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Constitution Part-II
Gujarat National Law University

Shivansh Khatri 1/1/19 Class Notes

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Central Executive-1
Issue 1. Meaning of executive power or function:
Meaning of executive is understand by following aspects:
1) Political scientist
2) Jurist
3) SC
The term ‘Executive’ has been defined both in its broad and narrow forms. In its broad form, it is
taken to mean all the functionaries, political power-holders (Political Executive) and permanent civil
servants who undertake the execution of laws and policies and run the administration of state. In its
narrow form, it is taken to mean only the executive heads (ministers i.e. the political Executive), who
head the government departments, formulate the policies and supervise the implementation of the
laws and policies of the government.
But it is not defined in constitution or any executive so these three source are prefers. Even this not
explained in general clause act or in Art 266 of the Constitution.
1) Political Scientist:
A) Garner: - The executive power means the power which is concerned with the execution of
the will of the state. (State expresses his will by legislation).
B) Locke: - Executive power means the power to execute the law. In democratic state the will
of the state is expressed through the legislature and executed by the executive. Law is essential
condition for executive power.

2) Jurist:
A) Halsbury Law of England: - executive function are incapable of comprehensive definition,
for they are merely the residue of the functions of government after legislative and judicial
functions have been taken away. (SC of India rely on this)
Neither legislative nor Judicial = Executive (as by the definition)
Formation and execution of policy = executive action (as by the definition)
B) Wade and Bradley: - “in book constitution and administrative law” , broadly speaking, the
executive function comprises the whole corpus of authority to govern other than that which
is involved in the legislative function of parliament and the Judicial function of the court.

C) Wynes: (Australian author) “in book legislature and executive power in Australia” the executive
may be defined as the authority within the state which administer the law, carriers on the
business of the govt. and maintains law and order within the state.

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3) Supreme Court: (A) Ram Jawaya Kapoor

V.
State of Punjab (AIR 1955 SC 549)
J. Mukharjee Observe as follows:

 It may not be possible to frame an exhaustive definition of what executive function means
and implies. Ordinarily the executive power cannot the residue of the govt. functions that
remain after the legislative and judicial functions are taken away, subject to the provisions of
the constitution.
 The executive functions comprises both the function of determines the policy as well as
carrying it into execution. This evidently includes the limitation of the legislation, the
maintenance of order, the promotion of social and economics welfare, the direction of foreign
policy.
The advent of the welfare state led to increase in the number of the executive functions. So the makers
of the constitution foresaw this and hence didn’t define the concept and narrow down its scope.

B) Jayantilal Amritlal Shodhan

V.
F.N. Rana (1964)
It is now well settled that functions which do not fall strictly within the legislative or judicial field, fall
in the residuary class and must be regarded as executive. This is landmark judgement on following
aspects:

 Delegation of executive powers by Centre to the state

 Advocates, for the first time, proposed a distinction between general executive powers and
executive powers specifically conferred on President.
(Subsequent to this, the SC in another case (Sardarilal V. UOI) ruled that the PRESIDENT IS NOT
BOUND TO ACT according to aid and advice of the CoM (council of minister) in exercise of powers
specifically conferred on him. Later, this was entire idea was rejected in the Shamsher Singh case.
Modern writers grouped after all discussion:
- Administrative power i.e. execution of the law and Administration of the govt.
- Diplomatic power i.e. the conduct of foreign administration.
- Military power i.e. organization of armed forced and forces and conduct of war.

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- Legislative power i.e. the summoning prorogation. (Giving assent to bill is not under executive,
but as it is a legislative process). Prorogation = end of the session, Dissolution = end of the
term of Lok Sabha
- Judiciary power i.e. include granting of pardon, respites, remission.

Issue 2. Can executive act without legislation?

M.P. Jain and S.N. Jain that it was once thought that functions of executive is to execute laws but with
advent.
In Ram Jawaya Kapoor (1955) case, a writ petition was filed under article 32 of the constitution. The
govt. of Punjab was respondent. Petitioner = manufacturers of books, in the business of publishing,
printing and supplying school books to small primary schools which run by govt. The govt. of Punjab
subsequently assumed this business through different notifications, and stopped private
manufacturers from printing school books. The petitioners raised three contentions:
1. The executive govt. of the state is wholly incompetent without any legislative sanction to
engage in any trade or business activity.
2. Assuming that the state could create a monopoly in its favor in respect of a particular trade or
business that could be done, not by means of executive act but by means of proper legislation
which should conform to the requirements of Art. 19(6).
3. Violation of the Art. 31 of the Constitution whether the state could enter into any trade
without prior legislative authority. When this case came, Art. 298 empowered the govt. to
grant property and to make contracts the original article does not empower the govt. to carry
on trade or business. They cannot enter into business or trade without any legislation. Also
FRs, can be taken away only “by law and not by the executive.
W.r.t. contention 1). The SC held that Art. 298 is sufficient to empower the govt. to enter into trade
or business. (Article 298 Power to carry on trade, etc. The executive power of the Union and of each
State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal
of property and the making of contracts for any purpose: Provided that
(a) the said executive power of the Union shall, in so far as such trade or business or such purpose is
not one with respect to which Parliament may make laws, be subject in each State to legislation by the
State; and
(b) The said executive power of each State shall, in so far as such trade or business or such purpose is
not one with respect to which the State Legislature may make laws, be subject to legislation by
Parliament). After the 7th amendment of art 298 to add “entry into trade or business”. The SC held
in this case that there is no need for prior legislation.

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One of the executive function is to execute Laws and this doesn’t means that the executive function
is confined to execution of laws or in order to enable executive function in respect of any subject,
there must be a law already in existence.

W.r.t. contention 2. The SC held that no FR has been violated. It held that the Govt. has not imposed
any restriction on the private manufacturers and they can do continuous supplying the school books
to the same schools.

Another Question: where executive can’t go without legislation?

The language of art 162 (162. Extent of executive power of State Subject to the provisions of this
Constitution, the executive power of a State shall extend to the matters with respect to which the
Legislature of the State has power to make laws Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make laws, the executive power of the State shall
be subject to, and limited by, the executive power expressly conferred by the Constitution or by any law
made by Parliament upon the Union or authorities thereof Council of Ministers) shows that the power
of state executive extends to all matters upon which state legislation is competent to legislate and are
not confined the matter over which legislation has been passed already. The same principle underlines
Art. 73 of the constitution.

The following are cases where special prior legislation is required backing executive action:

1. Imposition of taxes (Art.265)

2. To incur expenditure on the public fund (i.e. from consolidated fund of India Art 266(3))
3. Encroaching upon fundamental rights (reservations can be made by the executive act)
(Art.19(2)-19(6))
4. Art 300(A) necessary to take over property (other legal rights)

Issue 3 Extent of the executive power of Union (Art 73) and state (Art 162).

The legislature powers are as follows: Centre= list 1 (center list), list 3 (Concurrent list)

State= list 2 (state list), list 3 (concurrent list)

Exception cases center may make laws on matters listed in list 2.

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 Article 73. Extent of executive power of the Union “(1) Subject to the provisions of this
Constitution, the executive power of the Union shall extend

(a) To the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the government of India
by virtue of any treaty on agreement: Provided that the executive power referred to in sub clause (a) shall
not, save as expressly provided in this constitution or in any law made by Parliament, extend in any
State to matters with respect in which the Legislature of the State has also power to make laws

(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may,
notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament
has power to make laws for that State such executive power or functions as the State or officer or
authority thereof could exercise immediately before the commencement of this Constitution Council of
Ministers”.

(I). the executive power of the union extend to all matters mentioned in list 1 but doesn’t to list 3,
unless expressly not provided by constitution or law made by parliament. In proviso 2 exception are
also supported by the proviso to article 162.

(II). to exercise such rights, authority and jurisdiction as are exercisable by the Govt. of India but the
virtue of any treaty or agreement.

 Art 73(1) (b) is an exception of article 73(1) (a) and Art 73(2) is an exception to Art 73(1) (a).

In 1935 means pre constitution there was a list named as Provincial List, in post constitution it has
been changed into Union list (1950). Art 73(2) is an exception to Art 73(1) (a) there certain subjects
which under the govt. of India Act 1935 where under the provincial list but under the present
constitution they have been included into union list. The executive power in these matters came to an
end automatically after the post constitution. The object of clause 2 is to avoid the automatic lapse of
the executive power of the states and maintain to status que until parliament decided to take over
executive power in relation to such matters.

Article 73 is not exhaustive in nature, means it is not only article 73 which talk about executive power
of union. It lay down general principles only. But there are articles as well those are specifically extend
the executive power of union. E.g. article 256, 257, 258 etc.

 Article 162. Extent of executive power of State Subject to the provisions of this Constitution,
the executive power of a State shall extend to the matters with respect to which the Legislature
of the State has power to make laws Provided that in any matter with respect to which the
Legislature of a State and Parliament have power to make laws, the executive power of the
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State shall be subject to, and limited by, the executive power expressly conferred by the
Constitution or by any law made by Parliament upon the Union or authorities thereof Council
of Ministers.

The executive power of the state extends to the list 2 and list 3 but, as far as list 2 is concerned,
executive power may be transferred to the union by expressly providing in the constitution or by any
law made by parliament. Thus, W.r.t. to list 3, executive power extend to union generally, but this is
not an absolute rule. It has exceptions where union can extend his power to the state:

1. In all those matters which are mentioned in list 1.

2. In all those matters which are mentioned in list 3, provided that the proviso to Art. 73 is
satisfied, i.e. the constitution expressly provides for the same or any law which is made by
parliament.
3. To the exercise of such rights, authority and jurisdiction as are exercisable by the government
of India by virtue of any treaty on agreement: on the bases of the Art. 73(1) (b).

Power to implement the laws related to the list 3{unless the constitution or law by parliament transfers
the powers to the union} on the basis of Art. 162. And general policy is that the executive power of
the state extends to list 3.

Points:

Extend of executive power of union = Article 73

Extend of executive power of state = Article 162

Delegation of executive power of union = Article 258

Delegation of executive power of state = Article 258A

Exception:

But the parliament cannot enact the laws W.r.t. matters of List II except when:

(I) Emergency imposed in the country (Art. 350),

(II) Art. 246(4) {Art. 246. Subject matter of laws made by Parliament and by the Legislatures
of States: clause (4) Parliament has power to make laws with respect to any matter for any
part of the territory of India not included (in a State) notwithstanding that such matter is
a matter enumerated in the State List.}
(III) Art. 249, for the national interest
(IV) Art. 252, mention about Power of Parliament to legislate for two or more States by consent
and adoption of such legislation by any other State.

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(V) Art. 253, to give effect to international agreement. (According to article 253 of the
Indian constitution, the parliament can make any law to bring an international agreement
into force across whole territory.)

[Note: “In 1974 case of Shamsher Singh V. State of Punjab, the SC nullified the distinction which
was held in case of Sardari lal V. UOI, and said that President has to consult the council of ministers
even in exercising specifically conferred upon him.”1]

Issue 4. Delegation of executive power by union (Art. 258) and state (Art.
258(A)).
Art. 258 of the INDIAN constitution is empowers the union to delegate executive powers to the state.
Art. 73 and art. 162 talk about the extent of the executive powers of the union and the state
respectively. However, the state executive power could be extended beyond what’s given under Art.
162 by virtue of Art. 258(1) and 258(2), whereby the center can entrust the certain matters to the state.
Feature of Article 258:
1. Entrustment take place only with the consent of the state (governor’s consent).
2. Entrusted function should be related to matters with respect to which executive powers of the
union extents
3. Constitutional provision does not authorize the president to delegate those powers and
functions which are expressly provided by the constitution on president E.g. ordinance
making, pardoning powers.
4. Delegation of power can be made by conditionally or unconditionally by the president.

Jayantilal Amritlal case an argument made that president can delegate his executive, legislative,
and judicial function. However, court rejected this argument and said that president can do only
delegate his executive functions.
In case the state doesn’t give consent, there another way of entrusting functions, as enumerated under
Art. 258(2) of the Constitution.
Art. 258(1): by the virtue of this article only executive functions may be delegated to the state. The
delegating authority is the president. Consent is mandatory.
Art. 258(2): the power of the subordinate legislation can also be delegated. The delegating authority is
parliament. Consent of the state is not required.

1
Notes Lady of the GNLU: Ms. Gayathree Ma’am.
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Prof. MP Jain said: the rational underlying Art. 258 is that it makes it possible to enforce central laws
through the state administrative machinery instead of the parallel agencies of the center and the states.

Module III
Election of the president: Art: 54 the President shall be elected by the members of an electoral
college consisting of the elected members of both Houses of Parliament; and the elected members of the
Legislative Assemblies of the States.

Issue 1). Who elects the president?

The electoral college consist of the both the elected members of Houses of parliament and the elected
members of the legislative assembles of the states. Legislative councils and unelected members have
no role to play. In case S.K. Singh vs. V.V. Giri (1970) the issue was before the SC, whether the
“states” include union territories or not. The SC held that “states” in article 54, doesn’t include union
territories.

This Article was amended through 70th constitutional amendment, 1992 and explanation was added
to article 54. Now, the term ‘state’ in article 54 and 55, includes the territories of Delhi and Puducherry.

[NOTE: Mr. DR2 said don’t forget to write elected member. Deprive yourself to write
member of house.]

The makers of the constitution decided to include member of state assemblies in the Electoral College
because they wanted the president elected through national consensus. At the same time they didn’t
adopt a direct election process because the president was supposed to be mere titular head.
Parliamentary form of govt. doesn’t permit direct election of president.

Ambedkar’s View: the reason why the president is not directly elected because he may not be satisfied
with the constitutional power and may claim to derive his power from the people.

2
Deputy Registrar of the GNLU.
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Issue 2). Existence of vacancies in the Electoral College.

This issue is asking about that can a presidential election held when there is vacancy in Electoral
College (Lok Sabha, Rajya Sabha)? [E.g. members are resigned or been disqualified etc.] This question
came before the SC for the first time in this following case.

Dr. N.B. Khare

V.

Election Commission3

Petitioner: In this case an argument brought by petitioner was: the president election could be held
only after the elections in all states are conducted so, that there would be no vacancy in the Electoral
College. The state election of Punjab and Himachal Pradesh hadn’t been held t that point of time.

The SC: The existence of vacancy in the Electoral College is no ground to postpone the election of
president because of Art. 62 of the constitution.

[Note: The same was held in Re: Presidential Poll, 1974 which is related to the dissolution of the
Gujarat Legislature Assembly.]4

Article 62(1) says that the new presidential election must be completed before the expiration of the
incumbent president’s term, where the incumbent president’s term expires Art. 62(2) says that
presidential elections must be completed as soon as possible after and in no case later than 6 months
from the date of vacancy, in case of the death, resignation or removal of the incumbent president. E.g.
Dr. Zakir Hussain, the president died in the tenure.

Article 71(4) was added in 1961 to clarify that the president’s/vice president’s election cannot be
questioned on the Electoral College for whatever reason.

3
AIR 1957, SC 694.
4
Notes Lady of the GNLU: Ms. Gayathree Ma’am.
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Issue 3). Who can contest for the presidential election?

In the Indian constitution a provision expressly provided for the qualification for the election of
president. Art. 58 gives some criteria for the election of president

1. Citizen of India.
2. Complete the age of 35 years.
3. Qualified the member of the house of the people
4. Shouldn’t hold an office of profit under the govt. of India (Pranav Mukherjee’s election was
challenged on this ground.)

Art. 71(3): Subject to the provisions of this constitution, Parliament may by law regulate any matter
relating to or connected with the election of a President or Vice President. In article 71(3) clearly
mentioned that parliament can regulate the election of President and Vice President by law. For e.g.
the Presidential and Vice Presidential election Act, 1952. (Amendment in 1974 and 1997) Before 1974,
anybody can contested for President as long as Art. 58 stood satisfied. The first Presidential election
in 1952 saw 5 candidates (Dr. Rajendra Prasad was elected).

Any person satisfy the Art. 58 contest election before 1974. Because, after 5 election govt. face
problem and amendment was made to act.

 Problem – contest many people for sake of popularity and publicity. Out of 33, 9 get only vote
other not get single vote.
 Problem – unnecessary litigation.

So in 1974, an act was brought with some provisions of nomination:

 Section 5B (a) contested for President must have 10 proposer and 10 seconder.
 Section 5B (b) contested for Vice President must have 5 proposer and 5 seconder.

Again Amended in 1997:

 Section 5B (a) For President 50 Propose and 50 Seconder.

 Section 5B (b) for president 20 proposer and 20 seconder.

Security Deposit (not before 1974), in 1952 no need to deposit security money but in 1974 amended
act ask for security deposit by Section 5C of THE PRESIDENTIAL AND VICE-PRESIDENTIAL
ELECTIONS ACT, 1952.

Rs. 2500/- for President and Vice President [According to 1974 act]. In 1997 act this amount turned
to Rs. 15000/-

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In 1997 a provision was made under section 20A regarding forfeiture in two circumstances 1). If not
elected, (2). Number of valid votes doesn’t exceed 1/6th of vote require to secure return of candidate.

Issue 4). When to hold Presidential Election?

Article 62, Time of holding election to fill vacancy in the office of president and the term of office of
person elected to fill casual vacancy.

Presidential and VP election Act, 1952 provided in sub section 3 and 4 of section 4; Sub section (3)
In the case of an election to fill a vacancy caused by the expiration of the term of office of the President
or Vice-President, the notification under sub-section (1) shall be issued on, or as soon as conveniently
may be after, the sixtieth day before the expiration of the term of office of the outgoing President or
Vice-President, as the case may be, and the dates shall be so appointed under the said sub-section that
the election will be completed at such time as will enable the President or the Vice-President thereby
elected to enter upon his office on the day following the expiration of the term of office of the outgoing
President or Vice-President, as the case may be. Election commission bound to issue notification
before 60 days of the expiration term president.

Sub Section (4) In the case of an election to fill a vacancy in the office of President or Vice-President
occurring by reason of his death, resignation or removal or otherwise, the notification under sub-section
(1) shall be issued as soon as may be after the occurrence of such vacancy. If President or VP remove
by resignation, death, or otherwise, election has occurrence as soon as possible, not later six months
form date of vacancy.

Issue 5). Existence of vacancies in President and Vice President Election.

Article 70 which is talk about Discharge of President’s functions in other contingencies: Dr. Zakir
Hussain was elected third President of India, at that time about 8-9 candidates secured no votes. In
the fifth election out of 15 candidates, 5 didn’t secure any voted. During the tenure Dr. Zakir Hussain
passed away then, there came in scene Art. 65 and mandate the Vice President to take up presidential
functions in such contingencies. V.V. Giri (who was VP) had resigned.

The President [Discharge of functions] Act, 1969 (Section 3) was passed. This Act states that if
vacancies in the posts of President and VP arise at the same time, the chief Justice could serve as the
interim President. If that post also becomes vacant, the seniors most judge of the SC would have to
assume Presidential function. [The Art. 70, permits the parliament to make any provision for
discharging President’s functions in any contingency not provided for.]

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Disputes Concerning Presidential Election (Article 71)

Issue 1). Which court or authority has power to entertain presidential election petition?
The election commission has no discretion regard to president election. It is guided by Art. 62(1) of
the constitution and sec. 4 (3) of the presidential and vice presidential election Act, 1952. Art 71 tells
that SC has jurisdiction to try out all the dispute regarding presidential and VP election. Article 71 (1)
was amended by 11th constitution Act and 71 (4) was amended in this year 1961. Article 71 (4) The
election of a person as President or Vice President shall not be called in question on the ground of the
existence of any vacancy for whatever reason among the members of the electoral college electing him.
The constitution 39th Amendment in 1975 was bought by Indira Gandhi (the head of Govt.) and major
changes were introduced. The intention was to take away the power of the SC to decide disputes
relating to President and Vice President Election. By virtue of this amendment now power was
conferred on anybody which the parliament decides. For this purpose clause 3further related that the
validity of this authority’s decision cannot be questioned in any court of the country. Further, the law
passed by the parliament is this regard could also not be question in court.
The constitution 44th amendment act, 1978 which was introduced by the govt. of Morarji Desai (Janta
Dal) which brought the original article in its place. Again all power given to SC and whatever
amendment done before was nullified.
Presidential and Vice Presidential election act, 1952; section 14(2) clearly says that the jurisdiction to
decide matters related to Presidential and Vice Presidential Election lies with the SC.

P.A. Sangma
V.
Pranab Mukharjee (5th December, 2012)
5 judges bench, ratio 3:2, Majority = CJ Altamas Kabir, P Sathe Shivan, Surendra Singh. Minority =
Ranjan Gogoi, Charameshwar.
Matter: Where the nomination filed by former president Pranab Mukherjee, he made an appeal to the
returning officer, to not accept his nomination as he allegedly held an office of Profit namely: (a) office
of chairman of council of Indian Statical Institute, Calcutta. (b) Leader of house in Lok Sabha (these
offices not exempted under prevention of disqualification act)
Contention of PA Sangma: was that Pranab Mukherjee is not eligible to contest election in view of
Art. 58 of the constitution.
The returning officer who the rejected his contentions and the he appeared before the EC. The EC
also rejected to look into matter due to lack of jurisdiction. So, he went SC. Petitioner approach SC
under article 71(1) read with rule 13 order 39of SC rules.

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Issue before SC: Whether the election petition deserve a regular hearing under rule 20 of order 39
of SC Rules, 1966.

 The SC rules 1966 gives certain powers to SC. Rule 13, order 39 state that when election
petition is filed, a 5 judge bench is constituted after it is posted on the notice board. It further
allows the SC to dismiss the petition at preliminary hearing.
 The Rule 20 order 39 talks about bench strength. Says that an election petition can be disposed
of a bench with at least 5 judges.
 Rule 20 talk about regular hearing and rule 13 talk about preliminary hearing.
 Rule 34 order 39 says that the procedure adopted for election petition would be similar to the
procedure adopted by SC in deciding matters, while exercising its original jurisdiction.
Now question before SC that who can challenge Presidential and VP election? SC held in
above case:
Rule 9 order 39 petitioner can approach the court before 30 days from date of result declared.

 Before 1974, anyone can file petition and challenge the election of President and VP. But after
1974 an amendment brought in P and VP election Act, section 14(a) (1) was inserted. It says
that it can be challenge by candidate. By 20 or more electors joined as petitions and VP by 10
or more elector. Also in N B Khare V. Election Commission5 1958, SC held that a person
who is neither a candidate nor an elector cannot challenge an election.
 S. 14(2) P and VP election act 1952 say that election petition can presented on any day after
the election is declared its name of the returning candidate but not more than 30 days from
the said date.
*****Special Credit = Siddhart Behera(Pg. 13-16)****
Locus standi:-
Section 14(a) of 1952 Act: N.B. khare case held; a person who is neither a candidate nor an elector
could not false the petition. Rule 7 order 39 was added in 1974.
Who has locus standi can challenge? = Only candidate can challenge himself or 20 or more
electors joined together as petitions.
What prayer petition can make? = section 16 of 1952 act says that petitioner can claim to declare:
- That the election of the returned candidate is void.
- He/she any other candidate has been duly elected.
What order can SC pass? = section 17 of 1952 act says that the following orders can the passed by
the SC:-
- Dismissing the election.

5
AIR 1957 SC 694.
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- Declaring election of returning candidate void.

- Declaring that the petition/any other candidate duly elected.
Ground for declaring election void:
Section 18of 1952 act says:
- The offence of bribery/undue influence has been committed by returned candidate with his
consent.
- The result of election materially affected :
I. By improper refusal/ reception of a vote
II. By any non-compliance with provision of constitution or 1952 act or 1952 rules or
orders
III. By reason of fact that nomination of any candidate has been wrongly accepted (who
has not withdrawn his candidate) or rejected.
Grounds when election petition of candidate other than the returning candidate is valid:
Section 19 of 1952 act says:
- He received a majority of valid votes.
Office of profit: SC held that the office must be capable to getting profit. It is irrelevant whether the
profit reaches the person or not. Therefore, in Jaya Bachahan case, she was disqualified from Rajya
Sabha.
The question whether Pranab Mukherjee holds an office which was exempted from office of profit
or not.

 Harish Salve: (on behalf of P. Mukherjee): argued that he filed resignation before filing
nomination and also, he holds the office merely in an honorary capacity and it is not capable
of generating profit of any sort.
 Therefore the Respected Supreme Court dismissed the petition at preliminary stage itself
and held election to be valid. It does not require a full hearing on merit.

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MID-SEM 2019
Presidential Privileges Article 361
Acts of President can be divided into:
1) Office acts = absolute immunity
2) Personal acts = I) Criminal and II) Civil in both Partial Immunity
Art. 361(1) office Acts- absolute immunity
Proviso- impeachment (Art. 61) and 2nd Proviso said immunity is not extended to UOI or Govt. of
India/state
Art. 361(2), (3) - personal Act- Criminal

 Criminal proceedings, arrest, or imprisonment shall be instituted after the completion of his
term of office.
 Therefore, partial immunity.
Art. 361(4) Personal Act – Civil

 Partial immunity.
 2 months after expiry of notice bearing full details.

Procedure of Impeachment of President

Art. 56 (1) (b) read with Art. 61
Art. 56 (1) (b): the president may, for violation of the constitution, be removed from office by
impeachment in the manner provided in Art.61
Art. 61: Procedure for impeachment of President
Art. 61 (1), (2) – Stage 1
Preference of changes

 Which house?
1) India – Either house (any)
2) U.S.A. – House of Representations
 Written notice
1) 14 days
2) Signed by minimum 1/4th of total no. of members present in the house
 Passing of resolution
1. Minimum 2/3rd of total number of members of the house

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Art. 61(3), (4) - Stage 2

 Trial and removal

1. Investigation
Other house + president (may be Present)
2. Resolution passing
Minimum 2/3rd of total membership
Sustained resolution – removal of president

Distinction between India and USA regarding the impeachment of President:

1. In India Article 56(1) (B) along with Article 61 talks about the procedure of impeachment of
the president, whereas in the United State of America, Art. II – Sec.4 Art. I – Sec.3, talk about
the same.
Art. II Sec. 4 Grounds for impeachment – bribery, treason or any other high crime
Art. I – Sec.3 The impeachment will be tried by the senate and the chief justice of the federal court
will preside over the proceedings.
2. Impeachment and removal are not the same in USA. Resolution should be passed by 2/3 rd of
total membership of the senate. Charges must be preferred by house of representative through
a simple majority. They can be impeached but not removed. In India both are same.
3. Majority required for removal: USA-2/3rd members present in senate, In India 2/3rd of total
membership.

Pardoning power of President and Governor

Art. 72 of the Indian constitution deal with the Power of President to grant pardons, etc, and to
suspend, remit or commute sentences in certain cases.
Art. 161 of the Indian constitution talk about Power of Governor to grant pardons, etc, and to
suspend, remit or commute sentences in certain cases.

Meanings
Pardon completely absolves the offender from all sentences and punishment and disqualifications
and places him in the same position as if he had never committed the offences. However, the SC
defined the nature of pardoning power in ab more narrow fashion. 321 of CRPC gives power to the
state government as well.

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Commutation involves reducing the sentence. When the punishment is changed to the lighter form.
The power to commute is vested in both the President and Governor. Section 433 and 416 of CRPC.
Remission it refers to reducing the amount of sentence without changing the character of
punishment. This is embodied in S. 432 of CRPC.
Respite refers to awarding lesser punishment embodied in section 369 of CRPC.
Reprieve refers to the stay of execution or suspension of a sentence for the time being embodied in
section 426 of CRPC.
Note:6 there isn’t a significant definition between remission and respite. Commutation involves
changing the nature of the punishment itself (e.g. from death sentence to life imprisonment) whereas
in case of respite does not change the nature of punishment, but merely refers to reducing it.
Suspension execution of punishment whereas remission reduces the quantum of punishment.
Embodied in S 432 and S. 389 CRPC.

DIFFERENCE BETWEEN PARDONING POWERS OF PRESIDENT AND

GOVERNOR:

 The scope of the pardoning power of the President under Article 72 is wider than the
pardoning power of the Governor under Article 161. The power differs in the following two
ways:
 The power of the President to grant pardon extends in cases where the punishment or
sentence is by a Court Martial but Article 161 does not provide any such power to the
Governor.
 The President can grant pardon in all cases where the sentence given is sentence of death but
Pardoning power of Governor does not extend to death sentence cases.
PURPOSE OF GRANTING PARDON:-

 Pardon may substantially help in saving an innocent person from being punished due to
miscarriage of justice or in cases of doubtful conviction.
 It is always preferable to grant liberty to a guilty offender rather than sentencing an innocent
person.
 The object of pardoning power is to correct possible judicial errors, for no human system of
judicial administration can be free from imperfections.
A sentence is passed (death) by the court after the considered of all materials placed before it may
require re-consideration because of:-

 Facts not placed before the court

6
Notes lady of GNLU Ms. Gayathree Ma’am.
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 Facts placed before the courts but not in appropriate manner.

 Facts discovered after passing the sentence.
 Other special features.

K M Nanavati v. State of Bombay7:

Issue: whether the order of suspension passed by the governor u/a 161 could operate when SC had
been moved for granting special leave to appeal from judgment and order of the HC?
5 judges’ bench; ratio 4:1,
Facts: KM Nanavati was arrested under S. 302 of IPC. He was produced before the addl. Chief
magistrate. Later he was placed on trial before session’s court. Trial by jury and gave verdict of ‘not
guilty’ by 8:1. But session’s judge disagreeing with the verdict of the jury and further the case referred
to HC. The HC accepted this case (Reference) and held convicted Nanvati u/s. 302 of IPC and
sentenced him life imprisonment. Onn the same day governor of Maharashtra suspended his sentence
and passed an order to detain him in naval custody. Session’s judge issue a warrant but it returned
unserved.
A 5 judge bench was constituted and mean while Nanvati filed SLP in SC along with an application
to exempt him from Rule 5 of order 21 of the SC rules, 1966 which make him mandatory to appear
before the Honorable SC and surrender himself for acceptance of petition. Since a day he was in
custody of naval so, he failed to appear before the court. Matter came before the division bench who
passed it to 5 judges’ bench. Nanavati now filed an affidavit stating that his application of exemption
had been made under a misapprehension of legal position and the true position had been indicated in
the judgement of special bench of Bombay HC to the effect that Rule 5 would not apply to his case
in view of the Governor’s order. As the sentenced passed upon the accused has been suspended, it is
not necessary for accused to surrender before the court. Rule 5, order 21 SC, 1966 would not
applicable in this case. (HC Judgment)
Argument of petitioner: suspension of order extends even after SLP filed. There is no conflict
between Article 72 and 161 and Article 142 and 145; so, question of harmonious construction does
arise, because both function on the different plane. One is executive and other is judicial power, so
no conflict.
UOI contented that only in grey areas such as article 136 when the matter is sub-judice, there exists
the conflict between two. The governor had no power to grant order when matter is sub judice in SC.
Majority of court accept this contention, held that governor had no power to grant an order till the
time the matter is sub-judice in SLP in SC; after SLP is dismissed, it may continue.
J. kapoor: Rule 5 delegated legislation by 145 article so, article 161 would prevail. And he said article
142 is general provision and 161 is specific so 161 will prevail according to IOS.

7
AIR 1961 SC 112.
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As soon as petitioner filed SLP in SC, matter became sub-Judice, conflict occurred and governor’s
order is suspended. In order to unsecure harmonious construction of all four article (72, 161, and
142,145), it is necessary to limit/ restrict on extend of powers of the govt. under article 72 and 161---
--- majority judgment. (SC said conflict between main power art. 161 and rule, Art 142 and 145)
Seervai Said: no question of conflict between Article 142 and 145 because both are functioning at
different place and time. So there is no question of harmonious construction arise
Therefore SC here cannot use Article 142. Limitation on pardoning power of president and governor
has become matter sub-judice.

Maru Ram v. UOI8:

Constitutional validity challenged of the S 433A of CRPC, inserted in 1978 was challenged as being
in violation of article 14 and article 20(1) and Article 72/161.
Before 1978, it was possible for a prisoner to release himself within 6 months to 1 year even if his
punishment was life imprisonment. They began to misuse it and had political affiliations so, 433A was
brought which was mandated for the 2 kind of prisoners, 14 years of sentence is mandatory before
release:
1). Prisoners who committed offence of death sentence but court granted life imprisonment.
2). Court gave death sentence but govt. under S. 433 commuted it to life imprisonment.
Issue 1). Whether Article 72and 161 are subject to S.433A. Can the parliament curtail the power
of president and governor by law?
Held that constitutional power under article 72 and 161 are untouchable and unapproachable by any
legislature. Article 72 and 161 are beyond any legislative power to curb and confine. Section 433A
cannot and doesn’t affect at all the pardoning power of governor and president.
Issue 2). Is president and bound to act according on the aid and advice of CoM?
Power under article 72 and 161 can be exercise by the central and state govt., not by the president and
governor on their own. It is not open to either of them to take independent decisions or direct release
of their own choice.
The subject is now beyond controversy. This court having authoritatively laid down the law in
Samsher Singh case --- the president shall act only on the aid and advice of his council of ministers.
So, we agree that in the matter of exercise of powers under article 72 and 161, the two highest
constitutional dignitaries must act only on the aid and advice of the council of ministers.
Without over-ruling /questioning Maru Ram, SC has in later cases developed this principle: one of
the scope of judicial review is that the president has disposed of mercy petitions without application

8
AIR 1980 SC 2147.
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of mind and has simply accepted the advice of his council. Had he used his mind, he would have
applied the provisions that provides for referring back the petition.
Issue 3). Is there need for guidelines? Can power u/a 71 and 161 be regulated by laying down
guidelines?
Yes, all public power included article 72 and 161 shall never be executed arbitrarily, since the power
of pardon, commutation and release is wide. The proper this=ng to do it to make rules for its own
guidance in exercise of pardoning power keeping in mind of course a residuary power to meet special
circumstance. SC rejected the notion that power should remain channelized. We have to direct the
provisional acceptance of remission. Short sentencing schemes are good guidelines for excessing
power under article 72 and 161. Till govt. comes up with the rules, the remission and release specified
in prison’s rules of every state should be considered guidelines. We cannot find any fault in govt. if
section 433A is itself treated as a guideline for the article 72 and 161 powers. These were only
recommended by the SC but its discretion lies with central/state govt. however, SC has not
recommended for the laying down of guidelines in any other case after this.
Issue 4). Scope of Judicial Review
SC held that if court found frequent misuse of this power, may have to investigate the discretion. It is
subject to grounds to judicial review. Ground Irrational, discretionary, irrelevant or mala fide (in Maru
Ram case)
Only in this rare case, court will examine the petition. Kehar singh case use this argument there is
no scope of judicial review. SC said the judicial review is limited and available only on grounds which
is laid down by Maru Ram case.

Issue 5). What is the judicial consequence of the remission of the sentence by
president/Governor?
SC reiterated Sharat Chandra Rabha v. Khagendra Nath 9 SC held that there is no question of
conflict between article 72 and 161 because both the powers were different. Executive cannot alter
the sentence itself. An order of remission doesn’t wipe out the offence or the conviction. An order of
remission doesn’t in any way interference with the orders of the court. It affects only the execution of
the sentence passed by the court and faces the convicted person from his liability to undergo the full
term of imprisonment inflicted by the court. Though the order of conviction and sentence passed by
the court still stands as it was.

9
AIR 1961 SC 334.
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Kehar Singh v. UOI10:

5 Judge Bench unanimous judgement, popularly called “Indira Gandhi assassination case”
In this case Beant singh and satwant singh were body guard of Indira Gandhi. Kehar singh was the
mastermind of the whole incident. (Criminal conspiracy charge of section 120B IPC read with 300IPC)
he was sentenced to death by Addl. Session judges. Filed appeal in HC against the order of session
judges then HC rejected, again filed appeal in SC SLP, RP, WP all were rejected by court. So, after
exhausting all the remedies available then 14th October 1988—Rajendra Singh (Kehar Singh’s Son)
filed mercy petition under article 72 of the constitution.
Said in petition= 1). My father is innocent therefore, pardon him and the decision of SC is upheld the
condition of ironic.
2). Personal hearing request made by petitioner.
23rd October 1988 same prayer addressed by Adv. Of Kehar Singh to President so, he can explain the
case of Kehar Singh
31st October 1988 a letter was received from president’s office and it mention that it is not possible
to have personal hearing (on well-established practices ground)
Again on 03rd November, 1988- filed application for reconsidering on not granting personal hearing
15th November 1988—President Office wrote the letter, that President can’t go into the merits of the
case decided by highest court.
14th November 1988—Rejection of mercy petition was communicated to Kehar Singh.
30th November 1988— Rajindra came to know by newspapers that 2nd December 1988 going to be
hang.
1st December 1988:
Writ petition filed by Rajindra Singh before HC which was rejected.
In noon:
SLP and WP before the SC of India and SC finally accept SLP and WP.
Now in this acceptance following issued raised by petitioner:
Issue 1). Can President scrutinized the evidence on the record of the criminal case and come
to on different conclusion?

10
AIR 1989 SC 653.
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SC held that it is open to the President in the exercise of the power vested in him by article 72 to
scrutinize the evidence on record of a criminal case and come to a different conclusion from that
recorded by the court in regard to the quilt of and sentence imposed on the accused. In doing so, the
President doesn’t amend/modify the judicial record. The record remains intact and undisturbed. The
president acts in a wholly different plane from that in which the court acted. He acts under a
constitution power, the nature of which is entirely different from the judicial power and cannot be
regarded as an extension of it.
Therefore President has power to call on record all lower court judgments, reports and all records,
scrutinize them, apply his mind and come to a different conclusion as of SC and he can refer it back
to the home ministry for reconsideration. Ultimately president would bound by home ministry
decision. (Show broader view of pardoning power of president)
Issue 2). Whether the judicial review extent to an examination of the order passed by President
under art. 72 of constitution.
Limited judicial review as narrowed down in Maru Ram case only if the power is within the limitation
of Maru Ram case.
Issue 3). (New) Whether the petitioner entitled to an oral hearing from the president on the
petition invoking the power under article 72?
There is no right in the condemned person to insist on an oral hearing in front of president. He has
no right to insist on presenting arguments. The proceeding presented before the President is of an
executive in nature. When petitioner file his petition, it is for him to submit with all the recognized
information for the disposal of the petition. The manner of the consideration of the petition (mercy)
lies within the discretion of President and it is for him to decide how best he can acquaint himself
with all info that is necessary for its proper and effective disposal. He may be considered in treating
with petitioner give him oral hearing to the parties. The matter lies entire in his discretion.
Issue 4). Need for Guidelines
Here prevent from arbitrary practice we need guidelines.

 SC held its seems to us there is sufficient indication to us in terms of article 72 and history of
the power enshrined and that provision as well as existing case laws. Therefore no need of
specific guidelines.
 Indeed may not be possible to laid down be precise to clearly define the characterized
guidelines.
 The power under article 72 is wider power amplitude that cannot contemplate categories of
cases with facts and situation varying from case to case.
This idea of SC was reiterated in Shatrughan Chouhan case and E. Shudhakar case. Therefore SC
passed an order after hearing all arguments that the said petition shall be deemed to present before
the President and shall be decided afresh.

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Epuru Sudhakar v. state of AP:11

P1= S/o late sri epuru china Ramasubih who murdered with one ambi reddy on 19/10/1995.
P2= S/o latesri tirupati Reddy who was allegedly murdered by R2 whilehe was on bail in this murder
case of father of P1.
R1= State;
R2= Gouru Venkata Reddy;
R3= wife of Resp. 2;
In case of swarn Singh v. state of UP1998 and Satpal Singh v. State of Haryana 2000 both are similar
to this case. (Article 161 of constitution and offence u/s 300 IPC, murder by member of political and
having affiliation from politics, session court life imprisonment and governor remitted their sentence.)
Issue = whether materials presented before governor was relevant or both?
Facts= session court convicted R2 for life imprisonment, HC upheld order, SC reduced it to 10 years.
Responded no. 3 filed petition for 15 day parole, later same was canceled by state govt. by reason of
state police report. Election came and r3 won and became MLA. Within in two days she made an
application for grant of parole and it was granted. Within four days, he was released and continue
from time to time. She later filed a petition to governor for remission and few month later remitted
his remaining sentence. Petitioner challenged this order.
Contention of Petitioner:-

 Grant of remission by governor was illegal.

 No application of mind by governor.
 Based on irrelevant and extraneous materials before governs.
 Factual info not placed before governor.
 Order is to be set aside.
SC: held that the facts in this report were of apparent falseness and untrue. After all courts had found
him guilty, this report assumed otherwise. Police report was failed to establish its credibility on the
facts. SC said his release would be amount to breach of law and order. It is clear that extraneous and
irrelevant material was placed before the governor and therefore his order is to be set aside. Pardoning
power of governor is not immune to judicial review as per Maru Ram case and Kehar Singh case. This
power cannot be used for political considerations.
In Swarn Singh case SC held that if pardoning power was exercised arbitrary/ mala fide, courts must
intervene. Same in case of Satpal Singh.

11
AIR 2006 SC 3385.
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SC held position therefore is undeniable that judicial review of order of President/Governor under
Article 72/161 is available and their orders can be impugned on the following grounds.
1). Order has been passed without any application of mind.
2). Order is mala fide.
3). Order has been passed on extraneous/wholly irrelevant considerations.
4). Relevant materials have been kept out of considerations.
5). Order suffers from arbitrariness.

Shatrughun Chauhan v. UOI still Pending *******Most important case

Pending Yakub menon matter

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Date 12/Feb./2019

Ordinance Making Power of the President and Governor (Article 123/213)

We will study this topic by some important points.

 Major Criticism:
Many members of the constituent assembly opposed the inclusion of ordinance making power in the
constitution because it is not in democratic in nature. There is no debate or deliberation and it lacks
the transparency. Public opinion is also not considered
This power is wide scope and there is only two restrictions on it:
1. The parliament must not be in session for exercise of this power
2. Ordinances can be made only on those subjects on which the legislature (parliament) is
competent to make laws.
No. of member had doubt that it would lead to a dictatorial rule( like condition happen in emergency)
further, it violates the doctrine of Sop.

 Source (s.42, 43, 44 of Govt. of India 1935):

Ordinances were included in the Constitution of India from Government of India Act, 1935, which
gave the authority to the Governor General to promulgate Ordinances. Section 42 and 43 of the said
act dealt with Ordinance making power of the Governor General which states that, ‘If circumstances exist
which render it necessary for him to take immediate action’, then only he can use this power.
There were massive discussion and debates related to the Ordinance making power, some of the
members of the Constituent Assembly emphasized that this power of President is against the
constitutional morality and was extra-ordinary in nature, some argued that it should be left as a
provision which should be used during emergencies only.12

 Difference :
President - He can promulgate an ordinance only when both the Houses of Parliament are not in
session or when either Lok Sabha or Rajya Sabha is not in session. An ordinance can also be
promulgated by the president when only one House is in session because a law can be passed by both
Lok Sabha and Rajya Sabha and not one of them.
His ordinance-making power is similar to the legislative power of the Parliament. This means that he
can issue ordinances only on those subjects on which the Parliament can make laws.

12
Extra from class Notes
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Governor - He can promulgate an ordinance only when the legislative assembly (in case of a
unicameral legislature) is not in session or (in case of SLA&SLC) when both the Houses of the state
legislature are not in session or when either of the two Houses of the state legislature is not in session.
The later provision implies that an ordinance can be promulgated by the governor when only one
House (in case of SLA&SLC) is in session because a law can be passed by both the Houses and not
by one House alone.
His ordinance-making power is similar to the legislative power of the state legislature. This means that
he can issue ordinances only on those subjects on which the state legislature can make laws.

 Nature – (A.K. Roy v. UOI):

In this case SC discussed that the power to issue an ordinance is an executive power and not a
legislative power. So, an ordinance is not law. SC said that an ordinance is a law.

 Scope- (R.K. Garg v. UOI):

In this case SC said that the legislative power under article 123, contend on the ordinance making
power of President is not parallel to legislative law making power.

 Pre- condition for the regulation of ordinance:

I. President can promulgate ordinances only when parliament is not in session.
II. President must be satisfied that circumstances exist which render it necessary for him to take
immediate action, before passing an ordinance.

 Safeguard:
Article 123 doesn’t give unlimited powers to the president. The safeguards provided under article 123
are:
I. President can promulgate ordinances only when parliament is not in session.
II. Ordinances promulgated by the president must be placed before the parliament
III. President must be satisfied that circumstances exist which render it necessary for him to take
immediate action, before passing an ordinance.

 Circumstance under which ordinance comes to end:

I. When the parliament disapproves the ordinance, it lapses.
II. When the parliament approves the ordinance, it is replaced by an act of the parliament.
III. When it is not brought before the House within 6 weeks.
IV. When the President withdraws the ordinance.

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 Scope of JR.
If the President promulgate an ordinance which violates the FRs of citizens or an ordinance on a
subject which the parliament cannot pass the law, can such ordinance be challenged before the SC?
Can president satisfaction be challenged before the SC? = Yes
Does the satisfaction of the president under article 123(1) amount to being final and conclusive?
Or
Is it open to judicial scrutiny? This issue of judicial scrutiny has not been finally settle by the SC. The
question is whether the President’s satisfaction is final and conclusive. Does SC have the power to
adjudicate upon the president’s satisfaction and check if there was an actual emergency to be addressed
through an ordinance? Note that there not been any SC ruling which says that the president’s
satisfaction w.r.t. whether circumstances requiring immediate action is subject to judicial scrutiny.
There is obiter dicta (in R.C Cooper) that since president’s satisfaction is subjective, it is open for a
citizen to challenge the same before the court.
The possible ground for challenging the power of president for making of ordinance:
1). Violation of constitutional provisions or FRs.
2). Lack of legislative competence.
Also there is two controversial/debated grounds of challenge include:
3). Mala fide intention or non- application of mind13: Political motive, ulterior motives, non-
application of minister.
4). Non-existence of circumstances which require immediate action.14

Pre-Constitutional Law: - -S.43 and S.44 of the Govt. of India Act 1935 came before the Privy
Council for interpretation. The Privy Council observed that the sole judge of whether an emergency
(circumstances emergency) exists is the governor general. That time it was not subject to judicial
scrutiny.

Post Constitutional Law: - till 1968, the SC was influenced by the views of the Privy Council
and federal court. But after 1968 in case Upendra Lal v. Nairainee Devi (1968) SC changed
its judgment due to the English ruling given by the House of Lords in Padfield v. Ministry of
Agriculture (1968) and this ruling opened up the scope of judicial review even in case of subjective
power. (Even in case of subjective power of the authority of such statutory power can’t incoming

13
SC held in Venkatareddy and Gurudev cases that ordinances cannot be challenged on this grounds.
14
SC held in Venkatareddy and Gurudev cases that ordinances cannot be challenged on this grounds.
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such determination take into account irrelevant matters nor to omitted relevant matter to
consideration.)
Now fully established that even in case of subjective power, the authority of such statutory power
cannot take into account irrelevant circumstances. Note that there’s no provision in the constitution
in the constitution which prevent the SC from considering ordinances made by the president. The
scope of JR was curtailed by the SC in the cases of Venkatareddy and Gurudev.
In case barium chemical v company law board15 after 1967 subjective satisfaction become subject
of judicial review. Since the subjective satisfaction is a condition precedent to the exercise of power it
was open to petitioner to show that condition precedent didn’t exist because of any of the following
reason:-

 No circumstances had been placed before the authority for his consideration.
 Circumstances relied upon by the impugned order didn’t exist infect
 Facts placed before the authority where such that is impossible for ny person to form an
opinion of the kind, specified by the legislature.
 Authority didn’t apply his mind to the circumstances as all.

R.C. Cooper v. UOI16 in this case petitioner contended that Bank nationalization ordinance was
invalid because the condition precedent to the exercise of the ordinance making power of the president
under article 123 did not exist. (Requiring immediate action) Government’s Argument condition of
president’s satisfaction was purely subjective and the govt. was under no obligation to disclose the
existence of the circumstances which necessitated taking of immediate action.
SC said that President Satisfaction is subjective and it is totally open for an aggrieved person to
challenge the exercise of the power in a case that no such circumstances there and even president
exercise and
J. Ray (Minority Judgment): the only way to challenge exercise of ordinance making power of the
president can be challenged is by providing bad faith, mala fide, corrupt motive, even though the
president’s satisfaction is a subjective element.

S.K.G. Sugar ltd v. state of Bihar, 1974 SC said that promulgation of an ordinance is a matter
of purely for the subjective satisfaction of governor, he is the sole Judge to consider the existence of
the circumstances which make it necessary to issue an ordinance and his satisfaction is not a justiciable
matter.

38th Amendment Act 1975: added clause 4 in article 123, state that the president satisfaction
under article 123(1) shall be final and conclusive as well as it cannot be challenged before any court of
Law. It sought to counter the obiter dicta and minority opinion in R.C. Cooper.

15
AIR 1967 SC 295.
16
AIR 1970 SC 564.
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44th Amendment Act 1978: the govt. revert all the changes which was made by 38th C. A.
amendment. 123(4) was omitted and also in case AK Roy SC observed that this omission indicate the
positive sign for not hold the president’s satisfaction as final and conclusive.

R.K. Garg17: in this case court concerned with scope of art. 123 and not discussed on the scope of
judicial review. Petitioner: u/a 123, the President cannot promulgate the ordinance related to matter
of taxation and money bills. This is a special power which is conferred on parliament by the
constitution. (art. 109)
SC: reject argument of petitioner and held that here no basis for ordinance promulgate, if the
parliament can rule over the subject matter, President can also promulgate the ordinance on same
matter. Further SC said that power u/a 123 conferred on president is not parallel to power of
legislation and later have strictly limited duration.

A.K. Roy18: in this case court discussed the 1). Nature of ordinance (authority on it), 2). Scope of
judicial review, means here constitutional validity of the national security ordinance was challenged.
Petitioner:

 Power to issue ordinance is executive power not legislative power.

 An ordinance is not a law. (No law can made without intervention of legislature.) And
(not issue by a body established by the parliament for the purpose of making laws.)
 Whether subject circumstances exist before president to issue ordinance, is subject to
judicial review.

Petitioner also relied on the case State of Rajasthan v. UOI when 365(5) was there, president
power considered to be subject of judicial review.
SC:

 Rejected by court and observed that an ordinance is a law because of the heading of chapter
III of part V (legislative power of president, Art. 123(2), Art. 13(3) and Art. 367 of the
constitution.
 Also court said w.r.t. judicial review of president’s satisfaction that 44th C A leaves no doubt
that judicial review is not totally excluded in regard to the question related to the president’s
satisfaction. (Obiter Dicta)
But, the SC didn’t consider the merits of this case due to 2 reason:

 This ordinance was replaced by the national Security Act.

 Lack of sufficient material placed by the petitioners before the SC.

17
AIR 1981 SC 2138.
18
AIR 1982 SC 710.
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K. Nagaraj v. State of AP19: in this case 3 judges bench conclude that

 Ordinance cannot be invalidate on the ground of non-application of mind.
 The power to issue an ordinance is not an executive power but a legislative power of the
executive.
 Ordinance can be invalidated for contravention of the constitutional limitations or provisions.
 An executive act is liable to be struck down on the ground of non- application of mind, but
not a legislative act.

T. Venkatareddy v. State of AP20 motive of legislature in passing a statute is beyond the

scrutiny of the courts. (Universal Principle)
- Courts cannot applied its mind whether legislature applied its mind to provision of the statute before
passing it.
- An ordinance stands on the same footing as an act of the parliament. Thus, an ordinance should be
clothed with all the attributes of an act of the legislature carrying with it all the limitations, incidents
and immunities under the constitution.

Gurude Vksss maryadit v. state of Maharashtra: in this case court said that it is (ordinance)
is not an administrative or executive action but being legislative in nature. It is subjective only to the
constitutional limitations applicable to an ordinary statute. The ordinance if does not infringe the
constitutional safeguard cannot be examine nor motive for such a promulgation can be a question.

D. C. Wadhwa and ors. V state of Bihar 21: SC laid down proposition:

 Power to promulgate is an ordinance is an emergency power which may be use where
immediate action is necessary at time when the legislation not in session.
 It is contrary to all democratic norms that the executive should power to make a Laws.
Hence such emergency power must of necessity be limited in point of time.
 A constitutional authority can’t indirectly it is not permitted to do directly. If there is
constitutional provision inhibiting or restricting the authority limiting by resorting to a
subterfuge (trick) would be a fraud on the constitutional provision.
 While the satisfaction of the president as to the existence of circumstances, necessitating
immediate action by issue an ordinance it is competent for the court to enquire whether
he has exceeded the limits imposed by the constitution. Though in general, the motive
behind issuing an ordinance can’t be questioned, the court cannot allowed it to be
perverted for political end. (deal with scope of JR)
2 situation where promulgation is not subject to criticism: court said

19
AIR 1985 SC 551.
20
AIR 1985 SC 724.
21
AIR 1987 SC 579.
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a) In the event to there been too many legislative business in a particular session or
b) The time at the disposal of legislation is short.
In which event, the governor may legitimately find it necessary to re promulgate the ordinance and
where such is the case, admittedly the ordinance cannot possible be under any criticism.
View: criticism of those 2 situation that if here at place of promulgation of ordinance again and again,
there would be extension of session of legislature.
MP Jain: Refuses to accept narrow view and said that there though source of ordinance and legislature
is same but taking both on same footing concept is wrong. As it is not transparent like legislature. If
action done mala fide then that can be challenged.

 Effect of lapse of ordinance

 Does ordinance have the effect of enduring nature?
 Is it mandatory to all laid down the ordinance before the parliament (Krishna Kumar v.
UOI 2016= Yes Mandatory, 5 judges bench)
 Re-Promulgation (Dr. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579).

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