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Union and State

Shamsher Singh v. State of Punjab AIR 1974 SC 2192

SHAMSHER SINGH V. STATE OF PUNJAB

Shamsher Singh v. State of Punjab AIR 1974 SC 2192

ISSUE:

  • Can the Governor exercise discretion on appointing and removing members of the Subordinate Judicial Service?
  • Whether the constitutional requirement of the satisfaction of the President/Governor mean his satisfaction?

RULE:

  • The satisfaction required by the Constitution of India is not the personal satisfaction of the President or Governor but the satisfaction of the President or Governor in the constitutional sense in the Cabinet system of the Government, that is, the satisfaction of his Council of Ministers.

FACTS:

  • The present case is based on the two appeals from the judgment of the Punjab and Haryana High Court.
  • The appellants in the present case had joined the Public Civil Service.
  • However, both of them were kept on probation.
  • On 27 April 1967, an order made by the Government of Punjab in the name of Governor Shamsher Singh was terminated without any reason.
  • On 15 December, 1969 the other appellant Ishwar Chand Aggarwal was terminated from his services due to the Government’s suggestions by the High Court in the name of the Governor.

HELD:

  • The Appellant Shamsher Singh was a Subordinate Judge on probation. His services were terminated by the Government of Punjab in the name of the Governor of Punjab by an order that gave no reasons for the termination.
  • Likewise, the services of Ishwar Chand Agarwal were also terminated by the Government of Punjab in the name of the Governor on the recommendation of the High Court.
  • The Supreme Court unequivocally reiterated the settled legal position that the President/Governor is only the constitutional head, the real power is vested in the Council of Ministers on whose aid and advice the President/Governor exercises his powers and functions.
  • In Constitutional Law, the ‘functions’ of the President and Governor and the ‘business’ of Government belong to the Ministers and not to the Head of State, the ‘aid and advice’ of Ministers are terms of art which in the law mean, in the Cabinet context of our constitutional scheme, that the aider acts and the advisor decides in his authority and not subject to the power of President to accept or reject such action or decision, except, in the case of Governors, to the limited extent that Article 163 permits and his discretion, remote controlled by the Centre has played. The judgment overruled the case of Sardari Lal v. Union of India.
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Union and State

S.R. Chaudhuri v. State of Punjab AIR 2001 SC 2707

S.R. CHAUDHURI V. STATE OF PUNJAB

S.R. Chaudhuri v. State of Punjab AIR 2001 SC 2707

ISSUE:

  • Whether the appointment of Shri Tej Parkash Singh for a second time during the term of the same Legislature, without being elected as a Member of the Legislature, violative of the constitutional provisions?

RULE:

  • Article 164 (4) of the Constitution of India states that a Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.

FACTS:

  • Shri Tej Parkash Singh was appointed as a Minister in the State of Punjab on the advice of the Chief Minister, Sardar Harcharan Singh Brar.
  • At the time of his appointment as a Minister, he was not a Member of the Legislative Assembly in Punjab.
  • He failed to get himself elected as a Member of the Legislature of the State of Punjab within six months and submitted his resignation from the Council of Ministers.
  • During the term of the same Legislative Assembly, there was a change in the leadership of the ruling party. Smt. Rajinder Kaur Bhattal was, on her election as Leader of the Ruling Party, appointed Chief Minister of the State of Punjab, and Tej Parkash Singh, who had not been elected as a Member of the Legislature even till then, was once again appointed as a Minister.
  • The Appellant filed a petition seeking a writ of quo warranto. It was stated in the petition that the appointment of Tej Parkash Singh for a second time during the term of the same Legislature, without being elected as a Member of the Legislature, was violative of constitutional provisions and, therefore, bad.

HELD:

  • The Supreme Court observed that the expression “six consecutive months”, implies that the period of six months must run continuously and not even intermittently. It would commence from the time a non-legislator is either appointed as a Minister or a Minister who becomes a non-legislator, is allowed to continue as such, and comes to an end at the expiry of that period.
  • The Supreme Court held that it would be subverting the Constitution to permit an individual, who is not a member of the Legislature, to be appointed a Minister repeatedly for a term of “six consecutive months”, without him getting himself elected in the meantime.
  • The Supreme Court stated that held that the reappointment of Shri Tej Parkash Singh as a Minister in the State of Punjab with effect from 23 November 1996 was invalid and unconstitutional.
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Union and State

S.P. Anand, Indore v. H.D. Deve Gowda AIR 1997 SC 272

S.P. ANAND, INDORE V. H.D. DEVE GOWDA

S.P. Anand, Indore v. H.D. Deve Gowda AIR 1997 SC 272

ISSUE:

  • Whether a person who is not a member of either House of Parliament can be appointed as the Prime Minister of India?

RULE:

  • Article 75(5) of the Constitution of India permits the President of India to appoint a person who is not a member of either House of Parliament as a Minister, including a Prime Minister subject to the possibility of his commanding the support of the majority of members of the Lok Sabha.

FACTS:

  • A writ was filed under Article 32 of the Constitution of India by the Petitioner.
  • It was contended that Shri H.D. Deve Gowda, former Prime Minister of India, not being a member of either House of Parliament, was, under the Constitution, not eligible to be appointed as the Prime Minister of India.
  • It was further contended that Dr. Shanker Dayal Sharma committed a grave and serious Constitutional error in swearing him in as the Prime Minister.

HELD:

  • The Supreme Court held that even if a person is not a member of the House if he has the support and confidence of the House, he can be chosen to head the Council of Ministers without violating the norms of democracy and the requirement of being accountable to the House would ensure the smooth functioning of the democratic process.
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Union and State

R.K. Garg & Ors. v. Union of India & Ors. (1981) 4 SCC 675

R.K. GARG AND ORS. V. UNION OF INDIA AND ORS

R.K. Garg & Ors. v. Union of India & Ors. (1981) 4 SCC 675

ISSUE:

  • To what extent Article 14 of the Constitution of India renders the Ordinance and the Act to be extra vires?
  • Whether the President’s promulgation of the Ordinance go beyond his authority granted by Article 123 of the Constitution of India?
  • Whether the classification made under the Bond Bearer Act, 1981 between the holders of black money and others is not practical, real, intelligible and not arbitrary, and irrational and therefore violative of the equal protection clause in Article 14 of the Constitution of India?

RULE:

  • The right to equality is enshrined in Article 14 of the Constitution of India. By its terms, discrimination of any kind is forbidden by law, and all people are treated equally.
  • Article 123 of the Constitution of India mentions the Ordinance-making power of the President. He can promulgate Ordinances either when both the houses or either of the Houses is not in session.

FACTS:

  • On 12.01.1981, when both Houses of Parliament were not in session, the President issued the Special Bearer Bonds (Immunities & Exemptions) Ordinance, 1981 in the exercise of the power conferred upon him under Article 123 of the Constitution.
  • The Ordinance was later replaced by the Bearer Bonds Act, 1981 which received the assent of the President on 27.03.1981, but was brought into force with retrospective effect from 12.01.1981, being the date of promulgation of the Ordinance.
  • It was argued that if black money was not invested in the Special Bearer Bonds it could have been mopped up from the economy by various other measures like search and seizures.

HELD:

  • The Hon’ble Supreme Court of India held that both the Act and the Ordinance are constitutional since they are in line with Article 14 of the Constitution of India.
  • The Supreme Court established a presumption in favour of the constitutionality of a statute, which is especially important when it comes to laws regulating the economy because courts cannot substitute their social and economic beliefs for the judgment of legislative bodies and, more often than not, a greater wiggle room has to be allowed to the legislature because of the complexity, uncertainty, and liability associated with economic regulation.
  • The Court reasoned that the classification’s legality should be evaluated in light of the law’s stated purpose.
  • The Supreme Court also held that the President’s power to promulgate an ordinance under Article 123 of the Constitution of India is co-extensive with the power of the Parliament to make laws, and thus no limitation could be read into his power to alter or amend tax laws.
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Union and State

M.P. Special Police Establishment v. State of M.P. AIR 2005 SC 325

M.P. SPECIAL POLICE ESTABLISHMENT V. STATE OF M.P.

M.P. Special Police Establishment v. State of M.P. AIR 2005 SC 325

ISSUE:

  • Is granting sanction for prosecuting the Ministers a function which could be exercised by the Governor “at his discretion” within the meaning of these words as used in Article 163 of the Constitution of India?

RULE:

  • The Governor cannot act at his discretion there would be a complete breakdown of the rule of law since it would then be open for Governments to refuse sanction despite overwhelming material showing that a prima facie case is made out.
  • It would then lead to a situation where people in power may break the law with impunity safe in the knowledge that they will not be prosecuted as the requisite sanction will not be granted.

FACTS:

  • Respondents, Rajender Kumar Singh, and Bisahu Ram Yadav were Ministers in the Government of Madhya Pradesh. A Complaint was made to the Lokayukta against them for having released 7.5 acres of land illegally to its earlier owners even though the same had been acquired by the Indore Development Authority.
  • After investigation, the Lokayukta submitted a report holding that there were sufficient grounds for prosecuting the two Ministers under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1983, and also for the offenses of criminal conspiracy punishable under Section 120-B of the Indian Penal Code. It must be mentioned that by the time the report was given the two Ministers had already resigned.
  • The sanction was applied by the Council of Ministers to prosecute the two Ministers. The Council of Ministers held that there was not an iota of material available against both the Ministers from which it could be inferred that they had entered into a criminal conspiracy with anyone.
  • The Council of Ministers thus refused sanction on the ground that no prima facie case had been made out against them.
  • The Governor then considered a grant of sanction keeping in view the decision of the Council of Ministers. The Governor opined that the available documents and the evidence were enough to show that a prima facie case for the prosecution had been made out. The Governor accordingly granted sanction for prosecution under Section 197 of the Criminal Procedure Code.

HELD:

  • The Supreme Court held that the doctrine of necessity has no application to the facts of this case. Certainly, the Council of Ministers has to first consider the grant of sanction. It was also presumed that a high authority like the Council of Ministers would normally act in a bonafide manner, fairly, honestly, and by the law.
  • However, on those rare occasions where on facts the bias becomes apparent and/or the decision of the Council of Ministers is shown to be irrational and based on non-consideration of relevant factors, the Governor would be right, on the facts of that case, to act in his discretion and grant sanction. Given this matter, appeals are allowed. The decisions of the Single Judge and Division Bench cannot be upheld and were accordingly set aside.
  • The Writ Petitions filed by the two Ministers were also dismissed.
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Union and State

Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1

KRISHNA KUMAR SINGH V. STATE OF BIHAR

Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1

ISSUE:

  • Whether Article 213 of the Constitution of India confers a mandatory obligation upon the Executive to table an Ordinance before the Legislature?
  • Whether a re-promulgation of the Ordinance is permissible under the Constitution of India?
  • Whether an act through an Ordinance remains valid even after the Ordinance ceases to operate?

RULE:

  • Article 213 of the Constitution of India states that “In the event of a lapse in legislative action, the governor retains the authority to issue executive orders.”
  • The Governor has the power to promulgate Ordinances when the State Legislature is not in session and these Ordinances must be approved by the State Legislature within 6 weeks of its reassembly.

FACTS:

  • The State of Bihar approved a series of laws known together as “The Bihar Non-Government Sanskrit Schools (Taking over of Management and Control) Ordinance,” to acquire 429 Sanskrit schools and move their staff members to state employment. The first ordinance was passed by the government in 1989, and six more followed in quick succession.
  • The Governor’s authority to promulgate ordinances under Article 213 of the Indian Constitution was never submitted to the State Legislature for review. The State Legislature did not pass a statute codifying the ordinances. This meant that the last ordinance was no longer in effect as of 1992.
  • Following this, the Sanskrit school teachers and administrators filed a writ petition for back pay with the Patna High Court.

HELD:

  • The Hon’ble Bench of the Supreme Court of India in the ratio of 5:2 held that unfettered re-promulgation of Ordinances is unconstitutional.
  • The Constitution Bench ruled in D.C. Wadhwa and Ors. v. State of Bihar and Ors. that the re-promulgation of ordinances is a fraud on the Constitution and a subversion of democratic legislative procedures. It defeats the purpose of Articles 123 and 213 which prescribe a limited power to issue Ordinances.
  • The Hon’ble Bench in this case declared that the powers conferred on the President and Governor under respective articles are not immune from judicial review. More importantly, it also held that the re-promulgation of Ordinances without placing these Ordinances before the legislature is a subversion of the democratic legislative process.
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Union and State

Har Sharan Verma v. State of U.P. (1985) AIR 282

HAR SHARAN VERMA V. STATE OF U.P

Har Sharan Verma v. State of U.P. (1985) AIR 282

ISSUE:

  • Whether after the Amendment to Article 173 of the Constitution of India, it was not open to the Governor to appoint a person who was not a member of the Legislature of the State as a Minister?
  • Whether Article 164(4) of the Constitution of India would only apply to a person who had been a Minister but who ceased to be a member of the Legislature for some reason, such as the setting aside of his election in any election petition?

RULE:

  • The Sixteenth Amendment Clause (a) of Article 173 of the Constitution of India was amended by the addition of a clause that required a candidate at an election to the Legislature to make and subscribe before some person had been authorized on that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule to the Constitution. adherence to the treaty and international responsibilities. It is one thing to state that Parliament may pass legislation about extraterritorial issues or causes since they affect or have a connection to India.

FACTS:

  • K.P. Tewari, who had been appointed as a Minister of the Government of Uttar Pradesh under Article 164(1) of the Constitution by the Governor of the State of Uttar Pradesh, was not a member of either House of the State Legislature.
  • Subsequently, his appointment was challenged by filing a writ petition.
  • The grievance of the petitioner against that Judgment is that this Court had not considered the effect of the amendment of Article 173(a) of the Constitution by the Constitution (Sixteenth) Amendment Act, 1963.

HELD:

  • The Supreme Court held that no material change was brought about because of the amendment of Article 173 (a) of the Constitution in the legal position that a person who is not a member of the State Legislature may be appointed as a Minister.
  • The object of introducing the amendment in clause (a) of Article 173 of the Constitution was to provide that not only before taking his seat shall a member of the Legislature take the oath prescribed by the Third Schedule as required by Article 188
  • of the Constitution but that even before standing for election, a candidate must take the same oath. This is to ensure that only a person having allegiance to India shall be eligible for membership in the Legislature.
  • The petition was thus dismissed by the Supreme Court.
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Union and State

Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors (1987) AIR 579, (1987) SCR (1) 798

DR. D.C. WADHWA & ORS V. STATE OF BIHAR & ORS

Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors (1987) AIR 579, (1987) SCR (1) 798

ISSUE:

  • Whether the Governor can mechanically re-promulgate the ordinance for an indefinite period of time, and thus take over the power (from the legislature) to legislate through the powers conferred on him under Article 213 of the Constitution of India?
  • Whether the petitioners have a legal standing to challenge the validity of the re-promulgation of the ordinances?

RULE:

  • Article 213 of the Constitution of India states that “In the event of a lapse in legislative action, the governor retains the authority to issue executive orders.”
    The Governor of a State may publish such Ordinance as the circumstances seem to necessitate at any time, except during the session of the Legislative Assembly of a State or, if there is a Legislative Council in a State, except during the session of both Houses of the Legislature to an extent that:
  • (a) The introduction of a Bill with identical provisions into the Legislature would have required the prior sanction of the President under this Constitution, or
  • (b) The Governor would have deemed it necessary to reserve a Bill with identical provisions for the consideration of the President, the Governor shall not, without instructions from the President, promulgate any such Ordinance.

FACTS:

  • The Petitioner was an economics professor researching land tenures in the Indian state of Bihar, according to the available evidence in the case. A total of around 256 ordinances were enacted in the State of Bihar between 1967 and 1980, which he brought to the Court’s attention.
  • By periodically re-promulgating them, these regulations remained in effect for anything from one year to fourteen years. Sixty-nine of these ordinances have been issued again with the President’s blessing.
  • The assembly of the state of Bihar ceased to operate efficiently and effectively. The administration in Bihar has assumed the role of lawmaker, and the existing ordinances are being re-promulgated by established procedures so that they remain in force.
  • The Petitioner sought to limit the application of Article 213 of the Constitution via a writ petition filed under Article 32.

HELD:

  • The Supreme Court, in its judgment, invalidated the illogical use of the Ordinance-making authority in a “subversion of the democratic process” and “colourable use of power.”
  • To re-promulgate an ordinance is to subvert the democratic process using fraud and abuse of the Constitution. The Court has the authority to strike down an ordinance if it is enacted in a shady manner.
  • Ordinances should only be passed in cases of extreme exigency, and not to cater to the personal agendas of elected officials. The legislative branch is the only one authorized to make laws, while the executive branch is strictly forbidden from doing so.
  • When it comes to the President of India, it’s worth noting that although he has the same authority to issue an Ordinance under Article 123 of the Constitution of India as the Governor has under Article 213 of the Constitution of India, he has never re-promulgated an expired Ordinance in the whole-time span between 1950 and the present.
  • In Bihar, the Executive has effectively usurped the function of the Legislature in lawmaking, and not only for a short time; this has been going on for years, despite the restrictions placed on it by the Constitution. This is unconstitutional since it runs counter to the constitutional framework and this practice should be abandoned in the future, and that whenever an Ordinance is passed, a Bill will be brought before the Legislature for enacting those provisions into an Act. Along with this, Ordinance-Raj must be abolished from the nation.
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Union and State

A. K. Roy, Etc v. Union of India & Anr (1982) AIR 710, (1982) SCR (2) 272

A. K. ROY, ETC v. UNION OF INDIA & ANR

A. K. Roy, Etc v. Union of India & Anr (1982) AIR 710, (1982) SCR (2) 272

ISSUE:

  • Whether the National Security Ordinance is constitutional or not?
  • Whether the preventive detention is a valid measure for regulating the liberties of an
    individual?
  • Whether the provisions of Section 3 of the National Security Act, 1980 are extremely
    vague and can easily deprive a person of his liberty?

RULE:

  • As long as the preventive detention law is made within the legislative power arising out of a legislative entry and is within the conditions and restrictions on that power, it cannot be construed that preventive detention is disallowed under the Indian Constitution.
  • Further, while care must be taken to restrict the application of the National Security Act, 1980, the statute cannot be struck down for being vague or uncertain.

FACTS:

  • This case deals with a petition made under Article 32 of the Constitution of India which challenged the validity of the National Security Act, 1980.
  • The Dhanbad District Magistrate issued an order for the detention of Shri A.K. Roy, a Marxist member of Parliament because he was engaging in activities that posed a danger to public order, under the National Security Act of 1980.
  • In the wake of these events, numerous lawmakers who disagreed with the government filed a case with the court, arguing that the president’s ability to issue ordinances undermines India’s parliamentary democracy. They raised doubts about the President’s authority to pass ordinances and wanted the extent of that authority clarified.
  • Along with this, several petitions were filed challenging the constitutionality of the National Security Ordinance and the National Security Act of 1980, which were criticized for being too broad and restrictive.

HELD:

  • The Supreme Court held that the National Security Ordinance is constitutional. This is because, under Articles 123 and 213 of the Constitution of India, the President and the Governor are conferred with ordinance-making powers that are not restricted by any provision of the Constitution of India. Further, an ordinance like any other law must comply with Article 13(2).
  • The Supreme Court on the issue of Preventive Detention held that it could not invalidate the law solely because it would interfere with the liberties of individuals. The law must violate the conditions or restrictions mentioned in the entries in the Union and Concurrent list which gave it power. Hence, the Court rejected the contention that Preventive Detention was impermissible under the Indian Constitution.
  • On the third issue, the Supreme Court said that a narrower construction rather than the literal meaning of the expression is required. While construing laws like Preventive Detention, care must be taken to apply them to as few situations as possible.
  • Therefore, though the provision was held to be vague, the Supreme Court did not strike it down and it also held that while care must be taken to restrict the application of the National Security Act, the statute cannot be struck down for being vague or uncertain.