yogesh_saxena

INDIAN LEGAL HISTORY AND IT’S IMPACT ON CONSTITUTION

The legal history pertaining to exercise of the power in India starts from the time of 1773 when the British parliament passed the Regulating Act which be came an important mile stone in the constitutional history of India. The Regulating Act set up a government of Bengal consisting of a governor-general and four Councillors in whom was vested the whole civil and military Government of the Presidency of Bengal and also the government and the territorial acquisitions and revenues in the kingdoms of Bengal, Bihar and Orissa. The Presidents and Councils of Bombay and Madras were to be subordinate to the Governor- General and Council who were made the supreme Government in India.

The victory lord civil in the battle of plassey in 1757 laid down the foundations of the British empire and thereafter the year of 1765 has been considered to be a turning point in Anglo- Indian history providing the territorial sovereignty be the East India company. Since the regulating Act has provided the jurisdiction to set up a Supreme Court in Bengal, which was consisting of a Governor- General and four councillors vested with the power of civil and military Govt, the jurisdiction conferred to the Supreme Court in Bengal was extended to all British subjects. Thus the power given to the Governor- General and his council to move and issue Rules, ordinance civil Govt. of the presidency of Bengal in 1781 there were many changes in regulating Act by issuance of Act of settlement and the same clarified that what law has to be administered by the Supreme Court. By the pits India Act, the Governor- General was vested with the power of superintendence, control and directions of the presidencies of Bengal, Bombay. Madras which were sub- ordinate to the Governor- General but there was dual control of the committee of the secretary of England. Over- Governor- General which continued up to 1850 when the Govt. of India was taken over by the British Govt. from the company. The charters Act, 1813, of the year of1833 and the year of1853 created a separate legislative council consisting of 12 members win of includes the Governor- General. The commander in Chief, four members of the council and six legislative members of whom two were English judges of Calcutta Supreme Court and four officials appointed by the local govt. of Madras, Bombay, Bengal and Agra. The Governor- General of India.

The Govt of India Act, 1858 had abolished the power of the board of control and the court of direction which were transferred to the secretary of the state and his council consisting of 15 members, Thereafter the Indian councils Act in 1861, 1892 and in 1909 known as Minto Morley reform were introduced: creasing the members up to sixty for additional members of Governor- general council fifty members were for Madras, Bengal. U.P., Bombay, Bihar and Orissa while thirty members were from Punjab, Burma & Assam. Thus the imperial legislative council was to consist of 37 officials and 23 non- officials.

Since the people were dissatisfied with the reform of 1909, Mr. Montagu the new secretary for the state of India made certain reforms for increasing association of Indians in self Govt. with a view to the progressive realisation of responsible Govt. in India as an integral past of British empire. However, the Govt. of India, Act, 1919 provided a great land mark in the constitutional development and the aforesaid Act set up a bicarmesal legislative consisting of two houses as council of state and control legislative Assembly with a life span of five years and there years respectively. This Act provided for two lists of subjects as to get uniformity in legislation was necessary and desirable. Thus the control list and provincial list were given while the residuary subjects were divided pet were control and provinces ultimately the Govt. of India Act- 1935 has provided the federal legislature which was consisting of federal Assembly and the council for the state. This Act provided for the establishment of the federal court of India with the jurisdiction over the provinces and the state consisting of a Chief justice and two puisne judges. However the last word regarding interpretation of the legislative within the spear reserved for them was to be said by the privy council sitting in London.

The Indian Independence Act, 1947 provided that until a new constitution in framed, the Act made by the existing constituent Assembly, exercising all such powers which were formally exercised by control legislative were given additional power regarding the framing of new constitution. The constituent Assembly met on Dec. 9, 1946 and 4 Dec. 1946 Dr. Rajendra Prasad was elected as the permanent Chairman of the constituent Assembly. The constitution was adopted by the constituent Assembly on Nov. 26, 1949 and come in to force on Jan. 26, 1950. However a referendum which should have been held and the constitution should have been referred to the people of India for their approval was not been done. However it is said that the constitution should have it’s roots, it’s authority, its sovereignty from the people which has not been done. Thus prior to the coming in to force of the constitution, the High Court of Madras, Bombay and Calcutta had the power to issue certain prerogative writs will in their original civil jurisdiction prior to the amendment of 1963, the High Court were given power to issue a writ within its territorial jurisdiction but the power was conferred after the amendment of 1963 to empower the High Court for issuance of a writ in which a cause of action has arisla within its territorial jurisdiction even if the Govt. of the authority again whom the writ is issued is not within its territorial jurisdiction.

OBJECTS AND SCOPE OF CONSTITUTION

Democracy is impossible without the effective participation of citizens which involves the creation of certain conditions facilitating such participation. Civil education of citizens, leadership training and inculcation of morals and values in them are necessary for a sound democratic system.

Different meanings have been given to the term ‘Republic’ by various writers. According to jellinek, a Republic is a Government not by a single person but by a collegial organisation more or less numerous. The view of Madison is that a Republic “is a government which derives its powers directly or indirectly from the great body of the people and is administered by persons holding their offices during pleasure, for limited period or during good behaviour. It is essential to such a government that it be derived from the great body of the society, not from any portion, or a favoured class”. According to Justice Cooley, “By the republican form of government is understood a government by representatives chosen by the people or community as an organised whole wield sovereign powers of Government and, on the othe(F)

The preamble And our constitutional Safe Guards

The preamble secures to all citizens social, economic and political justice. Social justice demands equality along with liberty. In a country like India, it is necessary that the state must try to improve the lot of the down-trodden and weaker sections of the people and provisions have been made in the constitution for that purpose. Economic justice is a corollary to social justice. It demands that there should be no discrimination between man and man on the basic of economic values. The very concept of economic justice demands a socialistic pattern of society. The ideal before the Indian constitution is the establishment of a welfare state. Pandit Jawaharlal Nehru is said to have told the constitution, to feed the starving people and clothe the naked masses and to give every Indian fullest opportunity to his capacity”. Again, “I trust this constitution itself will lead to the real freedom that we have clamoured for and that freedom, in turn, will bring food to our starving peoples, clothing for them, housing for them and all manner of opportunities of progress.”

The preamble emphasises the fact that it is the people of India who solemnly resolved to constitute India into a sovereign, socialist, secular and Democratic Republic and adopted, enacted and gave to themselves the constitution on November 26; 1949 for the realisation of the goals of justice, liberty, equality and fraternity as explained in the Preamble.

As the authority of the Government of India is derived from all the people, no section of the people can challenge it. Nobody can assent that he is not bound by the authority of the state because he has not given consent to it. The fact is that his own will is included in the will of the state. No political party in India can challenge the authority of the state as the same is derived from the people.

The constitution of India is not a gift of the British Parliament. It was given by the people of India assembled in the constituent Assembly to themselves. The constituent Assembly was competent to determine the political future of the country in any manner it liked and it declared the ultimate sovereignty of the people of India and the constitution of India rests on their authority.

The term ‘socialism’ has been defined in shorter oxford dictionary as “a theory or policy of social organisation which advocates the ownership and control of the means of production, capital, land, property etc. by the community as a whole and their administration or distribution in the interests of all”.

In excel wear v. Union of India AIR1979SC25, the Supreme Court held that the concept of socialist or a socialist state has undergone changes from time to time from country to country and from thinkers to thinkers, but some basic concept still holds the field. In the same judgement, Mr. Justice Untwalia quoted with approval the following passage from the judgement of the Supreme Court in Akadasi Padhan v. state of Orissa AIR 1963 SC 1047 where Mr. Justice Gajendragadkar had observed thus: “With the rise of the philosophy of socialism, the doctrine of Broadly speaking, this discussion discloses a difference in approach. To the justification is the general notion of social welfare. To the rationalist nationalisation or state ownership is a matter of expediency dominated by considerations of economic efficiency and increased output of production. This latter view supported nationalisation only when it appeared clear that state ownership would be more efficient, more economical and more productive. The former approach was not very much influenced by those considerations and treated it as a matter of principle that all important and nation- building industries should is pragmatic. The first proceeds on the general ground that all national wealth and means of producing it should come under national control, whilst the second supports nationalisation only on grounds of efficiency and increased output”. Mr. Justice Untwalia further observed that “the difference pointed out between the doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the courts to lean more and more in favour of nationalisation and state ownership of an industry after the addition of the word ‘socialist’ in the preamble of the constitution”.

In D.S. Nakara v. Union of India, the Supreme Court held that the basic framework of socialism is to provide a decent standard of life to the working people, particularly security from cradle to the gravel. The object is to achieve economic equality and equitable distribution of income. This is a blend of Marxism and Gandhism, leaning heavily towards Gandhian socialism. This it the type of socialism intended to be established in India.

“An India in which the poorest shall feel that it is their country in whose making they have an effective voice, an India in which all communities shall live in prefect harmony. There can be no room in such an India for the curse of untouchability or the curse of intoxicating drinks and drugs. Women will enjoy the same rights as men.”

In Kedar Pandey v. Narain Bikram Singh, the appellant and respondent were contesting candidates to the state legislative assembly. The respondent was declared elected and the appellant filed an election petition challenging the election on the ground that the respondent was not duly qualified as he was a citizen of Nepal and not India. The Supreme Court held that assuming that the respondent was not born in the territory of India, on a consideration choice in India long before the end of 1949 which is the material time under Article 5 of the constitution. He had formed the deliberate intention of making India his home with the intention of permanently establishing himself and his family in India and therefore had the requisite animus manendi. He was ordinarily resident in India for 5 years immediately preceding the time when Article 5 into came force. As the requirements of Article 5 were satisfied, the respondent was a citizen of India at the relevant time. In the words of Mr. Justice P.N.Bhagwati, “These fundamental rights represent the basic values cherished by the people of this country of the individual and create conditions in which every human being can develop his personality to the fullest extent. They weave a pattern of guarantee on the basic structure of human rights and impose negative obligations on the state not to encroach on individual liberty in its various dimensions.” As regards the test for determination of infringement of fundamental rights, it was held in A.K. Gopalan v. Union of India, that the object and form of state action alone need be considered and effect on fundamental rights in general will be ignored. However, this view was rejected by the Supreme Court in R. C. Cooper v. Union of India, where it was held that the theory that the object and form of state action determine the extent of protection which the aggrieved party may claim was not consistent with the constitutional scheme which aims at affording the individual fullest protection of his basic rights. The state action must be judged in the light of its operation upon the rights of the individual and groups of individuals in all its dimensions.

In Bennett Coleman Co. v. Union of India, it was held that the tests of pith and substance of the subject matter and of direct object and of incidental effect of the legislation were irrelevant to the question of infringement of fundamental impugned state action on a particular fundamental right. In Maneka Gandhi v. Union of India, the Supreme Court emphasised the relevance of directness of the impugned action in adjudging the infringement of a particular fundamental right.

In Arti Sapru vs State of Jammu and Kashmir, it was held that the classification made for rectification of regional imbalances without identifying the areas suffering from imbalance, was vague and arbitrary and violative of Article 15 (4). The Government of Jammu and Kashmir earmarked 25% of the seats out of the total number of 50 seats for admission to the M.B.B.S. course in the Government Medical College for rectification of regional imbalance in different parts of the state. By a notification, certain villages were identified as socially and educationally backward for rectification of imbalance. It was held that there was no material before the Government affording a basis for classifying these villages as socially and educationally backward areas. The classification was arbitrary and unconstitutional.

r, the rule of one man as King Emperor, Czar or Sultan, or with that of one class of men as an aristocracy”.

Constitutional Fundamental Rights in it’s different forms

Fundamental Rights have been provided in the Indian constitution in different forms. In some cases there is an express declaration of rights, e.g., Articles 29 (1), 30 (1), 25, 26 and 32. Some rights are declared as prohibitory without any reference to any person or body to enforce them, e.g., Articles 28 (1), 23 (1) and 24. Some of these rights take specific forms of restriction of state action, e.g., Articles 14, 15, 16, 20, 21, 22, (1), 27 and 28. A few of the Articles authorise the state to make laws in derogation of the fundamental rights, e.g., Articles 15 (4), 16 (3), 16(4), 16 (5), 23 (3), 22 (6), 25 (2), 28 (2) and 28 (3). Some of them are also given the form of positive declaration and simultaneously providing for the imposition of restrictions of those rights, e.g., Articles 19 (1) and 19 (2) to 29 (6). The declaration of fundamental rights does not follow a uniform pattern. They seek to protect the rights of individuals or groups of individuals against the infringement of those rights within specific limits. The constitution declares that the state shall not make any law which takes away or abridges the fundamental rights and such laws to the extent of inconsistency shall be void. In this sense, the fundamental rights operate as limitations on the exercise of power of parliament and state legislatures.

The twenty-fifth amendment of the constitution in 1971 and Forty- second amendment of the constitution in 1976 enhanced the importance of directive principles by giving precedence to them over the fundamental rights. Minerva Mills Ltd. y. Union of India,AIR1980SC1789 the change made in Article 31-C by which primacy was given to all Directive Principles of state policy over fundamental rights by the forty-second amendment in 1976, was struck down. The result is that the power of parliament has been limited to framing of laws to enforce only two Directive Principles. Articles 39 (b) and 39 © even if they violate the fundamental rights enshrined in Articles 14, 19 and 31. The result is that Article31-C has not been struck down as such but the attempt to enlarge its scope in 1976 has been nullified.

A question has been asked why these rights are called fundamental rights when they can be restricted or deleted by an amendment of the constitution and can also be suspended by a Proclamation of Emergency. The answer is that these rights are called fundamental rights because they are the most essential for the attainment by the individual of his full moral and spiritual stature. The denial of these rights will keep his more and spiritual life stunted and his potentialities undeveloped. To quote D.K. Sen, “Fundamental Rights are those tights of liberty and property which are essential to the development of man as an individual. A fundamental right does not therefore merely mean a right of liberty which enables an individual to develop his faculties in his interest and in the interest of the community as a whole”. (A Comparative study of the Indian constitution, Vol. II, p. 188).

In cases like those of Maneka Gandhi, Sunil Batra, Hoskot and Hussainara Khatoon, one finds a new trend in the Supreme Court. In the case of Maneka Gandhi, the Supreme Court took the view that the provisions of part III of the constitution should be given widest possible interpretation. In the case of A.K. Gopalan, the court took the view that article dealt with separate rights and there was no relation between one another. They wee mutually exclusive. This view was rejected in the case of Maneka Gandhi. The constitution. “Their waters must mix to constitute that grand flow of unimpeded and impartial justice. Isolation of various aspects of human freedom for purposes of their protection, is neither realistic nor beneficial but would defeat the objects of such protection”

Doctrine of judicial review

The doctrine of judicial review was propounded for the first time by Chief justice Marshall of the Supreme Court of America in Marbury v. Madison. In that case, Chief justice Marshall held that all those who framed written constitutions contemplated them as forming the fundamental and paramount law of the nation and hence the theory of every such Government must be that an Act of legislature repugnant to the constitution is void and “it is emphatically the province and duty of the judicial department to say what the law is”.

While the America constitution did not make any provision for judicial review there is an express provision for it in the India constitution. In the case of A.K. Gopalan vs State of Madras, Chief Justice Kania observed thus: “In India it is the constitution which is Supreme and that a statute law to be valid, must be in all conformity with the constitutional requirements and it is for the judiciary to decide whether any enactment is constitutional or not”.

The doctrine of judicial review is a special characteristic of the Indian constitution. This doctrine means that the courts have the power to scrutinise laws and executive acts and test their conformity with the constitution and strike them down if they are found to be inconsistent with it. Article 13 (2) of the constitution. Article 124 (6) enjoins a judge of the supreme court to faithfully abide by his oath or affirmation to uphold the constitution.

It is therefore the duty of the supreme court to protect the fundamental rights against any encroachment or infringement by the state. The power of judicial review is necessary in a federal system because there is the necessity to decide in a dispute between the centre and the units with regard to the scope of the powers granted to them by the constitution.

The constitution of the United states does not expressly confer the power of judicial review on the courts. The Supreme Court of the united states assumed this power to itself. It was Chief Justice Marshall who emphatically asserted this great power for the first time in the famous case of Marbury vs Madison1Cranch137:2Led60(1803). It was held in that case that it was the duty of the Supreme Court to declare a statute void if it was repugnant to the constitution. The Indian constitution is unique as it expressly confers the power of judicial review on the Supreme Court of India and the High Court.

Judicial review is frequently resented because both the legislatures and the executive assert that vital questions of public policy ought to be determined not in the cloistered atmosphere of the Supreme Court or of the High Court but on the floors of the parliament or state legislatures. There is always the possibility of the abuse of the power of judicial review and social welfare legislation passed by a progressive legislature might be set aside as unconstitutional by a conservative judiciary. In spite of that, the framers of the Indian constitution provided for judicial review. On the whole, the system has worked well. The Supreme Court has exercised its power of judicial review with restraint.

Separation of powers

Unlike the united states, the doctrine of separation of powers in its rigid form is not to be found in the Indian constitution. In the united states, all legislative power is “vested” in the president and the judicial power is “vested” in one Supreme Court and in such inferior courts as congress may from time to establish.

In a lecture delivered on August 21, 1976, Sardar Swaran Singh observed: “By inserting the word ‘Socialist’, it is intended to give a positive direction to the Government in formulating its policies. The objective of social and economic justice and its fulfilment are basic to bring about far-reaching socio-economic changes to which we stand committed. The place of primacy that is now proposed should be given to the Directive Principle of state policy; our fundamental rights will enable acceleration of the pace. In his inaugural address delivered at the convention of constitutional Amendments in New Delhi on October 16, 1976,

In state of Kerala v. R Jacob Mathew, it was held that Ezhavas, Muslims and Latin catholic inclusive of Anglo-Indians in the state of Kerala constitute “socially and educationally backward classes of citizens” within the meaning of Article 15 (4) and reservation of seats for them by the state of Kerala’s order dated June 7, 1963 in the Medical Colleges in the state cannot be considered as a violation of Article 14 of the constitution

instrumentality or agency of the Government

In R.D. Shetty v. International Airport Authority of India, the Supreme Court held that the International Airport Authority of India was a state within the meaning of Article 12. The Supreme Court laid down the following criteria to determine whether a corporation was the instrumentality or agency of the Government or not;

1. If the entire share capital of the corporation is held by the Government, it goes a long way towards indicating that the corporation is an instrumentality or authority of the Government.

2. Where the financial assistance of the state is so much as to meet almost entire expenditure of the corporation, it affords some indication of the corporation being impregnated with Government character.

3. Where the corporation enjoys monopoly status which is state conferred or state protected.

4. Existence of deep and pervasive state control may afford an indication that the corporation is a state agency or instrumentality.

5. If the functions of the corporation are of public importance and closely related to Government functions, it is a relevant factor in classifying a corporation as an instrumentality or agency of Government.

6. If a Department of Government is transferred to a corporation, it is a strong factor supporting the inference that the corporation is an instrumentality or agency of the Government.

. Secularism

Secularism is not anti- God or atheism. The state in a free society has to refrain from interfering with matters which are religious, that is, non- secular matters except to the extent that such interference is justified on the ground of public interest interest and the general good. Such a state guarantees individual and corporate religious freedom and deals with an individual as its citizen irrespective of his faith and religious belief. The state is not connected with any particular religion. what we mean by secularism is that we “have respect for all religious and equal respect for all. Respect for religion does not depend on the number of the people that follow the religion. All religions in this country, however small their strength may be, have the same status and same prestige and same support from the state.” on the same occasion, Union Law Minister H.R. Gokhale defined the concept of secularism in these words: “There will be freedom liberty of faith and worship; whatever religion you belong to, is all what you mean by secularism. All that does mean is that the state will not have anything to do as a state with any religion except to treat every religion equally, but the state will not have any foundation of religion.”

Justice is essentially an other- regarding virtue. It recognises the independence or separateness of other individuals. It is concerned with the procedures and outcome and with consequences of actions and their significance. About social justice, it is said that every man should stand or fall on his own individual merit or capacity and should not ask for free help from anybody.

The preamble secures to all citizens equality of status and opportunity. This is provided by the prohibition of artificial restrictions on the grounds of religion, race, sex, colour, place of residence etc. Untouchability has been abolished and its practice has been made penal. All titles have been abolished. Equality of opportunity is provided by the guarantor of law. There is no discrimination in the matter of public employment. The terms of Article 16 of the constitution are emphatic on this point.

Fraternity

The concept of fraternity was borrowed from the French constitution. Fraternity means a sense of common brotherhood of all Indians. It is the reciprocal affection which inclines man to do unto others as he would that others would do unto him. It is the principle which gives unity and solidarity to social life. It may be difficult to achieve, but without it both liberty and equality will be no deeper than coats of paints. It is necessary to cultivate a feeling of fraternity among the people if India is to survive as a nation. While dealing with the duties of man, Mazzini wrote thus:-

“All privilege is violation of equality. All arbitrary rule is violation of liberty. Every act of egotism is a violation of fraternity.”

Ambit power and jurisdiction to issue a writ under Article 226

The writ of certiorari lies only to remove and adjudicate upon the validity of judicial Acts and the expression judicial Act may include quasi judicial functions. The same is issued on the ground of want of jurisdiction or excess of jurisdiction or failure to exercise jurisdiction, violation of procedure or disregard of principle of natural justice and error of law apparent on the face of the record. The writ of prohibition is distinct in as much as it is issued of the different stage of proceedings. The person against whom proceedings were taken can move the High Court for binding the interior Court or the tribunal for continuing the proceedings. Thus the prohibition is for arresting the further continuance of the proceedings while the writ of certiorari is a writ for quashing after the authorities have terminated in a final decision. The writ of mandamus is derived from the Latin word “we command” and the same is issued to enforce a legal right to compel the respondent to do the performance of some duty of a public nature created by the provisions of the constitution of a statute or some rule of common law or restrain from doing something contrary to it. A writ of mandamus is thus a writ as a rule which is dependant up on the discretion of the Court to substitute it’s wisdom or discretion for that of the person to whom the judgement in the mates: a question was entrusted by law. The writ of quo-warranto is to prevent a person who has wrongfully usurped an office from continuing in that office and the writ calls upon the under of the office to show to the Court under what authority he holds the office.

The writ of habeas corpus has been rightly considered for enforcement to its object of speedy release by judicial decree of a person or persons who is or illegally restrained and thus it is an essentially a procedural writ. The distinction is now clear that while the writ of certiorari may be issued by the High Court requiring that the record of the proceeding which have been terminated in a final decision is some cause or matter pending be fore an inferior cause should be transmitted to the superior Court to be dealt with there while the writ of prohibition is primarily supervisory and the object of that writ is to restrain the court /tribunal from exercising a jurisdiction which is not vested with then and to prevent them from exceeding the units of their jurisdiction. The writ of quo- warrento is issued to have an inquiry as to the legal authority of a person occupying an office while the habeas corpus is a highly privileged writ to enforce Fundamental Rights in the Indian personal liberty.

law made void (Article 13)

In article 13, the term “law” includes any ordinance, order, bye- law, rule, regulation, notification, custom or usage having in the territory of India the force of law. The term “law in force” includes laws passed or made by a legislature or other competent authority in the territory of India before the commencement of the constitution and not previously repealed, notwithstanding that any such law or any part there of may not be then in operation either at all or in particular areas. Nothing in Article 13 shall apply to any amendment of the constitution made under Article 368.

In state of Madras v. V.G. Row AIR 1952 SC 196. Chief justice Patanjali Sastri wrote: “Our constitution contains express provisions for judicial review of legislation as to its conformity with the constitution, unlike in America where the Supreme Court has assumed extensive powers of reviewing legislative Acts under cover of the widely interpreted ‘due process’ clause in the Fifth and Fourteenth Amendments. If then, the courts in this country face up to such important and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader’s spirit, but in discharge of duty plainly laid upon them by the constitution. This is specially true as regards the fundamental rights as to which this court has been assigned the role of sentinel on the qui vive”.

In Kesavananda Bharati v. state of Kerala, (1973) 4 SCC 255: AIR 1973 SC 1461. Khanna, J. made the following observation: “Judicial review has thus become an integral part of our constitutional system and a power has been vested in the High Courts and the Supreme Court to decide about the constitutional validity of the provisions of the statutes. If the provisions of the statutes are found to be violative of any Article of the constitution which is the touchstone for the validity of all laws, the supreme Court and the High Courts are empowered to strike down the said provisions.” As a matter of fact, the power of judicial review was held to be one of the basic features of the Indian constitution.

Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws, or to wipe them out altogether from the statute book for to do so will be to give them retrospective effect which, we have said, they do not possess. Such laws exist for all past transactions and for enforcing all rights and liabilities accrued before the date of the constitution. Keshavan Madhav Menon v. state of Bombay, AIR 1951 SC 128:

In Ramesh Thappar v. state of Madras, AIR 1957 SC 628: the Supreme Court observed, “Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions, both within and without the limits provided by the constitution.

Where it is not possible to separate the two, the whole law is to be struck down. So long as the possibility of its being applied for purposes not sanctioned by the constitution cannot be ruled out, it must be held to be wholly void.”

The Supreme Court has laid down the following rules with regard to the doctrine of severability:

1. In deciding whether parts of a statute are separable from the invalid part, it is the intention of the legislature that is the determining factor. The test to be applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid.

2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, the invalidity of a portion must result in the invalidity of the whole. if after striking out what is invalid, what remains is in itself a complete code independent of the rest, it will be upheld notwithstanding that the rest has become unenforceable.

3. Even when the provisions which are valid are distinct and separate from those which are invalid, if, they all form part of a single scheme which is intended to be operative as a whole, the invalidity of a part will result in the failure of the whole.

4. When the valid and invalid parts of an Act are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.

5. The supportability of the valid and invalid provisions of an Act does not depend on whether the law is enacted in the same section or in different sections. it is not the form but the substance of the matter that is material and that has to be ascertained on the relevant provisions therein.

6. If after the invalid portion is expunged from the Act what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck down as void as otherwise it will amount to judicial legislation.

7. In determining the legislative intent on the question of separability, it is legitimate to take into account the history of the legislation, its object, the title and the preamble to it.

In Mahendra Lal Jaini v. state of Uttar Pradesh, AIR 1955 SC 781: the Supreme Court held that the application of the doctrine of eclipse arises from the inherent difference between Article 13 (1) and Article 13 (2) arising from the fact that one is dealing with pre- Constitution laws and the other is dealing with the post- Constitution laws. In one case the laws being not stillborn, the doctrine of eclipse will apply. In the other case, the laws being stillborn, there will be no scope for the application of the doctrine of eclipse.

In Basheshar Nath v. Commissioner of Income Tax, Delhi. AIR 1959 SC 149. the petitioner whose case was referred to the income Tax Investigation Commissioner under Section 5 (1) of the Act was found to have concealed large amounts of income. He entered into a settlement with the Department and agreed to pay in 1954 Rs 3 lacs in monthly instalments by way of arrears of tax and penalty. In 1955, the Supreme Court in Muthiah v. Income Tax Commissioner AIR 1956 SC 269. held that Section 5 (1) was ultra vires of Article 14.

QUASI-JUDICIAL FUNCTIONS AS DISTINGUISHED FROM JUDICIAL FUNCTIONS

A Quasi - judicial function differs from a purely judicial function in the following respects;

(i)A quasi-judicial authority has some of the trappings of a court, but not all of them; nevertheless there is an obligation to act judicially.

(ii)A lis inter parties is an essential characteristic of a judicial function, but this may not be true of a quasi-judicial function.

(iii) A Court is bound by the rules of evidence and procedure while a quasi- judicial authority is not.

(iv) A court is bound by precedents, a quasi- judicial authority is not.

(v) A court can not be a Judge in its own cause, while an administrative authority vested with quasi - judicial powers may be a party to the controversy but can still decide it.

ADMINISTRATIVE FUNCTIONS

The same are residue of governmental functions that remain after legislative power and judicial functions are taken away.

(i) The administrative order is generally based on governmental policy or expediency.

(ii) In administrative decisions, there is no legal obligation to adopt a judicial approach to a question to be decided, and the decisions are usually subjective rather than objective.

(iii) An administrative authority is not bound by the rules of evidence and procedure unless the relevant statute specifically imposes such an obligation.

(iv) An administrative authority can take a decision in exercise of a statutory power or even in absence of a statutory provision’ provided such decision or act does not contravene provision of any law.

(v) Administrative functions may be delegated and sub -delegated unless there is a specific bar or prohibition in the statute.

(vi) While taking the decision, an administrative authority may not only consider the evidence adduced by the parties to a dispute, but may also use its discretion.

(vii) An administrative authority is not always bound by the principles of natural justice unless the statute casts such duty on the authority, either expressly or by necessary implication or if it is required to act judicially or fairly.

(viii) An administrative order may be held to be invalid on the ground of unreasonableness.

(ix) An administrative action will not become a quasi- judicial action merely because it has to be performed after forming an opinion as to the existence of any objective fact.

(x) The prerogative writs of certiorari and prohibition are not always available against administrative actions.

However, this is a very difficult task,” where does is the administrative end and the judicial begin?

“Duty to act judicially would, therefore, arise from the very nature of the function intended to be performed. If there is power to decide and determine to the prejudice of a person , duty to act judicially is implicit in exercise of such power. On the whole the test of justifiability has replaced that of classification of function as a determinant of the appropriateness of a decision for judicial review.

Extravagance of Public Finance vis-à-vis curbing the power and duties of C&AG.

The constitution of India provides that the Comptroller and Auditor General of India shall be appointed by the President by warrant under his hand and seal who shall not be removed from Office, except in the like manner and on the like grounds as a Judge of Supreme Court. The term of appointment shall be for a period of 5 years and the condition of service and salary of the Comptroller and Auditor General of India shall be such as may be determined by Parliament by Law and until they are so determined, shall be as specified in the second schedule of the constitution. The Comptroller and Auditor General shall perform such duties and exercise such powers in relation to the accounts of the union and of the states and of any other authority or body as may be prescribed or under any law made by Parliament. The report of the Comptroller and Auditor General relating to the accounts so maintained of the union shall be submitted to the President who shall cause them to be laid before each house of Parliament . The report relating to the accounts of the states shall be submitted to the Governor who shall cause them to be laid before the legislature of the states.

That the present accounting system applicable to most Ministries and departments in essentially external to Financial management function in that the payment made by the treasuries and accounts are compiled by audit and accounts offices under the control of the Comptroller and Auditor General on the basis of initial and subsidiary accounts received by them from the treasuries. This system worked fairly well when Governmental business was limited. With the increase ion the volume and variety of Governmental business and the continual set-up of developmental outlays, this system has proved inadequate to the administration task.

The scheme of separation of accounts from audit was to be implemented in selective ministries e.g communication, civil aviation, tourism, industries and civil supplies w.e.f April 1976, where the expansion regarding the expenditures and its audit was felt to be providing certain constraint and thereby resulting into the delay in implementation of the schemes at the relevant time. However by the gradual increase of the power with these ministries, the similar laxity in relation to the procedural safeguard was further provided the other ministries resulting into the defeat of the very purposes for which the office of the Comptroller and Auditor General was given the power through checks and balances. The effect of the aforesaid process has resulted in the departmentalisation of union accounts enacted in 1976 and the transfer of personnel was given effect by the enforcement of the Act no 59 of 1976 from Indian Audit and Accounts departments which was earlier under the control of C.& AG to the newly formed department of Civil Accounts under the Controller General of Accounts under department of Expenditure ministry of Finance. In this manner the office of C& AG which was constituted under the scheme of the constitution of India to provide the restraint to the expenditure disproportionate from its own discretion by the relevant ministries was brought under the ministry of Finance and thereby giving the unbridle powers to the ministers and thereby overthrowing the constitutional mandate securing the safeguard over the whimsical expenditure. According to the legal opinion of the constitutional experts, the diversification of the financial powers to be utilised by the sole discretion of the bureaucrats without taking into consideration the Audit objections, which could have been made under the original constitutional scheme, was directly resulting into the notion of conferring the absolute power to the respective ministry. This was against the democratic, federal and republic set-up of our Constitution. The aforesaid concept of the parliamentarian democracy, providing the fraternity to an individual in preamble of the constitution, was an attack on its basic structure. This has led to an inadequate financial control which would have been benefited to the nation if such power were remained with C&AG in India.

That it would be relevant to point out that the office of the Auditor General of India was created under the Government Of India Act 1935 for exercising the control over expenditure incurred by Central And State Governments and for proper accounting thereof in such forms and in such manner as may be prescribed by him and he was also responsible for rendering a complied account of receipt and expenditure to the Centre and State Governments and he was also required to submit report on the result of Audit in his Audit report to the Governor- General and

the Governor of the States for laying it before respective legislatures . That after coming over the constitution of India the Auditor General was designated as Comptroller Audit General of India under chapter V of the constitution. The state Govt. which lavishly spends crores on the refreshment allowances of its ministers, now is facing a crisis that it does not have enough money in its coffers to deposit the premium of insurance cover for 1 lakh employees of local bodies due for their group insurance scheme. As a result of this misutilisation of the public money the insurance scheme of these employees has lapsed and the life insurance corporation has expressed its inability to consider any future claim as part of the scheme in case of the death of a employee. The LIC missive state that the group insurance scheme of some 94.165 local bodies employees stands forfeited due to non deposit of approximately the premium of Rs 1.83 crores due on it from the last seven months. The LIC informed that the interest at the rate of 12% would also levied on the amount due to delay in payment of the premium. It is based on the idea for having LIC’s Master policy 4912 under its group insurance scheme which was mooted in 1977 by the state Govt. The Directorate of the local bodies makes a monthly payment of Rs 21.63 per member to the LIC while a employee make a payment of Rs 20 from his salary while Rs 1.63 is contributed by the state Govt. each months towards the policy, for which the LIC shrugs off future claims in case of the policy holders death where his next kin get Rs 25,000 under the scheme beside the premium deducted from his salary is also refunded with a 10% interest on the amount. Similarly an employee on its retirement get a premium deposited by him back with a 10% interest on the amount from the insurance firm. This is due to extravagance of public finance and curbing the powers and duties of Comptroller and Auditor General with effect from the time of enforcement of the Act no 59 of 1976 putting the earlier control of the C&AG under the Department of Expenditure Ministry of Finance in State of U.P.

Question& Answer

Question: What do you think whether our judiciary conferred with the power of judicial review under our constitution has been successful to deal with the plight of living dead?

Answer :The constitution is supreme and all the three pillars functions under its strict supervision . the supremacy of the parliament and the power of the Hon'ble Constitutional Courts in India have gone through a consistent efforts for providing a harmonious construction to build up a foundation on which our country may survive . The doctrine of immunity from legislation against the enactment through legislation has undergone a great struggle whenever the Hon'ble Constitutional Court found the infringement of fundamental rights of the citizen . However on account of excessive burden and the need for securing the effective exercise of the judicial review by the Hon'ble Constitutional Courts even with regards to Administrative action , there is an unchecked flow of litigation for every invasion of the right under the garb of the infringement of the fundamental rights.

Question: Whether you speculate in this process any tough battle for securing the basic structure of our constitution with the doctrine of Supremacy of the parliament and how far it is important for the healthy growth of our welfare state .

Answer: The rigours to demotion of judicial writ power by some of the constitutional amendments like 42nd Amendment has been declared ultra virus in Minerva Mills Case (1980) 3 S.CC 625 , Waman Rao case (1981) 2 S.C.C 362 and in L. Chandra Kumar case (1997 ) 3 S.C.C 261 reaffirming the majority verdict of the landmark judgement of Keshavananda Bharti case of 13 judge constitution bench of the Hon'ble Supreme Court . The jurisdiction conferred upon the Hon'ble constitutional Courts including the High Courts under Article 226 and Article 227 has been held as a part of the basic structure of the constitution. Thus not even the power of legislative enactment but also the power conferred under Article 368 to Amend the constitution may be subjected to judicial review by the Apex Court .

Question: Whether you think that in this process the expression "Procedure established by Law " as enshrined in Article 21 has now been replaced by "due process of law" as evident in American Constitution ?

Answer: Article 14 has two concepts which is a unique feature in Indian constitution. Most of the constitutions of the world either speaks of "equality before the law" or the "equal protection of the laws". Both these concepts although appears to be the same are not actually the same . The equality before the law refers as to providing the equality before the substantive laws of the nation as illustrated in Article 15 to 18 and also under Article 38, 39, 39A, 41and 46 of the constitution . The connotation equal protection of law contemplates for minimising the inequalities and for eliminating the inequalities in status , facilities , opportunities , values of lives with social care towards educational and economic interest not only amongst citizen but also amongst the group of the citizens. This Article forbids class legislation except being founded on an intelligible differential and to have a rational relation to the object sought to be achieved by the statute in question . The test of classification must be rational . However by the efflux of time , Article 21 which is couched in negative language by the framers of our Constitution has undergone the major change by interpretation through its positive angle having the inhibition contained therein i.e. "life " as synonymous to "livelihood" by taking into consideration that by abrogation and subjugation of the means of the living there shall be no life . This was done to get the rid of the radical innovation providing an instrument of status quo upholding the traditions of Anglo-Saxon jurisprudence and resisting radical innovation in the use of judicial power to promote social change by the so called judicial activism . The other concepts such as "Rule of Law" , "Judicial restraint" , "Separation of power", supremacy of fundamental right s over directive principles and "Procedure established under Law" conveniently to avoid change whenever possible through the assistance of two concepts of Article 14 as whenever required delete it and whenever inevitable dilute it as far as practicable and thus the discretionary powers were exercised in the different manner by inviting the diversities in the opinion of the constitutional Courts while dealing with Quasi judicial actions .

Question : Thus you mean to say that Article 21 of the constitution is not a fundamental right of the citizen as is being dealt with by the Hon'ble Supreme Court and has been included in the chapter of fundamental rights ?

Answer: True , Article 21 has been included in the chapter of fundamental right under our constitution but the same is a fundamental duty of the government as to provide protection against depriving any person of his life or personal liberty . There is only one individual fundamental right of the citizen i.e Article 19 . Article 25 and 26 is a collective right to the freedom of conscience and right to profess , practise and propagate religion and also to manage religious affairs . Thus every fundamental duty casted upon the government which is providing the protection to the individual may be read with the reasonable restrictions as contemplated in sub articles (2)to (6) of Article 19 of our constitution thus the constitution has provided a "check and balance" over the power of the Hon'ble Courts and the duties casted upon the government . In this manner the Hon'ble Courts while interpreting these Articles of fundamental rights may dealt with the individual as to whether the right which implies the forbearance to perform the duty by the Government has got the qualification prescribed in the yard stick of the reasonable restrictions or the constitution with the galaxy of so called fundamental right may be ruled in respect of its governance by the political set-up having co-ordination with divisive forces to the oppression of the people at large which has not been done after independence.

Question: What was the need of introducing Article 51A when already there were fundamental duties of the Government ?

Answer: Every right implies the forbearance on the part of other to perform his duty as right and duty is correlated and coexistent. After independence our country has been ruled with governance through laissez faire and the citizens have miserably forgotten there duties under the spirit of availing an aspirant cherished freedom . Thus the chapter of unenforceable fundamental duties was introduced with effect from 3.1.1977 by 42nd amendment .

Question : Why there is a pendency of number of litigation before the Constitutional Courts in which the case of the living people who have been declared as dead people in the official records have not been dealt with in time .?

Answer: The right of the people has been considered in the different dimension against every atrocities committed by the administration in discharge of their duty as the custodian of the public trust . The concept of public trust doctrine was developed by the Constitutional Courts to provide the safety to an individual as susceptible to abuse in discharge of the role by our Constitutional courts as a sentinel on quivive . The maxim of "ubi us ibi remedium" (where there is a right , there is a remedy ) was sparingly applied in respect of administrative action without considering as to whether the same is quasi judicial or not . The separation of power which was embodied to certain extent in our constitution and having its elasticity to provide pervasive potency and versatile quality has been diluted in absence of any accountability towards administrative action. Thus there was a flow of litigation before the constitutional Courts even in respect of violation of every right for which the administrative authority were responsible to exercise their power as the custodian of the public duty .Thus due to paucity of time , the genuine litigation was circumvented by unscrupulous litigation and there by suppressing the fundamental right of a bonafide citizen .

Question: Do you think that the present system can be rectified by enacting more legislation by the parliament or it may be left to the Constitutional Courts to eradicate the prevailing maladies ?

Answer There must be an accountability fixed with every officer and bureaucrats in the society regarding there abuse of power and judicial review which comprises the power of judicial superintendence over every sub-ordinate authority may be necessarily applied by the higher judiciary .There is a requirement of complete separation of power between three institutions on which our democratic set-up is dependent the adequate punishment be implemented in the deterrent and punitive manner as to create an example to the other wrong doer specially under the circumstances when the integrity and the prosperity of the nation is involved. In case of malafide exercise of power not only the action which is done contrary to the object may be rectified but there may be a judicial scrutiny for recommending the departmental disciplinary proceeding against the official who has passed such order with extraneous considerations. There should be the limit over the privilege conferred with every public servant who is not only a custodian of the power but also owe the duties towards the citizens who are considered in our constitution as the sovereign of the sovereignty .

Question: What do you think to be the source of the power of judicial review ?

Answer :It may be traced to the classic enunciation of the principles laid down by the Chief Justice John Marshall of U.S Supreme Court in Marbury Vs Madison ( 1 Crunch : 2 L Ed 60 (1803 ) ) as the origin of this power is never attributed to one source alone . It has been laid down that the judiciary dealing with interpretation of Law is duty bound while expounding and interpreting the Law and to see as to whether the Law is repugnant to the settled norms of the constitutions otherwise the same be declared as void .In America where the Supreme Court has assumed extensive power of reviewing the legislative Acts while in our constitution this power is conferred by the expressed provision contained in Article 13 of the constitution of India . Thus the power of judicial review has now considered to be an integral part of our constitutional system .

Question: What do you think to be the role of the Advocates in the process of judicial discipline and thereby providing a check and balance over misutilisation of the judicial and quasi judicial power by the public servant ?

Answer : In America the Lawyers may conduct the investigation in respect of the wrong committed with the people through their own investigation agencies and there is there is the power vested with every officer to deal with the misuse of power by any person without taking the accent from the higher elechon in the hierarchical set-up of superior authority in some of the European countries .However in India we have no such power to fix an accountability towards a public wrong by an Advocate and also by any honest official as there is a vicious circle in our Bureaucratic set-up where there is larger privilege and lesser responsibility. Thus we have become a silent spectator of the situation which is going to be the worst by the process of time . The apathy of the intellectual echoes back into a vacuum which has neither any ventilation for providing the fresh air to our people . Till such time when the intellectuals in the society may not be allowed to run the public administration nothing can be achieved in our nation.

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Constitutional Fundamental Rights in it’s different forms Extravagance of Public Finance vis-à-vis curbing the power and duties of C&AG.

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