LLM (1st Sem.

), Examination, 2019
(Paper Code : L-1003)
Legislative Thoughts ,Interpretation & Judicial Process
Time: 3 hours Max.M:100
Attempt any five questions .All the questions carry equal marks.

Q.1 Advisory Jurisdiction of Supreme Court

Article 143 of the Indian Constitution confers upon the Supreme Court advisory jurisdiction. The
President may seek the opinion of the Supreme Court on any question of law or fact of public
importance on which he thinks it expedient to obtain such an opinion. On such reference from
the President, the Supreme Court, after giving it such hearing as it deems fit, may report to the
President its opinion thereon. The opinion is only advisory, which the President is free to follow
or not to follow. (Keshav Singh’s Case, AIR 1965 SC 745). However, even if the opinion given
in the exercise of advisory jurisdiction may not be binding, it is entitled to great weight.

The first reference under Article 143 was made in the Delhi Laws case, (1951) SCR 747. In
almost sixty years, only twelve references have been made under Article 143 of the Constitution
by the President for the opinion of the Supreme Court:
1. In re the Delhi Law Act, AIR 1951 SC 332
2. In re the Kerala Education Bill, AIR 1958 SC 956
3. In re New India Motors Ltd. v. Morris, AIR 1960 SC 875
4. In re Berubari (Indo-Pakistan Agreements), AIR 1960 SC 845
5. In re the Sea Customs Act, AIR 1963 SC 1760
6. In re Keshav Sing’s Case, AIR 1965 SC 745
7. In re Presidential Poll, AIR 1974 SC 1682
8. In re Special Courts Bill, AIR 1979 SC 478
9. Re in the matter of Cauvery Water Dispute Tribunal, AIR 1992 SC 522
10. Re in the matter of Ram Janamabhoomi, (1993) 1 SCC 642
11. Re on Principles and Procedure regarding appointment of Supreme Court and High
Court Judges, AIR 1999 SC 1
12. Gujarat Assembly Election Matter, AIR 2003 SC 87

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

The Supreme Court may decline to give its opinion under Article 143 in cases it does not
consider proper or not amenable to such exercise. It was, however, held by the Supreme Court in
M. Ismail Faruqui v. Union of India (AIR 1995 SC 605) that in that case, reasons must be
indicated.
Article 143 is not part of administration of justice. It is part of an advisory machinery designed to
assist the President (the Executive). Article 143(1) is couched in broad terms which provide that
any question of law or fact may be referred by the President for the consideration of the Supreme
Court.

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

The President’s reference under Article 143(1) to the Supreme Court in In re The Special Courts
Bill1978 (“the special courts reference) raised important questions of constitutional law. The
facts giving rise to the Special Courts Reference were briefly these:

When the former Prime Minister, Mrs. Indira Gandhi revoked the emergency after her defeat in
the 1977 Parliamentary elections, the overwhelming demand arose in the country for the
punishment of Mrs. Gandhi, her son Sanjay and other guilty men. The investigations of the Shah
Commission left no doubt that there had been grave abuse of power during the emergency.
Justice to countless victims of the Emergency demanded that the guilty should be brought to
trial. However, the ordinary process of law are dilatory and Mrs. Gandhi’s party made no secret
that the weapon of delay would be used to prevent the “guilty men” from being brought to
speedy trial. Consequently, a private member, Mr. Ram Jethmalani, introduced in the House of
the People (Lok Sabha) a Bill for the setting up of Special Courts. On 1 August, 1978 the
President acting under Article 143, referred the following questions for the opinion of the
Supreme Court.
1. (1) Whether the Bill or any of the provisions thereof, if enacted, would be constitutionally
invalid.
2. (2) The nature of the Supreme Court’s power under Article 143(1) and whether the law
laid down in the opinions is “the law laid down by the Supreme Court” under Article 141.

While dealing the above question, CHANDRACHUD C.J. said that the question whether the law
laid down in the opinions was “law declared by the Supreme Court” would require to be
considered more fully on a future occasion. He observed that:
“It would be strange that a decision given by this Court on a question of law in a dispute
between two private parties should be binding on all courts in this country but the advisory
opinion should bind no one at all, even if, as in the instant case, it is given after issuing notice to
all interested parties, after hearing everyone concerned.”

Article 143 does not deal with ‘jurisdiction’ of Supreme Court but with the ‘power’ of the
President. It does not refer to any adjudication at all, but with consultation. There is to be no
judgement, decree or order; there is to be Opinion to be forwarded to the President in a report to
him. The Supreme Court itself would however remain free to re-examine and if necessary to
overrule the view taken in an opinion under Article 143(1). It was held in Cauvery Water
Disputes Tribunal 1992, that the jurisdiction under Article 143(1) cannot be used to reconsider
any of its earlier decisions. This can be done only under Article 137 of the Constitution.
In the matter of Cauvery Dispute Tribunal (AIR 1992 SC 522), a tribunal was appointed by the
central government to decide the question of waters of river Cauvery which flows through the
states of Karnataka and Tamil Nadu. The Tribunal gave an interim order in June 1991 directing
the State of Karnataka to release a particular quantity of water for the state of Tamil Nadu. The
Karnataka government resented the decision of the Tribunal and promulgated an Ordinance
empowering the government not to honor the interim Order of the Tribunal.

The Tamil Nadu government protested against the action of the Karnataka government. Hence
the President made a reference to the Supreme Court under Article 143 of the Constitution. The
Court held that the Karnataka Ordinance was unconstitutional as it nullifies the decision of the
Tribunal appointed under the Central Act (Inter Sate Water Dispute Act, 1956) which has been
enacted under Article 262 of the Constitution. The Ordinance is also against the principles of the
rule of law as it has assumed the role of a Judge in its own cause.

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

Q3. Strict Interpretation of Penal Statutes

The general rule for the construction of a penal statute is that it would be strictly interpreted, that
is, if two possible and reasonable constructions can be put upon a penal provision, the Court
must lean towards that construction which exempts the subject from penalty rather than the one
which imposes a penalty. A penal statute has to be construed narrowly in favour of the
person proceeded against. This rule implies a preference for the liberty of the subject, in case of
ambiguity in the language of the provision. The courts invariably follow the principle of strict
construction in penal statutes. In constructing a penal Act, if a reasonable interpretation in a
particular case can avoid the penalty the Court adopts that construction.

In the current scenario The principle that a statute enacting an offence or imposing a penalty is to
be strictly construed is not of universal application,which must necessarily be observed in every
case. It is now only of limited application and it serves in the selection of one when two or more
constructions are reasonably open. The rule was originally evolved to mitigate the rigour of
monstrous sentences for trivial offences and although that necessity and that strictness has now
almost vanished, the difference in approach made to a penal statute as against any other statute
still persists.

According to Lord Esher, MR, the settled rule of construction of penal sections is that ‘if there is
a reasonable interpretation which will avoid the penalty in any particular case we must adopt that
construction. If there are two reasonable constructions we must give the more lenient one.’

Interpretation of penal provisions must be in consonance with the principles underlying

fundamental rights. Any provision which visits an accused with adverse consequences without
affording him any remedy to disprove an item of evidence which stands against his innocence, is
inconsistent with the philosophy enshrined in Art 21. It was held by the Supreme Court that they
should so interpret such a provision as to dilute it to make it amenable to Art 21 of the
Constitution.
When words employed in a penal statute are not clear the principle ‘against double penalisation’
would be applied. Failure to comply with a statute may attract penalty. But only because a statute
attracts penalty for failure to comply with the statutory provisions, the same in all situations
would not call for a strict construction. An interpretation which strikes a balance between
enforcement of law and protection of valuable human right of accused (right of privacy) must be
resorted to. § 105 of the Evidence Act 1872 says that the burden to prove that the case of the
accused falls within an exception to a statutory offence lies on him. But the question whether the
defence set up by an accused is really a defence of an exception or a defence setting up non-
existence of a fact which is an ingredient of the offence to be proved by the prosecution depends
upon the construction of the particular statute.

In applying and interpreting a penal statute, public policy is also taken into consideration. In a
recent case, the House of Lords held that consensual sadomasochistic homosexual encounters
which occasioned actual bodily harm to the victim were assaults occasioning actual bodily harm,
contrary to § 47 of the Offences Against the Person Act 1861 and unlawful wounding contrary to
§ 20 0f the Act, notwithstanding the victim’s consent to the acts inflicted on him. The following
are some of the propositions important in relation to strict construction of penal statutes:

(a) if the scope of prohibitory words cover only some class of persons or some well defined
activity, their scope cannot be extended to cover more on consideration of policy or object if the
statute.

(b) prohibitory words can be widely construed only if indicated in the statute. On the other hand
if after full consideration no indication is found the benefit of construction will be given to the
subject.

(c) if the prohibitory words in their own signification bear wider meaning which also fits in with
the object or policy of the statute.

(i) JK (Bombay) Ltd v. Bharti Matha Mishra In this case, it was held that the expression ‘officer
or employee of a company’ applies not only to the existing officer or employee but also includes
past officers or employees where such an officer or employee either
 wrongfully obtains possession of any property, or
 wrongfully withholds the same after the termination of his employment.

The expression would also include the ‘legal heirs or representatives.’ It was held by the court
that the penal statutes should not be so liberally construed with the aid of presumptions,
assumptions and implications as to rope in for the purposes of prosecution such persons against
whom the prosecution is not intended by the statute and initiation of prosecution would be
violative of Art 21 of the Constitution and against public policy.

(ii) Virtual Soft Systems Ltd v. CIT The questions that arose before the Supreme Court in the
case prior to the amendments by the Finance Act 2002 with effect from 1 April 2003 were:
 What was meant by the words ‘in addition to any tax payable’in the charging § 27(1) (c)
(iii)?
  What was meant by the term ‘total income’ in Explanation 4(a) therein?

Allowing the appeals, it was held by the court that the statute crating the penalty is the first and
the last consideration and the penal provision must be construed within the term and language of
the particular statute. § 271 of the Act is a penal provision and there are well established
principles for interpretation of such a penal provision. Such a provision has to be construed
strictly and narrowly and not widely; with the object of advancing the object and intention of the
legislature.

(iii) Municipal Corpn of Delhi v. Laxmi Narain Tondon In this case, the definition of ‘sale’ in
the Prevention of Food Adulteration Act 1954 was construed in the sense having regard to the
mischief intended to be remedied. It was held that the ‘sale’ in the Act would include all
commercial transactions where under an adulterated article of food was supplied for
consumption by one person to another person. Therefore, supply or offer of food to hotelier to a
customer when consolidated charge was made for residence and other amenities including food
fell within the definition.

(iv) Tolaram v. State of Bombay In this case, § 18 of the Bombay Rents, Hotels and Lodging
Houses Rates (Control) Act 1947 was construed. This section provided that ‘if any landlord
receives any fine, premium or other like sum or deposit or any consideration other than the
standard rent in respect of the grant, renewal or continuance of a lease of any premise, such
landlord shall be punished.’ It was held by the Supreme Court that the section did not prohibit
the taking of money by owner of an incomplete building in consideration.

Q4. Rules of Interpretation of Indian Constitution

Constitution as the Paramount law: The constitution of India is supreme and paramount law.
The constitution is written to be understood by the voters. Its words and phrases are used in their
normal and ordinary sense as distinguished from technical meaning. It the longest written
Constitution of any sovereign country in the world. It lays down the framework defining
fundamental political principles, procedures, powers and functions of the government institution
and sets out the fundamental rights and directive principles and duties of the citizens. A written
constitution is to be interpreted and effect given to it as a paramount law to which all others must
yield. It is equally obligatory on individual citizens and on all the departments of government,
including the legislature and judiciary.

As per Justice Krishna Iyer, “A constitution is a documentation of the founding faiths of a

nation and the foundational directions for their fulfillment. So much so, an organic, not pedantic,
approach to interpretation, must guide the judicial process. The healing art of harmonious
construction, not the tempting game of hair splitting promotes rhythm of the law.”[1]

Constitution is a living and organic thing and must adopt itself to the changing situations and
pattern in which it has to be interpreted. It has also to be borne in mind that where division of
powers and jurisdiction in a federal constitution is the scheme, it is desirable to read the
constitution in a harmonious way. It is also necessary that in deciding whether any particular
enactment is within the purview of one legislature or the other. It is pith and substance of the
legislation in question that has to be looked into. It is well settled that the various entries in the
three lists of Indian constitution are not powers but fields of legislation. Being a paramount law,
a constitution is outside the purview of the courts, but a statute would be invalid, if is
contravenes any express provision of the constitution or even if it is inhibited by the implied
powers and restrains found in the constitution.

Applicability of Statutory construction: the constitution being essentially in the nature of a

statute, the general rules governing the construction of the statutes apply to the construction of
constitution as well. The fundamental rule of interpretation is the same, whether it is the
provision of the constitution or an act of parliament, namely that the court will have to ascertain
the intention gathered from the words in the constitution or the act as the case may be. And
where two constructions are possible, that one should be adopted which would ensure a smooth
and harmonious working of the constitution.
Following are the ways through which construction of statutes is applicable:
1. Same rules irrespective of form of Government: it is not the form of government or
the nature of the law making authority which governs the object underlying its laws. In
the every form of government, the power to make laws vests in some authority or the
other. Whether that authority is given to a federal or the unitary legislature or it is
enjoyed by an absolute ruler immaterial for determining the intention underlying
legislation. In the federal written constitution judiciary interprets and construe the
constitution but this is the inevitable consequences of all the written ruling instruments,
be they federal or unitary, or something of lesser importance. The principle applied in the
interpretation and construction of the written constitution is not different to those used in
construing laws enacted by legislatures where the constitutions have not been reduced
into writing. A written constitution is generally interpreted like any other statute by
reference to its terms and without any consideration of the policy and the possibility of
abuse of powers. Interpretation of the constitution is the sole prerogative of the
constitution courts and the stand taken by the executive in a particular case cannot
determine the true interpretation of the constitution.
2. Ascertainment of Intention: The fundamental principle of constitutional construction is
to give effect to the intent of the framers of the law and of the people adopting it, that is,
according to the intent that made it. Normally such intent is gathered from the language
of the provision. But if words used in the provision are reasonably bear meaning more
than one then it is legitimate for the court to go beyond and call in aid other well-
recognized canons of constructions.
3. Harmonious Construction: one section of an Act cannot be held ultra-vires of another
section of the Act. In a contingency of the kind, the only course open to court is to put a
harmonious interpretation thereon. In determining the scope and ambit of the
fundamental rights under the Indian constitution, the court may not entirely ignore the
directive principles of state policy laid down in part IV of the constitution, but should
attempt to give effect to both as much as possible.
4. Noscitur A Sociis: Noscere means to know and Sociis means association. Therefore
noscitur a sociis means to know from the association. The best mode of ascertaining the
meaning affixed to any words or sentences by a deliberative body is by comparing it with
the words and sentences with which it stands connected. The obscurity of any word may
be removed, by the references to associated words. The meaning of a term may be
enlarged or restricted by reference to the object of the whole in which it is used. Clauses
 of the constitution, which involves a conflict of governmental power, must be considered
with references to the literal meaning of the words, their connection with other words and
the general objects to be accomplished, and in case of ambiguity, report of the drafting
committee of the constitutional assembly may be read. Noscitur a scoiis is only a rule of
construction and it cannot prevail in cases where it is clear that the wider words have
been deliberately used in order to make the scope of the defined words correspondingly
wider. It is only where the intention of the legislature in associating wider words with
words of narrower significance is doubtful, or otherwise not clear that present rule of
construction can be usefully applied.[5]
5. Constitution must be interpreted in a Broad Way: in the case of Sakal Papers (P) Ltd.
v. The Union of India,[7]speaking on behalf of the Constitution Bench of the Supreme
Court, Mudholkar J., pointed out that is must be borne in the mind that constitution must
be interpreted in a broad way and not in narrow and pedantic sense. Certain rights have
been enshrined in our constitution as fundamental and, therefore while considering the
nature and the content of those rights the court must not be too astute interpret the
language of the constitution in so literal a sense as to whittle them down. On the other
hand, the court must interpret the constitution in a manner which would enable the citizen
to enjoy the rights guaranteed by it in a fullest measure subject, of course, to permissible
restrictions.
6. Doctrine of Pith and Substance: The doctrine of ‘pith and substances’ means that if an
enactment substantially falls within the legislative powers of a legislature, expressly
conferred by the constitution, the enactment cannot be held to be invalid, merely because
it incidentally encroaches on matters assigned to another legislature.[11]To determine the
constitutional validity of an Act, its pith and substance should be considered[12]. Where
the law is impugned as ultra vires it is true character of the legislation that has to be
ascertained. That is, it must be ascertained whether the impugned legislation is directly in
respect of the subject covered by any particular article of the Constitution or touches the
said article only incidentally or directly. In order to examine its truthfulness, the courts
have evolved the doctrine of ‘pith and substance’ for the purpose of determining whether
it is legislation with the respect to matters in one list or the other, regard is to be had to
the (i)enactment as a whole, (ii) its main objects, and (iii) scope and effect of its
provisions. If the substance of an enactment falls within the Union list, then the incidental
encroachment by the enactment on the state list would not make it invalid.[10]
7. Liberal Interpretation: It is fundamental cannon of construction that a Constitution
should receive a liberal interpretation in favor of citizen, especially with respect to those
provisions which were designed to safeguard the liberty and security of the citizen in
regard to both person and property. It will be remembered that the Constitution as the
declaration of the will of people should be interpreted liberally and not in any narrow or
doctrinaire spirit. It must be interpreted according to its true and intent as disclosed by the
phraseology in its natural significance in the light of its setting and its dynamic character
which is intended to fulfill the aspiration of the people without doing violence to the
language used. A constitutional provision should evidence s fair, liberal and progressive
construction so that its object might be promoted.
8. Doctrine of Eclipse: when a law is valid when it is made but it rendered invalid for
certain purposes by a supervening constitutional inconsistency may receive after the
constitutional inconsistency is removed an amendment. The statute or the rule is over -
 shadowed by the fundamental right and remains dormant but is not dead. With the
amendment in the constitution the impugned Act or Rule began to operate once again
from the date of such amendment.
9. Doctrine of Colorable Legislation: the doctrine of colorable legislation postulates that
though the letter of the law is within the limits of powers of the legislature, in substances,
the law has transgressed those powers and by doing so, it has taken the precautions of
concealing its real purpose under the cover of apparently legitimate and reasonable
provisions. The doctrine of colorable legislations implies that though a legislature is not
fettered in the sphere of its power, it cannot under the guise or the pretence, or in the form
of an exercise of its power, carry out an object which is beyond its power, or trespass on
the exclusive powers of the other. In other words a legislature cannot under the colorable
exercise of its powers, enact a law which does not fall within its sphere or nullify
expressly or by implication, statues which it could not enact. If the Act is within
legislative competence, no question of colorable legislation arises. What cannot be done
directly cannot be done indirectly.
10. Rule of Ejusdem Generis: the ejusdem generis rule is applicable where as wide or
general term has to be cut down with reference to the genus of the particular terms which
precede the general words. This rule has hardly any application where certain specific
categories are ‘included’ in the definition. The ejusdem generis rule may be applicable to
the general words ‘other similar grant’ which would take their colour from the particular
categories, ‘jagir, inam, or muafi’, which precede them, but the word ‘inam’ is not
subject to the same rule to the rule, in article 31A(2)(a) of the Constitution. Once it is
held that inams of any kind were included, it makes little difference if the inams were of
lands and not of whole villages.[16] The principle of ejusdem generis is not applicable in
article 12 where it uses the words ‘other authorities’. To invoke the application of
ejusdem generis rule must be a distinct genus or category running through the bodies
already named.[17] In article 12 of the constitution, the bodies specifically named are the
Executive Government of the Union and the States, and the local authorities. The
Supreme Court was unable to find any common genus running through these named
bodies. It could not place these bodies in one single category on any rational basis. The
doctrine of ejusdem generis could not, therefore, be applied to interpretation of the
expression of ‘other authorities’.

It is well established fact that in the Constitutional scheme, judge made law becomes a part of
Constitution. The Supreme Court of India developed a vast jurisprudence in interpretation of
constitutional provisions and other statutes. The judiciary has adopted various canons of
interpretation while interpreting Indian constitution which has been already explained by the
author. All the above-mentioned doctrines are used in several situations as the judiciary may
deem fit in the light of facts and circumstances of the question of law being raised under the
ambit of Constitution. Our constitution makers have laid down a master-piece in the form of
Constitution of India which does not need any material amendment even after 65 years of its
adoption. Judiciary only needs to interpret and construct the intention of constitution makers
which almost solves the problem of today’s generation. These doctrines are the tools of Judges
which help them to give judgments effectively and efficiently. The need of the hour is to follow
the well established principles of law in order to exercise the powers vested in the hands of
judges to render decisions that demands the fulfillment of question of law in the interest of public
at large. These principles grant vide power to decision-makers but they can exercise it under a
well defined circle so as to curb the abuse of power. By and large, Judiciary knows its powers as
well as the limitations of its potential. They never overpower themselves since they are aware of
the severe after-effects of it. Though it is said by many that justice delayed is justice denied but
critics must be ready to accept the fact that justice hurried is justice worried. And if it’s really
worried then forget about justice, it’ll be worse than that. The principle of audi alteram partem is
the outcry of common public and as aspiring young lawyers if we know the intricacies of legal
system we are mostly contented with the judicial fairness and equity laws practiced by
interpreters of law our in our country.

Q6. Dharma
Dharma is generally accepted to have been derived and supersede from the vedic concept of Rita,
which literally meant, ’the straight line’. Rita refers to the Law of Nature, it signifies moral laws,
and based on righteousness. When something is Rita it simply meant that thing is true, right and
nothing more. Dharma evolved side by side of Rita but eventually took over it as the old concept
of Rita was not able to cope and solve the issue emerging with increasing social complexities.
Dharma signifies Natural law.

Dhrama, as been said by Justice M. Rama Jois[4] is, “Dharma is that which sustains and ensures
progress and welfare of all in this world and eternal bliss in the other world. The Dharma is
promulgated in the form of command”. Mahabhartha also contains a discussion on the issue of
defining dharma[5]. Dharma in words of Madhavacharya is, “It is most difficult to define
Dharma. Dharma has been explained to be that which helps the upliftment of living beings.
Therefore that which ensures welfare (of living beings) is surely Dharma. The learned rishis have
declared that which sustains is Dhrama.” Dharma is anything that is right, just and moral.
Dharma aims for the welfare of state and mainly, its people.

Dharma originated from Vedas which are Sruti (heard knowledge) and they are the supreme
source of knowledge for humans, as the narration of what is heard from the ancient priests that is
Sruti and they contains narration on everything possible ranging from military to politics to
common people’s life. Its other sources are Smriti, which are the interpretation of Vedas and four
sages have propounded the dharmasastras and are called Smritikars. They are:
1. Manu
2. Yagnavalkaya
3. Brihaspati
4. Narada

The other source has been Puranas which are eighteen in number and contains information about
the creation and dynasties of god, sages and kings and detailed description of yugas. All the
sources are on the same footstep and no one has supremacy over the other. Idea which made
people adhere to the Dharma can be illustrated by one verse from Brihadaranyaka Upnishad
which is, “punyo vai punyena Karmana bhavati, Papah Papeneti”, meaning ‘everyone becomes
good by good deeds and bad by bad deeds’, in other words ‘every one reaps what he sows’ and
what’s good is defined by Dharma.
The concept of dharma or simply dharma has been used by various courts in helping them to
arrive at decisions even by the Honourable Supreme Court in many cases. One of the important
cases is Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors[21], which
elaborately discusses the questions related to Dharma, ‘what is dharma?’, ‘Is Dharma same as
Religion?’ And every answered each and every doubt. Dharma as said above is distinct from
religion. Dharma even regulates the law today, by means of morality in and outside the courts as
in the Secretary, Ministry Of Information & Broadcasting v. Cricket Association of Bengal &
ANR.[22]. In Dattatraya Govind Mahajan vs. State of Maharashtra[23], the court talks about the
Dharma of the Constitution, and the karma of adjudication. Dharma thought to be an orthodox
area is used in the cases much unorthodox prime facie such as rights to transgenders[24].
Dharma is been used by the courts as prestigious as Constitutional benches and used in place and
equivalent of duty and truth and even the flag contains the dharma chakra of Ashoka[25]. The
courts have interpreted articles 25 and 26, in line with Dharma, they have said when the articles
are read and religion means Dharma that is co-existence with welfare of others[26], not an
orthodox view. The concept of dharma as said earlier is fully explored in Narayana Deekshitulu
vs State Of Andhra Pradesh & Ors[27], there is a comparison between the constitutional laws
and Raja Dharma, the definition of dharma is tried to be clarified by using different verses from
everywhere, ‘Dharma in context of Rajya only means law’ and Dharma is secular or maybe the
most secular. The same view is held until now, by all the courts and is not disputed that Dharma
is an eternal bliss, which has seen many par and parcels of human life, mortals, but remained
immortal.

Dharma and law as seen above may seem to be in contrast, but the ideology behind them is same.
At large, law is a part of Dharma without disharmony and they constitute single integrated
whole. Dharma on one hand is taken to be religious, but it is not so and the same has been
approved by the Honourable Supreme Court in many cases as pointed in above sections. Dharma
has been and is guiding our conduct, morals and laws in varying degree. One may not find any
relation between the two on the face but on a deep analysis both are interrelated integrated
whole. ‘Dharma’ is one of the many sources of modern law and is shaping society. Hence, it can
be said that ‘dharma’ and law are closely related and interwoven. Dharma by passing the test of
time has shown its eternal character.

Q7. Basic Structure

The framers of the Indian constitution were aware of that fact that if the constitution was so
flexible it would be like playing cards of the ruling party so they adopted a middle course. It is
neither too rigid to admit necessary amendments, nor flexible for undesirable changes. India got
independence after a long struggle in which numerous patriots sacrificed their life. They knew
the real value of the freedom so they framed a constitution in which every person is equal and
there is no discrimination on the basis of caste, creed, sex and religion. They wanted to build a
welfare nation where the social, economical, political rights of the general person recognize. The
one of the wonderful aspect of our constitution is Fundamental rights and for the protection of
these rights they provided us an independent judiciary. According to constitution, parliament and
state legislature in India have the power to make the laws within their respective jurisdiction.
This power is not absolute in nature.
The constitution vests in judiciary, the power to adjudicate upon the constitutional validity of all
the laws. If a laws made by parliament or state legislature violates any provision of the
constitution, the Supreme Court has power to declare such a law invalid or ultra virus. So the
process of judicial scrutiny of legislative acts is called Judicial Review. Article 368 of the
Constitution gives the impression that Parliament's amending powers are absolute and
encompass all parts of the document. But the Supreme Court has acted as a brake to the
legislative enthusiasm of Parliament ever since independence. With the intention of preserving
the original ideals envisioned by the constitution-makers. To Abraham Lincoln, democracy
meant a Government of the people, by the people and for the people. So in democratic nation
whenever any law passed by parliament violates any provision of constitution or takes away any
fundamental rights of the person, the Supreme Court has right and power to strike down that law
or act. According to me this jurisdiction of Supreme Court is essential for protection of basic
features of the constitution.

The question whether fundamental rights can be amended under article 368 came for
consideration in the Supreme Court in Shankari Prasad case.[3] in this case validity of
constitution (1st amendment) act, 1951 which inserted inter alia , articles 31-A and 31-B of the
constitution was challenged. The amendment was challenged on the ground that it abridges the
rights conferred by part III and hence was void. The Supreme Court however rejected the above
argument and held that power to amend including the fundamental rights is contained in Article
368and the same view was taken by court in Sajjan Singh case.[4]

In Golak Nath case,[5]the validity of 17th Amendment which inserted certain acts in Ninth
Schedule was again challenged. The Supreme Court ruled the parliament had no power to amend
Part III of the constitution and overruled its earlier decision in Shankari Prasad and Sajjan Singh
case. In order to remove difficulties created by the decision of SC in Golak Nath case parliament
enacted the 24th Amendment act.

The Supreme Court recognized BASIC STRUCTURE concept for the first time in the historic
Kesavananda Bharati[6] case in 1973. Ever since the Supreme Court has been the interpreter of
the Constitution and the arbiter of all amendments made by parliament. In this case validity of
the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth
Amendments. The court by majority overruled the Golak Nath case which denied parliament the
power to amend fundamental rights of the citizens. The majority held that article 368 even before
the 24th Amendment contained the power as well as the procedure of amendment. The Supreme
Court declared that Article 368 did not enable Parliament to alter the basic structure or
framework of the Constitution and parliament could not use its amending powers under
Article368 to 'damage', 'emasculate', 'destroy', 'abrogate', 'change' or 'alter' the 'basic structure' or
framework of the constitution. This decision is not just a landmark in the evolution of
constitutional law, but a turning point in constitutional history.

Basic Features of the Constitution according to the Kesavanada verdict each judge laid out
separately, what he thought were the basic or essential features of the Constitution.
Sikri, C.J. explained that the concept of basic structure included:
#Supremacy of the Constitution
#Republican and democratic form of government
#Secular character of the Constitution
#Separation of powers between the legislature, executive and the judiciary
#Federal character of the Constitution

Shelat, J. and Grover, J. added three more basic features to this list:
#The mandate to build a welfare state contained in the Directive Principles of State Policy
#Unity and integrity of the nation
#Sovereignty of the country.

Unegde, J. and Mukherjea, J. identified a separate and shorter list of basic features:
# Sovereignty of India
# Democratic character of the polity
# Unity of the country
# Essential features of the individual freedoms secured to the citizens
# Mandate to build a welfare state

Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble
Of the Constitution and the provisions into which they translated such as:
# Sovereign democratic republic
# Justice - social, economic and political
# Liberty of thought, expression, belief, faith and worship
# Equality of status and the opportunity.

He said that the Constitution would not be itself without the fundamental freedoms and the
directive principles. [7]

Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different
judge keep different views regarding to theory of basis structure. But at one point they have
similar view that parliament has no power to destroy, alter, or emasculate the 'basic structure' or
framework of the constitution. "If the historical background, the preamble, the entire scheme of
the constitution and the relevant provisions thereof including article 368 are kept in mind then
there can be no difficulty, in determining what are the basic elements of the basic structure of the
constitution. These words apply with greater force to doctrine of the basic structure, because, the
federal and democratic structure of the constitution, the separation of powers, the secular
character of our state are very much more definite than either negligence or natural
justice."[12].So for the protection of welfare state, fundamental rights, Unity and integrity of the
nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and
worship, interpretation of judiciary is mandatory. We can say none is above constitution even
parliament and judiciary.