to the residuary would be unnecessary

It was said that entry 97, List I, was not the first step in the discussion of such problems, but
the last resort1. But Dhillon seems to have changed this position. The Supreme Court has
ruled in this case by majority that once it is found that the subject-matter of the impugned
legislation does not fall under any entry in List II or III then Parliament can take recourse to
the residuary power, or it can be combined with any entry in List I.

Prior to the decision (October 21, 1971 in Union of India Vs. H.S. Dhillon18, the Supreme
Court consistently held that before recourse can be had to the residuary Entry 97 of List I it
must be found as a fact that there is no Entry in any of the three Lists under which the
impugned legislation can come. For, if the impugned legislation is found to come under any
Entry in List II, the residuary Entry will not apply. Similarly, if the impugned legislation falls
within any Entry in one or the other of the two remaining Lists, recourse to the residuary
Entry will hardly be necessary. The Entry is not a first step in the discussion of such problems
but the last resort. (Per Hidayatullah J. in Hari Krishna Bhargava Vs. Union of India.19).

The decision in Dhillon's case (rendered by a majority of 4 judges against 3) appears

to deviate from this principle, particularly, with regard to the residuary power of Parliament
in matters of taxation. According to the ratio of Dhillon's case, once it is established that the
taxing power claimed is not covered by any Entry in List II or List III, it is competent for
Parliament to resort to its residuary power under Entry 97, List I or to combine it with its
power under Entry 86, or any other Entry in List I.

In Amratlal Prajivandas, following Dhillon , the Supreme Court has observed that the test to
determine the legislative competence of Parliament is this: whenever the competence of
Parliament to enact a specific statue is questioned one must look to the entries in List II. If the
said statue is not relatable to any of entries in List II, no further inquiry is necessary as
Parliament will be competent to enact the said statue either by virtue of the entries in List I

1
Hari Krishna Bhargava v. UOI, AIR 1966 SC 619.

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and List III, or by virtue of the residuary power contained in Article 248 read with entry 97,
List I.

1. Gift Tax

The competence of the Parliament to enact the Gift Tax Act, 1958 (18 of 1958) for levying a
tax on gifts of agricultural land was sustained by the Kerala 2and Madras3 High Courts, on the
basis of the residuary powers. Both these High Courts held that the power to impose a tax on
gift of agricultural land could not be held to be incidental to the power to legislate with
respect to land under entry 18 of List II. Nor could that power be comprehended within entry
47 of List II relating to duties in respect of succession to agricultural land. In Shyam
Sunder v. Gift Tax Officer, on a similar reasoning, the Allahabad High Court held that a tax
on land and buildings was distinctly different from a tax on gift of land, and that legislation in
respect of a tax on gift of land and buildings would not fall under entry 49 of List II, namely,
tax on land and buildings. The Gift Tax Act was validly passed by Parliament under article
248 read with entry 97 of List I.

These decisions of the High Courts were approved by the Supreme Court in Second Gift Tax
Officer, Mangalore v. D. H. Nazaret,. The Supreme Court had held that the Gift Tax Act was
enacted by Parliament and no Entry in the Union List and State List mentions such a tax.
Therefore, Parliament purported to use its powers derived from Entry 97 of the Union List
read with Article 248 of the Constitution. There being no other entry which covers the gift
tax, the residuary powers of Parliament were exercised to enact the law.

2. Wealth Tax

There was a conflict of decisions in various High Courts regarding the validity of the Wealth
Tax Act, 1957. In UOI v. H. S. Dhillon, a Bench of seven Judges of the Supreme Court
decided questions of far-reaching importance as to the taxing powers of Parliament and the
State Legislatures. The question for determination was, whether Section 24 of the Finance
Act, 1969 which amended the provisions of the Wealth Tax Act, 1957, so as to include the
capital value of agricultural land for computing the net wealth, was within the legislative
competence of Parliament. By a majority of 4 to 3 it was held that Parliament was competent
to enact Section 24.

The legislative power conferred by Article 248, read with entry 97 of List I has been relied
upon by the Courts to uphold the validity of following laws made by the Parliament:

1. A tax on building contracts, even though no sale involved therein,

2. A tax on loan,
3. Consumer Protection Act, 1986,
4. Emblems and Names (Prevention of Improper Use) Act, 1950,

2
M. T. Joseph v. Gift Tax Officer, AIR 1962 Ker 97.
3
Dandapani v. Additional Gift Tax Officer, AIR 1963 Mad 419.

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 5. Armed Forces (Special Powers) Act, 1958, etc.( Naga People Movement of Human
Rights v. UOI, AIR 1998 SC 431.)

Sarkaria Commission on Residuary Powers

In past, several states have demanded that the residuary powers, including those of taxation,
should be vested in the States. In defence of its decision to transfer the residuary powers to
the Concurrent List rather than to the States List, the Centre pointed to the strong unitary bias
of the countrys federal structure.

The Sarkaria Commission on Centre-State Relations, which submitted its report in 1988, had
also rejected the suggestion that the residuary powers should be vested in the States, even
though it endorsed the Supreme Courts interpretation that these powers cannot be so
expansively interpreted as to whittle down the power of the State legislatures. The
Commission, however, backed the suggestion to transfer Entry 97 from the Union List to the
Concurrent List.

The Sarkaria Commission recommended that the residuary power of legislation in regard to
taxation remain with Parliament because, it said, the Constitution-makers did not include any
entry relating to taxation in the Concurrent List so as to avoid Union-State frictions, double
taxation and frustrating litigation. The Commission said that the power to tax might be used
not only to raise resources but also to regulate economic activity, and warned that there might
be situations in which a State, in the garb of introducing a new subject of taxation, may
legislate in a manner prejudicial to national interest. But it justified the transfer of other
residuary powers to the Concurrent List because, it felt, the exercise of such power by the
States would be subject to the rules of Union supremacy that have been built into the scheme
of the Constitution, particularly Articles 246 and 254.

EMERGENCY PROVISIONS
Provisions have been made in the Constitution for dealing with extraordinary situations that
may threaten the peace, security, stability and governance of the country or a part thereof.
There are three types of extraordinary or crisis situations that are envisaged. First, when there
is a war or external aggression has been committed or there is threat of the same, or if internal
disturbances amounting to armed rebellion take place; second, when it becomes impossible
for the government of a State to be carried on in accordance with the Constitution; and third,
if the credit or financial stability of the country is threatened. In each case the President may
issue a proclamation with varying consequences.

Proclamation of National Emergency (Article 352)

The Constitution of India has provided for imposition of emergency caused by war, external
aggression or internal rebellion. This is described as the National Emergency. This type of
emergency can be declared by the President of India if he is satisfied that the situation is very
grave and the security of India or any part thereof is threatened or is likely to be threatened
either (i) by war or external aggression or (ii) by armed rebellion within the country. The

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President can issue such a proclamation even on the ground of threat of war or aggression.
According to the 44th Amendment of the Constitution, the President can declare such an
emergency only if the Cabinet recommends in writing to do so.

Such a proclamation of emergency has to be approved by both the Houses of Parliament by

absolute majority of the total membership of the Houses as well as 2/3 majority of members
present and voting within one month, otherwise the proclamation ceases to operate. In case
the Lok Sabha stands dissolved at the time of proclamation of emergency or is not in session,
it has to be approved by the Rajya Sabha within one month and later on by the Lok Sabha
also within one month of the start of its next session. Once approved by the Parliament, the
emergency remains in force for a period of six months from the date of proclamation. In case
it is to be extended beyond six months, another prior resolution has to be passed by the
Parliament. In this way, such emergency continues indefinitely. But if the situation improves
the emergency can be revoked by another proclamation by the President of India.

The 44th Amendment of the Constitution provides that ten per cent or more members of the
Lok Sabha can requisition a meeting of the Lok Sabha and in that meeting, it can disapprove
or revoke the emergency by a simple majority. In such a case emergency will immediately
become inoperative. National Emergency has been declared in our country three times so far.
For the first time, emergency was declared on 26 October 1962 after China attacked our
borders in the North East. This National Emergency lasted till 10 January 1968, long after the
hostilities ceased.

Effects of National Emergency

The declaration of National Emergency has far-reaching effects both on the rights of
individuals and the autonomy of the states in the following manner :

(i) The most significant effect is that the federal form of the Constitution changes into
unitary. The authority of the Centre increases and the Parliament assumes the power to make
laws for the entire country or any part thereof, even in respect of subjects mentioned in the
State List.

(ii) The President of India can issue directions to the states as to the manner in which the
executive power of the states is to be exercised.

(iii) During this period, the Lok Sabha can extend its tenure by a period of one year at a time.
But the same cannot be extended beyond six months after the proclamation ceases to operate.
The tenure of State Assemblies can also be extended in the same manner.

(iv) During emergency, the President is empowered to modify the provisions regarding
distribution of revenues between the Union and the States.

(v) The Fundamental Rights under Article 19 about which you have already learnt are
automatically suspended and this suspension continues till the end of the emergency. But
according to the 44thAmendment, Freedoms listed in Article 19 can be suspended only in
case of proclamation on the ground of war or external aggression.

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From the above discussion, it becomes quite clear that emergency not only suspends the
autonomy of the States but also converts the federal structure of India into a unitary one.

ARTICLE 356 - EMERGENCY DUE TO FAILURE OF CONSTITUTIONAL

MACHINERY IN A STATE

It is the duty of the Union Government to ensure that governance of a State is carried on in
accordance with the provisions of the Constitution. Under Article 356, the President may
issue a proclamation to impose emergency in a state if he is satisfied on receipt of a report
from the Governor of the State, or otherwise, that a situation has arisen under which the
Government of the State cannot be carried on smoothly. In such a situation, proclamation of
emergency by the President is called proclamation on account of the failure (or breakdown)
of constitutional machinery. In popular language it is called the Presidents Rule.

Like National Emergency, such a proclamation must also be placed before both the Houses of
Parliament for approval. In this case approval must be given within two months, otherwise
the proclamation ceases to operate. If approved by the Parliament, the proclamation remains
valid for six months at a time. It can be extended for another six months but not beyond one
year. However, emergency in a State can be extended beyond one year if

(a) a National Emergency is already in operation; or if

(b) the Election Commission certifies that the election to the State Assembly cannot be held.

This type of emergency has been imposed in most of the States at one time or the other for a
number of times. It was in 1951 that this type of emergency was imposed for the first time in
the Punjab State. In 1957, the Kerala State was put under the Presidents Rule. There have
been many cases of misuse of constitutional breakdown. For example, in 1977 when Janata
Party came into power at the Centre, the Congress Party was almost wiped out in North
Indian States. On this excuse, Desai Government at the Centre dismissed nine State
governments where Congress was still in power. This action of Morarji Desais Janata
Government was strongly criticised by the Congress and others. But, when in 1980 (after
Janata Government had lost power) Congress came back to power at the Centre under
Mrs.Gandhis leadership and dismissed all the then Janata Party State Governments. In both
cases there was no failure of Constitutional machinery, but actions were taken only on
political grounds.

In 1986, emergency was imposed in Jammu and Kashmir due to terrorism and insurgency. In
all, there are more than hundred times that emergency has been imposed in various States for
one reason or the other. However, after 1995 the use of this provision has rarely been made.

Effects of Imposition of Presidents Rule in a State

The declaration of emergency due to the breakdown of Constitutional machinery in a State

has the following effects:

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(i) The President can assume to himself all or any of the functions of the State Government or
he may vest all or any of those functions with the Governor or any other executive authority.

(ii) The President may dissolve the State Legislative Assembly or put it under suspension. He
may authorise the Parliament to make laws on behalf of the State Legislature.

(iii) The President can make any other incidental or consequential provision necessary to give
effect to the object of proclamation.

The way Presidents Rule was imposed on various occasions has raised many questions. At
times the situation really demanded it. But at other times, Presidents Rule was imposed
purely on political grounds to topple the ministry formed by a party different from the one at
the Centre, even if that particular party enjoyed majority in the Legislative Assembly.
Suspending or dissolving assemblies and not giving a chance to the other political parties to
form governments in states has been due to partisan consideration of the Union Government,
for which Article 356 has been clearly misused. In view of the above facts, Article 356 has
become very controversial. In spite of the safeguards provided by the 44th Amendment Act,
this provision has been alleged to be misused by the Union Government. That is why, there is
a demand either for its deletion or making provision in the Constitution to restrict the misuse
of this Article. The Sarkaria Commission which was appointed to review the CentreState
relations also recommended that Article 356 should be used only as a last resort. The
Commission also suggested that the State Legislative Assembly should not be dissolved
unless the proclamation is approved by the Parliament. It further suggested that all
possibilities of forming an alternative government should be fully explored before the Centre
imposes emergency in a State on grounds of breakdown of Constitutional machinery. The
Supreme Court held in the Bommai case that the Assembly may not be dissolved till the
Proclamation is approved by the Parliament. On a few occasions such as when Gujral
Government recommended use of Article 356 in Uttar Pradesh, the President returned the
recommendation for reconsideration The Union Government took the hint and dropped the
proposal.

FINANCIAL EMERGENCY

The third type of Emergency is Financial Emergency provided under Article 360. It provides
that if the President is satisfied that the financial stability or credit of India or any of its part is
in danger, he may declare a state of Financial Emergency. Like the other two types of
emergencies, it has also to be approved by the Parliament. It must be approved by both
Houses of Parliament within two months. Financial Emergency can operate as long as the
situation demands and may be revoked by a subsequent proclamation.

Effects of Financial Emergency

The proclamation of Financial Emergency may have the following consequences:

(a) The Union Government may give direction to any of the States regarding financial
matters.

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(b) The President may ask the States to reduce the salaries and allowances of all or any class
of persons in government service.

(c) The President may ask the States to reserve all the money bills for the consideration of the
Parliament after they have been passed by the State Legislature.

(d) The President may also give directions for the reduction of salaries and allowances of the
Central Government employees including the Judges of the Supreme Court and the High
Courts.

So far, fortunately, financial emergency has never been proclaimed.

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 JURISDICTION OF SUPREME COURT
The jurisdiction of the supreme court of India can broadly be categorized as -

APPELLATE JURISDICTION

(i) Appeals permitted under the Constitution

Article 132 of the Constitution of India, 1950 provides for an appeal to the Supreme Court
from any judgment, decree or final order of a High Court, whether in civil, criminal or other
proceedings, if the High Court certifies that the case involves a substantial question of law as
to the interpretation of the Constitution.

Article 133 of the Constitution of India, 1950 provides for an appeal to the Supreme Court
from any judgment, decree or final order in a civil proceeding of a High Court if the High
Court certifies that the case involves a substantial question of law of general importance and
in its opinion the said question needs to be decided by the Supreme Court.

Article 134 of the Constitution of India, 1950 provides for an appeal to the Supreme Court
from any judgment, final order or sentence in a criminal proceeding of a High Court if

(a) it has on appeal reversed an order of acquittal of an accused person and sentenced him to
death or
(b) has withdrawn for trial before itself, any case from any Court subordinate to it and has in
such trial convicted the accused and sentenced him to death or
(c) it certifies that the case is a fit one for appeal to the Supreme Court.

(ii) Appeal by Special Leave: Article 136 of the Constitution of India, 1950 provides that
the Supreme Court may in its discretion grant special leave to appeal from any judgment,
decree, determination, sentence or order in any case or matter passed or made by any Court or
tribunal in the territory of India except the Court or tribunal constituted by or under any law
relating to armed forces.

STATUTORY APPEALS
Section 19(1)(b) of the Contempt of Courts Act, 1971 provides for an appeal to the
Supreme Court, as of right, from any order or decision of Division Bench of a High Court in
exercise of its jurisdiction to punish for contempt.

Section 379 of the Code of Criminal Procedure, 1973 read with Section 2 of the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, as amended by the
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Amendment Act, 1972,
provides for an appeal to the Supreme Court from any judgment, final order or sentence in a
criminal proceedings of a High Court, if the High Court (a) has on appeal reversed an order
of acquittal of an accused person and sentenced him to death or to imprisonment for life or to
imprisonment for a period of not less than ten years; (b) has withdrawn for trial before itself
any case from any Court subordinate to its authority and has in such trial convicted the

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accused person and sentenced him to imprisonment for life or to imprisonment for a period of
not less than ten years.

Section 23 of the Consumer Protection Act, 1986 provides for an appeal to the Supreme
Court from an order made by the National Commission, entertaining complaints where the
value of the goods or services and compensation, if any, claimed exceeds Rupees One Crore.
Section 38 of the Advocates Act, 1961 provides for an appeal to the Supreme Court from an
order made by the Disciplinary Committee of the Bar Council of India under Section 36 or 37
of the said Act.
Section 116A of the Representation of People Act, 1951 provides for an appeal to the
Supreme Court on any question, whether of law or fact, from every order passed by a High
Court under Section 98 or Section 99 of the said Act.

The supreme court is primarily a court of appeal and enjoys extensive appellate jurisdiction
.It may be discussed under the following heads :
1. Constitutional matters.
2. Civil matters.
3. Criminal matters
4. Appeal by special leave.

1. CONSTITUTIONAL MATTERS:

Under Article -132(1), an appeal lies to the supreme Court from any judgment, decree or final
order. Whether in a civil, criminal, or other proceeding of a high Court if it certifies that the
case involves a substantial question of law as to the interpretation of the constitution.

According to Article 132(3), where such a certificate is given , any party in the case may
appeal to the supreme court on the ground that any such question has wrongly decided.

Under Article 134(A) the High court can grant a certificate for appeal to the supreme court
under Article 132 either on its own motion or on oral application of the aggrieved party
immediately after passing the judgment, judgment, decree or final order. Prior to this High
court could do only on the application of the aggrieved party. Under Article (1) three
conditions are necessary for grant of certificate by the High court.

1. The order appealed must be against a judgment, decree or final order made by the High
court in civil, criminal or other proceedings.

2. The case must involve a question of law as to the interpretation of the this constitution and

3. If the High court under Article -134(A) certifies that the case be heard by the supreme
court .

The words other proceedings include all proceedings other than civil and criminal they
include revenue proceedings which includes proceedings under the sales-tax act or the
Income tax Act, Etc.

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Secondly, the case must involve a substantial question of law which has been decided by the
Supreme Court in a previous case. But if there is a difference of opinion on any question of
law among High court, and there is no direct decision of the Supreme Court on that point it
would be a substantial question of law.

A very broad power is thus conferred on the supreme court to hear appeals in constitutional
matters. When the appeal is not competent under Article-132, the Supreme Court will not
hear it even if the High court has granted the necessary certificate.

The appellate who comes before the Supreme Court under this Article is not entitled to
challenge the propriety of the decision appealed against on a ground other than that on which
the High court granted the certificate or the Supreme Court gave the leave , except with the
permission of the Supreme Court. This means that the appellant should ordinarily confine
himself to the constitutional law point involved.

In ELECTION COMMISSION V/S VENKATA RAO , A question was raised as to

whether an appeal would lie to Supreme Court from a decision of single judge. The Supreme
Court answered the question in affirmation. but this can only be done in very exceptional
cases , where direct appeal to the Supreme Court is necessary and in view of the great
importance of the case an early decision is required in public interest.

2. CIVIL MATTERS

Under article 133 (1) , an appeal lies to the Supreme Court from any judgment ,decree or
final order in a civil proceeding of a High court if it certifies-

a. That the case involves a substantial question of law of general importance and

b. That in the opinion of a High court the said question needs to be decided by the Supreme
Court.

An important question of law can arise in any case what ever the value of the subject matter
involved.

Now , an appeal may go to the Supreme Court in any case involving an important question of
law even though the value of the sub- matter involved may not br large. No appeal in a civil
matter to the Supreme Court as a matter of right. An appeal can lie only on a certificate of the
High court which is issued when the above 2 condition are satisfied.

The proper test to determine whether a question of law is substantial is whether it is of

general public importance or whether it directly and substantially affects the rights of the
parties.

A question of law which is fairly arguable, or when there is room for difference of opinion on
it, or when the court thinks it necessary to deal with that question at some length and discuss
alternative views would be a substantial question of law. The Supreme Court has emphasized
that for grant of the certificate the question , howsoever important and substantial should also
be of such pervasive import and deep significance that in the High court judgment it

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imperatively needs to be settled at the national level by the High court , otherwise the court
will be flooded with cases of lesser magnitude.

When the High court has given such a certificate the appeal before the Supreme Court is not
limited only to the specific question of law but the entire appeal will be before the court.

In appeal to the Supreme Court Under Article 133 , question of constitutional law may also
be raised. No appeal lies to the Supreme Court under Article 133 from the decision of a single
judge of the High court, but parliament has power to provide otherwise.

Civil proceedings-

The expression civil proceeding means proceedings in which a party asserts the existence of a
civil right.

A civil proceeding is one in which a person seeks to remedy by an appropriate process the
alleged infringement of his civil right against another person or the state and which , if the
claim is proved , would result in the declaration , express or implied of the right claimed and
relief , such as payment of debt, damages , compensation, etc.

Under Article 133 the Supreme Court does not interfere with concurrent findings of fact by
the trial court and the High court unless it is shown that important and relevant evidence has
been overlooked or unless it is fully unsupported by evidence on record. It is left to the
judicial discretion of the court as to when it will interfere in the concurrent findings of fact of
trial court and High court. In appeal under Article 133 the appellant cannot be allowed to
raise new grounds not raised before the lower court.

3. APPLEAL IN CRIMINAL CASES ARTICLE 134.

According to article 134 an appeal lies to the supreme court from any judgment, final order or
sentence in a criminal proceeding of a high court in the following 2 ways.

a. Without a certificate of high court.

b. With a certificate of the high court.
A. Without a certificate art-134 (a) (b) :
An appeal lies to the supreme court without the certificate of the High court if the High court

a. Has on appeal reversed an order of acquittal of an accused person and sentenced him to
death.

b. Has withdrawn for trial before itself any case from any court subordinate to its authority
and has in such trial convicted the accused person and sentenced him to death.

But if the High court has reversed the order of conviction and has ordered the acquittal of an
accused, no appeal would lie to the supreme court.

B. With a certificate Article 134 (c)

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Under clause ( c) an appeal lies to the supreme court if the High court certifies under Article
134-A that it is a fit case for appeal to the supreme court. The power of the High court to
grant fitness certificate in the criminal cases is a discretionary power but the discretion is a
judicial one and must be judicially exercised along with the well-established lines which
govern these matters.

The Supreme Court has laid down entire guiding principles for the high court to follow in
granting certificate.

The high court should grant certificate only where there has been exceptional circumstances.
Eg. Where substantial and grave injustice has been done. Thus a certificate cannot be granted
by the high court on mere question of fact.

In State of U. P V/s Raj Nath

The High court acquitted the accused in appeal solely on the ground that it regarded the
testimony of eye-witness to be baseless. It was held that the order of acquittal had resulted in
the manifest miscarriage of justice because the High court did not make an attempt to
evaluate the evidence of eye-witness properly.

Accordingly , the order of the High court was set-aside and it was directed to dispose of
appeal a fresh after evaluating the evidence.

Parliament is empowered under Article 134(2) to extend the appellate jurisdiction of the
supreme court in criminal matters.

Certificate for Appeal to Supreme court - 134(A)

The constitution 44th amendment has amended Art-132.133 and 135 And inserted a new
Article- Article134-A for regulating the grant of the certificate for appeal to the supreme
court by the high court. The object of this new provision is to avoid delay in cases going to
the supreme Court in appeal from the judgment , decree, final order or sentence of the High
court . Art-134-A is as follows-

Every High court passing or making a judgment , decree, final order of sentence , referred to
in clause (i) of Article 132 or 134.

a. May , if it deems fit so to do so ,own motion and

b. Shall if an oral application is made , by or on behalf of the party aggrieved,
immediately after the passing or making of such judgment, Decree, final order or
sentence,
Determine as soon as may be after such passing or making, the question whether certificate of
the nature referred to in clause(i) of Article 132, 133 or sub clause ( c) of clause (i) of Article
134 , may be given in respect of that case. Thus under the new Article 134 A it is obligatory
on the High court to consider the question of granting certificate immediately on the delivery
of the judgment , decree, final order, or sentence concerned either on oral application by the
party aggrieved, or ,if it deems fit to do so , on its own motion.

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Power of the supreme court to withdraw and transfer cases article 139- A

Article 139 A (i) provides that if an on 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 court or before two or more High court and that such question are substantially question
of general importance it may withdrawn them and dispose them itself.

IN A R. Antulay V/s R.s Nayak

It has been held that the supreme court has no power under Article -139 A to withdraw a case
from a special judge and transfer it to High Court.

In Swaranjitkaur V/s Swaransinghsohi

The wife of the petitioner sought the transfer of a divorce petition from Delhi District judge
to District judge Indore. The petitioner is dependent on her parents. She has two children .it is
difficult to defend the case by travelling to Delhi. The court allowed her transfer petitioner
from District judge, Delhi to District judge at Indore.

In L.T Venkat v/s Union of India

The two writ petitions were filed before the supreme Court for transfer of three writ petition
filed in the High Court of Madras by the convicts found guilty in Rajiv Gandhi assassination
case after rejection of their merly petition by the president of India.

It was averred that the long delay in the decision of mercy petition by the president would
entitled the convict to seek commutation of death sentence. An identical question was
pending before the Madras High Court to itself as the matter involved was a substantial
question of general importance and the decision was likely to affect a large number of
persons convicted by the competent courts.

4. APPEAL BY SPECIAL LEAVE-ARTICLE 136

Under 136 the Supreme Court is authorised to grant in its discretion special leave to appeal
from

a. Any judgement , decree determination sentence or order

b. In any case or matter
c. Passed or made by any court or tribunal in the territory of India.

The only exception to this power of the Supreme Court is with regard to any judgment etc. of
any court or tribunal constituted by or under any law relating to the Armed forces.

This Article vests wide power in the Supreme Court, the power given under this
Article is in the nature of a special residuary power which are exercisable outside the purview
of ordinary law.

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Article 132 to 135 deal with ordinary appeals to the Supreme Court in cases in cases where
the needs of justice demand interference by the highest Court off the land.

POWER TO GRANT SPECIAL LEAVE TO APPEAL TO BE EXERCISED IN

EXCEPTIONAL CASES

From the above , it is clear that Supreme Court is vested with very wide discretionary power.

IN D. c. mills v/s commissioner of income tax,

The court held that it being an exceptional and overriding power it has to be exercised
sparingly and with caution and only in special extra ordinary situations. Beyond that it is not
possible to fetter the exercise of this power by any set formula or rule.

CONCURRENT FINDINGS OF THE TRIAL COURT AND THE HIGH COURT.

Normally the Supreme Court does not interfere with concurrent findings of the trial court and
the high court unless there is sufficient ground to do so. But that cannot mean that injustice
must be perpetuated because it has been done two or three in a case.

IN CRIMINAL CASES

The power of the Supreme Court under Article 136 has more frequently been invoked in
criminal appeals. In criminal cases the court will not grant special leave to appeal unless it is
shown that special and exceptional circumstances exist, or it is established that grave injustice
Has been done and that the case in question is sufficiently important to warrant a review of

the decision by the Supreme Court.

In Haripada Dey V/S State Of West Bengal

The Supreme Court held that it will grant special leave only if there has been gross
miscarriage of justice or departure from legal procedure such as which vitiates the whole trial
or if the finding of fact were such as shocking to the judicial conscience of the court.

Delhi Judicial Service Assn V/S State Of Gujarat

The Supreme Court has held that under article 136 the Supreme Court has wide power to
interfere and correct the judgement and orders passed by any court or tribunal in the country.

The Supreme Court has supervisory jurisdiction over all court of India.

CONCURRENT FINDING OF FACT

An appeal under article, the supreme court does not interfere with the concurrent findings of
fact unless it is established -

1. That the finding is based on no evidence .

2. That the finding is perverse , it being such as no reasonable person could arrive at even if
the evidence was taken at its face value.

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3. The findings is based and built on inadmissible evidence which evidence , executed from
vision would negate the prosecution case or substantially discredit or impair it or
4. Some vital piece of evidence which would filt the balance in favour of the convict has been
overlooked , disregarded or wrongly discarded.

IN Radhakrishna Dash V/S Administrative Tribunal

The appellant were found guilty of negligence in verifying the stock wheat with agent under
the state government order .A departmental inquiry was entrusted to the administrative
tribunal. On the basis of evidence the tribunal came to the conclusion that the appellant had
acted negligently and recommended their discharge from service. Their writ petition were
dismissed by the high court .the Supreme Court held that it would not be proper for it to
interfere with the concurrent findings of fact about the guilt of the appellants as it was not a
case of total want of evidence.

PROVIDE PARTY CAN FILE APPEAL UNDER ARTICLE -136 CHALLENGING

ACQUITTAL:

In A Landmark Judgement In Ramakant Ravi V/S MadanRai - The Supreme Court held that
where an accused is acquitted by the high court and no appeal against the acquittal is filed by
the state a private party can file appeal under article 136 against the acquittal order of the
high court.

TRIBUNALS

Under Article 136 the power of the Supreme Court to grant special leave to appeal is not
confined to orders or determination of a court of law , but includes tribunals also.

Thus a tribunal is a body of authority although not a court having all the attribute of a court
which is vested with judicial power to adjudicate on question of law or fact affecting the
rights to citizens in a judicial manner.

However it does not include a tribunal which have purely administrative or executive
functions or a tribunal having only legislative functions without any quasi judicial functions.

Judicial tribunal, income tax tribunals., labour appellate tribunals, election commission
railway rate tribunals, etc. are few example of such tribunals, though not a court of law in the
strict sense are invested with certain functions of justice.

In Clerks Of Calcutta Tramways V/S Calcutta Tramways Co. Ltd

It was held that the Supreme Court can normally interfere with the decisions arrived at by
these tribunals on the following grounds where-

1. The tribunal acts in excess of the jurisdiction conferred upon it under the statue or
regulating it or where it ostensibly fails to exercise a patent jurisdiction.
2. There is an apparent error on the face of the decision .
3. The awards are made in violation of principles of natural justice to parties.

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4. The tribunal has erroneously applied well accepted principle of jurisprudence.

ORIGINAL JURISDICTION

(i) Writs

Article 32 of the Constitution of India, 1950 guarantees the right to move the Supreme
Court for enforcement of fundamental rights. Supreme Court has power to issue directions or
orders or writs including the writs in the nature of Habeas Corpus, Mandamus, Prohibition,
Quo Warranto and Certiorari, whichever may be appropriate, for enforcement of these rights.

(ii) Original Suits

Article 131 of the Constitution of India, 1950 grants exclusive jurisdiction to the Supreme
Court in any dispute between a) Government of India and one or more States or b) between
Government of India and any State or States on one side and one or more other States on the
other side c) between two or more States, insofar as such disputes involve any question on
which the existence or extent of a legal right depends.

(iii) Transfer of cases

(a) Article 139A(1) of the Constitution of India, 1950 provides that where cases involving
the same or substantially the same questions of law are pending before the Supreme Court
and one or more High Courts or before two or more High Courts, and the Supreme Court is
satisfied, on its own motion, or on an application made by the Attorney-General for India or
by a party to any such case, that such questions are substantial questions of general
importance, the Supreme Court may withdraw the case or cases pending before the High
Court or the High Courts and dispose of all the cases itself.

(b) Article 139A(2) of the Constitution of India, 1950 provides that the Supreme Court
may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other
proceedings pending before any High Court to any other High Court.

(c) Section 25 of the Code of Civil Procedure, 1908 provides that Supreme Court may
transfer any suit, appeal or other proceedings from a High Court or other civil court in one
State to a High Court or other civil court in any other State.

(d) Section 406 of the Code of Criminal Procedure, 1973 provides that Supreme Court
may transfer any particular case or appeal from one High Court to another High Court or
from a criminal court subordinate to one High Court to another criminal Court of equal or
superior jurisdiction, subordinate to another High Court.

(iv) Election disputes:

Article 71 of the Constitution of India, 1950, provides that all doubts and disputes relating to
election of a President or Vice President are required to be enquired into and decided by the
Supreme Court.

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 ADVISORY JURISDICTION

Article 143. Power of President to consult Supreme Court. (1) If at any time it appears
to the President that a question of law or fact has arisen, or is likely to arise, which 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 to that Court for consideration
and the Court may, after such hearing as it thinks fit, report to the President its opinion
thereon.

(2) The President may, notwithstanding anything in the proviso to article 131, refer a
dispute of the kind mentioned in the [said proviso] to the Supreme Court for opinion
and the Supreme Court shall, after such hearing as it thinks fit, report to the President
its opinion thereon.

The Supreme Court has held in In re the Kerala Education Bill, 1957 that the use of the
word may in Article 143(1), in contradiction to the use of the word shall in Article
143(2) shows that whereas in a reference under Article 143(2) the Supreme Court is under an
obligation to answer the questions put to it, under Article 143(1) it is discretionary for the
Supreme Court to answer or not to answer the questions put to it.

The Presidents reference under Article 143(1) to the Supreme Court in In re The Special
Courts Bill 1978 (the special courts reference) raised important questions of constitutional
law.

Its exclusive original jurisdiction extends to any dispute between the government of India
and one or more states or between the government of India and any state or states on one side
and one or more states on the other or between two or more states, if and in so far as the
dispute involves any question (whether of law or fact) on which the existence or extent of a
legal right depends.

In addition, Art-32 of the constitution gives an extensive original jurisdiction to the Supreme
Court in regard to enforcement of fundamental right. It is empowered to issue directions,
orders, or writs including writs in the nature of Habeas corpus , mandamus, prohibition, quo-
warranto and certiorari to enforce them. The supreme court has been conferred with power to
direct transfer of any civil or criminal case from one state High court to another state High
court or from a court subordinate to another state High court.

The appellate jurisdiction of the supreme court can be invoked by a certificate granted by the
High court concerned under article 132(1), 133 (1) or 134 of the constitution in respect of any
judgment , decree, or final order of a High court in both civil and criminal cases involving
substantial question of law as to the interpretation of the constitution. The supreme court has
also a very wide appellate jurisdiction over all courts and tribunals in India in as much as it
may , in its direction grant special leave to appeal under Article-136 of the constitution from
any judgment , decree , determination, sentence or order in any cause of matter passed or
made by any court or tribunal in the territory of India.

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The supreme court has special Advisory Jurisdiction in matters which may specifically be
referred to it by the president of India under Article-143 of the constitution.

The first reference under Article 143 was made in the Delhi Laws case, (1951) SCR 747. In
almost sixty years, only twelve references have been made under Article 143 of the
Constitution by the President for the opinion of the Supreme Court.

In August 2002, the then President Dr. Abdul Kalam sought advice of the Supreme Court
under Article 143 in connection with the controversy between the Election Commission and
the Government on elections in Gujarat. The issues related to the limits on the powers of the
Election Commission under Article 324, the impact of Article 174 on the jurisdiction and
powers of the Commission and whether the Commission could recommend promulgation of
Presidents rule in a state.

The Supreme Court may decline to give its opinion under Article 143 in cases it does not
consider proper or not amenable to such exercise. It was, however, held by the Supreme
Court in M. Ismail Faruqui v. Union of India (AIR 1995 SC 605) that in that case, reasons
must be indicated.

In Re Special courts Bill, the question of whether the nature of the Supreme Courts power
under Article 143(1) and whether the law laid down in the opinions is the law laid down by
the Supreme Court under Article 141 was discussed.

While dealing the above question, CHANDRACHUD C.J. said that the question whether the
law laid down in the opinions was law declared by the Supreme Court would require to be
considered more fully on a future occasion. He observed that:

It would be strange that a decision given by this Court on a question of law in a dispute
between two private parties should be binding on all courts in this country but the advisory
opinion should bind no one at all, even if, as in the instant case, it is given after issuing notice
to all interested parties, after hearing everyone concerned..

REFERENCES MADE TO SUPREME COURT

In the matter of Cauvery Dispute Tribunal (AIR 1992 SC 522), a tribunal was appointed by
the central government to decide the question of waters of river Cauvery which flows through
the states of Karnataka and Tamil Nadu. The Tribunal gave an interim order in June 1991
directing the State of Karnataka to release a particular quantity of water for the state of Tamil
Nadu. The Karnataka government resented the decision of the Tribunal and promulgated an
Ordinance empowering the government not to honour the interim Order of the Tribunal. The
Tamil Nadu government protested against the action of the Karnataka government. Hence the
President made a reference to the Supreme Court under Article 143 of the Constitution. The
Court held that the Karnataka Ordinance was unconstitutional as it nullifies the decision of
the Tribunal appointed under the Central Act (Inter Sate Water Dispute Act, 1956) which has
been enacted under Article 262 of the Constitution. The Ordinance is also against the
principles of the rule of law as it has assumed the role of a Judge in its own cause.

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In a landmark judgement in Ismail Faruqui v. Union of India [(1994) 6 SCC 360], the five
judge bench of the Supreme Court held that the Presidential reference seeking the Supreme
Courts opinion on whether a temple originally existed at the site where the Babari Masjid
subsequently stood was superfluous and unnecessary and opposed to secularism and favoured
one religious community and therefore, does not required to be answered.

In Delhi Laws Act case, the Court considered the validity of the Act with regard to delegated
legislation. In Re Kerala Education Bill, the Bill was reserved for consideration of the
President who referred to the Supreme Court to give its opinion on its validity. In re
Berubari Union(1960), opinion of the court was sought to find out the manner in which the
territory of India could be transferred to the Pakistan. In Re Sea Customs Act (1962), to
consider the validity of the Sea Customs Bill with reference to Article 288 of the
Constitution. The Special Court reference case (1978), also known as Keshav Singhs case,
the reference was made to consider the extent of the privileges of the legislature and the
power of the Judicial reviews in relation to it. In re Presidential Bill (1974), consideration of
certain doubts in regard to Presidential election was sought. In all these cases the Supreme
Court came with various interpretations of Article 143 of the Constitution.

He was aware that Supreme Court decisions had held that it was not law within Article 141,
but he supported the need for future consideration.

Article 143 does not deal with jurisdiction of Supreme Court but with the power of the
President. It does not refer to any adjudication at all, but with consultation. There is to be no
judgement, decree or order; there is to be Opinion to be forwarded to the President in a report
to him. The Supreme Court itself would however remain free to re-examine and if necessary
to overrule the view taken in an opinion under Article 143(1). It was held in Cauvery Water
Disputes Tribunal 1992, that the jurisdiction under Article 143(1) cannot be used to
reconsider any of its earlier decisions. This can be done only under Article 137 of the
Constitution.

It was also held by the Supreme Court that the references made under this Article are not the
law declared by the Supreme Court under Article 141 of the Constitution. So it is not
binding on inferior courts, even though have high persuasive value.

ADVISORY JURISDICTION:

(i) Article 143(1) of the Constitution of India, 1950, provides that if at any time it appears
to the President that a question of law or fact has arisen, or is likely to arise, which 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 to that Court for consideration and the
Court may, after such hearing as it thinks fit, report to the President, its opinion thereon.

(ii) Article 317 of the Constitution of India, 1950, provides that the Chairman or any other
member of a Public Service Commission can be removed from his office by order of the
President, on the ground of misbehaviour, after the Supreme Court on reference being made

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by the President, has on enquiry reported that he ought, on such ground, to be removed from
his office.

(iii) Section 53K of the Competition Act, 2002 provides for removal and suspension of
Chairperson and Members of Appellate Tribunal in consultation with the Chief Justice of
India on any of the grounds specified in clauses (a) to (f) of Sub-section (1) of Section 53K
after an enquiry by a Judge of the Supreme Court.

D. REFERENCES:

(i) Section 257 of Income-tax Act, 1961 provides that the Income-tax Appellate Tribunal
can, through its President, refer to the Supreme Court, any question of law on which there is
difference of opinion between different High Courts and the question requires to be resolved
by the Supreme Court.

(ii) Sub-section (1) of Section 14 of the Right to Information Act, 2005 confers power on
the President of India to make a reference to the Supreme Court to make inquiry and report
on the question of removal of Chief Information Commissioner or any Information
Commissioner on the ground of proved misbehaviour or incapacity.

(iv) Sub-section (1) of Section 17 of the Right to Information Act, 2005 confers power on
the Governor to make a reference to Supreme Court to hold enquiry and report on the
question of removal of State Chief Information Commissioner or State Information
Commissioner on the ground of proved misbehaviour or incapacity.

E. REVIEW:

Article 137 of the Constitution of India, 1950, provides that subject to provisions of any
law and rules made under Article 145, the Supreme Court has the power to review any
judgment pronounced or order made by it. Under Supreme Court Rules, 1966 such a petition
is to be filed within thirty days from the date of judgment or order and as far as practicable, it
is to be circulated, without oral arguments, to the same Bench of Judges who delivered the
judgment or order sought to be reviewed.

F. CURATIVE PETITION:

As laid down by this Court in the case of Rupa Ashok Hurrah vs. Ashok Hurrah 2002 (4)
SCC 388, even after dismissal of a review petition under Article 137 of the Constitution,
Supreme Court, may entertain a curative petition and reconsider its judgment/order, in
exercise of its inherent powers in order to prevent abuse of its process, to cure gross
miscarriage of justice and such a petition can be filed only if a Senior Advocate certifies that
it meets the requirements of this case. Such a petition is to be first circulated, in chambers,
before a Bench comprising of three senior most judges and such serving judges who were
members of the Bench which passed the judgment/order, subject matter of the petition

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 COURT OF RECORD - Article 129 and 215
ARTICLE 129. Supreme Court to be a court of record - The Supreme Court shall be a
court of record and shall have all the powers of such a court including the power to punish for
contempt of itself

CONTEMPT OF COURT
MEANING OF CONTEMPT
Contempt is an act of deliberate disobedience or disregard for the laws, regulations, or
decorum of a public authority, such as a court or legislative body. In legal terminology,
contempt refers to any willful disobedience to, or disregard of, a court order or any
misconduct in the presence of a court; action that interferes with a judge's ability to
administer justice or that insults the dignity of the court.

There are essentially two types of contempt:

a) Contempt in facie disrespect to the decorum of the court (being rude, disrespectful to the
judge or other attorneys or causing a disturbance in the courtroom, particularly after
being warned by the judge)
b) Contempt ex facie willful failure to obey an order of the court. Failure to make a court
ordered payment, such as alimony, may result in a finding of contempt. The court's power to
punish for contempt includes fines and/or jail time. Since the judge has discretion to control
the courtroom, contempt citations are generally not appealable unless the amount of fine or
jail time is excessive.

Halsbury defines contempt as consisting of words spoken or written which obstruct or

tend to obstruct the administration of justice.

In case of India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt
of court as civil contempt or criminal contempt. In the case of Subramanian Swamy v.
Union of India[5], it was held that the comments made regarding a particular Judge of the
Court would not amount to contempt and this would amount to defamation under Section 499
of the Indian Penal Code, 1860. Thus, the comment or the publication should be of such
nature that it hinders the administration of justice.

A case of contempt is C.K. Daphtary v. O.P. Gupta, the respondent published and
circulated a booklet in public purporting to ascribe bias and dishonesty to Justice Shah while
acting in his judicial capacity. Mr, C.K. Daphtary, along with others, filed a petition alleging
that the booklet has scandalised the judges who participated in the decision and brought into
contempt the authority of the highest court of the land and thus weakened the confidence of
the people in it. The Supreme Court, in examining the scope of the contempt of court, laid
down that the test in each case is whether the impugned publication is a mere defamatory
attack on the judge or whether it will interfere with the due course of justice or the proper
administration of law by the court.

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For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which
dealt with such a concept. Article 129 and 215 of the Constitution of India empowers the
Supreme Court and High Court respectively to punish people for their respective contempt.
Section 10 of The Contempt of Courts Act of 1971 defines the power of the High Court to
punish contempt of its subordinate courts. Power to punish for contempt of court under
Articles 129 and 215 is not subject to Article 19(1)(a).

Contempt of Court position under Indian Constitution are as following-

Art. 129 :Supreme Court to be a court of record.The Supreme Court shall be a court
of record and shall have all the powers of such a court including the power to punish for
contempt of itself.
Art.215: High Courts to be courts of record.Every High Court shall be a court of
record and shall have all the powers of such a court including the power to punish for
contempt of itself.
Art.144:Civil and judicial authorities to act in aid of the Supreme Court.All
authorities, civil and judicial, in the territory of India shall act in aid of the Supreme
Court.
Art.141. Law declared by Supreme Court to be binding on all courts. The law
declared by the Supreme Court shall be binding on all courts within the territory of India.
Art.142. Enforcement of decrees and orders of Supreme Court and orders as to
discovery, etc. (1) The Supreme Court in the exercise of its jurisdiction may pass such
decree or make such order as is necessary for doing complete justice in any cause or matter
pending before it, and any decree so passed or order so made shall be enforceable throughout
the territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President may
by order prescribe.
Art.261. (1) Full faith and credit shall be given throughout the territory of India to public
acts, records and judicial proceedings of the Union and of every State.

The Contempt of Courts Act, 1971 - Salient Features

Innocent publication and distribution of matter - not contempt (Sec.3)
Fair and accurate report of judicial proceeding - not contempt (Sec 4)
Fair criticism of judicial act - not contempt(Sec.5)
Complaint against presiding officers of subordinate courts when not contempt- in respect
of any statement made by him in good faith (Sec.6)
Publication of information relating to proceedings in chambers or in camera - not contempt
except in certain cases (Sec 7 )
Act not to imply enlargement of scope of contempt (Sec 9.)-

Due regard to Constitutional Provisions

Power of High Court to punish contempt of subordinate courts - Every High Court shall
have and exercise the same jurisdiction, powers and authority, in accordance with the
same procedure and practice, in respect of contempt of courts subordinate to it as it has
and exercises in respect of contempt of itself :

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 Provided that no High Court shall take cognizance of a contempt alleged to have been
committed in respect of a court subordinate to it where such contempt is an offence
punishable under the Indian Penal Code.(45 of 1860) [Sec.10]

ESSENTIALS
The elements generally needed to establish contempt are:
1. the making of a valid court order,
2. knowledge of the order by respondent,
3. ability of the respondent to render compliance, and
4. Willful disobedience of the order.

TYPES
According to Lord Hardwick, there is a three-fold classification of Contempt:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.

Under Indian law, contempt of court has been divided into two categories:
I. Civil contempt
II. Criminal contempt

Civil contempt means - willful disobedience to any judgment, decree, direction, order, writ,
or other process of a Court, or willful breach of an undertaking given to a Court (section
2.b). A civil contempt is a failure to obey the courts order issued for the benefit of the
opposing party.

Criminal contempt means - The publication (whether by words, spoken or written, or by

signs, or by visible representations or otherwise) of any matter or the doing of any act
whatsoever, which :
I. scandalizes or tends to scandalize or lowers or tends to lower the authority of, any
court;
II. prejudices, or interferes or tends to interfere with, the due course of any judicial
proceeding; or
III. Interferes or tends to interfere with, or obstructs or tends to obstruct, the
administration of justice in any other matter (section 2.c).

Under Indian law, the following are not contempt:

1. Innocent publication and distribution of any matter by words, spoken or written,
or by signs or visible representations, which may interfere, or tend to interfere
with the administration of justice (section 3);
2. Fair and accurate reporting of judicial proceedings (section 4);
3. Fair criticism of a judicial act or any proceedings (section 5); and,
4. A complaint against the presiding officers of subordinate courts, made in good
faith (section 6)

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PRINCIPALS OF NATURAL JUSTICE
In all cases of contempt, the principles of natural justice have to be observed before any one
is held guilty.
1. First, there should be a notice to show cause to be served on the person charged
with contempt.
2. Secondly, the notice must contain the affidavits and any other material relied on in
support of the action initiated.
3. Thirdly, the person charged with contempt has a right to file an affidavit in
support of his defense, and also to produce such evidence as may be necessary.
4. Fourthly, the court will then pass an order, after hearing both sides (section 17).
Under the rules framed under the Act, such a person has a right to be defended by
an advocate. In the case of subordinate courts, the High Court has power to punish
for contempt.

There is a right of appeal from any order or decision of the High Court in the exercise of its
jurisdiction to punish for contempt. If the order is of a single judge, the appeal is to a bench
of not less than two judges. If the order is that of a bench, the appeal is to the Supreme Court
(section 19). In the case of criminal contempt, there are certain additional requirements. The
cognizance of criminal contempt can only be taken on the motion made by the Advocate-
General or by any other person with the consent in writing of the Advocate-General (section
15). If the court is satisfied it shall frame a charge, and thereafter the case proceeds like a
criminal trial.

LIMITATION
The Limitation period for actions of contempt has been discussed under Section 20 of the
Contempt of Courts Act of 1971 and is a period of one year from the date on which the
contempt is alleged to have been committed.

Punishment for contempt of court :

(1) Save as otherwise expressly provided in this Act or in any other law, a contempt of
court may be punished with simple imprisonment for a term which may extend to six months,
or with fine which may extend to two thousand rupees, or with both. :
Provided that the accused may be discharged or the punishment awarded may be remitted
on apology being made to the satisfaction of the court.
Explanation.-An apology shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide. [Sec.12]

Defenses allowed in Contempt proceeding

Clause (b) of Section 13 of Contempt of Court Act, 1971 that was introduced recently by
2006 amendment, allows the accused to raise the defense of justification by truth of such
contempt, if the court is satisfied that it is in public interest and the request for invoking the
said defence is bona fide.

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 However, no court shall impose a sentence under this Act for a contempt of court unless it is
satisfied that the contempt is of such a nature that it substantially interferes, or tends
substantially to interfere with the due course of justice.

Entry 77 of the list is as follows-

Constitution , organization, jurisdiction and powers of the Supreme Court (including
contempt for such a court ) and the fees taken therein; persons entitled to practise before the
supreme Court.

Entry15 of list II is as follows " contempt of court but not including contempt of Supreme
Court " .
The legislature is fully competent to legislate with respect to competent of court subject only
to the qualification that the legislature cannot take away the power of the Supreme Court or
the High Court to punish for contempt or vest that power in some other court.

A High Court cannot initiate contempt proceedings or punish for contempt of the Supreme
Court, the apex court has held in an important pronouncement on in Vitusah Oberoi vs
Court of Its Own Motion in january 2017The bench also said that its power to punish for its
contempt has been in no uncertain terms recognised by Article 129 of the Constitution. If
Supreme Court does not, despite the availability of the power vested in it, invoke the same to
punish for its contempt, there is no question of a Court subordinate to the Supreme Court
doing so, the bench said....

A Bench headed by Chief Justice of India TS Thakur set aside an order of division bench of
Delhi High Court, which found editors and cartoonists of Mid-Day newspaper guilty of
contempt for maligning the former Chief Justice of India . The High court had suo motu
initiated contempt after an advocate brought such cartoons and news reports to its notice. The
report had alleged that Justice Sabharwal had, by reason of some orders passed by a bench
headed by him, benefited the partnership business of his sons in real estate development in
and around Delhi. In Septemeber 2007, Mid-Day City Editor M K Tayal, Publisher Vitusha
Oberoi,Resident Editor S K Akhtar, and Cartoonist Irfan Khan, were held guilty of Contempt
by Delhi High Court

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 APPOINTMENT OF JUDGES

MEMORANDUM OF PROCEDURE OF APPOINTMENT OF JUDGES

CHIEF JUSTICE OF INDIA :
1. Appointment to the office of the Chief Justice of India should be of the seniormost
Judge of the Supreme Court considered fit to hold the office. The Union Minister of
Law, Justice and Company Affairs would, at the appropriate time, seek the
recommendation of the outgoing Chief Justice of India for the appointment of the next
Chief Justice of India.
2. Whenever there is any doubt about the fitness of the senior mostJudge to hold the
office of the Chief Justice of India, consultation with other Judges as envisaged in
Article 124 (2) of the Constitution would be made for appointment of the next Chief
Justice of India.
3. After receipt of the recommendation of the Chief Justice of India, the Union Minister
of Law, Justice and Company Affairs will put up the recommendation to the Prime
Minister who will advise the President in the matter of appointment.

JUDGES OF THE SUPREME COURT :

1. Whenever a vacancy is expected to arise in the office of a Judge of the Supreme
Court, the Chief Justice of India will initiate proposal and forward his
recommendation to the Union Minister of Law, Justice and Company Affairs to fill up
the vacancy.
2. The opinion of the Chief Justice of India for appointment of a Judge of the Supreme
Court should be formed in consultation with a collegium of the four seniormost
puisne Judges of the Supreme Court. If the successor Chief Justice of India is not one
of the four seniormost puisne Judges, he would be made part of the collegium as he
should have a hand in selection of Judges who will function during his term as Chief
Justice of India.
3. The Chief Justice of India would ascertain the views of the seniormost Judge in the
Supreme Court, who hails from the High Court from where the person recommended
comes, but if he does not have any knowledge of his merits and demerits, the next
seniormost Judge in the Supreme Court from that High Court should be consulted.
4. The requirement of consultation with a Judge of the Supreme Court would not be
confined to that Judge only who has that High Court as a parent High Court and,
therefore, would not exclude Judges who have, on transfer, occupied the office of a
Judge or Chief Justice of that High Court.
5. The opinion of members of the collegium in respect of each of the recommendations
as well as the seniormost Judge in the Supreme Court from the High Court, from
which a prospective candidate comes, would be made in writing and the Chief Justice
of India, in all cases, must transmit his opinion as also the opinion of all concerned to
the Government of India as part of record. If the Chief Justice of India or the other
members of the Collegium elicit views, particularly those from the non-Judges, the
consultation need not be in writing but he, who elicits the opinion, should make a

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 memorandum thereof and its substance in general terms which should be conveyed to
the Government of India
6. After receipt of the final recommendation of the Chief Justice of India, the Union
Minister of Law, Justice and Company Affairs will put up the recommendations to the
Prime Minister who will advise the President in the matter of appointment.
7. As soon as the appointment is approved, the Secretary to the Government of India in
the Department of Justice will inform the Chief Justice of India and obtain from the
person selected a certificate of physical fitness signed by a Civil Surgeon or a District
Medical Officer. The Medical Certificate is to be obtained from all persons selected
for appointment whether they are at the time of appointment in the service of the State
or not. The certificate should be in the form annexed.
8. As soon as the warrant of appointment is signed by the President, the Secretary to the
Government of India in the Department of Justice will announce the appointment and
issue the necessary notification in the Gazette of India.

APPOINTMENT OF ACTING CHIEF JUSTICE :

Appointment of acting Chief Justice is to be made by the President under Article 126 of
the Constitution. Vacancy in the office of the Chief Justice must be filled whatever the
period of vacancy. In such an eventuality, the seniormost available Judge of the Supreme
Court will be appointed to perform the duties of the office of the Chief Justice of India.
As soon as the President has approved the appointment, the Secretary to the Government
of India in the Department of Justice will inform the Chief Justice of India or in his
absence the Judge concerned of the Supreme Court, and will announce the appointment
and issue the necessary notification in the Gazette of India.

Practice followed till 1981: A practice had developed over the last several decades
according to which the Chief Justice of India initiated the proposal, very often in consultation
with his senior colleagues and his recommendation was considered by the President (in the
sense explained hereinabove) and, if agreed to, the appointment was made. By and large,
this was the position till 1981.

EXECUTIVE LED JUDICIAL APPOINTMENT - 1950-1981

The executive-led judicial appointments continued for a period of few years after
independence. However, there was dissatisfaction among the legal fraternity as regards the
appointment procedure. It was a common view that regional and communal influences and
the interference of the executive, procured appointments to the Supreme Court. The best of
the talent was not mobilised.7 The dissatisfaction widened when the Government departed
from the long-followed practice of appointing the senior-most judge as the Chief Justice of
India and appointed Justice A.N. Ray who was the fourth in the order of seniority. Justifying
this move, the Law Minister, Mohan Kumaramangalam proposed a radical re-interpretation
to the appointment process, by which the political philosophy of judges, as determined by the
government, would be a relevant criterion for appointment.

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1st Judges Transfer Case - In a decision rendered by a seven-judge Constitution Bench
in S.P. Gupta vs. Union of India (AIR 1982 SC 149), the majority held that consultation
does not mean concurrence and ruled further that the concept of primacy of the Chief
Justice of India is not really to be found in the Constitution. It was held that proposal for
appointment to High Court can emanate from any of the four constitutional functionaries
mentioned in Article 217 and not necessarily from the Chief Justice of the High Court. This
decision had the effect of unsettling the balance till then obtaining between the executive and
judiciary in the matter of appointment. The balance tilted in favour of the executive. Not
only the office of the Chief Justice of India got diminished in importance, the role of
judiciary as a whole in the matter of appointments became less and less. After this judgment,
certain appointments were made by the Executive over-ruling the advice of the Chief Justice
of India. Naturally, this state of affairs developed its own backlash.
The majority (4:3) of the Court held that under Article 124(2) of the Constitution, the word
consultation does not mean concurrence and ruled further that the concept of primacy of
the Chief Justice of India is not really to be found in the Constitution. The decision of the
Supreme Court was widely criticized as the balance tilted in favour of the executive. After
this judgment, certain appointments were made by the Executive over-ruling the advice of the
Chief Justice of India.

COLLEGIUM LED APPOINTMENTS

2nd Judges Transfer Case - In 1993, a nine-Judge Constitution Bench of the Supreme Court
in Supreme Court Advocates-on-Record Association Vs. Union of India (1993 (4) SCC. 441)
over-ruled the decision in S.P.Gupta. The nine-Judge Bench (with majority of seven) not only
overruled S.P. Guptas case but also devised a specific procedure for appointment of Judges
of the Supreme Court in the interest of protecting the integrity and guarding the
independence of the judiciary. For the same reason, the primacy of the Chief Justice of
India was held to be essential. It held that the recommendation in that behalf should be made
by the Chief Justice of India in consultation with his two senior-most colleagues and that
such recommendation should normally be given effect to by the executive. The three-member
body would be referred as Collegium.
Elaborate reasons were are recorded in support of the proposition that selection of judges
must be in the hands of the judiciary in this country and how the systems prevailing in other
countries are alien to our constitutional system. One of the judges relied upon Article 50 of
the Constitution which speaks of separation of judiciary and executive and excluded any
executive say in the matter of appointment to safeguard the cherished concept of
independence. It held at the same time that it was open to the executive to ask the Chief
Justice of India and his two colleagues to reconsider the matter, if they have any objection to
the name recommended but if, on such reconsideration, the Chief Justice of India and his two
colleagues reiterated the recommendation, the executive was bound to make the
appointment. Reaction to this judicial assertion of power have not been uniform*.
In short, the power of appointment passed into the hands of judiciary and the role of the
executive became merely formal.

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3rd Judges Transfer Case - The 1993 decision was reaffirmed in 1998 [1998 (7) SCC 739]
in a unanimous opinion rendered by a nine-Judge Bench of the Supreme Court on a reference
being made by the President under Article 143 of the Constitution. All the basic conclusions
of the majority in the 1993 decision were reaffirmed. There was, however, some variation. It
was held that the recommendation should be made by the Chief Justice of India and his four
senior-most colleagues (instead of the Chief Justice of India and his two senior-most
colleagues) and further that Judges of the Supreme Court hailing from the High Court to
which the proposed name comes from must also be consulted. In fact, the Chief Justice of
India and his four senior-most colleagues are now generally referred to as the Collegium for
the purpose of appointment of Judges to the Supreme Court.

Drawbacks of the Collegium System

The system of recommendation for judicial appointments by a collegium of the five
seniormost judges is not institutionalised: no mechanism is prescribed (by the collegium
itself), no office is set up, no data gathered in advance, no criteria evolved as to who among
the High Court Judges all aspirants to a place in the Supreme Court should be
recommended. There is no reason given as to why a broad consensus among all the Judges of
the Supreme Court is not to be preferred to the views only of the five senior-most. The entire
system operated adhoc, based on no principle

4th Judges Transfer Case - SCAOR V UOI (2015)

The Commission will consist of six members:

1. the Chief Justice of India, Chairperson, ex officio;
2. two other senior Judges of the Supreme Court next to the Chief Justice of India
Members, ex officio;
3. the Union Minister in charge of Law and Justice Member, ex offico;
4. two eminent persons who will be nominated by the committee consisting of the Prime
Minister,
5. the Chief Justice of India and the Leader of Opposition in the House of the People or
where there is no such Leader of Opposition, then, the Leader of single largest
Opposition Party in the House of the People

In a path breaking judgment stretching to over 1000 pages, a Constitution Bench of the
Supreme Court comprising of 5 judges (all of whom have penned words in sequence of
seniority) in SCAORA v UOI (4th Judges Case) with a majority of 4:1 declared Nat ional
Judicial Appointments Commission (NJAC) Act, 2014 and the 99th Constitution Amendment
Act, 2014 unconstitutional. The 1+2 and 1+4 Collegiums also stand operative with this
judgment for appointments of judges to High Courts and the Supreme Court.
The judgment deals with 4 major aspects Recusal, Reference, Review of 2nd and
3rd Judges and Constitutional Validity of NJAC. On the question raised by Fali S Nariman on
his presence on bench, Kehar J refused to recuse. Reference to larger bench was declined,
fresh review of 2nd and 3rd judges was denied and NJAC was declared unconstitutional as
per the majority opinion. This is succeeded by the lone dissent by Chelameswar J.

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Seniority to be followed in appointment of Chief Justice of India: So far as the
appointment of the Chief Justice of the Supreme Court of India is concerned, both the 1993
decision and the 1998 opinion lay down that the senior-most judge should always be
appointed as the Chief Justice of India.

Procedure for appointment of Judges of High Courts: The procedure for appointment of
Judges of the High Courts is slightly different from the one concerning the appointment of
Judges of the Supreme Court. Clause (1) of Article 217 says that every judge of a High
Court shall be appointed by the President by warrant under his hand and seal after
consultation with the Chief Justice of India, the Governor of the State, and, in the case of
appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court and
shall hold office, in the case of an additional or acting judge, as provided in Article 224, and
in any other case, until he attains the age of sixty-two years. A reading of this clause
shows that while the appointment is made by the President, it has to be made after
consultation with three authorities, namely, the Chief Justice of India, the Governor of the
State and the Chief Justice of the High Court. (Of course, in the matter of appointment of
Chief Justice, the consultation with the Chief Justice is not required). Just as the President is
the constitutional head, so are the Governors. However, according to the practice, which had
developed over the last several decades and which was in vogue till the aforementioned 1981
decision of the Supreme Court (S.P.Gupta), the Chief Justice of the High Court used to make
the recommendation which was considered by the Governor of the State (Council of
Ministers headed by the Chief Minister) who offered his comments for or against the
recommendation. The matter then went to the Central Government. At that stage, the opinion
of the Chief Justice was sought and based upon such advice, the appointment was either made
or declined, as the case may be. It may be noted that even clause (1) of Article 217 uses the
expression consultation and not concurrence. The decision of the Supreme Court in S.P.
Guptaon the meaning of consultation applied equally to this Article. After the decision
in S.P. Gupta, the executive made quite a few appointments to the High Courts which gave
rise to a good amount of dissatisfaction among the relevant sections including the Bar leading
to the nine-Judge Constitution Bench decision of the Supreme Court in 1993
aforementioned. The decision laid down that the recommendation for appointment to the
High Court shall be made by the Chief Justice of the concerned High Court in consultation
with his two senior-most colleagues. The opinion of the Chief Justice of India was given
primacy in the matter and was to prevail over that of the Governor of the State or even that of
the High Court, if inconsistent with his view. The President was of course to make the formal
appointment just as in the case of a Judge of the Supreme Court. This position was affirmed
in the Third Judges case (1998 (7) SCC 139).

DOCTRINE OF PITH AND SUBSTANCE

when a question of an apparent conflict between mutually exclusive Lists, e.g., List I and List
II, arises, the first attempt should be to reconcile them. This is done by applying the test of
'pith and substance'. The impugned legislation is examined as a whole to ascertain its true
nature and character for the purpose of determining whether it falls in List I or List II. If by
this test it is found that in pith and substance it falls under one of these Lists, but in regard to

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incidental or ancillary matters it encroaches on an Entry in the other List, the conflict would
stand resolved in favour of the former List. If the overlapping or conflict between the two
Lists cannot be fairly reconciled in this manner, the power of the State Legislature with
respect to the overlapping field in List II, must give way to List I. In short, when a matter, in
substance, falls within the Union List, Parliament has exclusive legislative power with respect
to it, notwithstanding that it may be covered also by either or both the other two Lists.

RULE OF REPUGNANCY

Another facet of the rule of Legislative Supremacy of the Union is contained in Article 254
which provides:
(1) If any provision of a law made by the Legislature of a State is repugnant to any provision
of a law made by Parliament which Parliament is competent to enact, or to any provision of
an existing law with respect to one of the matters enumerated in the Concurrent List., then,
subject to the provisions of clause (2), the law made by Parliament, whether passed before or
after the law made by the Legislature of such State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature of the State shall, to the extent of the
repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters
enumerated in the Concurrent List contains any provision repupgnant to the provisions of an
earlier law made by Parliament or an existing law with respect to that matter, then the law so
made by the Legislature of such State shall, if it has been reserved for the consideration of the
President and has received his assent, prevail in that State :
Provided that nothing in this clause shall prevent Parliament from enacting at any
time any law with respect to the same matter including a law adding to, amending, varying or
repealing the law so made by the Legislature of the State.

it is clear that the substance of the rule of repugnancy contained in clause (1) of
Article 254 is that with respect to a matter in the Concurrent List, a valid Union Law
or an existing law prevails over a repugnant State law which is otherwise valid, to the
extent of repugnancy.
Clause (2) is an exception to clause (1). It relaxes the rigidity of the rule of
repugnancy contained in clause (1), in as much as it lays down that if a law passed by
State Legislature in respect of a matter in the Concurrent List, receives President's
assent, then such a law would prevail notwithstanding its being inconsistent with the
law passed by Parliament or an existing law on the subject. However, this exception is
not absolute. The proviso clarifies that such a law which had received the President's
assent can be amended, varied or repealed by Parliament, either directly or by passing
a law inconsistent with it.
Although the non-obstante clause of Article 246, and clause (1) of Article 254 are facets of
the rule of 'Union Supremacy', there is a difference in the nature, extent and effect of their
operation. While the non-obstante clause of Article 246 is attracted when there is an
irreconcilable conflict between the mutually exclusive Legislative Lists, Article 254(1)
applies only where there is repugnancy between a Union law and a State law, both occupying
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the same field with respect to a matter in the concurrent List. It has no application where the
State law in its pith and substance falls within an Entry in the State List, its incidental trespass
on an Entry in the Concurrent List notwithstanding. Further, a challenge on the ground of
nonobstante clause of Article 246 is more fundamental than the one on the plea of
repugnancy under Article 254(1), as the former goes to the root of the jurisdiction of the
legislature concerned. Article 254(1) does not rest on the principle of ultra vires, but of
repugnancy, which renders the State law 'void' i.e., 'inoperative' or mute only to the extent of
repugnancy.

Pre-requisites for application of the rule of Repugnancy

Repugnancy' under Article 254(1) arises where
(i) there is in fact, such a direct conflict between the provisions of a Union law or an existing
law and a State law, occupying the same field with respect to the same matter in List III, that
the two provisions cannot stand together and it is not possible to obey the one without
disobeying the other;
OR
(ii) The Union law was clearly intended to be a complete and exhaustive code, replacing the
State law with respect to a particular matter in the Concurrent List.
If all the conditions of either proposition are not fully satisfied, the rule of repugnancy
contained in Article 254(1) will not be attracted.

C.L :- M.KARUNANIDHI V UNION OF INDIA,

Fazal Ali, J, reviewed all its earlier decisions and summarized the test of repugnancy.
According to him a repugnancy would arise between the two statutes in the following
situations :
1. "It must be shown that there is clear and direct inconsistency between the two
enactments [Central Act and State Act] which is irreconcilable, so that they cannot
stand together or operate in the same field.
2. There can be no repeal by implication unless the inconsistency appears on the face of
the two statutes.
3. Where the two statutes occupy a particular field, but there is room or possibility of
both the statutes operating in the same field without coming into collusion with each
other, no repugnancy results.
4. Where there is no inconsistency but a statute occupying the same field seeks to create
distinct and separate offences, no question of repugnancy arises and both the statutes
continue to operate in the same field.

The above rule of repugnancy is, however, subject to the exception provided in clause (2) of
this Article. According to clause (2) if a State Law with respect to any of the matters
enumerated in the Concurrent List contains any provision. repugnant to the provisions or an
earlier law made by Parliament, or an existing law with respect of that matter, then the State
law if it has been reserved for the assent of the President and has received his assent, shall
prevail notwithstanding such repugnancy. But it would still be possible for the Parliament
under the provision to clause (2) to override such a law by subsequently making a law on the

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same matter If it makes such a law the State Law would be void 'to the extent of repugnancy
with the Union Law.

In Deep Chand v , State of U. P - The validity of U.P. Transport Service (Development) Act
was involved. By this Act the State Government was authorized to make the Scheme for
nationalization of Motor Transport in the State. The law was necessitated because the Motor
Vehicles Act, 1939 did not contain any provision for the nationalization of Motor Transport
Services. Later on, in 1956 the Parliament with a view to introduce a uniform law amended
the Motor Vehicles Act, 1939, and added a new provision enabling the State Government to
frame rules of nationalization of Motor Transport. The Court held that since both the Union
Law and the State Law occupied the same field, the State Law was void to the extent of
repugnancy to the Union Law.

THEORY OF TERRITORIAL NEXUS

The Legislature of a State may make laws for the whole or any part of the State, [Art.
245(1)]. This means that State Laws would be void if it has extra-territorial, operation i.e.,
takes effect outside the State.' However, there, is one exception of the general rule. A State
law of extra-territorial operation will be valid if there is sufficient nexus between the object
and the State.
In Wallace v/s Income-tax Commissioner, Bombay, a company which was
registered in England was a partner in the firm in India. The Indian Income-tax Authorities
sought to tax the entire income made by the company. The Privy Council applied the doctrine
of territorial nexus and held the levy of tax valid. it said that derivation from British India of
major part of its income for a year gave to company for that year sufficient territorial
connection to justify its being treated as at home in India for all purposes of tax on its income
for that year from whatever source income may be derived.
In State of Bombay v. R. M. D. C, The Bombay State levied a tax on lotteries and
prize competitions. The tax was extended to a newspaper printed and published in Bangalore
but had wide circulation in Bombay. The respondent conducted the prize competitions
through this paper. The, 'Court held that there existed a sufficient territorial nexus to enable
the' Bombay State to tax the newspaper. If there is sufficient nexus between the person
sought to be charged and the State seeking to tax him, the taxing statute would be upheld. But
the connection between the State and the subject matter of law must be real and not illusory
and the liability sought to be imposed must be pertinent to that connection. Whether there is
sufficient connection is a question of fact and will be determined by Courts in each
accordingly. In Tata Iron and Steel Company v. State of Bihar/' the Supreme Court applied
the theory of territorial nexus to sales-tax laws.

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