Judicial Doctrines – Principles of Constitutional Law Explained

A doctrine is a belief, principle or position – usually upheld by authorities like courts. As far as Indian Judiciary is concerned, there are many doctrines. Many of you may be familiar with the Doctrine of Basic Structure. In this article, we will be dealing all important Indian Judicial Doctrines.

Doctrine of Basic Structure

The basic structure doctrine is an Indian judicial principle that the Constitution of India has certain basic features that cannot be altered or destroyed through amendments by the parliament.

But what should be considered as the basic features of the Indian Constitution is not explicitly defined by the Judiciary. It is widely believed that democracy, federalism, independence of the judiciary, secularism etc. are part of the basic features.

The claim of any particular feature of the Constitution to be a “basic” feature is determined by the Court on a case-by-case basis.

This doctrine was first expressed in Kesavananda Bharati v. The State of Kerala (1973). Thanks to Kesavananda Bharati, Palkhivala and the seven judges who were in the majority, India continues to be the world’s largest democracy.

Doctrine of Harmonious Construction

• This doctrine was brought about to bring harmony between the different lists mentioned in the Schedule 7 of the Constitution of India. Different subjects are mentioned in different lists in this schedule.
• However, there can be a situation where an entry of one list overlaps with that of another list. This is the time when this doctrine comes into the picture.
• It was said that the words of the entries should be given wide amplitude and the courts shall bring harmony between the different entries and lists.
• Supreme Court applied this Doctrine in the case of Tika Ramji vs the State of UP.

Doctrine of Eclipse

• The doctrine states that if any law becomes contradictory to the fundamental rights, then it does not permanently die but becomes inactive.
• As soon as that fundamental right is omitted from the Constitution, the inactive law becomes revived.
• When a court strikes a part of the law, it becomes unenforceable. Hence, an ‘eclipse’ is said to be cast on it. The law just becomes invalid but continues to exist.
• The eclipse is removed when another (probably a higher level court) makes the law valid again or an amendment is brought to it by way of legislation.
• Supreme Court first applied this doctrine in the case of Bhikaji vs State of Madhya Pradesh where it applied to pre-constitutional law. The extension to the post-constitutional law was stated in the case of Dulare Lodh vs ADJ Kanpur.

Doctrine of Pith and Substance 

• This doctrine comes into picture when there is a conflict between the different subjects in different lists. There is an interpretation of List 1 and List 2 of the Constitution of India.
• There can be a situation when a subject of one list touche the subject of another List. Hence this doctrine is applied then.
• Pith and Substance means the true nature of law.
• The real subject matter is challenged and not its incidental effect on another field.
• The doctrine has been applied in India also to provide a degree of flexibility in the otherwise rigid scheme of distribution of powers.
• The reason for the adoption of this doctrine is that if every legislation were to be declared invalid on the grounds that it encroached powers, the powers of the legislature would be drastically circumscribed.
• It was applied by the Supreme Court in the case State of Bombay Vs F.N Balasar.

 Doctrine of Incidental or Ancillary Powers

• This principle is an addition to the doctrine of Pith and Substance.
• What it means is that the power to legislate on a subject also includes the power to legislate on ancillary matters that are reasonably connected to that subject.
• For example, the power to impose tax would include the power to search and seizure to prevent the evasion of that tax. However, power relating to banking cannot be extended to include power relating to non-banking entities.
• However, if a subject is explicitly mentioned in a State or Union list, it cannot be said to be an ancillary matter. For example, the power to tax is mentioned in specific entries in the lists and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of the lists.
• As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power to legislate on a topic includes the power to legislate on an ancillary matter which can be said to be reasonably included in the topic.
• However, this does not mean that the scope of the power can be extended to any unreasonable extent. Supreme Court has consistently cautioned against such extended construction. For example, in R M D Charbaugwala vs State of Mysore, AIR 1962, SC held that betting and gambling is a state subject as mentioned in Entry 34 of State list but it does not include power to impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation

• This is applied when the legislature enacting the law has transgressed its power as is mentioned in the Constitution.
• The expression “colourable legislation” simply means what cannot be done directly, cannot be done indirectly too.
• It is the substance that is material and not the outward appearance.
• Hence there are certain situations when it seems that it is within the power of the legislature enacting the law but actually it is transgressing. This is when this doctrine comes into the picture.
• It was applied by the Supreme Court of India in the case State of Bihar vs Kameshwar Singh and it was held that the Bihar Land Reforms Act was invalid.

Doctrine of Severability

• According to this doctrine, if there is any offending part in a statute, then, only the offending part is declared void and not the entire statute.
• Article 13 states that the portion that is invalid should be struck off and not the entire one. The valid part can be kept.
• However, it should be kept in mind that even after separation; the remaining part should not become ambiguous.
• If the remaining part becomes ambiguous, then the whole statute would be declared void and of no use.
• Supreme Court in the case of RMDC vs. UOI states that doctrine of severability is a matter of substance and not of form.

Doctrine of Territorial Nexus

• Article 245 states that a state legislature can make laws on the territory of the state and not on extraterritorial laws provided there is nexus or connection between the sate and the object of the legislation.
• Article 245(1) states that the Parliament of India can make laws for the whole or any territory of India.
• Similarly, a state legislature can do the same.
• Such laws cannot be declared invalid on the growth that they are extraterritorial according to Article 245(2).
• To determine whether a particular legislation is within the territorial nexus or not, this doctrine is applied.
• Supreme Court applied this doctrine in the case of Tata Iron Steel vs. the State of Bihar.

Doctrine of Laches

• Laches means delay. The doctrine of laches is based on the maxim that “equity aids the vigilant and not those who slumber on their rights.” (Black’s Law Dictionary).
• The outcome is that a legal right or claim will not be enforced or allowed if a long delay in asserting the right or claim has prejudiced the adverse party.
• Elements of laches include knowledge of a claim, unreasonable delay, neglect, which taken together hurt the opponent.
• It is well known that one who wants remedy must come before the court within a reasonable time.
• Lapse of time violates equity and it is against the concept of justice.
• Hence the issue came up whether delay can be a ground to deny fundamental rights under Article 32.
• It was said that denial of fundamental rights only on the ground of delay is not justified as fundamental rights are basic and very essential for the development of the individual.
• Supreme Court under the case of Ravindra Jain vs UOI stated that remedy under article 32 can be denied on grounds of unreasonable delay. However, there has been no case to overrule the above-mentioned case law by the Supreme Court order.

Other Important Indian Judicial Doctrines

There are many other doctrines followed by Indian Judiciary. Some of them are

• The Doctrine of Judicial Review.
• The Doctrine of Due Process of Law.
• The Doctrine of Constitutional Morality

Basic Structure Doctrine

 

The basic structure doctrine is one of the fundamental judicial principles connected with the Indian Constitution.

The doctrine of the basic structure holds that there is a basic structure to the Indian Constitution, and the Parliament of India cannot amend the basic features.

It was in the Kesanvnda Bharati vs State of Kerala case, the Constitutional Bench of the Supreme Court ruled by a 7-6 verdict that Parliament could amend any part of the Constitution so long as it did not alter or amend the basic structure or essential features of the Constitution.

What is the Basic Structure Doctrine?

Indian Constitution is a dynamic document that can be amended according to the needs of society whenever required. Constitution under Article 368 grants power to the Parliament to amend whenever there is a necessity. The Article also lays down the procedure for amendment in detail.

The doctrine of basic structure is nothing but a judicial innovation to ensure that the power of amendment is not misused by Parliament. The idea is that the basic features of the Constitution of India should not be altered to an extent that the identity of the Constitution is lost in the process.

Indian Constitution upholds certain principles which are the governing rules for the Parliament, any amendment cannot change these principles and this is what the doctrine of basic structure upholds. The doctrine as we have today was not present always but over the years it has been propounded and upheld by the judicial officers of this country.

In this article, we would dwell in detail on the evolution of the doctrine of basic structure and what are the features of the Constitution of India that have been regarded as part of the basic structure by the hon’ble courts.

Timeline for Evolution of Basic Structure

Pre – Golak Nath Era

The Constitution of India was amended as early as 1951, which introduced the much-debated Article(s) 31A and 31B to it. Article 31B created the 9th Schedule which stated that any law provided under it could not be challenged for the violation of Fundamental Rights as per Article 13(2) of the Constitution. Article 13(2) states that the Parliament shall not draft any law which abridges the rights conferred under Part III and to that extent it shall be void.

A petition was filed in the Supreme Court of India challenging Article(s) 31A and 31B on the ground that they abridge or take away rights guaranteed under Part III of the Constitution which is against the spirit of Article 13(2) and hence should be declared void. In this case, Shankari Prasad Singh Deo v. Union of India, the Hon’ble Supreme Court held that the power to amend the Constitution including the Fundamental Rights is conferred under Article 368, and the word ‘Law’ as mentioned under Article 13(2) does not include an amendment of the Constitution. There is a distinction between Parliament’s law-making power, that is, the legislative power and Parliament’s power to amend or constituent powers.

After this, several amendments were brought to the Constitution and once again the scope of amendments was challenged in the Sajjan Singh v. State of Rajasthan. The five-judge bench in Sajjan Singh dealt with the validity of the 17th Constitutional Amendment which had added around 44 statutes to the 9th Schedule. Though all of the judges agreed with the decision of Shankari Prasad but for the first time in the concurring opinion by Hidyatullah and Mudholkar JJ doubts were raised on the unfettered power of Parliament to amend the Constitution and curtail the fundamental rights of the citizens.

Golak Nath v. the State of Punjab

In this case, three writ petitions were clubbed together. The first one was by children of Golak Nath, against the inclusion of the Punjab Security of Land Tenures Act, 1953 in the Ninth Schedule. The other two petitions had challenged the inclusion of the Mysore Land Reforms Act in the Ninth Schedule. It is an 11 judge bench decision, wherein the Hon’ble Supreme Court by a majority of 6:5 held that the fundamental rights were outside the purview of the amendment of the Constitution, based on the following reasoning:

• The power of Parliament to amend the Constitution does not subside in Article 368 but it is derived from Article 245, read with Entry 97 of List I of the Constitution. It was very clearly stated that Article 368 only provided for the Procedure of Amendment and nothing more.
• The Court also clarified that the word ‘law’ under Article 13(2) includes within its meaning an amendment to the Constitution. Therefore any amendment against the Fundamental Rights was void.
• The argument that the power to amend the Constitution is a sovereign power, which is over and above the legislative power and hence outside the scope of judicial review was rejected.

However, the 1st, 4th, and 17th Amendments were not declared invalid by the Court as the ruling was given a prospective effect. This meant that no further amendments could be brought into the Constitution violating the fundamental rights. But the cases of Shankari Prasad and Sajjan Singh were declared bad in law by the Court to the extent that Article 13(2) does not include a Constitutional amendment under Article 368.

Constitution 24th Amendment

The Golak Nath case left the Parliament devoid of its powers to amend the Constitution freely, therefore to restore the earlier position; the 24th Constitutional Amendment was brought forth. The Amendment Act not only restored the earlier position but extended the powers of Parliament. The following changes were made through the amendment:

• A new clause (4) was added to Article 13 which stated that ‘nothing in this Article shall apply to any amendment of this Constitution made under Article 368’.
• The marginal heading of Article 368 was changed to ‘Power of Parliament to amend the Constitution and Procedure, therefore’ from ‘Procedure for amendment of the Constitution.
• Article 368 was provided with a new sub-clause (1) which read ‘notwithstanding anything in this Constitution, Parliament may, in the exercise of its Constituent Power amend by way of addition, variation, or repeal any provision of this Constitution in accordance with the procedure laid down in this Article.
• President was put under an obligation to give assent to any Bill amending the Constitution by changing words from ‘it shall be presented to the President who shall give his assent to the Bill and thereupon’ to ‘it shall be presented to the President for his assent and upon such assent being given to the Bill’.
• A reassuring clause (3) was also added to Article 368, which again clarified that ‘nothing in Article 13 shall apply to any amendment made under this Article.

Kesvananda Bharati v. the State of Kerala

This case was initially filed to challenge the validity of the Kerala Land Reforms Act, 1963. But the 29th Amendment of the Constitution placed it under the Ninth Schedule. The petitioner was permitted to not only challenge the 29th Amendment but also the validity of the 24th and 25th Amendments.

The historic judgment was delivered by a 13 judge bench and with the majority of 7:6; they overruled the Golak Nath case. It was held that the power of Parliament to amend the Constitution is far and wide and extends to all the Articles but it is not unlimited to an extent that it destroys certain basic features or framework of the Constitution.

The Hon’ble Supreme Court, however, held that the 24th Amendment was valid as it only states what was present before implicitly. It does not enlarge the powers of Parliament; Article 368 always included the power and procedure to amend the Constitution.

The judges did not provide what constitutes the basic structure but provided an illustrative list of what may constitute the basic structure. As per Sikri, C.J., the basic structure constitutes the following elements:

• The supremacy of the Constitution
• Republican and Democratic forms of Government
• Secular character of the Constitution
• Separation of Powers between the legislature, the Executive, and the Judiciary
• Federal Character of the Constitution

Shelat and Grover, JJ., added the following to the above list:

• The mandate to build a welfare state contained in the Directive Principles of State Policy
• Maintenance of the unity and integrity of India
• The sovereignty of the country

Hegde and Mukherjee, JJ., had their list of the elements of the basic structure, which included:

• The sovereignty of India
• The democratic character of the polity
• The unity of the country
• Essential features of individual freedom
• The mandate to build a welfare state

Whereas Jaganmohan Redd, J., believed that it was the Preamble that laid down the basic features of the Constitution, which are:

• A sovereign democratic republic
• The provision of social, economic, and political justice
• Liberty of thought, expression, belief, faith, and worship
• Equality of status and opportunity

After this judgment, the general opinion was that the judiciary is trying to create an overhaul over the Parliament, but soon an opportunity was laid down before the Court to examine the doctrine.

Evolution of Basic Structure Doctrine

Indra Nehru Gandhi v. Raj Narain was the case in which the faith in the doctrine was affirmed and established. In this case, the appellant had filed an appeal against the decision of Allahabad High Court invalidating her election as the Prime Minister. While the appeal was still pending at the Supreme Court, the 39th Amendment was enacted and enforced which stated that no court has jurisdiction over the election disputes of the Prime Minister.

The Hon’ble Supreme Court relying on the decision of Kesavananda Bharati stated that democracy was an essential feature of the Constitution and forms part of the basic structure. The bench added certain other features to the list of the basic structure, which was: Rule of Law and the power of Judicial Review.

The basic structure then came up in the case of Minerva Mills Ltd. v. Union of India, wherein the Supreme Court provided clarity to the doctrine and laid down that the power of amendment under Article 368 is limited and exercise of such power cannot be absolute. A limited amending power was very well part of the basic structure doctrine of the Constitution. Further, the harmony and balance between fundamental rights and directive principles are also part of the basic structure, and anything that destroys the balance is an ipso facto violation of the doctrine.

The case of L. Chandra Kumar v. Union of India again stated that the power of judicial review under Article 32 of the Supreme Court and Article 226 of the High Court is part of the basic structure doctrine and these powers cannot be diluted by transferring them to administrative tribunals.

Conclusion

Today there is no dispute regarding the existence of the doctrine, the only problem that arises time and again is the contents of the same.

Certain contents have been reaffirmed again and again by the Courts whereas some of them are still in the process of deliberations.

The basic structure doctrine grants the fine balance between flexibility and rigidity that should be present in the amending powers of any Constitution.

Bibliography

• ‘Important Judgments that transformed India’ by Alex Andrews George
• M.P. Jain, Indian Constitutional Law
• V.N. Shukla, Constitution of India
• Krishan Keshav, Singhal’s Constitutional Law – II
• A critique – Legal Service India
• Doctrine – Wikipedia
• Minera Mils Case – Law Octopus
• Shankari Prasad Singh Deo v. Union of India, AIR 1951 SC 455
• Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845
• Golak Nath v. State of Punjab, AIR 1967 SC 1643
• Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461
• Indra Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299
• Minerva Mills Ltd. V. Union of India, AIR 1980 SC 1789
• Chandra Kumar v. Union of India, AIR 1997 SC 1125

The judiciary

The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law in legal cases.

                      Supreme court of india

          

President of India – Discretionary Powers You Never Knew Existed!

Indian President is not a ceremonial head, unlike many other countries.

All important decisions regarding the country are taken in the name of Indian President, though most of these will be based on the binding advice given by Council of Ministers(CoM), as per Article 74 of Indian Constitution.

But there are certain exceptions, where he can use his discretionary powers. Let’s learn more about that.

Discretionary powers of the President: Not based on the advice of CoM

The discretionary powers of the Indian president are not explicitly mentioned in the Indian constitution. But cases, where the Indian President do not act on the advice of CoM, can be understood if one carefully read the provisions related to the Indian President.

The cases of discretionary powers are as below:

#1: Suspensive Veto:

The President has discretionary power when he exercises suspensive veto ie. when he returns a bill (not money bill) for reconsideration of the parliament.

However if the bill is passed again by the Parliament with or without amendments and presented again to the President, it is obligatory for him to give his assent to the bill.

#2: Pocket Veto:

This is not a provision mentioned in the Indian constitution, but this is a possible situation when the President of India can use his discretionary power. In this case, the President neither ratifies nor reject nor return the bill, but simply keeps the bill pending for an indefinite period.

As the time limit within which the President has to take the decision with respect to a bill presented to him for assent, has not been mentioned in the constitution, in effect the inaction of the President stops the bill from becoming an act.

#3: President can seek information from Prime Minister:

Under article 78 the President enjoys the right to seek information from the PM regarding the administration of the affairs of the union.

Under the established convention, the President has the right to warn or encourage the Council of Minister (CoM) in the exercise of its power.

#4: Case of no sitting of both houses:

Under Article 85, the President can summon each House of Parliament to meet at such time and place as he thinks fit, to ensure that six months shall not intervene between its last sitting in one session and the date appointed for its sitting in the next session.

#5: Case of no majority:

When no political party or coalition of parties enjoy the majority in Lok Sabha, then the President has discretion in inviting the leader of that party or coalition of parties who in his opinion is able to form a stable government.

#6: Case of no-confidence with CoM- dissolving Loksabha:

It is for the president to decide if he should dissolve Loksabha or not when CoM loses the majority in Lok Sabha.

Note: The President can dissolve Lok Sabha only on the advice of CoM but the advice is binding only if the government is a majority government.

#7: Case of no-confidence with CoM- dissolving CoM:

It is for the president to decide if he should dissolve CoM or not when CoM loses the majority in Lok Sabha.

#8: Case of a caretaker government

A caretaker government does not enjoy the confidence of Lok Sabha and hence it is not expected to take major decisions but only to make the day-to-day administrative decisions. It is for the President to decide the day-to-day decisions.

The advice given by CoM binding on Indian President: Article 74

Article 74 of the Indian Constitution says that

• (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

• (2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.”

Powers exercised on the advice of CoM (non-discretionary powers)

President of India is vested with Legislative, Executive and Judicial powers. But as the advice given by CoM is binding on Indian President, in reality, most of these powers rest with the COM; but decisions are taken in the name of President of India. See some examples.

• President’s rule – He can rule the whole nation or individual states at times of emergency. The President can declare State, National and Financial Emergencies. Punjab, Jharkhand, Jammu and Kashmir and many other states have been under President’s Rule.
• Commander-in-Chief of Indian Armed forces – The President is the Commander-in-Chief of the Indian Armed Forces.
• The President appoints our State governors, Supreme Court and High Court Judges, and the Chief Justice.
• The President can summon and dissolve parliament sessions.
• A ‘bill’ passed in the parliament can become an ‘act’ only after the President’s approval.
• The President of India has the power to reduce the degree of punishment or pardon criminals – even death sentences can be absolved on appeal.
• The President is the head of Indian State while Prime Minister is the head of Indian Government.
• Ambassadors and High Commissioners representing our country are appointed by the President.
• President appoints the Chief Election Commissioner and other Election Commissioners.
• The President delivers the opening address for the first session of the parliament, as well as the first session of a newly elected government, defining the policies of the government.
• IAS or IPS officers (All India Services) by the President of India, based on the advice of UPSC.

The Executive

An executive president is the head of state who exercises authority over the governance of that state, and can be found in presidential, semi-presidential, and parliamentary systems.

They contrast with figurehead presidents, common in most parliamentary republics, in which the president serves symbolic, nonpolitical roles (and often is appointed to office by parliament) while the prime minister holds all relevant executive power. A small number of nations, most notably Somalia, South Africa and Botswana, have both an executive presidency and a system of governance that is parliamentary in character, with the President elected by and dependent on the confidence of the legislature. In these states, the offices of president and prime minister (as both head of state and head of government respectively) might be said to be combined.

The above examples notwithstanding, executive presidencies are found in presidential systems and semi-presidential systems.

In order to prevent the abuse of power, checks and balances are implemented through the legislative and judiciary bodies. For example, in the United States one method is impeachment whereby the president can be held accountable if others deem their actions unconstitutional, with the most recent example being the impeachment trials of President Donald Trump.