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Indian Constitutional Law Review

EDITION V | JULY 2018

Dedicated to the Growth & Evolution of Constitutional Law in India

© Publication of Agradoot for July 2018

Indian Constitutional Law Review [ISSN: 2456-8325] Edition V [July 2018]

Published by Agradoot Web Technologies LLP

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Editorial Board

1. Sameer Avasarala, Publishing Editor & Head, Publishing Unit

2. Amit Singhal, Editor-in-Chief

3. Samiya Zehra, Editor (Administration)

4. Shashank Kanoongo, Editor (Operations)

Honorary Advisors

1. Remembering Hon’ble Justice (Dr) A. S. Anand, 29th Chief Justice of India,

Former Chairman, NHRC

2. Hon’ble Justice Arjan Kumar Sikri, Judge, Supreme Court of India

3. Hon’ble Justice K. S. Panicker Radhakrishnan, Former Judge, Supreme Court of

India

4. Hon’ble Justice Prakash Prabhakar Naolekar, Former Judge, Supreme Court of

India, Former Lokayukta, Madhya Pradesh

5. Hon’ble Justice Peter Mohan Peiris, 43rd Chief Justice of the Republic of Sri Lanka

6. Hon’ble Justice Kalyan Shrestha, 23rd Chief Justice of the Federal Democratic

Republic of Nepal

7. Prof. (Dr.) Ranbir Singh, Vice-Chancellor, NLU, Delhi

8. Prof. (Dr.) Mahendral Pal Singh, Chancellor, Central University of Harayana

9. Prof. (Dr.) Faizan Mustafa, Vice-Chancellor, NALSAR Hyderabad

10. Prof. (Dr.) R. Venkata Rao, Vice-Chancellor, NLSIU Bengaluru

11. Prof. (Dr.) Shashikala Gurpur, Director, Symbiosis Law School, Pune

12. Prof. (Dr.) A. Lakshminath, Vice-Chancellor, CNLU Patna

13. Prof. (Dr.) Sukh Pal Singh, Vice-Chancellor, HNLU Raipur

14. Prof. (Dr.) Paramjit Jaswal, Vice-Chancellor, RGNUL Patiala

15. Prof. (Dr.) Rose Varghese, Vice-Chancellor, NUALS Kochi

16. Adv. Arvind Datar, Senior Advocate, Supreme Court

17. Adv. Geeta Luthra, Senior Advocate, Supreme Court

18. Dr. Adish C Aggarwala, Senior Advocate, President, International Council of Jurists

19. Adv. Maneka Guruswamy, Advocate, Supreme Court

20. Adv. Karuna Nundy, Advocate, Supreme Court

21. Prof. S. Sivakumar, Member, Law Commission of India

5. Aswinikumar Bairagya, Deputy Editor-in-Chief



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22. Prof. Michael Keating, Director, Center for Constitutional Change, University of

Aberdeen

23. Prof. Sujit Choudhry, Professor, Berkeley Law

24. Prof. Richard Albert, Professor, University of Texas

25. Prof. Andrew James Harding, Professor of Law, National University of Singapore

26. Prof. Madabhushi Sridharacharyulu, Central Information Commissioner, New

Delhi

Esteemed Members

1. Dr. Satish Gowda, Senior Professor of Law, P.G. Department of Law, Bangalore

University, Bengaluru, Honorary Member, Advisory Council

2. Dr. Atmaram Shelke, Assistant Professor, Symbiosis Law School, Pune

3. Mr. Mohd Imran, Asst Prof., School of Law & Constitutional Studies, Shobit

University, Meerut

4. Adv. Manjeet Kumar Sahu, Advocate, High Court of Jharkhand

5. Ms. Navtika Singh, Assistant Professor, ICFAI University, Dehradun

6. Adv. S. Basavaraj, Advocate, Karnataka High Court, Daksha Legal Advocates,

Bengaluru, Honorary Member, Advisory Council

7. Ms. Sanya Yadav, Assistant Professor, Amity Law School, Jaipur

8. Mr. Niteesh Kumar Upadhyay, Asst. Professor, School of Law, Galgotia

University, Founder, Knowledge Steez

Student Members

Yavanika Shah, Associate Editor

Mahvish Shahab, Associate Editor

Kriti Johri

Mahak Paliwal

Pranav Tanwar

Priyanka Priyadarshini

Afreen Hashmi

Shreetama Ghosh

1.

2.

3.

4.

5.

6.

7.

8.

9. Velpula Auditya

10. Aditi Duggal

11. Promita Sinha



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Editorial Note

The Editorial Board, Advisory Council and Publishing Members with great pleasure

bring out the fifth edition of the Indian Constitutional Law Review! While many events of

phenomenal importance have taken place from our last publication, we are sure to cover and

analyse all these aspects in this and the upcoming issues. To begin with, the declaration of the

Supreme Court of the Right to Privacy as an integral facet of Article 21 in Justice K. S.

Puttaswamy has put to rest the debate and has opened discourse over multiple facets of

privacy that were included as part of the judgment, for instance, informational privacy,

euthanasia, feminist jurisprudence among others. This complex judgment having diverse

effects is being analysed in this edition on the perspective of Feminist Jurisprudence in terms

of its impact on the institution of marriage and the woman in the institution. Federalism has

always been an area that attracts legal attention in India and is continuously evolving in the

Indian Quasi-Federal experience. In furtherance of this evolution, highlighting contemporary

relevance, study is made on the role of the Governor in appointing Chief Minister and the

Quasi-Federalism Policy as illustrated above.

The conferment of special status is still a political quagmire in India, however, while

that remains to be a legislative choice, the constitutional provision under Article 35-A still

remains and an evaluation of the same is carried out as part of our study in the fifth edition.

We, at ICLR, have always reaffirmed our commitment throughout our five editions in the

spirit of democracy in India and the crucial role played by electoral law in ensuring adequate

representation and will of the people in governance today. The paper on Electoral Laws seeks

to discuss the impact of periodic restructuring of constituencies on the electorate and

principles of suffrage in the Electoral Law framework. The paper on the Right to Hearing is a

novel contribution to the well-defined and founded framework of the Principles of Natural

Justice.

At Indian Constitutional Law Review, our efforts have always been focussed towards

ensuring that all facets of constitutional law are discussed and contemporary relevance is

established for all articles of the Indian Constitutional Law Review. While reaffirming our

faith in the rich Indian Constitutional jurisprudence, we hope to receive more qualitative

submissions towards our journal.

“The idea of bringing out Indian Constitutional Law Review is indeed appreciable. I

convey my greetings and good wishes for the success of the journal.”

- Justice R. C. Lahoti, 35th Chief Justice of India

Sameer AvasaralaPublishing Editor



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Contents

1. RIGHT TO PRIVACY: BOON OR BANE TO THE MARRIED WOMAN? ............. 7

2. IS RIGHT TO HEARING AN ABSOLUTE RIGHT?................................................ 22

3. DELIMITATION OF ELECTION CONSTITUENCIES: AN ANALYTICAL &

DESCRIPTIVE STUDY ............................................................................................... 30

4. GOVERNOR’S DISCRETIONARY POWER IN APPOINTING CHIEF MINISTER

....................................................................................................................................... 45

5. THE NOTIONAL ‘QUASI-FEDERALISM’ PHILOSOPHY: AN INQUIRY INTO

THE TRADITIONAL FEDERAL PARADIGM ........................................................ 58

6. EVALUATING THE STATUS OF ARTICLE 35-A OF THE CONSTITUTION OF

INDIA ............................................................................................................................ 69

7. COLOMBIAN CONSTITUTIONAL COURT AND PEACE AGREEMENT .......... 79



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RIGHT TO PRIVACY: BOON OR BANE TO THE MARRIED

WOMAN?

Tanvi Prabhu

Student, 2nd

Year, B.A. LL.B. (Hons.), National Law Institute University (NLIU), Bhopal,

India

ABSTRACT

Privacy is an immensely complicated concept which continuously evolves over time accompanied with

varied interpretations across cultures and has always posed as a herculean challenge for judiciaries

across the world to define and limit. Therefore, the Justice K.S. Puttaswamy v. Union of India1

plurality judgement by the nine-bench judge declaring the right to privacy as a repository right under

Article 21 must undoubtedly be saluted. This paper examines the impact of this judgement on the

institution of marriage analysing its positive as well as negative effects on the woman. It will

elaborate upon Justice Chandrachud’s point that “privacy” – depending on how it is articulated –

can both be a tool for the emancipation of women, as well as a weapon of oppression.2

Unsurprisingly, many feminist activists are raising the concern that privacy will continue to

safeguard patriarchal practices which will be examined by the author. Though, the judgement

emphasises that it is the individual who is at the heart of the right to privacy; the conflicting marriage

laws, the overturn of the Sareetha case by the Supreme Court along with the more recent marital rape

exception case is fuel to the fear of female oppression which the judiciary has not yet managed to

quell. Thus, it is important to scrutinize whether privacy will be used as a cover to uphold the

patriarchal mindset in the private sphere of marriage or will it be used as a guarantee against the

violations faced by the married woman.

INTRODUCTION

Privacy is a concept that has existed from the beginning of civilisation leading to building of

the first houses and evolution of various types of clothing. Every culture has had its own

meaning of privacy which has differed over time. However the concept of privacy today is a

modern invention. Privacy, as we know, deals with protection of personal data and lifestyle

choices; basically it refers to “the right to left alone” as stated by the American scholars

Warren and Brandeis.3 This modern concept has undergone various changes in meaning

1 Justice K.S. Puttaswamy v. Union of India, A.I.R. 2017 S.C. 4161. 2 Gautam Bhatia, The Supreme Court’s Right to Privacy Judgment – II: Privacy, the Individual, and the

Public/Private Divide, INDIAN CONSTITUTIONAL LAW AND PHILOSOPHY (Oct. 25, 2017, 1:46 PM),

https://indconlawphil.wordpress.com/2017/08/28/the-supreme-courts-right-to-privacy-judgment-ii-privacy-the-

individual-and-the-publicprivate-divide/. 3 Samuel D. Warren; Louis D. Brandeis, Right To Privacy, 4 HARVARD L.R. 193, 195 (1890).

https://indconlawphil.wordpress.com/2017/08/28/the-supreme-courts-right-to-privacy-judgment-ii-privacy-the-individual-and-the-publicprivate-divide/






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beginning with the concept of spatial privacy i.e. a man’s home is his castle formulated in the

fourth Amendment of the U.S. Constitution4, changed into relational privacy, e.g. relation of

marriage should not be interfered with5, then began to be seen as protection to the individual

and finally morphed into the right to privacy as we know it today. While the dimensions of

privacy continue to be debated, the recent Justice K.S. Puttaswamy v. Union of India6

judgement declared the right to privacy as a fundamental right under Article 21 of the

Constitution of India and laid down its three essential aspects as bodily integrity,

informational privacy, and the privacy of choice.7This landmark judgment laid down that

individual self-development – which lies at the heart of democracy, dignity, and fraternity –

was simply meaningless without a right to privacy that guaranteed, at the minimum, security

of the body, security of personal information, and security of intimate choices.8 This core

reasoning has now become the backbone of every case alleging the infringement of privacy

thus subjecting the contents of the judgment to extensive scrutiny to help formulate the

application of privacy in every scenario. This paper examines the effect of the concept of

privacy as defined by this judgment upon the rights of the married woman. It looks into three

legal provisions that have disadvantaged married woman i.e. Restitution of conjugal rights

given in Section 9 of the Hindu Marriage Act, the Medical Termination of Pregnancy Act

which lays down restrictions on abortion and the marital rape exception. The effects of these

laws with respect to married women have been examined in detail and the author has

suggested the implementation of the concept of privacy as defined in the Puttaswamy

judgment to amend these provisions in order to benefit married women. Through this paper

emphasis is laid down on the fact that privacy could be used as a shield for the married

woman or be her enemy depending on its formulation and implementation.

PRIVACY AND THE RESTITUTION OF CONJUGAL RIGHTS

Conjugal rights also known as matrimonial rights are the rights which husband and wife have

to each other’s society, comfort and attention.9 Restitution of these rights is a remedy

provided to the abandoned spouse against the other to restore their marriage. Section 9 of the

Hindu Marriage Act, 1955 states “When either the husband or the wife has, without

4 U.S. CONST. amend. IV. 5 Griswold v. Connecticut, 381 U.S. 479 (1965). 6 Hereinafter referred to as the Puttaswamy Judgment. 7 Justice K.S. Puttaswamy v. Union of India, A.I.R. 2017 SC 4161. 8 Gautam Bhatia, The Supreme Court’s Right to Privacy Judgment – I: Foundations, INDIAN CONSTITUTIONAL

LAW AND PHILOSOPHY (Oct. 25, 2017, 1:46 PM), https://indconlawphil.wordpress.com/2017/08/27/the-

supreme-courts-right-to-privacy-judgment-i-foundations. 9 BLACK’S LAW DICTIONARY (6th ed. 2009).

https://indconlawphil.wordpress.com/2017/08/27/the-supreme-courts-right-to-privacy-judgment-i-foundations/



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reasonable excuse, withdraw from the society of the other, the aggrieved party may apply, by

petition to a district court, for restitution of conjugal rights and the court, on being satisfied

of the truth of the statements made in such petition and that there is no legal ground why the

application should not be granted, may decree restitution of conjugal rights accordingly.”10

Here, the burden of proving reasonable excuse is on the party who has withdrawn his/her

society.11

While the abolitionists believe that this remedy must be removed as it is

conservative, outdated and also abets the legalisation of marital rape, along with lacking

genuineness in most cases, the counterview is that this is an essential positive remedy which

plays a vital role in protecting the institution of marriage and hence it must remain valid.

THE POLIS AND OIKOS CONCEPT

The remedy of restitution of conjugal rights first originated in Jewish Laws was adopted by

the British common law courts and during the colonial period, it was incorporated into Indian

personal laws. The first major case on the restitution of conjugal rights arose in the colonial

period, Dadaji Bhikaji v. Rukhmabai, was a case that sparked a huge controversy on the

relation between the colonial state and Indian society. In this case the Bombay High Court

had to decide whether Dadaji who had married Rukhmabai when he was nineteen years old

and she was eleven was entitled to receive a decree forcing Rukhmabai to live with Dadaji

after 11 years of their marriage during which they had never cohabited. At first instance the

court did not grant the decree and refused to “compel this young lady of twenty-two to go to

the house of the plaintiff in order that he may consummate the marriage arranged for her

during her helpless infancy.”12

But this decision was strictly overruled by the division bench

of the High Court calming the Indian masses reinstating the impression the doctrine of non

interference by the colonial state within the private family space.13

This case is a fine example

of the rights of women being determined by the public/private divide i.e. the greek concept of

“polis” (the city) and “oikos” (the house).14

The polis was the public sphere where there was

freedom and “free association between free citizens” (who were necessarily male) while the

oikos was the family domain where necessary functions were performed (such as production,

reproduction etc.) which enabled the existence of the public sphere.15

The threshold of the

house was where the norms of freedom and equality, that governed “public life”, gave way to

10 Hindu Marriage Act, 1955, No. 25, Acts of Parliament, 1955 (India). 11 Section 9, Hindu Marriage Act, 1955. 12 Dadaji v. Rukhmabai, (1885) I.L.R. 9 Bom. 529 (India). 13 Dadaji Bhikaji v. Rukhmabai, (1886) 10 I.L.R. (Bom.) 301 (India). 14 1 J. ROY, ‘Polis and Oikos in Classical Athens’, GREECE AND ROME 46 (1999). 15 HANNAH ARENDT, THE HUMAN CONDITION, PART II (2nd ed., University of Chicago Press 2013).



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the norms of hierarchy and inequality, which were considered to be justified and deemed to

track the natural differences between the inhabitants of the household.16

This idea with its

foundations in the concept of ‘space’ has continued to govern the mindset on personal laws,

even as revolutions happened around the world granting the rights of liberty and equality to

the public.

THREE CASES THAT BEGAN AND ENDED THE CONJUGAL RIGHTS DEBATE

In India, the debate on restitution of conjugal rights was sparked and put to rest in a series of

three cases, the first of which was T. Sareetha v. T. Venkatasubbaiah in 1983. Sareetha

was a high school student when she married Venkatasubbaiah. After living together for about

six months they separated and she went on to became a famous actress. Five years later, the

husband filed for a decree of restitution under Section 9 of the Hindu Marriage Act. The

decree was granted by the subordinate court, upon which Sareetha appealed to the High Court

and argued that the decree violated her fundamental rights to equality, personal liberty,

dignity and privacy and that hence Section 9 should be held unconstitutional. Justice P.A.

Choudary observed that the effect of a decree for the restitution of conjugal rights was to

“transfer the choice to have or not to have marital intercourse to the State from the

concerned individual and... to surrender the choice of the individual to allow or not to allow

one's body to be used as a vehicle for another human being's creation to the State.”17

While it

is easy to point out that Justice Choudary’s judgment assumed that cohabitation would

involve inevitable marital intercourse, the author believes that this is a justified assumption

not far from reality, especially at the time of the case. The court applied Articles 14 and 21,

found that the woman’s right to equality was violated despite Section 9 applying to both

spouses because the effect of section 9 was contrasting on both. While the husband would

carry on life as normal, Sareetha would jeopardize her career and run the risk of pregnancy

against her will. Article 21 was also held to be violated as being forced infringed personal

liberty, the threat of marital rape outraged her dignity and her privacy. Thus, on the basis of

violation of fundamental rights the court overturned the decree and declared Section 9 to be

unconstitutional. It is important to note the emphasis placed by Justice Choudary on the lack

of choice for the woman upon being forced to go back to her husband against her wishes. It is

this right of choice i.e. decisional autonomy that is guaranteed under the Right to Privacy in

the recent Puttaswamy judgment.

16 GURPREET MAHAJAN, The Public and the Private 1, 10 (Gurpreet Mahajan & Helmut Reifeld eds., New

Delhi: Sage Publications 2003). 17 T. Sareetha v. T. Venkatasubbaiah, A.I.R. 1983 A.P. 356 (India), para 17.



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It was this application of constitutional principles in the personal sphere that was vehemently

opposed in the similar case of Harvinder Kaur v. Harmender Singh Choudhry18

by

Justice Rohatgi of the Delhi High Court stating that “Introduction of constitutional law in the

home is most inappropriate. It is like introducing a bull in a china shop. It will prove to be a

ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the

home and the married life neither Article 21 nor Article 14 has any place. In a sensitive

sphere which is at once most intimate and delicate the introduction of the cold principles of

constitutional law will have the effect of weakening the marriage bond.”19

This observation of

the court is based on the idea of the public/private divide, that constitutional principles are for

the public domain where as the private sphere must be allowed to function without

interference. Further converting this spatial concept to a relational concept of privacy, the

Supreme Court in Gobind v. State of MP declaring the right of privacy as a valid right stated

that “Any right to privacy must encompass and protect the personal intimacies of the home,

the family, marriage, motherhood, procreation and child rearing.”20

Supporting this

definition, the court in the Harvinder Kaur judgment declared that fundamental rights were

not to be considered in the “privacy” of marriage. Also, the court held that the decree under

Section 9 does not abet marital rape, as the purpose the decree served was to compel

cohabitation and not sexual intercourse. However, the court did not factor in the imbalance of

power in favour of the male in an Indian marriage. It was this imbalance that had formed the

basis of Justice Choudary’s link between cohabitation and marital intercourse. The

application of constitutional principles in marriage was an attempt to democratise the

institution to bring equality within homes. This attempt was not acknowledged, rather it was

further criticised in the case of Saroj Rani v. Sudarshan Kumar in which the Supreme

Court supporting the stance of Harvinder Kaur judgment went a step further declaring that

“conjugal rights, i.e., the right of the husband or the wife to the society of the other spouse is

not merely creature of the statute. Such a right is inherent in the very institution of marriage

itself.”21

And Section 9, by enforcing this right, served “a social purpose as an aid to the

prevention of break-up of marriage.”22

Thus, the institution of marriage was insulated from

the application of fundamental rights and its democratisation became an unattainable dream.

PRIVACY AS THE WEAPON AGAINST CONJUGAL RIGHTS

18 Harvinder Kaur v. Harmander Singh Choudhry, A.I.R. 1984 Del. 66 (India). 19 Id. at 34. 20 Gobind v. State of MP, A.I.R. 1975 S.C. 1378 (India). 21 Saroj Rani v. Sudarshan Kumar Chadha, A.I.R. 1984 S.C. 1562 (India), para 14. 22 Id. at 16.



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However, the recent declaration and formulation of the right to privacy which states that

decisional autonomy is essential to privacy23

questions the spatial and relational basis of the

above judgements and brings us back to the question of choice which was emphasised upon

by Justice Choudary. In the previous cases the marriage as a unit was provided protection and

privacy even though the constitution gives the implied right of privacy only to the individual

and does not recognise any other unit. One must realise that had the constitution makers

wanted to make the family a recognised and protected unit they would have done so, similar

to the Irish Constitution which recognises the family as a fundamental unit of society and

provides it protection.24

The fact that the makers borrowed heavily from the Irish Constitution

but did not borrow the recognition of ‘family’ as a unit is a clear indicator that they intended

the individual to be higher and more important than the family and it is the individual who is

guaranteed the right to privacy not any other institution. In the landmark case of Eisenstadt

v. Beard, Justice Brennan noted that “the marital couple is not an independent entity with a

mind and heart of its own, but an association of two individuals each with a separate

intellectual and emotional makeup. If the right of privacy means anything, it is the right of the

individual, married or single, to be free from unwarranted governmental intrusion into

matters so fundamentally affecting a person as the decision whether to bear or beget a

child.”25

The observation of this case that the right to privacy belongs to a person as an

individual and is not lost by marital association was recognised by Justice Choudary and the

same must be emphasised upon consideration of privacy with respect to restitution of

conjugal rights.

An individual woman must be guaranteed her fundamental right to privacy irrespective of her

marital status. One must remember that the Constitution is the grund norm with higher

importance than the personal laws. The state by enforcing Section 9 forces a woman to rejoin

her spouse against her personal decision to have left him. This violation of her decisional

autonomy in turn violates her right to privacy by interfering in her extremely intimate

decision of separating from her spouse. When the Sareetha judgment held Section 9 to be

unconstitutional its reasoning was not concrete. This resulted in the Apex Court easily

negating the judgment and upholding non application of constitutional principles in the

institution of marriage. However, today with the emergence of proper reasoning of the right

to privacy and the fact that the Court has recognised that it is only the individual who is

23 Justice K.S. Puttaswamy v. Union of India, A.I.R. 2017 S.C. 4161. 24 IRELAND CONST. article 41(1), 41(2). 25 Eisenstadt v. Beard, 405 U.S. 438, 453 (1972).



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guaranteed the right, it is imperative that the Courts and the legislature recognise the

violations caused due to Section 9 of the Hindu Marriage Act and remove it, so that the

married woman does not have to fear being forced to go back to her husband against her

wishes thus guaranteeing her autonomy and right to privacy.

PRIVACY AND THE RIGHT OF ABORTION

Abortion is defined as the artificial or spontaneous termination of a pregnancy before the

embryo or foetus can survive on its own outside a woman's uterus.26

This act of intentionally

ending a pregnancy is matter of huge public debate across the world. It is a debate whose

contentions begin with the commandments of different religions and stretch onto the modern

concept of human rights. From the human rights perspective, the debate hinges on whether

human rights are granted upon the child’s birth or does the foetus also have human rights at

par with those who are already born. The former view as stated in 1948, Article 1 of the

Universal Declaration of Human Rights stated: “All human beings are born free and equal in

dignity and rights” where the word “born” necessarily excludes the foetus and rights are

conferred only on birth27

thus it recognises the woman’s first right over her body supporting

abortion. The latter view known as pro-life recognises the rights of the foetus over the

autonomy of the woman thus opposing abortion. However, from the view of state the

reasoning is different, the abortion debate in the U.S. for instance, boils down to a conflict

between the religious beliefs of the community and the State's interests in protecting potential

life on one hand, and the mother's right to reproductive autonomy on the other.28

This debate

continued for decades when finally in 1973, the case of Roe v. Wade held that the American

constitution protected the right to abortion allowing viability up to 24 weeks. Subsequently

further cases and laws in different states of the U.S. were enacted to allow abortion but with

many conditions to safeguard the woman’s health, ensure minimal hurt to religious beliefs

and protect state interests.

ABORTION: THE INDIAN LEGAL SCENARIO

In India, Section 312 of the Indian Penal Code criminalises abortion, it states, “Causing

miscarriage – Whoever voluntarily causes a woman with child to miscarry, shall, if such

miscarriage be not caused in good faith for the purpose of saving the life of the woman, be

punished…..” thus allowing abortion only if the mother’s life is in danger. The explanation to

the section also specifies that the woman herself would also be punishable if she causes the

26 BLACK’S LAW DICTIONARY (6th ed. 2009). 27 Universal Declaration of Human Rights, 1948, Art. 1. 28 Roe v. Wade, 410 U.S. 113, 148-150 (1973).



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miscarriage voluntarily. Thus, while the woman has the right to motherhood, the state denies

her the choice of not having the child. In 1971, as an exception to Section 312 the Medical

Termination of Pregnancy (MTP) Act was passed legalising abortion. This Act allowed

termination of pregnancy if it were a threat to the woman’s physical or mental health or if the

child would suffer from serious mental or physical disorders. If the pregnancy was under 12

weeks, only one registered medical practitioner is required to ascertain if any of the above

mentioned requirements are satisfied. Between 12-20 weeks two registered medical

practitioners must be of the opinion that the requirements of the Act are fulfilled and the

abortion can be performed.29

After 20 weeks, the woman would have to approach the courts

as the Act would no longer allow abortion. While grave injury to mental health includes

pregnancy caused by rape, it is interesting to note that the explanation provides that the

anguish caused by a pregnancy resulting from the failure of family planning methods also

constitutes “grave injury to mental health” for the purposes of the Act. Strangely enough, this

explanation applies only to married women, and does not recognize the anguish caused to an

unmarried woman by an unwanted pregnancy. This indicates that the Act was motivated not

by libertarian ideals supporting women’s rights but by the need to promote abortion as a

family planning tool.30

THE SHORTCOMINGS OF THE MTP ACT

On the face of it the MTP Act does grant women the right of abortion. Even for a married

woman consent of the husband is not required for abortion, her own consent is enough.

However, the grave underlying handicap of the Act is that it grants veto powers to the

medical practitioner i.e. if the medical practitioner is satisfied that abortion is legally possible

only then will he/she conduct the procedure. The problem with this is that, firstly keeping in

mind the Indian societal mindset, many practitioners may not want to conduct an abortion

due to moral reasons and hence refuse. Secondly, the practitioner is supposed to ascertain if

abortion will be legally possible in accordance to the Act rather than whether it will be

medically feasible. The morality obstacle as well as the criteria of legality do not favour the

pregnant woman rather they give the medical practitioners reasons to refuse abortion thus

burdening a time constrained vulnerable pregnant woman. The interpretation of the MTP Act

by the courts all these years has reflected the law’s failure to treat pregnant women as persons

29 Section 3, Medical Termination of Pregnancy Act, 1971, No. 34, Acts of Parliament, 1971 (India). 30 Simi Rose George, Reproductive Rights: A Comparative Study of Constitutional Jurisprudence, Judicial

Attitudes and State Policies in India and the U.S., 18, STUDENT BAR REVIEW 69, 77 (2006),

https://www.nls.ac.in/students/SBR/issues/vol181/18105.pdf .

https://www.nls.ac.in/students/SBR/issues/vol181/18105.pdf



15

capable of taking responsible decisions concerning their fertility and whether to undergo an

abortion or not.31

The same is reflected in the judgment of Ms. X v. Union of India32

in

which the Apex Court gave the discretionary power to abort to the medical community, rather

than to the woman, who felt endangered in continuing with her pregnancy, apart from the

medical problems she was facing, thus overriding her autonomy over her own body.

THE LANDMARK WOMAN CENTRIC JUDGMENT

In 2016, the Bombay High Court in the case of High Court on its own Motion v. The State

of Maharashtra interpreted the MTP Act as granting the right of abortion to women where

the medical practitioner’s duty is merely to ensure that the procedure is within the conditions

of the Act. The judgment stated: “The MTP Act bestows a very precious right to a pregnant

woman to say no to motherhood. It is the right of a woman to be a mother, so also it is the

right of a woman not to be a mother and her wish has to be respected.”33

The court also

stressed that to a pregnant woman time is of essence and hence her decision to abort must be

immediately accepted. It also removed the existing restriction by law on abortions upon

unmarried women thus letting them avail their right more easily. This judgment has for the

first time interpreted the MTP Act in favour of women’s right to abortion and hence, it is

hoped that other Courts too would implement the reasoning of this judgment.

PRIVACY: BODILY INTEGRITY GRANTS UNHINDERED RIGHT OF ABORTION

Abortion is an action which affects a woman’s bodily integrity. By not giving the power of

authorising this action directly to the woman and letting the medical practitioner have veto

powers, the MTP Act violates the decisional autonomy of the woman. Both bodily integrity

and decisional autonomy are intrinsic to the right to privacy of the woman34

and hence, their

violation effectively infringes the woman’s right to privacy. The Medical Termination of

Pregnancy (Amendment) Bill of 2014 which is yet to be passed has proposed the inclusion of

registered healthcare providers like those of ayurveda and homeopathy into the term medical

practitioner along with extension of the viable time period to 24 weeks. It allows the abortion

of the foetus if it is found to have serious defects irrespective of the length of the pregnancy.

Now that the right to privacy has been expressly declared as a fundamental right, in order to

protect it the MTP Bill, 2014 should also include a provision guaranteeing the pregnant

31 Veena Johari & Uma Jadhav, Abortion rights judgment: a ray of hope!, INDIAN JOURNAL OF MEDICAL ETHICS

(2017) , http://ijme.in/wp-content/uploads/2017/02/20170228_abortion_rights_judgment.pdf . 32 Ms. X v. Union of India, In the Supreme Court of India, Writ Petition (C) No. 593 of 2016. 33 In High Court on its own Motion v. The State of Maharashtra, Suo Motu Public Interest Litigation No. 1 of

2016; judgment dated 20.9.2016. 34 Justice K.S. Puttaswamy v. Union of India, A.I.R. 2017 S.C. 4161.



16

woman’s autonomy and right to self determination with respect to abortion and relegate the

medical practitioner as a mere facilitator of the procedure of abortion safeguarding the

woman’s health. Such a provision will ensure that pregnant women’s right to privacy is

protected.

PRIVACY AND THE MARITAL RAPE EXEMPTION

The term Rape has originated from the Latin word ‘rapio’ which means to seize. It is defined

as the unlawful carnal knowledge of a woman by a man forcibly and against her will35

where

carnal knowledge is the act of a man having sexual bodily connections with a woman; sexual

intercourse.36

Section 375 of the Indian Penal Code defines the offence of rape in detail

covering all types of forcible sexual acts while Section 376 prescribes the punishment for it.

Section 375 also contains two exceptions to rape and it is exception (2) that is the subject of

this section which states that “Sexual intercourse by a man with his own wife, the wife not

being under fifteen years of age, is not rape.”37

This exception exempts a man from liability

of committing rape if the woman who has been raped by him is his wife (above 15 yrs of

age). This provision is popularly known as the marital rape exception and majority countries

around the world have had this provision in their laws. In the last few decades, with increase

in awareness of women’s rights and movements many countries have removed this exception

and explicitly criminalised marital rape. Unfortunately, India is not one of those countries.

MARITAL RAPE EXEMPTION: WOMEN CONSIDERED AS PROPERTY

The origin of the marital rape exception can be traced back to the patriarchal notion that the

wife is the property of her husband. In the 8th

century B.C., Romulus of Rome had made a

law that “obliged married women, as having no other refuge, to conform themselves entirely

to the temper of their husbands and the husbands to rule their wives as necessary and

inseparable possessions.”38

This law over centuries developed into the practice of

considering the father to be the guardian of the woman before marriage and upon marriage

would become the property of the husband. This was further solidified through the Doctrine

of Coverture or the Unity principle as explained by eminent jurist William Blackstone , “By

marriage, the husband and wife are one person in law: that is, the very being or legal

existence of the woman is suspended during the marriage, or at least is incorporated and

35 BLACK’S LAW DICTIONARY (6th ed. 2009). 36 Id. 37 Section 375, Exception 2, Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860 (India). 38 Sonkin, DOMESTIC VIOLENCE ON TRIAL, 6 (1987).

http://thelawdictionary.org/carnal-knowledge/



17

consolidated into that of the husband.”39

Due to this, married women were termed as feme

covert and dependent completely on her husband with no rights against him. Naturally this

mindset led to marital rape being justified and seen as a right of the husband. The cornerstone

that established the marital rape exception into law as we know it today was laid down in

1847 by jurist Mathew Hale stating that “the husband cannot be guilty of a rape committed by

himself upon his lawful wife for by their mutual matrimonial consent and contract the wife

hath given up herself in this kind unto her husband which she cannot retract.”40

This came to

be known as the Implied Consent Theory meaning that upon marriage the woman gives her

irrevocable consent to her husband. It became the root logic to defend any and all abusive

acts on the part of the husband against the wife including domestic violence because upon

marriage the wife impliedly gives irrevocable consent to be the husband’s property and hence

she is absolved of any rights against him. This common law theory spread across the world

and led to the existence of the marital rape exemption in the laws of almost all of Britain’s

colonies including the Indian Penal Code.

While in the US, marital rape exemption existed for many decades, since the 1970s women’s

rights movements campaigned extensively against marital rape and subsequently by 1993 all

its states removed this exemption and criminalised rape in marriage.41

The marital rape

exemption was abolished in England and Wales in 1991 by the Appellate Committee of the

House of Lords, in the case of R v. R. Corresponding amendment to the statutory law was

made through Section 147 of the Criminal Justice and Public Order Act, 1994. This judgment

was also affirmed by the European Court of Human Rights in the decision of SW v. UK.42

Even Nepal, a country which only recently abolished monarchy to become a young

democracy display immense progress in mindset through the Supreme court of Nepal which

ruled that forced sex within marriage constitutes marital rape.43

THE INDIAN LEGAL SCENARIO

In India, over the decades, attempting to better the position of women, personal laws evolved

to give women rights in marriage as well as succession. The Domestic Violence Act, 2005

39 Claudia Zaher, When a Woman’s Marital Status Determined Her Legal Status: A Research Guide on the

Common Law Doctrine of Coverture,94 LAW LIBRARY JOURNAL 459, 460 (2002).

http://people.virginia.edu/~jdk3t/ZaherWMS.pdf. 40 M. Hale, PLEAS OF THE CROWN 629 (1847). 41 Monica Steiner, Marital Rape Laws, CRIMINAL DEFENSE LAWYER (Nov. 24, 2017, 4.37 PM),

http://www.criminaldefenselawyer.com/marital-rape-laws.html. 42 Ayush Chaudhary, Marital Rape: A Crime Undefined, ACADEMIKE (NOV. 24, 2017 4.48 PM),

https://www.lawctopus.com/academike/marital-rape-a-crime-undefined/#_edn18. 43 On behalf of the Forum for Women, Law and Development and Anr. v. His Majesty's Government and Ors.,

Writ No. 55 of the year 2058 BS (2001-2002).

http://people.virginia.edu/~jdk3t/ZaherWMS.pdf



18

which extends protection to married women from any kind of violence in marriage is the first

law which went against the implied consent reasoning that had served as justification of the

husband’s acts for more than a century. But it only provides a civil remedy and imposes no

criminal liability upon the husband giving the impression that the husband’s acts are unlawful

but not wrong enough to receive criminal punishment. In 2013, the National Crime Records

Bureau (NCRB) reported over 118,000 domestic violence cases44

, The UN Population Fund

states that more than 2/3rds of married women in India, aged 15 to 49 have been beaten,

raped or forced to provide sex.45

These statistics lead to the inevitable acceptance of the fact

that marital rape is a rampant form of abuse faced by women even if they do not openly admit

to it owing to it being a taboo topic in society.

One of the first proper attempts to convince the government to criminalise marital rape was

by the NGO Sakshi’s writ petition filed in the year 1997 in the Supreme Court which sought

the removal of marital rape as one of its major prayers. But, in the year 2000, the 172nd

Law

Commission Report which examined the requests under this petition disagreed citing that

removal of the exemption would lead to excessive interference with marital relationship46

and

the topic of marital rape was ignored for several years. In 2013, the Justice Verma committee

report expressly recommended the removal of the marital rape exception stating that the

marital relationship cannot be a defence and must not be used as a mitigating factor justifying

rape, while also citing that the same had been recommended in 2007 by the UN Committee

on the Elimination of Discrimination against Women (“CEDAW Committee”). It held that

the relationship between the accused and the complainant should be irrelevant when

determining the presence or absence of consent to the act.47

But when the government passed

the Criminal Law (Amendment) Act, 2013 it did not accept this recommendation of the

committee and the exception continued to be valid. Recently, an NGO Independent Thought,

filed a PIL in the Apex Court seeking a declaration that the marital rape exception be

declared unconstitutional to the extent that it allows sexual intercourse with girl child aged

between 15-18 solely on the ground of her marriage, also citing that the age of consent is

18yrs and that it is contradictory to the POCSO Act. The Supreme Court in the judgment to

44 Namita Bhandare, Behind closed doors: Marital rape in India, LIVEMINT, May 25 2015,

http://www.livemint.com/Politics/b6HcnmMqYadNzWAP05FbEO/Behind-closed-doors-Marital-rape-in-

India.html. 45 Priyanka Rath, Marital Rape and the Indian legal scenario, INDIA LAW JOURNAL (NOV. 24, 2017 5.04 PM)

http://www.indialawjournal.org/archives/volume2/issue_2/article_by_priyanka.html. 46 Law Commission of India, 172nd Report, para 3.1.2.1, http://www.lawcommissionofindia.nic.in/rapelaws.htm. 47 Justice J. S. Verma Committee Report, Pg 117,

http://www.prsindia.org/uploads/media/Justice%20verma%20committee/js%20verma%20committe%20report.p

df.



19

this petition criminalised sexual intercourse within marriage if the wife is below 18yrs, thus

giving no protection to those above the age of majority and it also categorically stated that the

judgment should not be construed as dealing with the matter of marital rape as a whole.48

However, this decision may still be seen as a positive step which opens up the possibility in

the near future that the Apex Court would be favourable to declaring the entire exception as

unconstitutional.

BARRIERS TO THE CRIMINALISATION OF MARITAL RAPE

A petition by RIT Foundation to declare the entire marital rape exception unconstitutional is

sub judice in the Delhi High Court. The Union Government’s regressive reply to the petition

states that various factors like literacy, lack of financial empowerment of the majority of

females, mindset of the society, vast diversity, poverty, etc. are the primary reason for not

removing the exception.49

While this reason depicts the Indian society in poor light, it also

reflects the unwillingness of the government to confront this unfortunate scenario or bring

about a positive change in the societal mindset by removing the exception. The affidavit also

cites that proving the absence of consent on part of the wife would be difficult.50

It is

important to note that the same difficulty arises when dealing with rape cases where in the

complainant and accused have engaged in previous consensual sexual intercourse and they

are still ably decided by the courts. The government also used the instances of misuse of

Section 498A of the IPC to caution that marital rape provisions would also run the same

risk.51

But, one must remember that the judicial mechanism is competent enough to deal with

such cases of misuse if they were to arise similar to how it deals with misuse of other laws.

Hence, the author believes that the severity of the crime and its irreparable harm on the

married women outweighs any challenges that it poses to the legal system. Difficulty of

proving a crime cannot be an excuse to not provide protection against it. With its reply, it

seems the government would rather place blame on the society and examples of misuse of

provisions rather than taking a positive step to redress these problems which is the need of the

hour.

The underlying principle in the government’s refusal to criminalise marital rape, as clearly

mentioned in the submissions and also in the 172nd

Law Commission Report is that

criminalising marital rape would amount to excessive interference with marital relations and

48 Independent Thought v. Union of India and Anr., Writ Petition (Civil) No. 382 of 2013. 49 Brief Submissions on Behalf of Respondent/Union of India in RIT Foundation v. The Union of India, W.P.

(C) No.284/2015, para 6. 50 Id. at 3. 51 Id. at 2.



20

that it will destabilise the institution of marriage. This sole reason which is the backbone of

the existence of the marital rape exemption since decades inherently reflects the prioritisation

of the privacy of the marital relationship over the rights of the women and violates the

constitutional guarantee of fundamental rights of a woman. It is the unfortunate that privacy

is construed to protect the man while the woman is victimised in the guise of preserving this

‘sacrament of marriage’ which begs the question, is this institution to be protected at the cost

of violation of fundamental rights of half the country’s citizens?

MARITAL RAPE: VIOLATION OF THE MARRIED WOMAN’S PRIVACY

The marital rape exemption violates Article 14, the married woman’s Right to Equality

because Section 375 exception (2) lays down a differentia between married and unmarried

women which does not have a rational nexus with the object of section 375 i.e. protection

against rape thus making the classification an unreasonable one that wrongly treats women

differently on basis of marital status. Article 21 is also violated due to the violation of the

married woman’s dignity and privacy. For decades privacy has been misconstrued at spatial

and relational levels like home and marriage, however the landmark Puttaswamy Judgment of

the Supreme Court with its 9 Judge bench clearly laid down that privacy is guaranteed not to

institutions, spaces or relations but only to the individual to allow self development based on

unrestricted personal choices.52

The court gave three aspects to privacy i.e. bodily integrity,

decisional autonomy and protection of personal information. Marital rape destroys the

woman’s bodily integrity; disregard for her lack of consent takes away her decisional

autonomy. The existing marital rape exception enables this heinous crime to be committed

without fear of persecution thus becoming a law which violates a married woman’s

fundamental rights especially her Right to Privacy under Article 21 and hence the exception

must be removed and marital rape must be criminalised.

CONCLUSION

The establishment of the right to privacy has had a conflicting impact upon numerous

legislations, executive orders and has affected almost every aspect of the Indian citizen’s life.

Fortunately the Puttaswamy judgment is very well written and it has articulated this right

proportionately making it neither too narrow nor too wide, thus laying down a proper

framework for privacy to be interpreted appropriately in future cases. This judgment now is

acting as the basis to overturn decisions like the beef ban, ban on liquor, the Naz Foundation

judgment and many more issues. This paper has discussed the negative effects of the earlier

52 Justice K.S. Puttaswamy v. Union of India, A.I.R. 2017 S.C. 4161, para 85.



21

concept of privacy which was a bane for the married woman and has appreciated the new

framework of this right which displays great potential of protecting the married woman’s

fundamental rights even within her home. Thus, it is of utmost importance that the Courts

take adequate care to interpret and formulate the right to privacy in a progressive manner so

as to benefit the married woman and not succumb to conservative ideologies as has happened

in the past. This can be done by declaring the provision enabling restitution of conjugal rights

as unconstitutional, allowing married women to undergo abortion based on their own consent

unrestricted by the medical practitioners’ opinion and most importantly by removing the

marital rape exception and recognising marital rape as a heinous crime. As Justice

Chandrachud has rightly stated, privacy must not be utilised as a cover to conceal and assert

patriarchal mindsets53

but as a weapon for the protection and advancement of the married

woman hence making the right to privacy a boon for her.

53 Id. at 140.



22

IS RIGHT TO HEARING AN ABSOLUTE RIGHT?

IN WHICH SITUATIONS, IF ANY, WOULD IT BE POSSIBLE TO CARVE

OUT EXCEPTIONS TO RIGHT TO HEARING?

Tanessa Puri

Student, 3rd

Year, B.A. LL.B., Jindal Global Law School, Delhi NCR, India

ABSTRACT

The right to hearing is not an absolute right. It is possible to carve out exceptions to this right in the

situations of emergency, public interest and policy decisions, legislative action, when there is a

conflict of interest but the authority is not the adjudicator, academic disqualifications, necessity and

confidentiality.

This paper is divided into two parts. Under the first part, the exception carved out under the category

of academic disqualification shall be discussed. I find this exception highly problematic since it

imposes a ‘one size fits all approach on candidates undertaking the academic endeavour. The second

part of this paper discusses the other categories under the exceptions to right to hearing and the cases

under those categories. All these exceptions to right to hearing fall prey to a contrary Rule of Law

argument, which imposes the three-pronged A.V. Dicey requirements of:

(1) Supremacy of law;

(2) Equality before law; and

(3) Predominance of legal spirit.

This argument is to be made on the fact that such exceptions cause differential treatments to certain

cases by flagging them under the category of exceptions, while letting the other cases follow the

conventional path where the right to heard is a natural right. However, given that there are certain

characteristics common to the cases under every category- the determination of differential treatment

is not so discretionary and rather, objective. For this reason, this paper is an attempt to generalize

the identifiable characteristics under a category so that the exceptional cases are immunized from the

attack of being arbitrarily differentially treated.

There has been an attempt to expropriate certain persistent characteristics, which are found to be

occurring in cases across that category. This has been done to be able to find certain ingredients that

may help assess objectively if there is a case to be made under that particular category of the

exceptions to right to hearing. Any loopholes, or conspicuous absence of arguments made has been

pointed out subsequently.

First, let us examine the exception under the category of academic disqualification. This is

considered problematic since it fails to make space for the differential needs of every student.



23

The insensitivity of the education system where every candidate is assessed against the same

standard comes to have reflected in the Court’s opinion as well.

ACADEMIC DISQUALIFICATION

Jawaharlal Nehru University v. B.S Narwal54

On the basis of assessment of a student’s work over time by competent authorities the work

was declared to be unsatisfactory. Consequently, the student was removed from the rolls on

the ground that the academic performance was not satisfactory. The student in this situation

was not allowed to claim the principles of natural justice. Expulsion resulting from

indiscipline would be a different scenario, though. The reasoning behind this judgment was

that this expulsion was based on academics and not indiscipline where the University had to

discipline the student and the Court had to balance this against the freedom and justice of the

student.

The problem with such reasoning is that since the Courts left the “mere” academic

assessment to be best judged by the University- firstly, the judgment legitimizes the idea that

there is only one barometer of merit, failing which candidates need to understand that she or

he is not good enough or suited enough to pursue the aim for which the assessment was being

conducted. The University’s entrance exam is the assessment meant to test whether a student

can brave the severity of the academic life in the particular desired environment. Given that

this University reposes so much trust in their examination system, it is required to scratch the

surface to find out why a student who passed the muster of this entrance examination could

not even pass the assessments she or he was tested on.

Secondly, let us inspect the remaining categories of exceptions to right to hearing and create

persistent ingredients, which make the argument for falling under these exceptions more

objective and easily identifiable.

NECESSITY

These two cases set the precedent that the doctrine of necessity can be invoked whenever the

question of a conflict can be answered with, if not them, then who. In other words, whenever

a question is raised on the creditworthiness of a particular authority doing a duty, if the

answer is the absence of another authority able and authorized to carry out the same duty-

then the former authority whose creditworthiness is in question, shall be allowed to do so.

54 Jawaharlal Nehru University v. B.S Narwal, (1980) 4 S.C.C. 480 (India).



24

For example, in the Charan Lal Sahu case55

, when the Union was both a stakeholder as well

as the victim- the conflict was answered with the idea that in the absence of any other

sovereign body to represent the victims, it is only the state that can come to their rescue.

Therefore, the fact of the Union’s conflict of interest was ignored to accommodate the lack of

another sovereign body and forgo the Principles of Natural Justice.

Similarly, in the next case56

, given that judges themselves belong to the politics of the

judiciary, the question was then about their creditworthiness to be able to appoint other

judges freely, fairly and objectively. The doctrine was invoked again since, there was the

absence of any other body authorized to make such an appointment. In case another body was

deputed to this task, it would result in a smudging of the doctrine of separation of powers,

and so an exception to the principles of natural justice could be created.

Charan Lal Sahu v. Union of India57

(falls under CONFLICT OF INTEREST BUT AUTHORITY NOT

ADJUDICATOR/LEGISLATIVE ACT and NECESSITY)

Given that the Union of India held a twenty-two percent stake in Union Carbide Company, it

became a joint-tortfeasor in the Bhopal Gas Tragedy. The question was whether the Act i.e.

Bhopal Gas Disaster Processing of Claims Act, 1985 was constitutionally valid since it

stipulated that the Central Government must represent all the victims in this case. Due to the

Central Government’s stake there was a conflict of interest between the government and the

victims. However, the Court applied the doctrine of necessity to hold that in the absence of

the Union of India, there is no other sovereign body that could rightfully represent the

victims, and hence the validity of the Act and the consequent representation were upheld. The

validity of the Act was also questioned on the ground of affected parties being deprived of a

hearing and hence, it being violative of audi alteram partem. The Court upheld the

Legislation and said that so long as the legislation is within the competence of the

Legislature, no principle of natural justice is attracted.

Indira Nehru Gandhi v. Shri Raj Narain58

The question before the Court was whether judges should be allowed to appoint judges. The

Court applied the doctrine of necessity to say that in the absence of judges appointing other

55 Infra note 57. 56 Infra note 58. 57 Charan Lal Sahu v. Union of India, (1990) 1 S.C.C. 613. 58 Indira Nehru Gandhi v. Shri Raj Narain, 1975 Supp. S.C.C. 1 (India).



25

judges, it would result in a smudge of separation of powers and hence, the system was upheld

and the principles of natural justice were held inapplicable.

EMERGENCY/URGENCY CLAUSE

It is necessary at this juncture to make a distinction between two types of hearing:

(1) Pre-Decisional Hearing: This is given where parties who are affected as a matter of

rule. If prior hearing is not possible, as it would frustrate the object and purpose of the

exercise of power, it can be dispensed with, but must be followed by post-decisional

hearing.

(2) Post-Decisional Hearing: A hearing given by the authorities after taking a decision or

making an order is known as a post-decisional hearing. According to De Smith, ‘a prior

hearing may be better than a subsequent hearing but a subsequent hearing is better

than no hearing at all.’59

In these cases, there is an attempt to balance two competing interests. One is the public

interest of carrying out the task in a speedy and expedited manner due to the situation of

emergency or due to the requirement of the statute. This is balanced against the right of an

individual to be heard. Given the overpowering alarm clock of urgency, it manages to trump

the right of the individual to be heard. However, since the right of an individual to be heard is

also a very powerful part of the checklist of fair trial, this is accommodated in the form of

either a Pre-Decisional Hearing or a Post-Decisional Hearing, whichever can be balanced

better with the emergent nature of circumstances.

Maneka Gandhi v. Union of India60

Maneka Gandhi’s passport was impounded under Section 10(3)(c) of the Passport Act of

1967 for public interest. When Maneka Gandhi demanded reasons behind such impounding,

the Ministry of External Affairs refused to produce any reasons to protect the interests of the

general public. When Maneka Gandhi filed a writ petition under Article 32 before the

Supreme Court, she challenged this act of impounding her passport as violating her

fundamental right under Article 21. The Court had a number of issues to decide from,

however, the most relevant for this paper is the issue about whether the order of the Regional

Passport Officer is in contravention to the principles of natural justice. The Court on this

issue recognized the post-decisional hearing doctrine and said that wherever there is a

59 SMITH, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 170 (5th ed. 1980). 60 Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248.



26

situation so emergent that it requires immediate action, it is impossible to provide a prior

notice of hearing to be followed by a full remedial hearing. The doctrine of post decisional

hearing was then highlighted for the satisfaction that it may cater to the aggrieved on being

heard, even though at a belated stage.

Swadeshi Cotton Mills v. Union of India61

According to Section 18 AA of the Industries (Development and Regulation) Act, the

government can take over an industry after investigation. Clause (1) of the same section says

that such a takeover can happen without a notice and hearing on the ground that production

has been or is likely to be affected and hence, immediate action is necessary. The question

before the Court was whether the word “immediate” in this Section is enough to constitute a

ground of deprivation of audi alteram partem. The Court held that the word “immediate” in

this Section does not take away the right to hearing of parties. It said that even in emergency

situations the competing claims of ‘hurry and hearing’ are to be reconciled, no matter the

application of the audi alterm partem rule at the pre-decisional stage may be a ‘short measure

of fair hearing adjusted’, attuned and tailored to exigency of the situation. In this case the

Court held that where pre-decisional hearing is dispensed with, a post-decisional hearing

must be ensured.

CONFIDENTIALITY

Cases, which fall under this category, will be a competition between the public interest of

disclosure and accountability versus the public interest in surveillance. After such a balance is

struck, the outweighing public interest must be allowed to prevail.

S.P. Gupta v. Union of India62

The numerous petitions before the Supreme Court put forth Constitutional questions about

the appointment and the transfer of judges. Along with this the independence of the Judiciary

was also under question. To establish one of the issues about the cogency of the orders of the

Central Government on the non-appointment of two judges, the petitioners claimed that the

correspondence between the Chief Justice of Delhi, the Chief Justice of India and the Law

Minister must be disclosed. The Additional Judge of a High Court was denied the opportunity

of being heard before his name was dropped from being confirmed.

The ruling of the case was based on three prongs:

61 Swadeshi Cotton Mills v. Union of India, (1981) 1 S.C.C. 664. 62 S.P. Gupta v. Union of India, 1981 Supp. S.C.C. 87.



27

1) Privilege under Articles 74 (2), which provides immunity to the advice of the Council

of Ministers to the President from being questioned in Court, was claimed.

2) Sections 123 of the Evidence Act according to which without the permission of the

head of the concerned department, evidence from unpublished state records on state

affairs cannot be given.

3) Section 162 of the Evidence Act provides that a witness summoned to produce a

document before a court must do so, and the court will decide upon any objection to

this.

The first two things to be checked are – firstly, whether the consultation, which took place

between the Central Government and the Ministers of the Cabinet, was complete. Secondly, if

this consultation was complete then whether the decision was based on relevant grounds. In

this case, both these grounds were absent however, it finds itself ruled to quite the contrary.

Malak Singh v. State of Punjab63

The Court said that the Police Register is a confidential document and no member of the

public or the persons whose names are entered in it can have access to it since when we

balance the principles of natural justice against surveillance, in this case the principles will

find themselves trumped by surveillance.

LEGISLATIVE ACT

In such cases, the unifying thread is the presence of a statute where any act done as a

consequence of the power conferred under that statute, shall be treated as an act done under

the directions of the statute. Consequently, since the Act does not provide for any redressal

mechanism to the Courts, then such a mechanism cannot be read into it. It is essential that in

such cases, the determination of for example, grounds of employment, grounds of

disqualification, etc. are very objective and have a mathematical exactitude so that the scope

of discretionary injustice to those affected by the statute can be minimized.

L.N.M. Institute of Economic Development and Social Change v. State of Bihar64

The Bihar Legislature used the Bihar Private Educational Institutions (Taking Over) Act,

1987 to take over an educational institution, which was named after the state’s Chief

Minister. The employees were also terminated under the provisions of the said Act. The

Court held that where there is a legislative direction, which provides for the termination of

63 Malak Singh v. State of Punjab, (1981) 1 S.C.C. 420 (India). 64 L.N.M. Institute of Economic Development and Social Change v. State of Bihar, (1988) 2 S.C.C. 433 (India).



28

employee services, compliance with the principles of natural justice cannot be read into this

direction. If terminations are effected without any hearing being granted to employees, due to

the absence of a provision of hearing in the statute, no exception from hearing can be carved

from the same.

PUBLIC INTEREST & POLICY DECISIONS

Where there is a decision, which can only be taken by a prudent, knowledgeable man-

perhaps an expert in the field, and then the validity of such a decision is questioned in a Court

of law, the general answer that this category creates that given that the expert applied his or

her know-how, the Court will not interfere. The only caveat to this is that the decision must

not be arbitrary or capricious. There is a potential loophole here-where through evolution a

Court may examine the merits of such a decision thoroughly and couch it as an inspection on

whether the decision was arbitrary or capricious. And consequently, decisions, which are

actually not even arbitrary or capricious, may be struck down.

To illustrate the above, in the BALCO Employees case65

- an investment decision was made by

the financial advisors to the Government. When the employees approached the Court, it said

that so long as the decision is not so grossly arbitrary, it would not interfere. Similarly, in the

Gullapalli II case66

, it was only either a bureaucrat of the Department who could evaluate the

objections or a Minister of that Department. Anybody else would not have the sufficient

technical knowledge to be able to check if the demurs meet the desired degree.

BALCO Employees Union v. Union of India67

The government took a policy decision to disinvest in a public sector undertaking. The

employees challenged this decision. The court held that in a policy decisions over economic

matters, principles of natural justice have no role to play. Moreover, so long as the policy

decision to disinvest is not capricious, arbitrary, illegal or uninformed and is not contrary to

law, it cannot be challenged for violating the principles of natural justice.

G. Nageswara Rao v. State of Andhra Pradesh (II) (Gullapalli II)68

In the case of Gullapalli Nageswara Rao v. APSRTC, the order of the government, which

nationalized road transport, found itself challenged by the petitioner. The ground of the

challenge was that the Secretary of the Transport Department heard the objections while he

65 Infra note 67. 66 Infra note 68. 67 BALCO Employees Union v. Union of India, (2002) 2 S.C.C. 333. 68 G. Nageswara Rao v. State of Andhra Pradesh (II) (Gullapalli II), (1959) Supp. (1) S.C.R. 319 (India).



29

also initiated this scheme. The Court on the presence of bias quashed the order and ruled that

consequently, no fair hearing could happen. In Gullapalli II, the hearing of this objection was

passed onto the Minister. The Petitioner challenged this. According to the Petitioner, the

Minister functioned as the head of the department from where this scheme originated. And

now, the same minister was being made to assess the objections against such a scheme.

The court while dismissing the petition held that:

(1) The Minister was not a part of the Department in the same way as the Secretary.

(2) Departmental bias is the outcome of a situation where the judge and the prosecutor are

combined in the same department.

(3) Most departments, which initiate a matter, also decide it. Therefore, the contention of

the Petitioner was rejected.

I believe that the doctrine of necessity could also have been invoked in this case. This is

because, the question became of the creditworthiness of the authority of the Minister. The

answer was the same as that which is given in the necessity cases which is, in the absence of

this particular Minister, there is no other authority or office that could competently assess the

merit of the objections raised by the party. And so, based on this the principles of natural

justice may be forgone.



30

DELIMITATION OF ELECTION CONSTITUENCIES: AN

ANALYTICAL & DESCRIPTIVE STUDY

Shipra Sayal

Student, 2nd

Year, B.Com. LL.B., Nirma University, India

ABSTARCT

Periodic restructuring of constituencies tends to under-representation of states in parliament

practicing efficient family planning, at the same time undermining the principles of “Equal Suffrage”

and “Proportionality”.69

The sole aim of this article is to determine the most justifiable and equitable

measure for veritable representation without undermining the principles of equal suffrage &

proportional representation.70

It is hypothesized that restructuring of constituencies after every census is a disincentive to states

practicing efficient family control mechanisms.

This study is descriptive analytical study as it has focused on the analysis of current situation of

Delimitation of Election Constituencies in order to find out an answer to the research problem. The

author has followed a qualitative approach, and the research is based on secondary data such as

various articles & published reports.

The scope of this paper is limited to the analysis of the relevant literature on the subject and general

comments and recommendations along with the pertinent decisions of national bodies. Due to the

inclusion and wide array of sub-topics under the research topic a detailed analysis of all prospective

perspectives cannot be taken into account. Primary data collection for the research topic cannot take

place due to the contemporariness, yet dormancy of the topic.

INTRODUCTION

“The ballot is stronger than the bullet.”

-Abraham Lincoln

Elections make the ultimate contribution to the democratic governance. As a result, their

importance in this frame-work becomes paramount. In this scenario, it becomes highly

essential that elections are free and fair.71

Electoral delimitation has the potential to seriously

impact the fairness of an election. Delimitation is the redrawing of the boundaries of

69 V. Venkatesan, A Flawed Move, THE FRONTLINE (Feb. 10, 2018, 2:10 PM),

http://www.frontline.in/static/html/fl1912/19120320.htm. 70 Today’s Paper, Delimitation Notifications Comes into effect, THE HINDU (Feb. 10, 2018, 2:08 PM),

http://www.thehindu.com/todays-paper/Delimitation-notification-comes-into-effect/article15169974.ece. 71 Opinions, In the Constitution We Trust, INDIAN EXPRESS (Feb. 9, 2018, 12:04 PM),

http://indianexpress.com/article/opinion/columns/in-the-constitution-we-trust-5033953/.

http://indianexpress.com/article/opinion/columns/in-the-constitution-we-trust-5033953/



31

parliamentary or assembly constituencies to make sure that there are, as near as practicable,

the same number of people in each constituency. In India, boundaries are meant to be

examined after the ten-yearly census to reflect changes in population, for which Parliament

by law establishes an independent Delimitation Commission, made up of the Chief Election

Commissioner and two judges or former judges of the Supreme Court or any of the High

Courts. However, under the Constitutional Amendment of 1976, delimitation was suspended

until after the census of 2001, ostensibly so that States' family-planning programmes would

not affect their political representation in the Parliament. This has led to wide discrepancies

in the size of constituencies, with the largest having over 25,00,000 electors, and the smallest

less than 50,000.72

Delimitation whether for the first time or during periodic adjustment,

requires a well-informed, transparent, inclusive and accountable decision-making process.

Good practice and general standards of electoral decision-making provide guidance on how

the delimitation process should proceed.

The Delimitation Commission aims to create constituencies which have roughly the same

population, subject to geographical considerations and the boundaries of the States and

administrative areas.

HISTORY OF DELIMITATION & STATUTORY REGULATIONS

Delimitation means “the act or process of fixing limits or boundaries of territorial

constituencies in a country or a province having a legislative body”. The high-powered

authority which has been assigned the task of delimitation is known as the “Delimitation

Commission” or the “Boundary Commission”. The main purpose of undertaking delimitation

is to rationalize the structure and composition of the electoral constituencies. The objective of

the Delimitation Commission is to remove the gross inequalities in the population size of the

Constituencies, on the principle of “One vote and one value”. This merely means that if there

is a constituency which is over populated the impact of a voter reduces drastically. This

means that one vote in an over populated constituency will not have a similar unit of value to

that of a constituency having less population/voters. Thus, the value of a voter is simply

undermined. To ensure that this phenomenon does not take place, the Delimitation

Commission is established to ensure proper voter & population count in a constituency. The

same can better understood with the illustration referred in Annexure A.

72 Sunil Gatade, Delimitation Process now gets CCPA nod, ECONOMIC TIMES (Feb. 9, 2018, 12:20 PM),

https://economictimes.indiatimes.com/news/politics-and-nation/delimitation-process-now-gets-

ccpanod/articleshow/2673204.cms.

https://economictimes.indiatimes.com/news/politics-and-nation/delimitation-process-now-gets-ccpa-nod/articleshow/2673204.cms



32

Here (Refer to Annexure A), constituency “A” has 5,000 people and 3,000 voters in an area

of 2 sq. km, whereas constituency “B” has 15,000 people and 10,000 voters in an area of 4

sq. km. Thus, upon calculation it can be found that “A” has 1,500 voters per sq. km [3,000

voters/2 Sq. Km.]. While “B” has 2,500 voters per sq. km [10,000 voters/4 Sq. Km.].

Therefore, the value of one voter of constituency “A” has more value as compared to that of a

voter of constituency “B”. Thus, here, the role of the Delimitation Commission comes into

picture. The Delimitation Commission will fix the boundaries of constituencies “A” and “B”

in such a way that the proportion of population per sq. km. in the constituencies becomes

equitable & justifiable.

The above illustration has one assumption:

❖ The absolute vote count is a statistical figure which is readily available.

However, that is not the case. The Delimitation Commission ascertains its boundaries based

on the number of absolute heads, i.e. population, which is a statistical figure made available

through the Census. This is a major flaw in setting up and fixing of boundaries.

Between the 1971 Census and 2001 Census, the population of India had increased by more

than eighty-seven per cent.73

Migration to the urban or industrialized areas also made such

increase skewed in direction and intensity. Thus, there was an imminent need, to bring the

population of the various constituencies to a uniform size, as far as practicable. Moreover, the

population of the Scheduled Castes and the Scheduled Tribes has also undergone changes in

various dimensions in the past three decades.74

In some States, their proportion to the total

population has changed, and in many cases their population has shifted to other areas in

search of work or due to other demographic pressures. The new delimitation exercise is

aimed at addressing these important concerns, and providing appropriate solutions. The

various Acts passed are stated in the table below [Refer to Annexure B].

The orders of the Delimitation Commission have the force of law and cannot be called in

question before any court. These orders come into force on the date specified by the President

of India. The copies of its orders are laid before the Lok Sabha and the State Legislative

Assembly concerned; however, they do not have the power to amend the proposal made.

There were various amendments made to Constitution, especially the 84th

& 87th

Amendments,

the cumulative effect of which is stated as follows:

73 Census, Vital Statistics, CENSUS (Mar. 03, 2018, 12:08 PM), http://www.censusindia.net/. 74 Id.



33

The total number of existing seats which have been already allocated to various States

in the House of the People on the basis of census conducted in the year 1971 shall

remain unchanged till the first census to be taken after the year 2026 i.e. 2031.

The total number of existing seats in the Legislative Assemblies of all States as fixed on

the basis of 1971 census shall also remain unaltered till the first census to be taken after

the year 2026 i.e. 2031.

The number of seats to be reserved for the Scheduled Castes (SCs) and Scheduled

Tribes (STs) in the House of the People and State Legislative Assemblies shall be equal

to their proportion to the 2001 census.

COMPOSITION OF DELIMITATION COMMISSION:

The composition of the Delimitation Commission has been provided under Section 3 of the

Delimitation Act, 2002. It states that one of the members shall be a person who is or had been

a Judge of the Hon’ble Supreme Court of India. Such person would be the Chairperson of the

Commission and must be appointed by the Central Government. The second member must be

the Chief Election Commissioner or an Election Commissioner nominated by the Chief

Election Commissioner. The third member must be the State Election Commissioner of the

concerned State.

CONSTITUTIONAL PROVISIONS:

Art. 81 – Composition of the House of People

Art. 82 – Readjustment after each Census

Art. 170 – Composition of Legislative Assemblies

Art. 330 – Reservation of SCs and STs in the House of People

Art. 332 – Reservation of SCs and STs

STATUTORY PROVISIONS:

A significant Act which governs the allocation of seats and the delimitation of constituencies

for the purpose of election to the House of the People and the State Legislatures is the

Representation of Peoples Act, 1950. Section 3 of the said Act regulates the “Allocation of

seats in the House of the People”. Section 7 of the Act deals with the “total number of seats in

Legislative Assemblies and Assembly Constituencies”. Section 9 empowers as well as

curtails certain powers of the Election Commission for delimitation of boundaries. Thus, the

Representation of Peoples Act is an important Act regulating, governing & empowering the



34

Delimitation Commission. It also lays down certain procedures to be met with during the

process of delimitation.

Under the provisions of Articles 82 and 170(3) of the Constitution, as amended by the

Constitution (Eighty-fourth Amendment) Act, 2001, the Parliament has enacted the

Delimitation Act, 2002.As a result of this Act, a Delimitation Commission has been set up to

re-adjust the division of each State and Union Territory into territorial constituencies for the

purpose of elections to the House of the People and to the State Legislative Assemblies on the

basis of Census figures, as ascertained by the Census 2001 [as envisaged under the

Constitution (Eighty-seventh) Amendment Act, 2003]. The Delimitation Commission has, so

far, completed the delimitation exercise in 25 States/Union Territories.

Justice Kuldip Singh, heading the Delimitation Commission of 2002, concluded that the

constituencies should be redrawn after every Census so as to maintain the electoral value of

each vote which essentially guarantees the principle of “Fair Elections”, for giving effect to

which the boundaries were redrawn with no effect on the number of seats.75

ANALYSIS OF CURRENT CONTROVERSIES

In recognition of the importance of delimitation, the signatories to the International Covenant

on Civil and Political Rights [ICCPR] codified this principle in Article 25[b], which provides

for the principle of equality of votes. Also, paragraph 21 of General Comment 25 (which is

the authoritative interpretation of the ICCPR) states that the vote of one elector should be

equal to the vote of another, the drawing of electoral boundaries and the method of allocating

votes should not distort the distribution of voters or discriminate against any group, and

should not exclude or restrict unreasonably the right of citizens to choose their

representatives freely.76

India is a signatory to ICCPR.

Tracing the history of delimitation in India, following facts can be observed:

- The present-day seat allocation system is based on the 1971 Census.

- During 1970 India was faced by a humongous problem of population explosion for

which State Governments were given a goal of achieving a fertility rate of 2.1% before

2001.

75 Express News Service, Rotate Scheduled Caste Seats, INDIAN EXPRESS (Mar. 03, 2018, 12:08 PM),

http://archive.indianexpress.com/news/rotate-scheduled-caste-seats-says-delimitation-commission/313681/. 76 Handbook on International Human Rights, Core International Human Rights Treaties, Optional Protocols &

Core ILO Conventions Ratified by India (Mar. 03, 2018, 12:18 PM),

http://nhrc.nic.in/documents/india_ratification_status.pdf.



35

- The southern states of Tamil Nadu and Karnataka seemed to have performed well with

a fertility rate of 2%, whereas it was as high as 4% in the state of Bihar.

- Thereby there was a huge hue and cry coming from best performing States regarding

their representation in the Parliament, following which the Central Government froze

the number of seats till the first Census after 2026, which will be taking place in 2031.

- During this time lag of 1971-2003, there was a variance in population in many parts of

the country like Mumbai, Kolkata and Delhi, given the factors of migration. Moreover,

even in Kerala, there were discrepancies in constituencies’ composition, as some had

higher population growth than the others due to urban migration and uneven growth

rate, for e.g. Malapuram, Kannur etc.

- As a result of this, some States gained by virtue of ineffective family planning and

some States were at a disadvantage because of the sincere execution of family planning.

- The four southern states of Andhra Pradesh, Tamil Nadu, Karnataka and Kerala

account for 21% of the population but have 129 Lok Sabha seats whereas Uttar Pradesh

and Bihar accounts for 25.1% of the population but have 120 Lok Sabha seats.

- The states of Uttar Pradesh, Haryana, Madhya Pradesh, Rajasthan, Bihar, Jharkhand

Chhattisgarh and Uttarakhand accounts for 45.5% of population but have just 214 seats

which is 37 seats less than what they would get, if allocation is done on the basis of

2011 Census.

- The trio of most populated states of Uttar Pradesh, Maharashtra and Bihar stand under-

represented by as much as 31 seats in Lok Sabha.77

- The seats allocation based on 1971 Census was on a ratio of 1:10,00,000 i.e. one seat

for 10 lakh people, but basing on the 2011 census, it comes out to be 1:22.6 lakh people

following which Tamil Nadu turns out to be the greatest loser, losing the representation

by 1.4%, and the biggest gainers will be the States of Bihar, Rajasthan and Uttar

Pradesh.

- The Ladakh Lok Sabha constituency is the largest Lok Sabha constituency in India in

terms of area, with 173266.37 sq. km. and 1.59 lakhs Voters.78

77 FP Editors, Unequal Democracy South Gets More Seats, FIRST POST (Mar. 03, 2018, 12:28 PM),

http://www.firstpost.com/politics/unequal-democracy-south-gets-more-seats-than-it-deserves-in-ls-10121.html.

http://www.firstpost.com/politics/unequal-democracy-south-gets-more-seats-than-it-deserves-in-ls-10121.html

http://www.firstpost.com/politics/unequal-democracy-south-gets-more-seats-than-it-deserves-in-ls-10121.html



36

- Lakshadweep, is the smallest Lok Sabha constituency by number, having 39033

voters.79

- Parliamentary Constituency with largest number of electors - 3368399 [Outer Delhi].80

- Parliamentary Constituency with smallest Area - Chandni Chowk [Delhi] - 10.59 sq.

km.81

The census 2011 depicts an altogether different scenario.82

This can be better understood with

the help of the table given in Annexure C.

ANALYSING THE FERTILITY INDEX:

[Refer to Annexure D]

The development of the Southern States, and the informed opinion of their women in family

planning, given the high literacy rates, helps them it in outshining north.

DELIMITATION OF RESERVED SEATS:

[Refer to Annexure E]

In 1971, the Schedule Castes had 79 seats in the Lok Sabha, whereas under the 2001 Census,

the Schedule Castes should have 88 seats in Lok Sabha, given the 1.6% rise.

In 1971, the Schedule Tribes had 41 seats in the Lok Sabha, whereas under the 2001 Census,

the Schedule Tribes will have 45 seats, given the 1.3% rise.

Thus, any change that occurs due to this difference will ultimately lead to the conversion of

general seats into reserved seats in the States of Andhra Pradesh, West Bengal, Jharkhand,

Karnataka and Maharashtra, and in the States of Assam, Bihar and Chhattisgarh, supposedly,

some of the reserved seats shall be converted into general seats.83

PROBABLE METHODS OF DELIMITATION:

The Delimitation Commissions of 1952, 1962, 1972 and 2002 have remained quiet on a very

crucial issue of the criteria used for delimitation in India. There are various ways in which

boundaries can be redrawn –

78 Election Commission of India, ELECTION COMMISSION (Mar. 03, 2018, 12:35 PM),

http://eci.nic.in/eci_main1/statistical_reportge2014.aspx. 79 Id. at 12. 80 Id. 81 Id. 82

Id. at 11. 83 T. Hanumanth v. State of Karnataka, A.I.R. 2006 S.C. 1207 (India); P. Mastanaiah v. Delimitation

Commissioner, A.I.R. 1969 A.P. 1 (India).

http://eci.nic.in/eci_main1/statistical_reportge2014.aspx

http://eci.nic.in/eci_main1/statistical_reportge2014.aspx



37

i. Jefferson Method: The total population is divided by the number of seats and each

state is assigned its quota, disregarding any fractional remainder.

ii. Hamilton Method: Members are first apportioned according to each state’s quota,

disregarding any fractional remainders, and then, any leftover seats are assigned to the

states with the largest fractional remainders.

iii. Hill & Huntington Method: This formula allocates the remainder of seats among the

states in a way that ensures the smallest relative difference between any pair of states in

the population of a district and in the number of people per representative.

iv. Quota Method: In the quota method, first, the number of the seats for the legislature is

assumed to be fixed; then, the population of the state is divided by that number to get

the national average of the quota of population for one seat.

v. Webster Method: In this method first the size of the legislature is chosen. Then a

divisor x is chosen whereby, when the population of the state is divided by x and the

resulting number is rounded off to the nearest integer. The results add up to the chosen

size of the legislature.

It has been suggested that Webster Method suits a country like India best, propagating the

value of one vote is equal to one value. This also remains unaffected by Alabama Paradox

[here, the allocation of seats changes with the introduction of a new state, even when the total

number of seats in a house is allowed to rise].

THE PROBLEM OF GERRYMANDERING:

Another critical issue in this context is drawing up of boundaries in favour of a particular

political party. Here, either the concentration of votes takes place in few districts, i.e.

packing, or diffusion of votes take place across few districts, i.e. dilution.

In the case of the first delimitation carried out by the offices of the President of India, the

delimitation was found to be so unsatisfactory by the then Law Minister, C. Biswas that he

lamented, “The President’s Order, which was laid before the Parliament were simply torn

into pieces by the Parliament, whose decisions seem to have been actuated more by the

convenience of individual members of the House rather than by the considerations of general

interest”. Even the late Jaiprakash Narayan complained that the “task [of delimitation] had



38

been practically left in the hands of a single party, Congress”. Even during subsequent

delimitations, the same charges continued to be levelled against the exercise of delimitation.84

INTER-NATION ANALYSIS

In the international diaspora, the Institute of Democracy & Electoral Assistance [IDEA]85

recommends the legal framework to be followed by various countries while delimiting its

boundaries. Various countries in the world have undertaken the delimitation process. The

mechanisms adopted by them are described under:

Cracking involves spreading voters of a particular type among many districts in order to deny

them a sufficiently large voting bloc in any particular district. This is undertaken by

spreading and bifurcating the voters in an urban area among several districts wherein the

majority of voters are suburban, on the presumption that the two groups would vote

differently, and the suburban voters would be far more likely to get their way in the elections.

Packing is to concentrate as and over populate many voters of one type [the ones which are

voting for the same party or the people of a particular community] into a single electoral

constituency to reduce their influence in other districts. In some cases, this may be done to

obtain representation for a community of common interest (such as to create a

majority/minority district), rather than to dilute that interest over several districts to a point of

ineffectiveness (and, when minority groups are involved, to avoid likely lawsuits charging

racial discrimination). When the party controlling the delimitation process has a state-wide

majority, packing is usually not necessary to attain partisan advantage; the minority party can

generally be "cracked" everywhere.

Various countries have followed delimitation in the following way:

Australia:

Delimitation has not been a problem in Australia. The interests of any community have not

been diluted because of delimitation. However, there were a few controversies where

delimitation took place such that votes supporting one party were packed in a constituency,

resulting in reducing their effectiveness in other electoral constituencies.

Singapore:

84 AK Verma, Delimitation in India Methodological issues, ECONOMICAL & POLITICAL WEEKLY (Mar. 03,

2018, 12:21 PM),

http://www.democracyasia.org/resourcesondemocracy/Delimitation%20in%20India%20Methodological%20Iss

ues_akverma.pdf. 85 Institute of Democracy & Electoral Assistance, IDEA (Mar. 03, 2018, 12:38 PM), https://www.idea.int/.

http://www.democracy-asia.org/resourcesondemocracy/Delimitation%20in%20India%20-Methodological%20Issues_akverma.pdf

https://www.idea.int/

https://www.idea.int/



39

Singapore has been one such country where, in the recent decades, critics have accused the

ruling People's Action Party (PAP) of unfair electoral practices to maintain significant

majorities in the Parliament of Singapore. The Prime-Minister was accused of having

indulged in hampering the independence of the Election Commission of Singapore. There

have also been many accusations involving the ruling party having the power to decide

polling districts and polling sites through electoral engineering, based on poll results in

previous elections.

United States:

The United States of America has been among the first countries having a representative

government, which is elected. There have been many instances where delimitation has taken

place in order to support a common intention or motive, or the agenda of a singular party.

One such instance was the admission of the Dakota Territory as two states instead of one.

Here, the electoral count which Dakota had increased from three to six because of the rules

for representation in the Electoral College which stated that each state should have at least

three electorates.

The State legislatures have also been accused used “gerrymandering” along racial lines both

to decrease and increase minority representation in state governments and congressional

delegations.

With the advent of Civil Rights Movements and the passage of the Voting Rights Act of

1965, federal law enforcement and protection of suffrage for all citizens were introduced. It

was ensured that Gerrymandering for the purpose of reducing the political influence of a

racial or ethnic minority group was prohibited. After the Voting Rights Act of 1965 was

passed, some states created "majority-minority" districts to enhance minority voting strength.

This practice, also called "affirmative gerrymandering", was supposed to redress historic

discrimination and ensure that ethnic minorities would gain some seats and representation in

government.

Rather than allowing more political influence, some states have shifted re-districting

authority from politicians and given it to non-partisan re-districting commissions.

Thus, delimitation has been used as a tool to ensure political power and reduce diversification

of vote count. This has led to concentration of voters of the then opposition party to ensure

that the power of the present governing party sustains. While delimiting various

constituencies, it must be ensured that such malpractices do not take place. In India, it must



40

also be ensured that the Delimitation Commission is an independent body free from prejudice

and political pressure. This must be done to ensure a non-partial, fair and justifiable limitation

of boundaries, which would ensure that a citizen can fairly use his basic right to vote, which

is the foundation of any democracy. Thus, the role of the Delimitation Commission is not

mere statistical analysis but also but also ensuring a justifiable approach while undertaking

such activity.

CONCLUSION

The real problem does not lie in whether delimitation should be done or not, but rather in

what is the effective way to carry it out in the most neutral way. 86

After analysing the statistical aspect, it appears that delimitation should not be done after

each Census as it will defeat the very foundation of public policies such as Family Planning.23

It is the Government’s mandate and effective execution of the same should not be punished in

the form of reduced representation.87

The vision of the law-makers then in 1976 was that by

2026, the population of India would stabilise and thus, the Census of 2031 will provide a true

picture of the composition of India’s population. The contention that larger population should

have larger representation so as to not to dilute the principle of proportionality,88

if

implemented, shall father political vulnerability, where every community shall just aim at

increasing population so as to have a greater say in political representation.89

Thus, to

promote the policies undertaken in public interest to eliminate social malpractices, it becomes

necessary to protect their execution.

ANNEXURE A

86 R. P. Bhalla, ELECTIONS IN INDIA (1950- 1972) (S Chand and Co. 1973); David L Horn, Challenging Partisan

Gerrymandering: The Case of Millar v. State of Ohio, VOTING AND DEMOCRACY REPORT (Chapter 6), 1995;

Nagesh Jha, Delimitation of Constituencies: A Plea for Some Effective Criteria, 24 IJPL 129-47 (1963). 87 Alistair McMillan, Delimitation, Democracy and End of Constitutional Freeze, ECONOMIC AND POLITICAL

WEEKLY, April 8, 2000, at 1271-76. 88 Alistair Mcmillan, A Constitutional Fraud? The Ninety-First Amendment and the Boundaries of the Indian

Democracy, ECONOMIC AND POLITICAL WEEKLY, April 14, 2001. 89Alistair Mcmillan, Changing the Boundaries of Indian Democracy,

http://www.nuff.ox.ac.uk/users/mcmillan/delimitationMcmillan.pdf; Peter Watson, Boundary Delimitation:

Reapportionment and Redistricting in the USA, ACE PROJECT.



41

ANNEXURE B

ANNEXURE C

PROPORTION OF STATE-WISE POPULATION V/S REPRESENTATION IN LOK

SABHA

PROPORTION LOK SABHA SEATS

A

B

15000 People

5000 People



42

STATE POPULATION LOKSABHA

SEATS

ACTUAL IDEAL DIFFERENCE

UTTAR

PRADESH

16.5 14.7 80 90 -10

MAHARASHTRA 9.3 8.8 48 50 -2

BIHAR 8.6 7.4 40 47 -7

WEST BENGAL 7.6 7.7 42 41 1

ANDHRA

PRADESH

7.0 7.7 42 38 4

MADHYA

PRADESH

6.0 5.3 29 33 -4

TAMIL NADU 6.0 7.2 39 32 7

RAJASTHAN 5.7 4.6 25 31 -6

KARNATAKA 5.1 5.2 28 27 1

GUJARAT 5.0 4.8 26 27 -1

ANNEXURE D

RANK STATE FERTILITY

RATE

2013

FERTILITY

RATE

2010

CHANGE

(10-13)

FERTILITY

RATE

2004

CHANGE

(04-13)

1 West Bengal 1.6 1.8 -0.2 2.2 -0.6

2 Punjab 1.7 1.8 -0.1 2.2 -0.5

2 Himachal

Pradesh

1.7 1.8 -0.1 2.1 -0.4



43

2 Tamil Nadu 1.7 1.7 0 1.8 -0.1

2 Delhi 1.7 1.9 -0.2 2.3 -0.6

6 Kerala 1.8 1.8 0 1.7 0.1

6 Andhra

Pradesh

1.8 1.8 0 2.1 -0.3

6 Maharashtra 1.8 1.9 0 2.2 -0.4

9 Karnataka 1.9 2 -0.1 2.3 -0.4

9 Jammu &

Kashmir

1.9 2 -0.1 2.4 -0.5

11 Odisha 2.1 2.3 -0.2 2.6 -0.5

12 Haryana 2.2 2.3 -0.1 3 -0.8

13 Gujarat 2.3 2.5 -0.2 2.8 -0.5

14 Assam 2.3 2.5 -0.2 2.9 -0.6

15 Chhattisgarh 2.6 2.8 -0.2 3.3 -0.7

16 Jharkhand 2.7 3 -0.3 3.5 -0.8

17 Rajasthan 2.8 3.1 -0.3 3.7 -0.9

17 Madhya-

Pradesh

2.9 3.2 -0.3 3.7 -0.8

19 Uttar-

Pradesh

3.1 3.5 -0.4 4.4 -1.3



44

20 Bihar 3.4 3.7 -0.3 4.3 -0.9

- India 2.3 2.5 -0.2 2.9 -0.6

ANNEXURE E

YEAR POPULATION OF

SCHEDULECASTE

POPULATION OF

SCHEDULE TRIBES

1971 14.6% of total population 6.9% of total population

2001 16.2% of total population 8.2% of total population

RISE/FALL 1.6% rise 1.3% rise



45

GOVERNOR’S DISCRETIONARY POWER IN APPOINTING

CHIEF MINISTER:

HOW FAR JUSTIFIED WITH THE PRINCIPLES OF RULE OF LAW?

Brijraj Deora

Student, 2nd

Year, National Law University, Gandhinagar, India

ABSTRACT

This research paper critically analyses the Discretionary Powers of the Governor in India with

special reference to the appointment of Chief Minister under the constitutional Scheme and its

judicious use by this Constitutional post. The main focus of this paper is to analyse this discretionary

power in the light of breaching the Rule of law principle. It is important to note here that Constitution

of India empowers the Governor to allow his discretion in calling any majority party or largest

coalition or group to form the Government. Hence does this unguided discretion lead to violation of

the Rule of law principles or not? This paper also examines the judicial reviewability of such

Discretionary Power and how far could courts intervene to protect the Supremacy of law concept.

This intrinsic research also put forth various past events where the governor has used his discretion

to appoint the Chief Minister of many states. This paper also concerns about the uniformity lacking in

the practice of calling leader of Majority party or Largest Coalition to form the government.

Key Words: Governor, Discretion, Appointment, Chief Minister and Rule of law.

INTRODUCTION

Discretion means freedom to act according to one’s own judgment. It means the power or

right conferred upon one by law and discretionary power is a term which involves an

alternative power i.e. power to do or refrain from doing a certain thing or power of free

decision or choice within certain legal bounds.90

In the context of the Governor, discretionary powers can be defined as the powers of the

Governor which he exercises without any external aid or advice of the Council of Ministers.

The Governor while discharging his responsibilities as the Head of the State, exercises

similar powers as the President does as the Head of the Union. The Constitution provides for

the aid and advice of Council of Ministers with the Chief Minister at the head, to the

Governor in exercise of his functions.91

Under normal circumstances, Governor acts on the

aid and advice of his Council of Ministers but under certain circumstances, the Governor can

90 P. RAMANATHA AIYAR, LAW LAXICON 565-566 (Wadhwa & Company, 2000). 91 INDIA CONST. art. 163, cl. 1.



46

exercise his discretionary powers. In these circumstances the Governor is not bound to seek

or accept the advice of his Council of Ministers.

In the landmark judgment of S. Dharmalingam v. Governor of Tamil Nadu92

, the Madras

High Court held that certain powers are available to the Governor under Article 163 which he

would exercise in his sole discretion. The immunity of the Governor is absolute, when he acts

in his own discretion. Also, in the case of Pratap Singh Raojirao Rane v. Governor of Goa93

,

the court held that the Governor is not answerable to the court even in respect of charges of

malafide.

DISCRETIONARY POWERS OF THE GOVERNOR MAY BE DIVIDED INTO TWO

PARTS:

1. Specific discretionary powers, and

2. Circumstantial discretionary power.

1. Specific Discretionary Powers:

Those circumstances which are expressly provided in the Constitution, and under which the

discretionary power of the Governor may be exercised by him, are called specific

discretionary powers. The Constitution confers certain responsibilities on the Governor and

he may by acting on his discretion fulfil these responsibilities and under such circumstances

he is not bound to seek the aid and advice of his council of Ministers.

In the landmark case of Ganamani v. Governor of Andhra94

, the court observed that “All the

powers exercisable by the Governor can be exercised on the advice of the Council of

Ministers except insofar as the Constitution expressly or perhaps by necessary implication

says that he can exercise those powers in his individual discretion”

These are the Articles which give specific discretionary powers to the Governor:

Article 239: Article 239 provides that a Union Territory shall be administered by the

President through an Administrator with such designation as he may specify or a Governor of

a State, adjoining the Union Territory, may be appointed as the Administrator of that Union

Territory.95

Where the Governor of a State is appointed as the Administrator of an adjoining

Union Territory, he shall exercise his functions as the Administrator without the aid and

advice or independent of his Council of Ministers.

92 S. Dharmalingam v. Governor of Tamil Nadu, A.I.R. 1989 Mad. 48 (India). 93 Pratap Singh Raojirao Rane v. Governor of Goa, A.I.R. 1999 Bom. 53 (India). 94 Ganamani v. Governor of Andhra, A.I.R. 1954 A.P. 9 (India). 95 INDIA CONST. art. 239.



47

Para Nine of Sixth Schedule: Para nine of the 6th Schedule is related to licences or leases

for the purpose of prospecting for or extraction of minerals. Part-1 of para nine of 6th

Schedule provides that “such share of the royalties accruing each year from licences or leases

for the purpose of prospecting for or extraction of minerals guaranteed by the government of

the State in respect of any area within an autonomous district as may be agreed upon between

the government of the State and the District Council of such District shall be made over to

that District Council. Part-2 of para nine of 6th

Schedule provides that if any dispute arises as

to the share of such royalties to be made over to a District Council, it shall be referred to the

Governor for determination and the amount determined by the Governor in his discretion

shall be deemed to the amount payable under part-1 of para 9 of 6th Schedule to the District

Council and the decision of the Governor shall be final.

Article 371: Article 371 of the Constitution provides that the President may confer special

responsibilities upon the Governor with respect to the State of Maharashtra and Gujarat for

the establishment of separate Development Boards for Vidarbha, Marathwada, Saurashtra,

Kutch and the rest of Gujarat with the provision that a report on the working of each of these

Boards will be placed each year before the State Legislative Assembly. Article 371 A of the

Constitution has conferred special responsibilities on the Governor of Nagaland for certain

purposes.96

Article 371 C of the Constitution 12 confers special responsibilities upon the

Governor of Manipur to secure the proper functioning of a Committee of the Members of the

Legislative Assembly consisting of the members representing the Hill Area.

2. Circumstantial Discretionary Powers:

Circumstantial discretionary powers are not expressly provided by the Constitution. These

powers are implied powers, exercise of which is done according to varying circumstances.

The role of the Governor becomes controversial many a times, when he acts in such

circumstances. It raises a concern whether the Governor is merely a figure head, who is to

exercise his powers as per the aid and advice of his ministers responsible to the Lower House

or any real power is vested to him. Any question concerning whether the Governor is or is not

empowered by the Constitution to act in his discretion upon a matter, the decision of the

Governor in his discretion shall be final and the validity of anything done by the Governor

96 INDIA CONST. art. 371, cl. A.



48

shall not be called in question on the ground that he ought or ought not to have acted in his

discretion.97

The following are the circumstances in which the Governor may use his discretionary

powers: i) Appointment of the Chief Minister; ii) Governor’s Assent to Bills; iii) Dissolution

of State Assembly; iv) Dismissal of Ministry; v) Summon and Prorogue the State Assembly;

vi) Recommendation of President’s Rule; vii) Pardoning Power; and viii) Appointment of the

Vice-Chancellor.

DISCRETION OF GOVERNOR IN THE APPOINTMENT THE CHIEF MINISTER

The Constitution empowers the Governor to use his discretion in the appointment of the

Chief Minister. It depends upon the situation that arises to use the extent of discretion in the

appointment of the Chief Minister. Governor does not have any discretionary power in the

appointment of the Chief Minister when one party or group has an absolute majority the

leader of the majority party is invited to form the government. However, in a situation where

the majority party in the Legislature asks to appoint such a person as the Chief Minister, who

is not qualified to be a member of the Legislature or who stands disqualified, the Governor

can use his discretion and refuse to appoint the leader of the majority party as the Chief

Minister.98

When no party has a clear majority in the Legislature, the role of the Governor becomes very

crucial. Here comes the discretionary power of Governor in the appointment of the Chief

Minister, where no single party or group obtains absolute majority after the General

Assembly elections. Any person whom the Governor thinks fit to form the government. Also,

in situations where there occurs death or resignation on any political ground of the Chief

Minister or after the Chief Minister being defeated in the House, any party or group is not

having majority, the Governor may appoint such person as the Chief Minister whom he

thinks fit. There are no specific guidelines provided by the Constitution to the Governor for

the appointment of Chief Minister in such circumstances. This is the main reason why no

uniform practice is followed by the Governors. On some occasions Governors have invited

the leader of single largest party to form the government and where as sometimes the leader

of the United Front is invited to form government, whether it was formed prior to election or

after the election. About the discretion of the Governor in the appointment of the Chief

97 INDIA CONST. art. 163, cl. 2. 98 B.R Kapur v. State of Tamil Nadu, A.I.R. 2001 S.C. 3435 (India).



49

Minister, Justice Mitra in the case of Mahabir Prasad v. Prafulla Chandra,99

observed that

“the appointment of the Chief Minister by the Governor under Article 164 (1) of the

Constitution is in his sole discretion. The exercise of this discretion by the Governor cannot

be called in question in High Court. There is no warrant in the Constitution itself to read in

Article 164 (1), a condition or restriction that the Governor must act on the advice of Council

of Ministers as provided in Article 163.

In the past as well as the recent Karnataka elections have shown that the Governors role have

been controversial many a times and have arbitrarily used his discretionary powers, largely

with impunity and understandably on the behest of the union government. Some grey areas

have been left by the constitution in this regard. The founding fathers had not foreseen it.

They have also been belied on the development of healthy conventions. The first is related to

the appointment of the Chief Minister (Article 164). When a Party enjoys clear majority, the

Governor’s exercise of discretion is closed. However, when there are multiple and contested

claims of having majority, or when a majority government loses its strength and claims and

counterclaims fly in the air, the Governor’s choice assumes significance. The second is the

proroguing and dissolution of the Assembly [Article 174 (1) and (2a and 2b)] particularly

when the Chief Minister’s command over majority has become questionable. The third is the

recommendation of President’s rule in a state (Articles 356 and 357). The fourth is the

reservation of certain bills including ordinances for the assent of the President (Articles 200

and 213).

DISCRETION SHOULD BE USED JUDICIOUSLY

Looking at the various committee reports and past experiences it is judicious use of the

discretion in the appointment of the Chief Minister, if Governor makes all attempts to form a

stable government in the State and appoints the Chief Minister in accordance with the

following order:

i. The leader of the majority party in the Legislature;

ii. In case there is no majority party in the Legislature, then the leader of the pre-poll

alliance parties, who is in a position to form the government;

iii. In case there is no majority of the pre-poll alliance in the Legislature then the leader of

the single largest party having position to form the government;

99 Mahabir Prasad v. Prafulla Chandra, A.I.R. 1969 Cal. 198 (India).



50

iv. In case, single largest party is not in a position to form the government, then the leader

of the post-poll alliance parties may be called to form the government.

v. In case the leader of the post-poll alliance parties is not in a position to form the

government, then he should invite another who is in the position to form the

government and this process may go on till the formation of the government.

vi. Re-poll or the imposition of the President’s rule should be the last attempt.

PAST EVENTS WHERE GOVERNOR USED HIS DISCRETION IN THE

APPOINTMENT OF THE CHIEF MINISTER

There are many examples when the Governor used his discretion in a judicious manner:

In 1952, in Madras all the opposition parties formed United Democratic Front under the

leadership of Shri T. Prakasham had the strength of 166 members and the Congress had

the strength of 155 members out of 321 members, the Governor Shri Sri Prakasa

appointed Mr. C. Rajagopalachari, the leader of Congress Party as Chief Minister.

In 1967, in Kerala and in 1969, in West Bengal after the mid-term elections the

Governors judiciously appointed the Chief Ministers.100

On November 22, 1967 the

Governor of West Bengal Mr. Dharam Vira appointed Dr. P.C. Ghose as the Chief

Minister, when the then Chief Minister Mr. Ajoy Mukherjee refused to face the

Assembly.

In Rajasthan, in Fourth General Assembly Elections in 1967, the Congress Party won

88 seats and became single largest party. There were also non- Congress parties which

claimed majority support of 93 members in the House of 183 members but the

Governor, Dr. Sampurnanand invited the leader of Congress Party, Mr. M.L. Sukhadia

to form the government.

After the General Assembly Elections in May 1982 in Kerala, the Governor called the

leader of United Democratic Front (pre-electoral group of Non- Communist Parties) to

form the ministry. It was the judicious use of discretionary power by the Governor, Sh.

Syed Sibte Razi to appoint Sh. Arjun Munda, leader of the BJP-JDU alliance, as the

Chief Minister of Jharkhand on March 12, 2005, when Shibu Soren failed to prove his

majority on the floor of the House on March 11, 2005.

After the sudden demise of Andhra Pradesh Chief Minister, Sh. Y.S. Rajasekhara,

Governor appointed Sh. K. Rosaiah as caretaker Chief Minister of Andhra Pradesh on

3.09.2009.

100 3(1) R.C.S. SARKAR, THE OFFICE OF THE GOVERNOR 25 (Parliamentary Studies, 1969).



51

After the Vidhan Sabha Elections, 2009 in Haryana, Congress Party got 40 seats and

Indian National Lok Dal got 31 seats out of 90 seats. Being the head of the largest

single party, Sh. Bhupinder Singh Hooda was administered oath as the Chief Minister

of Haryana by the Governor, Sh. Jagannath Pahadia on October 25, 2009.

After the Vidhan Sabha Elections, 2009 in Maharashtra, Congress Party and

Nationalists Congress Party alliance got 144 seats and Bharatiya Janta Party and Shiv

Sena alliance got 90 seats in a 288 members Assembly. Governor of Maharashtra

invited, Sh. Ashok Chauhan on November 7, 2009 to swear-in as the Chief Minister.

After the Vidhan Sabha Elections, 2009 in Arunachal Pradesh, Congress Party got 42

seats in a 60 members Assembly. Being the head of the largest single party, Sh. Dorjee

Khandu was sworn-in as the Chief Minister of Arunachal Pradesh by the Governor,

Lieutenant General Retd. JJ Singh on October 25, 2009. After the Vidhan Sabha

Election in Jharkhand, result delivered a fractured mandate. Since, no single party or

the pre-poll alliance group got majority in the House, the Governor, K.

Sankaranarayanan, called Shibu Soren of Jharkhand Mukti Morcha (JMM) to form the

government on December 27, 2009. He was supported after poll by Bharatiya Janta

Party (BJP) and All-Jharkhand Students’ Union (AJSU).

The discretion of Governor’s exercise of power is now strengthened by the

development of a convention as well as the constitutional law. After the results of

elections declared, as per the convention, the party or pre-election coalition having the

largest number of seats in the Assembly would be invited first to form the government.

In case if the party does not desire to form government, the next largest party would be

invited. For example, after the Assembly elections in Delhi in 2013, the BJP emerged

as the largest party with 33 seats, although falling short of majority. It refused to form

the government. The newly launched AAP was the second largest party. The Lieutenant

Governor of Delhi invited the AAP with 27 seats to form the government, although it

had already got the support of the Congress Party with eight members. The Supreme

Court in the case of S.R. Bommai v. Union of India101

(1994) Supreme Court cases

(Vol. 3, pp. 296–299) has stated in details a set of guidelines for the Governor to

respond in such a situation.

Recently, in Karnataka State Elections also the role of Governor and his exercise of

discretionary power have been called in question where after the results were declared

101 S.R. Bommai v. Union of India, (1994) 3 S.C.C. 296 (India).



52

no party got clear majority to form Government in Karnataka State. The majority party

was BJP with 104 candidates falling short by 8 candidates to get magical figure of 112

to form government in the assembly of 222 total numbers of legislative members. The

second largest party was INC with 78 candidates; JDS with 38 candidates was third in

the row and 4 were other elected candidates. Now, the stand of INC and JDS was that

Governor in such situation should invite the coalition of INC and JDS to form

government though BJP being the majority party in elections as it is clear that BJP is

not in position to get 112 candidates requisite to form government. Here, in this

situation the Governor exercising his discretionary power invited the single largest

party that is BJP to form government stating it constitutional with Article 164 of the

Constitution. Governor also granted the period of 15 days to the leader of largest party

to prove the requisite majority in the house which was also called in question stating it

as the abuse of its discretionary power. The petition was filed in Supreme Court

challenging the unguided power of Governor as ultra-virus to the Constitution. Court

denied looking into the untouchable power of Governor under Article 164 in appointing

the chief minister of state but court also ordered the BJP, largest party to prove the

requisite majority in house a day after. BJP leader unable to prove the majority has

resigned the chief minister post and then Governor invited the INC and JDS coalition to

form government in the Karnataka State.

JUDICIAL REVIEWABILITY OF THE DISCRETIONARY POWERS OF

GOVERNOR

Constitution of India has vested some discretionary powers to the Governors and sometimes

in the exercise of their functions they do not use their discretionary powers judiciously.

Which is when the role of the judiciary comes into picture and on many occasions, judiciary

has provided valuable guidelines for the Governors. The role of the courts has been decisive

and can be elucidated with the following landmark case laws.

In the landmark case of Mahabir Prasad v. Prafulla Chandra102

, it was laid down that the

power of Governor is absolute with regard to appointment of Chief Minister and court cannot

call in question the same, since it is his sole discretion. In another case of Pratap Singh

Raojirao v. Governor of Goa103

the court held that for the purpose of the appointment of the

102 Mahabir Prasad v. Prafulla Chandra, A.I.R. 1969 Cal. 198 (India). 103 Pratap Singh Raojirao v. Governor of Goa, A.I.R. 1999 Bom. 53 (India).



53

Chief Minister, Governor acts in his sole discretion and while taking decision he enjoys

immunity under Article 361 of the Constitution.

In Jagdambika Pal v. State of U.P.104

the Supreme Court directed convening of special

session of the Assembly and to have a composite floor test between contending parties to

ascertain who (Sh. Kalyan Singh or Sh. Jagdambika Pal) enjoys a majority in the Assembly.

About the discretionary power of the Governor in appointing or dismissing the Chief

Minister, the Guwahati High Court in the case Jogendra Nath v. State of Assam, observed

that ‘the repository of power to appoint Chief Minister or to withdraw the pleasure

contemplated under Article 164 and/or dismissal of ministry are exclusively pleasure-cum-

discretion of the Governor. He is the sole and exclusive authority to appoint a Chief

Minister’.105

In the case of Shiv Sagar Tiwari v. Union of India,106

the Apex Court accepted the

presumption against abuse of such power vested in high authority. However, the court didn’t

lay down the precise scope or extent of judicial review in matter relating to exercise of

discretionary power by public authorities. But, Apex Court has fearlessly highlighted the

gross abuse of discretionary powers and endeavoured to rectify the evil by carving out

comprehensive discretion with a warning that all the public functionaries would so act that

the meeting with destiny really sees the dawn of an era of hope for all.

In Chintalingam v. Govt, of India,107

the court turned down the old rule that public office

would discharge their duty honestly and in accordance with the rule of law. The Apex Court

rejected the theory of high officials stating clearly that discretionary powers may be abused

by both, high or low ranked officials and therefore, no exception can be made in favour of the

high ranked officers.

The Hon’ble High Court of Andhra Pradesh in case of U. E. Chaudhary v. State,108

laid

emphasis on the fact that necessary guidance for the exercise of discretionary powers was

must. No authority can give unbridled discretionary powers to the officers in any

circumstance.

104 Jagdambika Pal v. State of U.P, A.I.R. 1998 S.C. 998 (India). 105 Jogendra Nath v. State of Assam, A.I.R. 1982 Gau. 25 (India). 106 Shiv Sagar Tiwari v. Union of India, A.I.R. 1997 S.C. 2725. 107 Chintalingam v. Govt, of India, 1971 S.C.R. (2) 871. 108 U. E. Chaudhary v. State, A.I.R. 1974 A.P. 96 (India).



54

HOW FAR DISCRETION JUSTIFIED WITH THE PRINCIPLES OF RULE OF

LAW?

“The bedrock of our democracy is the rule of law and that means we have to have an

independent judiciary, judges who can make decisions independent of the political winds

that are blowing”

- Caroline Kennedy.

Rule of Law stands on the doctrine of supremacy of law. It is a fundamental necessity for a

disciplined and organized society. If a government functions in accordance with the

principles of rule of law then liberty and rights of individuals can be protected. Its basic

principle requires the executive to act under the law, and not by its own decree or fiat, which

is also a cardinal principle of the common law system. It is believed that the powers

executive possessing are not inherent powers of its own but all its powers flow and emanate

from the law, and this principle of Rule of Law plays vital role in all democratic countries of

present day. The Rule of law principle implicates that accepted rules and not the arbitrary

decisions of rulers should govern people. These rules should be general and abstract, known

and certain, and equally applicable to all individuals

Indian Constitution does not define the term “Rule of law”. However it can be seen the term

used frequently by the Indian courts in their judgments. There is no doubt that the rule of law

pervades the Constitution as an underlying principle. In fact, the Supreme Court has declared

the rule of law to be one of the “basic features” of the Constitution109

, so even a constitutional

amendment also cannot take away this principle. It is also seen as an integral part of good

governance.

CONSTITUTIONAL ASPECT OF THE RULE OF LAW PRINCIPLES

The Constitution of India lays down a cardinal principle of governance which affords no

sanction for the exercise of arbitrary powers by authorities set up there under.110

This

principle is popularly known as the rule of law. To be true, a rule of reason, rule against

arbitrariness and discrimination, rule of fair play and natural justice forms the basic structure

of rule of law.111

The rule of law is the opposite of the rule of power. It stands for the supremacy of law over

the supremacy of individual will. It supervises each and every organ of the state and its

109 Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2295 (India). 110 Mohammad Ghous, Annual Survey of Indian Law, 8 INDIAN LAW INSTITUTE 242, (1972). 111 Alice Jacob, Annual Survey of Indian Law, 26 INDIAN LAW INSTITUTE 365, (1990).



55

administration. It obligates the instrumentalities of the state to discharge their functions in

just and fair manner.112

The primary essential ingredient of the rule of law is the absence of

arbitrary power that is the discretion vested upon executive authorities, must be confined

within the clearly defined limits.113

It is undoubted fact that the present generation of modern world accepts the concept of the

rule of law, and owes to Dicey for his thesis, especially for its three meanings as interpreted

by him.114

According to him, the rule of law meant "the absolute supremacy of predominance

or regular law as opposed to the influence of arbitrary power and excludes the existence of

arbitrariness, or prerogative or even wide discretionary authority on the part of the

government.115

He firmly criticized that wherever there prevails discretion, there exists room

for arbitrariness to thrive and which leads to insecurity of legal freedom of the citizen.116

He

rejected the privileges and immunities enjoyed by the Crown and the Government under the

cover of constitutional maxim that the ‘King can do no wrong'. As per him, those

discretionary powers conferred on the executive by the statutes which cannot be called in

question in ordinary court of law defeats the spirit of rule of law.117

Therefore he advocated

the absence not only of arbitrary but even of wide discretionary powers.

The constitutional principles of rule of law constitute a bulwark between the governor and the

governed, shielding the individual from hostile discrimination on the part of those with

political power. The most obvious application of this doctrine to constitutional theory is to

make sure that the actions of the executive and those of every other civil authorities or

government officials should be just and fair as per the law. The concept of Rule of law stands

on the belief that by virtue of his office, no one is entitled to disregard the law. No special

authority is granted to the administration to act outside his legal power.118

International

Commission of Jurists in 1959 firmly supported this opinion to the fact that rule of law

should be employed not only to safeguard and advance the civil and political rights of the

individuals in free society but also establish social, economic, educational and cultural

conditions under which his legitimate aspirations and dignity may be realized.119

112 S. P. Gupta v. Union of India, A.I.R. 1982 S.C. 149 (India). 113 S. G. Jaisinghani v. Union of India, A.I.R. 1969 S.C. 1427 (India). 114 A. V. DICEY, LAW OF THE CONSTITUTION 183 (8thed, 1885). 115 A. V. DICEY, LAW OF THE CONSTITUTION 198 (8th ed., 1885). 116 M. P. JAIN AND S. N. JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 14 (2nd ed., 2005). 117 Id. 118 T. R. S. Allan, Legislative Supremacy and the Rule of Law : Democracy and Constitutionalism, THE

CAMBRIDGE LAW JOURNAL, 113 (1985). 119 JOSEPH RAZ, THE AUTHORITY OF LAW 211 (1979).



56

The Rule of law by its constitutional principle aims to serve as a potent weapon to bridge the

gap between the legal doctrine of Parliamentary sovereignty and political doctrine of

sovereignty of the people. Here, what becomes important is that being a constitutional

dogma, the rule of law operates as a weapon to strengthen democracy by mandating that the

powers of government democratically derived, are applied with proper respect for the

legitimate expectations of the government. Thus the doctrine widely pronounced as ultra

vires has therefore, emerged as a powerful weapon to protect the abuse of discretionary

powers granted by statute, and what is required is that rule of law must be adhered to strictly

so that the rights and aspiration of the people are not too readily sacrificed to official

convenience.

It is not evil to have discretionary power but at the same time it holds true that it gives much

opportunity to be misused. It is an undoubted fact that discretion is wholly dependent on

subjective satisfaction of the administrative authorities as it is a rule free area. It is

impractical for law to visualize every action and frame provisions for it; hence it becomes

inevitable for the rule making authorities to check the functioning of administration using

discretionary powers. Also it can’t be falsified that this discretion exercised by administration

leads to despotism, and ignores the aim for which the powers are delegated.

Therefore, the remedy for this cannot be sought by the abolition the power itself but in

establishing a proper procedure. Thus framing parameters for proper exercise of discretionary

powers has become essential. It is the duty of judiciary to make sure that the concerned

authorities are forced to exercise discretion in an open, fair and honest manner.

CONCLUSION

The Constitution of India provides for federal structure with a strong and indestructible

Centre where the Governor of a State is also vested with the key functions in the system

envisaged by the Constitution. The Constituent Assembly also justified empowering

Governor with discretionary powers on the ground that the Provincial Governments are

required to work in subordination to Central Government. Certain special and extra ordinary

powers were also deliberately conferred on the Governor by the founding fathers of our

Constitution. Article 164 (1) of the constitution of India confers a discretionary power on the

governor to appoint the Chief Minister of the State in case there is no majority of the single

party. The Governor is not required to act on the advice of the Council of the Ministers the

only effective limitation on his discretion is that he has to appoint that person, as C.M., who

he believes will be able to prove majority support in the assembly. So in case of a crisis



57

where no single party is in position to prove majority, Governor can call any party – be it a

coalition or single largest party to form government by proving majority.

Thus, right from the adoption of the Indian Constitution, the discretionary power of

Governors has been a matter of debate. The framers of our Constitution envisaged the

Governor as the one who will act as a friend and sagacious advisor of the Council of

Ministers. He should be a person who is expected to be above party and politics. But very

soon these pious hopes were shattered. Arguments and counter-arguments started generating

more heat but less light after 1967 because there after Governors have come to be seen or

suspected as the agents of the Union government. Thus, Governor in many occasions started

misusing his discretionary power as per his whims and fancies, ignoring the well-known

principles of Rule of Law. This showed the functionary of Governor tilting contrary to the

vision of the makers of Constitution.

This paper concludes that the discretion of Governor is undoubtedly a constitutional

upbringing of the Article 164 but the use of such discretion should not be unguided and hence

as rightly asserted by the Supreme Court in many landmark cases, the exercise of such

discretion should be within the constitutional limits and cannot be contrary to it at any cost.

Supreme court has already accepted the principles of Rule of law as basic structure of the

constitution and therefore the discretion exercised by the Governor has to pass through the

test of compliance with the Rule of law as well as this exercise of discretion is not

untouchable from the Judicial Reviewability.



58

THE NOTIONAL ‘QUASI-FEDERALISM’ PHILOSOPHY: AN

INQUIRY INTO THE TRADITIONAL FEDERAL PARADIGM

Payas Jain

Student, 3rd

Year, B.A. LL.B., Institute of Law, Nirma University, Ahmedabad, India

ABSTRACT

The primary aim of this paper is to answer the question whether practically or even theoretically

could plausibly be there any concept such as ‘quasi-federal’ or ‘semi-federal’ nation, as what could

now be discerned from the general parlance. Through the paper, the researcher tries to identify

whether any strict adherence or conformity to the traditionally established principle of federalism is

needed for a country to be called as federal or would it lose its claim to a ‘federal country’ if it

deviates from this ideal principle only because its space, time and context needs something different.

The paper thus answers whether any concept of a ‘quasi’ or a ‘semi’ federal makes sense and whether

there stands any need to identify a country as a ‘quasi federal’ or a ‘semi federal’ or with any such

terminologies. The paper also tries to answer the questions such as whether the Indian Constitution

fulfils the requirement of being a federal Constitution or not. In pursuit of this, the researcher tries to

draw an outline of the nature of Indian federalism in view comparing with that of USA which in fact is

considered to be the benchmark of a perfect federal nation. The paper would bring into account that

even this so-called ideal federalism - according to the need of its time - showed and shows some

variance or alterations from the supposed principle of a federal nation. The researcher also along

with this tries to look at some of the major countries of the world which too, never followed the so

called ‘traditional federalism’ model. For e.g. the leading federal Constitutions such as that of

Canada have many features which are exceptions to the strict federal axiom, yet they are recognised

as federal Constitutions, as the federal principle is predominant and overshadows the unitary features

where they exist. Australia has a federal Constitution but shows a unitary inclination in practice.

Switzerland experiences centralizing bents for that matter.

INTRODUCTION

“The Indian federation is an example of co-operative federalism. India has created a strong

central government; it has not made the state government weak”.

- Granville Austin

The question of the nature of Indian Federalism remains vogue and its answer vague even

today after decades of the commencement of our Constitution. The character of the federal

structure of India evokes a gamut of questions about its make-up. In today’s scenario,

federalism is seen as one of the majorly escalating principles of government, especially in



59

large countries where the federal government could divide the big area into smaller regions

and establish an own government of that particular locale, thereby rendering the subject of

abiding interest which makes it appropriate to have an in-depth study of it. With the principle

becoming popular, the question whether Indian Constitution is federal or not has come to the

vanguard in the years after the independence as for which there is a growing affinity towards

describing countries that deflects from the considered-immaculate type of a federal edifice to

be quasi federal, or any term that means ‘something less than’ federalism. Seemingly, what

comes to our forefront is the question that whether the basic requirement for a country to be

called as a federal one, a strict adherence or conformity to the traditionally established

principle of federalism? Does India need to be classified as any kind of a quasi federal just

because it deviates from following the idealistic US model of federalism? Can’t a country be

a federal if it follows a different pattern of the same as per its need of time, space and

context? Also, can there even be any perfect definition of the concept of federalism without

any crept-in bias of the framer’s mindset with respect to that particular timeframe’s

circumstances and situation (as what could be seen in the present case, the US is taken to be a

yardstick for federalism)? Even if yes, then can this ideal ‘model’ of federalism be made to

be applied to a much larger and a complex reality of the global countries? Or should this

reality of the worldwide nations itself be clipped to make it fit into the modelled federalism

itself? These questions still remain unanswered.

FEDERALISM: A CONCEPTUAL BRIEF

In its most simple terms, Federalism is a system of government of a country wherein a federal

or central government and different state governments coexist. Both federal and the state

government derive their powers from federal Constitution, both are supreme in their

particular spheres and both operate directly on the people. (Thus, neither the state

governments are exercising powers delegated by the federal government, nor they are

subordinate to it, though they may be in-charge of less important matters).120

In the words of

Dicey, Unitarianism means the concentration of the strength of the state in the hands of one

visible sovereign power… Federalism means the distribution of that power among a number

of co-ordinate bodies.121

This becomes the most radical distinguishing feature of a federal

state where the regional governments are not mere agents or delegates of the central

government but possess their own independent Constitutional powers.

120 D D BASU, COMPARATIVE FEDERALISM 06 (2nd ed. 2008). 121 A V DICEY, LAW OF THE CONSTITUTION 155-57 (10th ed. 1962).



60

Federalism implies a particular arrangement of the powers of a state. It postulates the

existence, side by side, within the framework of a single state of a general or Central

Government and a number of regional governments with a vertical division of function.122

Another imperative feature of a federal government is the existence of a Constitution which

acts as a supreme law for the entire country. This is a legal instrument which sets up the

national and state governments and allocates them their powers. Since both governments are

set up by the Constitution, both deprive their authority form the Constitution.123

As Prof. K.

C. Wheare observes, "By the federal principle I mean the method of dividing powers so that

the general and regional governments are each, within a sphere, co-ordinate and in-

dependent".124

Federalism therefore becomes a suitable form of government for large

countries where government from one centre would be complicated and difficult and could

readily be out of touch with the needs and desires of the widely spread areas and to countries

with a large racial, linguistic, cultural and ethnic diversities.125

THE INDIAN FEDERAL MODEL: UNDERSTANDING THE ‘NATURE’ THROUGH

HISTORY AND ORIGIN

As federalism is basically a political arrangement, each federal system has its own unique

nature which is shaped by long historical, political, social and economic factors.126

Federalism in India is a historical development and its working Constitution can be well

understood on the broad canvas of its long and cognitive history.

The motif of the form of government to be employed in India had been a bone of contention

since the time of freedom struggle. There was a fair consensus in the Constituent Assembly

owing to the vastness of the country and its heterogeneous elements that a complete unitary

form of government would be unworkable and thus undesirable.127

India therefore came with

a federal Constitution. When Dr. B R Ambedkar presented the draft Constitution to the

constituent assembly, he described the Constitution proposed to be federal, even though the

word ‘Union’ was used in Art. 1.128

It is rightly pointed that the federal structure of India

finds exceptions and diversions from the so called ‘traditional federalism’. The constituent

assembly debates explain them well enough though. The framers of our Constitution took

122AK Ghoshal, Federalism in the Indian Constitution, 14 IJPS 317-32 (1953). 123 Basu, supra note 120. 124 K. C. Wheare, Federal Government 11 (1951). 125 Id. at 1. 126 Legesse Tigabu Mengie, Federalism as an Instrument for Unity and the Protection of Minorities: A

Comparative Overview: Ethiopia, India and the US, 10 Mizan L. Rev. 265-295 (2016). 127 11 Constituent Assembly Debates 657-58. 128 7 Constituent Assembly Debates 31, 33, 42-43.



61

ideas from different parts of the world and after contemplating the problems of those

countries, came out with a view that this government should be designed in such a way so as

to give the Union the strength to meet the disruptive forces – external as well as internal - as

in times of war. The Indian Constitution therefore has a unique achievement of imparting to

the federal system the strength of a unitary system, in emergencies129

to resist external

aggression or to check internal upsetting forces.

This consensus came readily when the decision to partition India and form a separate

Pakistan for Muslims was announced. Since a foreign State was established and made out of

an undivided India, the Constitution makers recognized the call for the reconsideration of the

federal design of the country with respect to the changed circumstances. The necessity for a

strong centre was felt here. The following is an excerpt from the 2nd

report of the Union

Powers Committee. “…Now that partition is a settled fact, we are unanimously of the view

that that it would be injurious to the interest of the country to provide for a weak central

authority which would be incapable of ensuring peace and of coordinating vital matters of

common concern…”130

A strong centre was therefore an inevitable response to the partition

by the national leaders of the country who feared such further communal fragmentation of the

country.

India had a thoroughly unitary Constitution until the Government of India Act, 1935. The

provincial governments were virtually the agents of the central government that derived

power delegated to them by the latter. Neither before the act were these provinces in any

sense ‘sovereign’. It was this act which for the first time introduced the federal concept. This

did not emerge out of any ‘federal sentiment’ (as Dicey puts it) of any sort but was done by

creating autonomous units and combining them into a federation. It ‘artificially’ made these

provinces autonomous, but in a defined sphere and associated the Indian states with these

autonomous provinces.131

So, in all, they were brought together through a process of merger

and integration.

A DEDUCTION THROUGH JUDICIAL ASSESSMENT

The debate on ascribing the term ‘federal’ or ‘quasi-federal’ is also one of the cynosures to

judicial assessment. Our Supreme Court has made many pronouncements labelling the Indian

129 7 Constituent Assembly Debates 34-35. 130 2 Report of Union Powers Committee 70-71 (1947). 131 Basu, supra note 120.



62

Constitution as federal. The West Bengal case132

offers the first instance in this. Although the

majority judgement, speaking through C.J. Sinha seemed to be in favour of the Constitution

being quasi-federal, the verdict of the learned CJI had some inconsistencies and at some place

was self-contradictory. The passage with which C.J. Sinha started was - “The legal theory on

which the Constitution was based was the withdrawal or resumption of all the powers of

sovereignty into the people of the country and the distribution of these powers – save those

withheld from both the Union and the states by reason of the provision of part III – between

the Union and the states.”

Also the opinion taken by the minority Judge J. Subba Rao is something to be discerned here.

“If the Union can claim overriding powers over the state in certain situations, it is because

the Constitution itself has made such provisions to meet extraordinary situations. Apart from

this, if there was a general supremacy of the Union, there wouldn’t be any need for the

distribution of powers among them. The powers as enshrined in the 7th

schedule which

envisages litigation to settle disputes between the Union and the State would be a

mockery.”133

A similar view was held by C.J. Beg in the Karnataka case,134

where the learned judge said

that the Indian Constitution lays down the structure of ‘pragmatic federalism’. Following

passage stands testimony to it “which is overlaid…by strongly unitary features...whether such

a system is entitled to be dubbed as federal…The function of supervision is certainly that of

Central government with all that it implies”. By the word ‘pragmatic’, C.J. Beg emphasized

that this is a federalism designed to deal with the problems specific to situation and time

rather than depending on a fixed conventional methods.

Federalism although implies equality of status between the general government and the

regional governments which means that each has a complete supremacy, subject to its

limited sphere as per Constitution, equality of status does not necessarily indicate absolute

equality of powers. 135

Of course, there is a unitary bias in the federal system, but the

provisions are for converting it into a unitary one under ‘specified exceptional

circumstances’. In normalcy, it is federal and there stands no need to use the notion of

‘paramountacy’ of the Union to demolish the federal scheme. Other than the enumerated

deviations, our Constitution with its distribution of powers remains normally and basically, a

132 State of W.B. v. Union of India, A.I.R. 1980 S.C. 1241. 133 Id. at 13. 134 State of Karnataka v. Union of India, A.I.R. 1978 S.C. 68. 135 Id. at 3.



63

federal Constitution, subject to specified exceptions.136

These exceptions are unique, but in

times of normalcy, federal provisions are to be applied without being swayed by these

exceptions. Any arbitrary usurpation or encroachment of power is therefore not possible by

the centre and the state unless and until sanctioned by the provisions of the Constitution. It

was rightly said that the use of the word ‘quasi’ does not help a lawyer. For him, the inquiry

is not whether the powers of Union are more in number or larger in share, but whether that

distribution is enforceable in courts or not. If the answer is affirmative, the Constitution is

federal.137

WHAT U.S. HISTORY SAYS ABOUT A PERFECT FEDERALISM?

One may tend to draw out a comparison since it is a general practice to describe Indian

federalism as ‘quasi-federal’ on the pretext of the centre being much more powerful and

juxtaposing it with the proclaimed prefect federal USA. Even in a country like the United

States, which is considered to be the benchmark of pure federalism, many factors have

strengthened the national government in contrast to what has been envisaged by its

Constitution-makers. Ever since the U.S. federal system came into operation, it has exhibited

malleability, resilience and viability to the changing socio-economic and political background

of the country without losing its basic federal spirit. Although the founding fathers of the US

Constitution had a view of dividing the powers between Central and the regional

governments attributing to their concern of excessive powers being concentrated in the hands

of the centre, the demands of the situations in the gradual times were such that this

envisioned model became difficult to be maintained, and called for the one with a strong

centre. The Civil War (1861-65) established that no state has a right to leave the Union and

that if they refused to abide by the Constitution; the federal government has the right to

impose its will. Between the end of the war in 1865 and 1877, the Southern states which had

tried to break away were ruled by military governors which took their orders from

Washington DC. Then in the First World War, the central government dramatically increased

its control over the daily lives of its citizens. Conscription, or compulsory military service

was introduced for the first time in 1917; a War Industries Board was set up to ensure that the

weapons industry had all the resource it needed; a Food Administration was set up to ensure

that sufficient food was produced and distributed to Americans and their allies.138

This

balance of power got much inclined towards the Federal government when the economic

136 Atiabari Tea Co. v. State of Assam, (1961) 1 S.C.R. 809 (India). 137 Basu, supra note 120. 138 William Storey, US Government and Politics 98 (2007).



64

depression that struck USA after the Wall Street crash in 1929. The proposals of the President

to end economic crisis, which meant interfering in the matters that were traditionally the

responsibility of the state, got an edge as the state governments proved unable to rise to the

challenge of mass unemployment and homelessness. The Federal government, with Franklin

D. Roosevelt as its President, came out with his ‘New Deal’ programme in order to provide

financial aid for the unemployed in the short term, and employment programmes to get

people back to work for the long term.

This proved to be a major departure from the traditional federalism which altered the balance

between the national and the state government. With both having a role in the local affairs,

this new relation came to be called as Co-operative Federalism (or marble cake Federalism),

which continued even after the effects of the great depression ended, as it was believed that

only Federal government could have the resources for and could coordinate such large

programmes, and only it could be relied upon to have a sufficient commitment to make the

programme work.

U.S. FEDERALISM: A JUDICIAL AND A CONSTITUTIONAL OVERVIEW

The original division of responsibilities with the national government taking the

responsibility for foreign and inter-state affairs, and the state government taking the

responsibility for all other matters, which is known as Dual Federalism (also referred to as

layer cake Federalism), was considered to be the model of ideal federalism or a model to be

aimed for. However, a variety of factors, with respect to the need of time, made it difficult to

uphold this model. There are a number of Supreme Court rulings corroborating the same. In

the case Fletcher v. Peck139

, it was ruled that a law passed by the state legislature of Georgia

had violated the United States Constitution and therefore was invalid. Before this, it was a

general conception that the validity of the state laws would be determined by the validity of

the State Constitutions. In another case, it was held that Maryland was not allowed to impose

a tax on the national bank which was set up by the Congress.140

The national government

was considered to be supreme over the state government. One of the verdicts ruled that the

Congress has the right to regulate the inter-state commerce.141

Prior to this, it was inferred

that the Constitution allowed the states to close and open their borders for trade as per their

wish. Though the Union cannot compel a State legislature to undertake any legislation, it is

open to the Congress to make laws relating to the matters of social welfare or requiring the

139 Fletcher v. Peck, 10 U.S. 87 (1810). 140 McCullloch v. Maryland, 17 U.S. 316 (1819). 141 Gibbons v. Ogden, 22 U.S. 1 (1824).



65

co-operation of states, and induce them or leave them to be complemented by the State.142

Here, the Supreme Court has distinguished between ‘compulsion’ and ‘inducement’, and thus

allowed Union intrusion into the sphere of state. In one of the case143

, it was held that it is no

intrusion upon State sovereignty in case of federal pre-emption where the states are to abide

by the standards laid down by the federal law.

Even if one takes a glimpse of the Constitution of USA, one may find quite a number of

provisions which are similar to the ones that are now used to classify other countries as quasi

federal. Article 1, Section 8 of the Constitution of USA lists seventeen powers that only

Congress could exercise.144

Crucially, the 18th

clause gives Congress the right to pass any

laws required to fulfil their powers. Also known as the ‘elastic clause’, it has been often used

by the Congress to intervene in matters that were traditionally thought to be in the domain of

the states. Article 1 Section 8 (1), 8(3), 8(18) and Article 4(2) of the US Constitution

empowers the federal government to take pre-emptive actions with a vision to entrench

uniform national standards in certain crucial matters. A federal pre-emption establishes

domination of the central government in particular fields. These pre-emption traces their

origin on the belief that conditional grants have failed to induce adequate state government

action to solve major public problems.145

Till now, more than 40 pre-emptive acts have been

enforced including Civil Rights Act of 1964, Voting Rights Act of 1965, and Child Protection

Act of 1966 among the noteworthy.146

It could be argued that the federal pre-emptions have

not downgraded the position and powers of the sub-national governments.147

The 13th, 14th

and 15th Constitutional Amendment Acts are also a paradigm to this. They were designed to

deny the States, the right to maintain slavery, and the right to discriminate against ex-slaves

in the matter of their civil rights. The Constitution contained a clause in Article 1 Section 9

which prohibited the abolition of the slave trade. When it was allowed, the Congress banned

the slave trade even though the prosperity of the states depended on it to a great extent.148

Again, Article VI, Section 2 is the ‘Supremacy clause’, which establishes that when state and

the Federal government are in conflict, the Federal government was supreme. Therefore such

expressed powers imparted to the federal government also goes on to show that the

Constitution created a Federal government strong enough to protect the nation from external

142 Carmichael v. S. Coal Co., 301 U.S. 495, 526 (1937). 143 F.E.R.C. v. Mississippi, 456 U.S. 742 (1982). 144 U.S. CONST. art. I, § 8. 145 HM Rajashekara, The dynamics and changing contours of U.S. Federalism, 47 IJPS 87-104 (1986). 146James B. Croy, Federal Supersession: Road To Domination, 48 State Government , Winter (1975). 147 Joseph F. Zimmerman, Frustrating National Policy-Partial Federal Preemption (1981). 148 Id. at 19.



66

egression and internal disputes, and has given the government the right to use ‘necessary and

proper’ means to carry out its duties.

So how federal is the modern USA is in reality? As, what could be seen from the above

discourse, there has never been a neat and a clear division of responsibilities between the

Federal government and the states. The boundaries between the two started evolving as soon

as the Constitution was adopted, with early signs that the national government would intrude

into local affairs at times of national crisis and whenever was deemed necessary to do so. The

government of Washington DC has far more power than was ever envisaged and intervenes

in the local affairs in modes and course of action that the founding fathers intended to

prevent. It becomes clear that whatsoever was done was owed to the reasons of practicality.

Federalism from a holistic viewpoint is not a single type of system, but a group of assorted

distinct systems. Although all such systems have a hierarchy of governments, there is

difference in federal performance owing to difference in the federal construct.149

The US

federalism therefore couldn’t be termed as any kind of a dysfunctional federalism model nor

a fedro-unitarianism but could be rightly labelled as a pragmatic and dynamic federalism.150

CONCLUSION

The proclivity towards centralization has become a common highlight in most of the federal

systems across the globe en masse. Even though one could find instances of centralizing

tendencies, they have increased the powers of the centre but have not decreased the powers of

the states in any way. The states perform substantial legislative, executive and judicial

functions without being abated to delegates of the centre. In the U.S. some constitutional

provisions and several indisputable forces have contributed in their own way towards

centralization. The application of any hard and fast rule to the principle of federalism would

deprive it of any practical meaning and constructiveness. The federal theory should be

inclusive to be feasible. As Livingston has observed, federation is more of a functional than

an institutional concept.151

It is implied that it incorporates features that are flexible to the

need of time.

The major countries of the world never made it to the so called ‘traditional federalism’

model. Speaking of the same, other federal Constitutions, for example, that of Canada have

many features which are exceptions to the strict federal axiom, yet they are recognised as

149 Sunita Parikh& Barry R Weinghast, A Comparative theory of Federalism: India, 83 Virginia L.R. 1593-1615

(1997). 150 Id. at 25. 151 Livingston, Federation and constitutional change 06-7 (1956).



67

federal constitutions, as the federal principle is predominant and overshadows the unitary

features where they exist. Australia has a federal Constitution but shows unitary inclination in

practice. The Constitution of the U.S.A. is federal but isn’t the affinity to centralization

promoted by the two world wars and the economic depression during the period are

constantly at work and evident from the current scenario? Switzerland experiences

centralizing bents for that matter. In order to apply the definition of federalism to a particular

federation, the provisions of its Constitution as well as Constitutional practice must be taken

into consideration.152

As Prof. Wheare153

aptly remarks "It seems essential to define the

federal principle rigidly, but to apply the term 'federal Constitution' more widely” Apart from

the difficulty of exact measurement of powers to divide among, it is not possible in realistic

sense too. In different federations the balance of powers is differently inclined, in some cases,

in favour of the centre, in others in favour of the states, but that does not discredit the country

from being a federal one until and unless one can’t exist and sustain on its own without

depending on the other. 154

Relying on the established sole-model of federalism, one could keep on listing and would

find that all other federations of the world are either quasi-federal or unitary states in some

way or the other but none of them could be classified as a pure federal. No principle for that

matter is absolute in its term and experience a deviation from the ‘quintessential main’ at

some or the other place, time or space which is why it is called the ‘ideal form’. It is the

model that is made as per a smaller scale of the reality without considering the world at large.

Every society has its own set of environment, be it social, cultural or political. Since no two

societies are the same, each will require a different set of instrumentalities in accordance with

those factors and determinants. Then what good would the classification by the terms such as

‘quasi’, ‘semi’, ‘federal-unitary’ or a ‘unitary-federal’ do? And at the same time, what

purpose does the definition of ‘federal’ fulfil if such a definition is bound to remain in a

vacuum and becomes an ‘ideal state’ to be achieved. The state of affairs of the world is much

monumental than what a model of federalism could sweep in it. Therefore, it is the reality of

the society, the environment of the larger world which is being clipped here so as to fit the

limited context of the model i.e. the principle of a perfect federal nation. Following the

152 C. H. Alexandrowicz, Is India a Federation, 3 Int'l & Comp. L.Q. 393- 403 (1954). 153 Id. at 5. 154 Id. at 3.



68

discourse above, one may tend to ask how one would distinguish a federal nation. Going by

Dicey155

, there are 3 indispensable legal features in a federal Constitution,

(1) Supremacy of written Constitution,

(2) Distribution of powers, and

(3) Enforcement of that supreme law i.e. Constitution.

He termed it as a test of Federal Constitution. If these three features are present in a

Constitution, it is a federal one and its further classification becomes immaterial. The popular

opinion among scholars conveys the view that Federalism is more consonant with realism

rather than assigning it with any sort of a ‘fixed criteria’ or a schema. To quote Wagner, “An

ideal federal state should have all these characteristics. However, if perfect federal states

alone were considered as such, there would be no constitutional law federation in the

world”.

155 Id. at 2.



69

EVALUATING THE STATUS OF ARTICLE 35-A OF THE

CONSTITUTION OF INDIA

Dushyant Kishan Kaul

Student, 3rd

Year, Jindal Global Law School

ABSTRACT

Article 35-A, in recent times, has become one of the most controversial Articles in the Constitution of

India. This paper aims to trace its controversial history from a post-independence vantage point to

understand the context. This is one of the rare cases of the validity of a constitutional article being

decided upon by a constitutional bench of the apex court, as was decided by the Hon’ble Chief Justice

of India, Dipak Mishra, in 2017. This paper seeks to actively critique the Permanent Resident’s

(Disqualification) Act of 2004 and the legislative passage behind it. It argues that Kashmiri women

have been deprived of their basic right to own property after marriage to a non-resident. This brings

about a paradox, wherein power is sought to be given to this state in addition to the special status to

protect it; and yet the state legislature has brought about a legislation which ignores one of the key

components of the rights that ‘permanent residents’ enjoy. Hence, this paper calls for the restoration

of equal rights to own property in the state, and implores the judiciary to interpret Article 35-A in a

way that balances the interests of Kashmiri’s vis-a-vis other non-permanent residents residing in

other parts of the country.

Note: This topic is of particular significance to my personal identity, being a Kashmiri pandit

whose family was displaced during the mass exodus of Hindus from the valley in the 1990s…

INTRODUCTION

The right to decide who qualified as ‘permanent residents’ in the state of Jammu and Kashmir was

given to the state government during the formative years of our Constitution. The very enactment of

Article 35A was done in a way that circumvented ordinary parliamentary procedures. In this light, it is

still an open question as to whether the President has discretionary powers in modifying Articles, but

in introducing new Articles to the Constitution without the knowledge of the Parliament.

This question was addressed by the apex court in the 1961 case of Puranlal Lakhanpal v. President of

India156

wherein this modification power is allowed for already existing provisions, but not for

inserting new Articles. Hence, the enactment of Article 35-A rests on very fragile foundations. Post

the insertion of this Article considerable benefits have been enjoyed by ‘permanent residents’ in the

state. However, there have been enactments, such as those pertaining to property rights of women,

which have threatened the freedom of women in the state.

156 Puranlal Lakhanpal v. President of India, A.I.R. 1961 S.C. 1519 (India).



70

FACTUAL BACKGROUND

In the 1920’s, state residents started agitating for the protection of their rights, vis a vis the competing

claims of non-residents of the State. The Maharaja’s government passed a notification157

seeking to

define “state subject” under Class I, II and III. This, along with a subsequent state notification158

,

made up most of the citizenship laws in the State. It was based on the date of birth, the period of

residency and the date of acquiring property.159

After the Constitution of India came into force in

1950, the President, in concurrence with the Governor of the State, issued the Constitution

(Application to Jammu and Kashmir) Order160

, which listed the provisions of the Constitution, other

than Article 1 and 370, which were to apply to Jammu and Kashmir. The Union government does not

have power to make laws on citizenship in Jammu and Kashmir, as can be seen from Entry 17 of the

Union List161

, as can also be seen from the non-application of Part II to the State.162

This may have

been influenced by the reluctance of too much interference by the central government. It was also

seen that the rights of residents of this newly acquired state had to be protected.

Thus, Maharaja Hari Singh issued a Private Secretary’s Circular Order No. PS-2354 on January 31,

1927 to define a ‘Hereditary State Subject’ to include “all persons born and residing within the State

before the commencement of the reign of His Highness the Late Maharaja Gulab Singh Sahib

Bahadur and also persons who settled therein before the commencement of Samvat 1942 and have

since been permanently residing therein.” It had the effect of giving the authorities this power of

appointment provided it was certified that he should in fact be made a state subject post the due

enquiries.

The Notification I-L/84 of April 20, 1927 replaced this earlier circular and introduced categories of

state subjects. These classes were sought to be protected from exploitation by their rich neighbours

who could afford to buy property in the state and deprive state subjects of that exclusive benefit. 163

This had created massive problems for refugees as well, who had come into the state after 1944 and

before 1954. Additionally, they were denied voting rights in Assembly elections, not eligible for jobs,

higher education. Lastly, this porous category may undermine national security.164

157 Notification No. I-L/84, dated 20th April 1927. 158 State Notification No. 1-/L, dated 27th June 1932. 159 Sanjeev Nayyar, Everything you wanted to know about the Jammu and Kashmir Problem, First post, October

26, 2014 (Part V and VI) at pp.15-20. 160 The Constitution (Application to Jammu and Kashmir) Order, C.O. 10 of 1950. 161 INDIA CONST., List 1, Sch. 7. 162 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 185-

88 (4th ed., Universal Law Publishing Co. Pvt. Ltd.) (2004). 163 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 178-

80 (7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 164 Sanjeev Nayyar, Everything you wanted to know about the Jammu and Kashmir Problem, First post, October

26, 2014 (Part V and VI) at pp.15-20.



71

Initially, the President had passed the Constitution (Application to Jammu and Kashmir) Order,

1950165

. However, this was repealed and replaced with the Constitution (Application to Jammu and

Kashmir) Order166

on the aid and advice of the then Prime Minister, Pandit Jawaharlal Nehru, to

incorporate this Article in the Constitution through Section 2(4)(j) of the same Order. By virtue of this

Article, the right to decide upon residency was conferred upon the state government. This came two

years after Nehru and Sheikh Abdullah, whereby citizenship was extended to ‘state subjects’ of

Jammu and Kashmir. The order, under Article 370(1)(d), that allowed certain Presidential “exceptions

and modifications” for the benefit of ‘state subjects’ in Jammu and Kashmir.167

Hence, in a way, the provisions of this Article as far as Jammu and Kashmir is concerned, cannot be

said to in excess of the powers of Article 370(1).168

Section 6 of the Constitution of Jammu and

Kashmir identifies permanent residents. There is no law on the subject, and the same has been left to

the state legislature as per Article 8 of the state constitution. By virtue of this agreement, this article

gives special right and privileges in settlement, employment, scholarships etc. to those coming under

this category. No one but state residents can permanently settle in the state or acquire property in the

state.169

The Agreement reached was that there would be common citizenship of permanent residents

if these special rights were given.

Another aspect worth examining is the interest of persons who left the state due to internal

disturbances during Partition. Article 7 of the Constitution refers to migrants of Pakistan who return to

India under a valid legal permit. It makes it clear that if such persons had migrated before 19th

July

1948 and were registered citizens, then they would be allowed to return if they did so on a permanent

return issued by the state authorities, or under a resettlement permit. There also exists a provision for

those who returned to the country after the aforementioned date. They could apply for citizenship

after residing in India for a minimum period of six months post their migration into India and before

the date of their application. However, it is the proviso to this Article that is most noteworthy. It

makes it considerably easier for ‘permanent residents’ of the State if they return to India. According to

the laws in India, these migrants are treated as citizens even if such persons did not register (if they

left after 19th July 1948). It is arguable that such ‘permanent residents’ in a way are exempt from these

formalities, as the Constitution facilitates their return.170

165 Later repealed by the Order of 1954. 166 C.O. 48, published with the Ministry of Law Notification No. S.R.O. 1610, dated the 14th May, 1954. Gazette of India (Extraordinary). 167 Krishnadas Rajagopal, What is Article 35A? The Hindu, August 26, 2017. 168 Vol.1, P.M. Bakshi et al., Constitution of India, Madras Law Journal (1997). 169 Article 35A explained: What gives Jammu and Kashmir residents a ‘special’ status? DNA, October 30, 2017. 170 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 194-

95 (4th ed., Universal Law Publishing Co. Pvt. Ltd.) (2004).



72

In this backdrop, it is important to trace the ‘valid till marriage’ stamp in the context of citizenship of

women. Note III of the Notification dated April 20, 1927 was misinterpreted before and after the

coming of the 1957 constitution of Jammu and Kashmir, as it put in the term ‘permanent resident’

instead of ‘state subject’. It applied to state residents who had lived for a minimum of 10 years before

May 14, 1954. On March 25, 1969, the state government issued a circular to the government officials

to give women residents the certificates of permanent residents which would be ‘valid till marriage’

and subject to subsequent scrutiny depending on the status of their husbands. These women would

thus be denied employment, scholarships and other such benefits. This discriminatory provision,

however, was not extended to men when they went abroad or even to children conferred abroad.171

THE STATUS OF ‘PERMANENT RESIDENTS’

India follows a system of unitary citizenship and only Indian citizenship is recognized.172

For

permanent residents, an exception to the Constitution was carved out as they enjoy Part III rights as

well as all the other rights in the Constitution.173

However, there is anger among people because it has

been seen that Indian citizens are not ipso facto citizens of Jammu and Kashmir.174

Thus, in its current form, Article 35A allows this “special treatment in matters of

Employment under the State government.

Acquisition of immovable property in the State.

Settlement in the State.

Right to scholarships and such other forms of aid as the State government may

provide.”175

This special status to permanent residents is a noteworthy feature in the state constitution. It can

confer special rights or even impose restrictions in the areas mentioned above, notwithstanding the

fundamental rights in our Constitution.176

Case law overtime wrongly interpreted the legal provisions of the time. No provision in the 1927

Notification177

held that a woman would lose her right to property on marrying a non-permanent

resident, and this right continued to subsist as long as the woman was an Indian citizen; and did not

begin residing permanently outside the state upon the death of her spouse or the dissolution of

marriage.

171 Jasbir Singh and Anupama Vohra, Citizenship Rights of Women in Jammu and Kashmir: An Uncertain

Future, IJGS, 162-63 (2007). 172 SHIBNATH CHAKRABORTY, AN INTRODUCTION TO POLITICS 118 (15th ed). 173 K.K. WADHWA, CONSTITUTIONAL AUTONOMY- A CASE STUDY OF J & K 35. 174 Id. 175 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 4011 (8th

ed., Lexis Nexis Butterworths

Wadhwa Nagpur) (2008). 176 Id. at 6045. 177 Notification No. I-L/84, dated 20th April 1927 read with State Notification No. 13/L, dated 27th June 1932.



73

However, in Prakash v. Mst. Shahni178

, the High Court of Jammu and Kashmir applied Section 10 of

the British Nationality and Status of Alien’s Act, 1914 while interpreting the 1927 Notification179

.

They held that a woman acquired the domicile of her husband upon different domiciles before the

marriage, and that the same would be lost if daughters married outside the state. In essence, the

British system of domicile was followed to define the status of female state subjects.

This impugned decision was largely based on inapplicable British laws, and was corrected by the full

bench of the same court in State of J&K v. Dr. Susheela Sawhney180

. The following question was

addressed - “Whether the daughter of a permanent resident of the State of Jammu and Kashmir,

marrying a non-permanent resident, loses her status as a permanent resident of the State of Jammu and

Kashmir to hold, inherit and acquire immovable property in the State?”181

This case answered the

question of whether women would lose their rights as a permanent resident upon marriage to a non-

subject in the negative. In this case, the appointment of the petitioner to the post of an Assistant

Professor in the Government Medical College, Jammu was quashed due to her marriage with a non-

state subject. Led by Jhanji J., Doabia J. concurred but Jan J. dissented.182

The dissenting judge said

that he agreed with the majority insofar as inheritance matters would be governed by the personal law

of the deceased in matters of education, employment and other rights, but disagreed with allowing

women this right completely.183

The court held that women would not lose their right as permanent

residents on their marriage with persons who were not permanent residents of the state. They also held

that the earlier law was discriminatory as it allowed men from the state to marry women from outside

the state and retain their rights but the reverse was not true.184

Following fourteen writ petitions being

decided on September 7, 2002 the law was clear insofar in as it held Section 8 of the state constitution

allowed the state to make laws to deal with the status of female permanent residents when they

married non-permanent residents.185

It made it clear that women would not lose their status upon

marrying non-permanent residents.

Aggrieved by the decision, the state government filed a special leave petition to the apex court, which

was later withdrawn. This was after notice had been issued, but without any stay or operation order of

the judgment. This was probably because the chances of this petition succeeding were low. Moreover,

178 A.I.R. 1965 J&K 83. 179 Notification No. I-L/84, dated 20th April 1927 read with State Notification No. 13/L, dated 27th June 1932. 180 State of J&K v. Dr. Susheela Sawhney, (2003) 1 JKJ 35 (FB) (India). 181 Id. 182 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.535. 183 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 180-81 (7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 184 Sanjeev Nayyar, Everything you wanted to know about the Jammu and Kashmir Problem, First post, October

26, 2014 (Part V and VI) at pp.15-20. 185 Justice G.D. Sharma, Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004 is

Unconstitutional, (2004) 6 SCC (Jour) 23 -

http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=948.



74

there was no law that sanctioned the curbing of these rights. Rather, Section 22(d) of the Directive

Principles of the State Constitution called for full equality in all “social, educational, political and

legal matters.”186

In 2004, the Permanent Resident (Disqualification) Bill of 2004 was introduced by the government

headed by Mufti M. Sayed. Known as the women’s bill187

, Section 2 and 3 disqualified women,

specifically permanent residents, from retaining this status if they marry persons who are not state

subjects and are outsiders; but the same disadvantage was not imposed on men. The conditional

clause of certificates of being valid only ‘till marriage’ categorize as derogatory words and is highly

discriminatory towards women, as seen in numerous cases such as Anjali Khosla v. State of Jammu

and Kashmir188

.

A number of writ petitions had accumulated over time.189

Why this Bill is particularly problematic is

because it seeks to nullify the impact of the decision rendered by the full bench of the Jammu and

Kashmir High Court retrospectively (with effect October 7, 2002) from the date when the judgment

was passed.190

The parliamentary passage of the bill also created suspicion, as it was passed within six minutes of it

being moved and its voting. With the support of the Congress and the Nationalist Conference among

other parties, it was passed when the lone member of the Bharatiya Janata Party was absent. Opposing

factions, including many women’s organizations, lambasted the government for withdraw the special

leave petition against the court decision which clarified the position on women’s rights on the subject.

There is thus a debate regarding women’s rights as permanent residents on one hand, and protection

of interests of people of the valley and to uphold the special status given to the people under Article

370 of the Indian Constitution. 191

The concern was heightened even further because even the Permanent Residents Act, 1957 did not

authorize cancellation of a permanent resident certificate, except on serious grounds of fraud and

suppression of facts. The state high court had invalidated the initial executive order as it had no

legislative sanction as it had circumvented the deliberation and voting process. Moreover, it was a

186 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 182

(7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 187 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.534. 188 Anjali Khosla v. State of Jammu and Kashmir, O.W.P. No. 171/96 (India). 189 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.534. 190The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.535-6. 191 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.536-7.



75

blatant case of gender discrimination.192

These instances thus forced one to cast serious aspersions on

how secure permanent residents really are. There also seems to be a threat to Article 14, 15(1), 16(1)

as well as 19(1)(e) of the Indian Constitution. A harmonious construction of the Articles shows that it

falls outside the purview of Article 35-A of the Constitution.193

It is worth noting that this special treatment has been held to be permissible in, for instance, the case

of Sudeesh Dogra v. Union of India194

, where CAPF personnel injured in mob violence in the state

who were state subjects were awarded a higher quantum of compensation when compared to non-state

subjects. The court justified this separate treatment as a permissible classification under Article 35-A.

While preferential treatment is bestowed upon state subjects as in the aforementioned case, there has

been substantial criticism of Article 35A. This is because it is to be valid even though there may be no

‘equality before law’ as technically, permanent residents of one state should be treated at par with the

rest of the citizens. However, the counter-argument is that these residents need to be protected from

exploitation, as Kashmir lags behind in the educational and economic sectors when compared with

bordering states. This was done to equip them to compete with other states on a level playing field.195

However, these privileges may have been fine at the time of independence. The people of Jammu and

Kashmir are still given preferential treatment in government jobs and have the exclusive right to own

immovable property by virtue of a notification in 1927196

. Even if the General Assembly passed the

Convention on the Nationality of Married Women, which affirms the principle that the nationality or

her marital status should not affect her property rights.197

Another source of criticism is when one studies the constitutional aspect of this special status. Article

370 comes under Part XXI of the Indian constitution. Moreover, this status is temporary in nature, in

the hope for a moral permanent arrangement at some point in time. Clause (3) has a non-obstante

clause which gives an overriding effect to the President to pass any order to undo this status, making

clause (1) and (2) temporary provisions. Moreover, the state has its own constitution as well, and

many argue that there is no point countering the prevailing practice of women losing their rights under

given situations. However, this can be countered by saying that time is of no essence and every effort

must be done to right a wrong. In any event, the full bench of the Jammu and Kashmir High Court had

192 Balraj Puri, Permanent Resident Bill: Questionable Legal, Moral and Political Basis, Economic and Political

Weekly, Vol. 39, No.14/15 (April 3-16, 2004) – p.1456-1458. 193 Justice G.D. Sharma, Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004 is

Unconstitutional, (2004) 6 SCC (Jour) 23 -

http://www.supremecourtcases.com/index2.php?option=com_content&itemid=1&do_pdf=1&id=948. 194 Sudeesh Dogra v. Union of India, AIR 2014 SC 1940. 195 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 192

(4th ed., Universal Law Publishing Co. Pvt. Ltd.) (2004). 196 Notification No. I-L/84 of 1927. 197 Balraj Puri, Permanent Resident Bill: Questionable Legal, Moral and Political Basis, Economic and Political

Weekly, Vol. 39, No.14/15 (April 3-16, 2004) – p.1456-1458.



76

clarified that no provision permitted this deprivation and was purely an executive action with no real

constitutional sanction.198

Nonetheless, there have been certain arguments in favor of the Bill as well. For instance, Jan J.

delivered the dissenting opinion in the Susheela Sawhney case199

. He subscribed to the view that Note

III was akin to the position of private international law, such that the permanent resident status was

acquired by a woman upon marriage, and thus could also be lost upon marriage to a non-resident.

Note III provided – “The wife or a widow of the State subject of any class shall acquire the status of

the husband as State subject of the same class as her husband, so long as she resides in the State and

does not leave the State for permanent residence outside the State.”200

But this position advocated by

the state was rejected by the majority opinion. Doabia J. gave a concurring opinion in the case and

held that Note III, by literary interpretation, did not deal with females marrying non-state subjects and

also continuing to reside in the state and this deprivation would have been expressly mentioned in the

statute had the requisite legislative intent been there. He further propounded on the meaning of the

word ‘acquire’ mentioned in the Note and distinguished it from ‘inherited’. He then held that what

was acquired could not be lost unless a specific ground of disqualification was mentioned. In addition,

the rule of private international law that the wife follows the domicile of her husband had been

disbanded in as “the most barbaric relic of a wife’s servitude.”201

Another argument favors the Bill through the sanction of the state constitution. It also argues this intra

vires aspect based on Article 35A (including its non-obstante clause) of the Indian constitution as

well, which immunizes the rights of permanent resident’s immune from any sort of constitutional

challenge. In other words, this category of persons is given rights in addition to those granted to

regular citizens, which can sometimes be exclusive as against non-permanent residents. However, this

advantage given to permanent residents in the Bill does not preclude constitutional attacks on

violations of fundamental rights on an Article 35-A defense.202

Hence, it is clear that the Permanent

Resident’s (Disqualification) Act of 2004 favors males by not imposing similar restrictions on them.

In addition, children of such male subjects will be state citizens. But the status of women remains

precarious.

APPLICABILITY OF FUNDAMENTAL RIGHTS TO KASHMIRI RESIDENTS

198 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.539, 541. 199 State of J&K v. Dr. Susheela Sawhney, (2003) 1 JKJ 35 (FB) (India). 200 Jasbir Singh and Anupama Vohra, Citizenship Rights of Women in Jammu and Kashmir: An Uncertain

Future, IJGS, 161 (2007). 201 Formosa v. Formosa, (1962) 3 All E.R. 419. 202 The Jammu and Kashmir Permanent Residents (Disqualification) Bill, 2004: A Constitutional Perspective,

The Indian Law Institute, p.547-51.



77

According to the Order of 1950203

, Part III of our Constitution did not apply to the permanent

residents of Jammu and Kashmir. Even the Constitution of Jammu and Kashmir Act 1939 (Act IV of

1996) did not provide these rights to state subjects at the time. However, it is the rights and

privileges204

that they enjoyed in spite of this deprivation that is pertinent here. Though the order of

1954205

eventually made both part II and III applicable, the special treatment continued unhindered.206

Article 19 initially included the fundamental right to property, which was demoted to a legal right

pursuant to the 44th Amendment, 1978

207. The right, in its amended form, applies to the permanent

residents as well. But there is an additional restriction to the right, in matters related to the ‘security of

state’.

Rights enshrined in Part III of the Constitution are thus subject to Article 35A. Even if state

legislation conflicts with these rights, it does not become invalid.208

Residents of the state enjoy this

treatment owing to the circumstances in which the state is placed. As a result, citizens domiciled in

Jammu and Kashmir for over 40 years do not enjoy the rights under Part III of the Constitution, but

migrants who left in 1947 and have now returned; receive a special status under the state constitution.

Even the Supreme Court, in the case of Bachan Lal Kalgotra v. State of Jammu and Kashmir &

Ors.209

, opined that the state government must strive to solve this “cruel paradox”210

that has resulted

in this situation, and take suitable action to amend laws pertaining to panchayats, elections, land

reforms etc.

CURRENT SITUATION

In September 2017, an NGO by the name We the Citizens filed a petition on the constitutional validity

of Article 35A and Article 370 before the apex court. Among other things, the petitioners argued that

Article 370 in itself was only a ‘temporary provision’, and that the drafters of the Constitution,

including four representatives from Jammu and Kashmir, never intended for it to become a tool to

bring amendments, like those that brought in Article 35A.211

It also alleged that this Article, by

creating a “class within a class of citizens”, was against the “spirit of oneness of India” and violated

Article 14, 19 and 21 of the Constitution.212

203 Later repealed by the Order of 1954. 204 Notification No. I-L/84, dated 20th April 1927 read with State Notification No. 13/L, dated 27th June 1932. 205 C.O. 48, published with the Ministry of Law Notification No. S.R.O. 1610, dated the 14th May, 1954. Gazette

of India (Extraordinary). 206Status of Permanent Residents of Kashmir, SHODHGANGA (June 27, 2018, 1:21 PM),

http://shodhganga.inflibnet.ac.in/bitstream/10603/63964/12/12_chapter%205.pdf. 207 See the Constitution (44th Amendment) Act, 1978. 208 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 214

(3rd ed., Universal Law Publishing Co. Pvt. Ltd.). 209 Bachan Lal Kalgotra v. State of Jammu and Kashmir & Ors., A.I.R. 1987 S.C. 1169. 210 ARVIND P. DATAR, DATAR ON CONSTITUTION OF INDIA (Millenium ed., Wadhwa and Co. Nagpur) (2001). 211 Krishnadas Rajagopal, What is Article 35A? The Hindu, August 26, 2017. 212 Id.



78

A second petition in the same year has been filed by Charu Wali Khanna, who argued that the basic

right to hold property in the state was being restricted. Article 6 of the Jammu and Kashmir

constitution denies the heirs of a native woman the right to property if she marries a person who did

not possess a permanent resident certificate. She further argued that her children would be denied the

benefit and would be considered illegitimate as a result.213

These two petitions were clubbed together

and referred to a three-judge bench. Justice Dipak Mishra had also said that the validity of those

Articles may eventually be adjudicated upon by a constitutional bench of the apex court.

CONCLUSION

It is clear that provisions for ‘permanent residents’ were made by the insertion of Section 5(A-F) of

the Constitution Act of 1939214

, which have had the effect of abolishing separate citizenship and

extending Indian citizenship to the state, with retrospective effect from January 26, 1950. It accords

special treatment to two classes of persons: ‘permanent residents’, and those who left the state due to

the internal disturbances in 1947. They are entitled to rights, privileges and other such obligations if

they return permanently or for resettlement.215

The constitutional provisions coupled with the case law at hand show that individual character of

permanent residents has been secured when it is in harmony with their common nationality under

Article 5 of the Constitution of India. The constitutional powers of the Union under Article 11 are

subject to the state constitution after the abolition of this separate citizenship, which accords a higher

standing to the state constitution. Women from the valley face a considerable disadvantage due to the

statute discussed above. Communities like the minority Kashmiri Pandits, who fled the region in the

1990’s, suffer even more due to the marriage of women to non-permanent residents. Moreover, their

return is even more difficult in lieu of these laws.216

213 Id.; Article 35A explained: What gives Jammu and Kashmir residents a ‘special’ status? DNA, October 30, 2017. 214 Constitution Act, 1939. 215 JUSTICE A.S. ANAND, THE CONSTITUTION OF JAMMU AND KASHMIR: ITS DEVELOPMENT & COMMENTS 174-

78 (7th ed., Universal Law Publishing Co. Pvt. Ltd.) (2013). 216 Jasbir Singh and Anupama Vohra, Citizenship Rights of Women in Jammu and Kashmir: An Uncertain

Future, IJGS, 169-70 (2007).



79

COLOMBIAN CONSTITUTIONAL COURT AND PEACE

AGREEMENT

Luisa Fernanda García López

Professor of Constitutional Law at the School of law of El Rosario University Bogota

(Colombia)

INTRODUCTION

Colombia is one of the few countries in Latin America that has kept its Constitution for more

than a hundred years. Despite the Constitution of 1886 having had several reforms, it endured

until 1991 after having gone through a period of important institutional, political, and social

crises. Then, in the elections of 1990, Colombians in the so-called “seventh ballot” voted in

favour of convoking a constituent national assembly. This assembly consisted of different

areas of society; therefore, it was considered a progressive constitution. Article 1 of the

Constitution defines the fundamentals of the state under the rule of Law shaped as a unitary

and decentralized republic with autonomy for territorial entities, a presidential regime, and a

system of checks and balances. Likewise, a recognized ethnic and cultural diversity as a

nation was included in the set of rights’ provision, and the constitution created the

Constitutional Court as a means to control the constitutionality of laws and to protect

fundamental rights through a guardianship or tutelage action. In 25 years of validity, the

Constitution has had more than forty constitutional reforms through legislative acts.

However, judicial activism has increased through the permanent activity of the Court and

what is being called the constitutionalization of law. Similarly, with the creation of this

Court, a recent phenomenon has been the judicialization of politics as a means through which

the Constitutional Court has intervened in politics, as is the case of decisions issued by this

corporation, on the occasion of the Peace Agreement signed between the FARC-EP and the

national government.

THE CONSTITUTION AND THE COURT

With the arrival of independence in 1811, the first Constitution foresaw a political control of

the rules; it was incumbent upon the senate to suspend a law for unconstitutionality until the

next legislative period when Congress had renewed. Later in 1821, the Constitution included

Article 157 with the possibility to exert a popular action of unconstitutionality to the public

authority and only until the Constitution of 1853 Article 42, the control of constitutionality

was incorporated as a judicial mechanism at the Colombian Supreme Court which consisted



80

of three magistrates elected by the people for four years217

. This constitutional control only

worked against the bylaws issued by departmental assemblies when they were considered

contrary to the Constitution. In the Constitution of 1858 where a federal regime was

established, the control of constitutionality was extended to all the States’ laws opposed to

the Federal Constitution. This mechanism contemplated a suspension of the laws from the

member states of the Supreme Court until the Senate would finally ruled on the validity or on

the nullity of the regulation. In respect of the Constitution of 1863, it resumed the same

outline of the Constitution of 1858 under the premise that the Supreme Court be unanimous

on the decision to waive from the legal system the opposing law of Constitution, but the

Senate was still the official holder of the final decision. Finally, the Constitution of 1886

abolished the Senate’s competence and transferred it to the Supreme Court, which in its

Article 151 conferred on the President the faculty to ask for the constitutionality control of

bills going to be turned into law. Then with Legislative Act No. 3 of 1910,218

the mechanism

of the class action lawsuits was incorporated regarding unconstitutionality.219

In the Constitution of 1991, the public class action of unconstitutionality was maintained and

additionally the action of guardianship (tutelage) was incorporated with the creation of the

Constitutional Court as the institution in charge of defending the primacy of the Constitution.

Article 241 of the Constitution grants the constitutionality control power over laws as well as

the power to review the judicial decisions that resolve the actions of guardianship (tutelage)

as a means of defending fundamental rights220

.

In Colombia, the constitutional system obeys a diffuse and concentrated system, since all the

judges of the Republic have the power to decide on the constitutionality of laws and to not

217 CONST. of 1853 art. 42: “The Colombian Supreme Court consists of three magistrates elected by the people

with full rights for a period of four years and named in temporary lacks by the Executive Power (…).” 218 CONST. of 1886 art. 41: “To decide on the feasibility of legislative acts declared unconstitutional by the

government or on all the laws or decrees accused as unconstitutional on the Constitution by any citizen, in a

prior audience by the Attorney General of Colombia.” 219 See in this regard, BREWER CARIAS ALLAN R, CONSTITUTIONAL JURISDICTION IN LATIN AMERICA in

Constitutional Jurisdiction in Latin America / coord by Domingo García Belaunde, 1997, ISBN 84-8155-238-0,

pp. 117-161; CHINCHILLA HERRERA TULIO CONCEPTIONS ON THE CONSTITUTIONAL JUDGE IN THE 1910 REFORM:

A QUESTION OF CONFIDENCE. Electronic Journal of the Faculty of Law and Political Science of the University

of Antioquia number 3, year 1, ISSN 2145-2784, January-April 2010. 220 The Statutory Law on the Administration of Justice Law 270 of 1996.

Article 43. Structure of The Constitutional Jurisdiction: The Constitutional Court exercises the protection of the integrity and supremacy of the Constitution in the strict and precise terms of articles 241 to 244 of the Political

Constitution. The Council of State is aware of the actions of nullity for unconstitutionality of the decrees issued

by the National Government, whose jurisdiction does not correspond to the Constitutional Court.

Judges and corporations that are required to issue decisions on guardianship or resolve actions or remedies

provided for the application of constitutional rights also exercise constitutional jurisdiction, exceptionally for

each specific case.



81

enforce a law to a specific case, while it is concentrated when only the Constitutional Court

can declare a law unenforceable with erga omnes effects.

The control of constitutionality in Colombia is done in both an abstract and a concrete221

manner. Indeed, the Court is in charge of ensuring the supremacy of the Constitution, and in

that sense, it undertakes a prior control of statutory laws222

, International treaties, and

legislative decrees issued by the president in states of emergency223

, as well as all

unconstitutionality actions filed by any citizen. As far as concrete control is concerned, all the

judges of the Republic are judges of guardianship, but the Constitutional Court has the

function of reviewing the rulings of guardianship, which makes it the maximum human rights

court. Given the above, the Constitution exhaustively handles all matters subject to abstract

control, and in the matter of concrete control all judges are constitutional judges. The

exception of unconstitutionality or the control of constitutionality by way of exception224

, can

be done by any judge, administrative authority, and even individuals, who have to enforce the

rule of law in a specific case. This type of control is done at the request of a party in a legal

process, the legal or regulatory rule that has been excepted as unconstitutional does not

disappear from the legal system and continues to be valid since the effects of exceptional

control are inter parts that only apply to the specific case.225

The action of guardianship or tutelage created a legal revolution in Colombia given that

access to justice was democratized and with it, Colombia entered the era of defense of

fundamental rights and judicial activism. In fact, given its speed and effectiveness, the action

of guardianship manages to be a mechanism that demonstrates the effectiveness in the

solution of controversies involving fundamental rights, but at the same time the people are

before a Court that is quite activist, that without a doubt is generating a legal change. Thus,

221

In this sense Pulido Ortiz, Fabio Enrique, CONSTITUTIONAL CONTROL ABSTRACT, CONCRETE,

MAXIMALIST AND MINIMALIST Prolegomenous. Rights and Values [online] 2011, XIV (January-June):

[Date of consultation: March 23, 2017] Available at: <http://www.redalyc.org/articulo.oa?id=87619038012>

ISSN 0121-182X. 222 CONST. of 1991 art. 152:

‘By means of statutory laws, the Congress of the Republic regulates the following matters:

a. Fundamental rights and duties of individuals and procedures and resources for their protection;

b. Justice administration;

c. Organization and regime of political parties and movements; statute of the opposition and electoral functions;

d. Institutions and mechanisms of citizen participation;

e. States of exception.’ 223 States of emergency are situations contemplated in the Constitution by which extraordinary powers are given

to the President to issue legislative decrees to avoid crisis that fall within the situations contemplated in articles

212, 213 and 215, which provide for an external State of War, State of inner commotion, economic, ecological

or social emergency. 224 Constitutional Court -C-122 of 2011. 225 Id.



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the people are witnessing a constitutional democracy or a constitutionalization of the legal

system.

CONSTITUTIONAL CONTROVERSIES

The Final Agreement (FA) that is in the implementation stage in Colombia has gone through

different phases that deserve to be highlighted, since the Constitutional Court has been a

decisive player in defining legal mechanisms when implementing the Final Agreement. After

four years of negotiations with the FARC-EP guerrillas, the government signed the FA in

November 2016. The Peace Agreement in Colombia has generated real constitutional

controversies and for that reason it is pertinent to mention two decisive moments in 2016 that

materialized through the call to the plebiscite and the implementation of the Final Agreement.

This convocation to the plebiscite was given through Statutory Law 1806 dated 2016 that had

a previous constitutionality review by the Constitutional Court in Sentence C-376 dated 2016.

Later with the victory of the NO vote in the plebiscite, the government did not modify the

Final Agreement in its entirety as suggested by the Constitutional Court, but instead made

some modifications that did not alter the essence of the agreement. The President decided to

submit the new Final Agreement only to Congress and not to a popular vote, with the

argument that the approval by Congress was an approval by the people, indirectly.

Subsequent to this, and in order to implement the Final Agreement approved by Congress,

Congress itself issued a legislative act aimed at reforming the Constitution to implement the

Final Agreement within Colombian law. This Legislative Act 1 dated 2016 established two

important elements that in turn generated serious constitutional controversies, such as the

abbreviated means to implement the Final Agreement also called "fast track" which was the

subject of review by the Court in Sentence C -699 dated 2016. In addition, the same

Legislative Act gave the Final Agreement the character of a Special Agreement, so that under

the guidelines of Article 3 of the Geneva Conventions of 1949, it will become part of

constitutional block. This aspect, as it was not defended, was not addressed in Sentence C-

699 dated 2016. Article 4 of Legislative Act 1 dated 2016 included a transitional article to the

Constitution giving a special mention to the SPECIAL AGREEMENT pertaining to the Final

Agreement signed between the FARC-EP and the Government. It is important to mention that

Special Agreements in International Humanitarian Law are there to implement the provisions

of IHL (International Humanitarian Law), which does not correspond to the content or

purpose of this FINAL AGREEMENT, which foresees very different issues such as

negotiating, amnesty or general pardon for political and related offenses. The FA also



83

foretells a transitional justice system for crimes of international gravity, public policies on

issues such as agrarian development, treatment of drug trafficking and political participation,

and finally the conditions of gathering and abandoning weapons. These issues were already

developed internally in Colombia with Law 418 dated 1997 and Law 1779 dated 2016, which

contemplated ending the armed conflict.

In conclusion, special agreements covered by common Article 3 of the Geneva Conventions

are there to implement the provisions of International Humanitarian Law, not exactly to end

an internal armed conflict. Such agreements cannot be assimilated to treaties between States,

nor can they imply recognition of belligerence for an armed group.

MAJOR CASES

It is pertinent to point out that the most emblematic cases in 2016 were marked by two

rulings that defined the orientation of the peace process in Colombia. That is why it is

pertinent to mention the Sentence C-376 dated 2016 that reviewed the viability of the special

plebiscite (A), and the Sentence C-699 dated 2016 reviewing two articles of the challenged

Legislative Act 1 dated 2016, which authorized the Fast track (B) implementation of the Final

Agreement.

THE SPECIAL PLEBISCITE

Before the Final Agreement was signed, it had to be endorsed by a plebiscite, which was the

means chosen by government so that the people through the ballot box would endorse the

content of the agreement. The President, as per the discretion granted to him via Article 189

of the Constitution, decided to call a plebiscite so that the people could directly endorse or

reject the content of the Final Agreement, in Ending the Conflict and in Building a Stable and

Long-lasting Peace. In the Constitution, Article 104 includes the plebiscite as one of the

means for citizen participation and they are developed via Statutory Laws 134 dated 1994 and

1757 dated 2015. The statutory bill regulating this plebiscite (statutory law 1806 dated 2016)

as a mechanism for implementing the Habana agreements (FA) contemplated a "special

plebiscite," in which the Court said that it fulfilled all the requirements to achieve the

objective of stable and lasting peace. The category of "special plebiscite" was a specific

innovation or creation for this context, since in this case the approval threshold for the

implementation of the FA was reduced to 13%. Therefore, the Court considered that the

"special plebiscite" was equivalent to the plebiscite, in accordance with the provisions of

article 104 of the Constitution, confirming that it was a mechanism that sought to legitimize

the people to the initiative of the President, to sign a peace agreement with the FARC -EP.



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Likewise, Article 2 establishes rules and procedures in carrying out the special plebiscite and

it establishes a modification to the threshold in respect of previous statutory laws, decreasing

to an 13% equivalent of the electoral census approving threshold. In other words, the number

of affirmative votes was higher than the negative ones, which did not take into account the

regime for the plebiscites provided for in Laws 134 dated 1994 and 1757 dated 2015 that

gave to plebiscites a participation threshold of 50% of the electoral census.

In addition, Article 3 of this law foresaw that the decision approved through the plebiscite

would be "binding." It was understood to be mandatorily binding, which implied that, if

approved by the people, all legal mechanisms would be developed in implementing the Final

Agreement in the legal system, but if it was not approved it would not have binding effects in

the constitutional and legal areas. The Court further developed this premise by pointing out

that the Final Agreement was a political decision and was not a legal one, reason why it was

necessary to resort to legal rules when implementing and the Final Agreement could not be

included directly in the legal system. If it were to be directly included, it would have the

effects of a referendum and not a plebiscite. Similarly, in the same ruling, the Court clarified

and declared unenforceable the article authorizing the executive to implement the contents of

the FA. The Court clarified that the plebiscite was not a means to reform the Constitution

because it would run counter to Constitutional supremacy as it was already stated in Sentence

C-141 dated 2010, which declared the law of convening a constitutional referendum

unenforceable to allow the second re-election in that year. In effect, they argued that a true

democratic process "requires the establishment and maintenance of rules governing the

manifestations of popular will, prevent a majority from attributing the exclusionary voice of

the people and incorporate minorities in the political process, because they are part of the

people and are also assisted by the right to use those common rules that constitute the budget

of equality with which all, whether belonging to the majority or minorities, concur to

democratic contests.”

In the event that the NO vote won in the plebiscite because the approval threshold was not

reached, or the NO vote was higher than the YES vote, the Court stated that the president

could not implement that specific agreement. The President had through a new special

plebiscite to submit a new agreement to the people with different conditions from those

initially agreed, the result of a renegotiation of the Agreement, and the signing of a new one

even with other illegal groups other than the FARC-EP. Thus, regardless of whether the

plebiscite were to have a positive or negative response, the Court demanded that the political



85

branches gives effect to the popular manifestation and not a simple mechanism of validation

of government policies.

FAST TRACK AND SEPARATION OF POWERS

Sentence C-699 dated 2016 examined the lawsuit against Legislative Act 1 dated 2016, which

proposed constitutional amendments referring to the implementation of the Final Agreement.

This Legislative Act had five articles, and through a public class action of unconstitutionality

two articles were challenged. The complainant argued that these two articles were

unconstitutional constitutional amendments because they were substitutions of the

constitution. Part of Article 1, says the plaintiff, replaced the principles of supremacy, rigidity

and constitutional control, because the article, reduced the number of debates required for the

adoption of legislative acts to four in a period of six months that can be extended for another

six months. It should be noted that the Constitution foresees a procedure for legislative acts of

eight debates in two consecutive legislative periods, i.e. two legislatures; with the draft in the

second round needing approval by the majority of the members of each chamber and not by

simple majority. Article 2 affirms the plaintiff, replaces the principle of separation of powers,

since the reform to the Constitution cannot be delegated, and this article conferred

extraordinary powers to the Government to legislate on the FA. Thus, the Congress could not

use its power of reform the Constitution since it made a legislative "delegation" that was

given to the executive.

The Court, in Sentence C - 699 dated 2016, concluded that the special process of

constitutional reform contemplated in Legislative Act 1 dated 2016 includes three stages: a

popular endorsement, a parliamentary stage, and an automatic constitutional control. The

Court also says that Legislative Act 1 dated 2016 does not provide for a strict definition of

"popular endorsement", nor does it refer to a specific mechanism for democratic

participation, reason why the institutions in charge of implementing the act have a wide

margin of configuration and interpretation. Again, the Court referred to a special procedure of

Constitutional reform, which states that it must be preceded by a popular endorsement, which

can conclude in the Congress. The Court affirms that Legislative Act 1 dated 2016 authorized

Congress to produce legislative acts in a single round with four debates. Its objective was to

achieve peace and it also constituted a special, exceptional, and transitional reform, which

added a procedure to those provided in the constitutional amendment clauses. In addition, the

Court held that Article 2 of Legislative Act 1 dated 2016 was an extraordinary legislative



86

authorization for the President of the Republic to have extraordinary powers for 180 days on

a temporary basis, in implementing the Final Agreement.

The Court held that these provisions thus did not replace the principle of separation of powers

since they were not constitutional amendments but merely provisional legislative delegations.

It added that the Constitution was not replaced when principles such as "legislative delegation

pro tempore, as long as it is specific" were modified. Due to the above, a fast track procedure

was established whereby there was a process of deliberation without debates, where Congress

had to approve or disapprove the reforms introduced by the Government, and where the

constitutional control of legislative acts that were introduced via fast track could only be

worked by procedural defects in its formation, therefore the court would not exercise any

Constitutional control.

CONCLUSION

The NO vote of plebiscite is overlooked, the separation of powers is breached, and even

worse, legislative independence has been subject to the will of the executive. The separation

of powers has been crushed, and the primary constituent has been subjected to a political

agreement that became a constituent national assembly.

Currently, via "fast track", there is a procedure in congress to incorporate the Final

Agreement into the block of constitutionality, trying to shield the content of the Peace

Agreement from being changed during the next three presidential periods. Thus, when trying

to carry out a constitutional review of the rules that are executed via fast track, the

constitutional court must take into account the Final Agreement. Thus, the Final Agreement

will be the referent because it would part, in strict sense, to the constitutionality block, which

implies that the Final Agreement would have been written in stone and it would have

amended the Constitution without having the primary Constituent participate. It is surprising

that the Constitutional Court, usually a staunch defender of the Constitution, has made so

many concessions to the current government. So far there has been a Constitutional Court

that is quite complacent with the current government to incorporate all the contents of the

final agreement into the Colombian legal system. This has generated serious criticism of the

judiciary and in particular pertaining to the independence of the Constitutional Court as a

guardian of the integrity of the 1991 Constitution. The Court did not allow the NO of the

plebiscite to prevail, nor did it defended the separation of powers, and it has been very

complacent with the executive power by endorsing the restrictions imposed on Congress in

the process of implementing the Final Agreement, approving the fast track mechanism.



87

However, in recent days the Court in Sentence C 331 dated 2017, in conducting an automatic

constitutional review of one of the fast track decrees, showed a change of position

outstandingly adjusted to law. It is the decree turned into law 298 dated 2017 whose purpose

is to comply with what was agreed in point 3.4.7.4 of the Agreement where the creation of a

Program of Integral Protection to protect the members of the transit of the FARC to the

legality and of their former members and family members who are reincorporated into

civilian life was foreseen. This program foresees a series of measures that will be assumed by

the UNP (national protection unit) since, as the government states, members of the FARC

become subjects of special protection. The Court, when conducting the constitutionality

review, concluded that Decree turned into Law 298 dated 2017 complied with the formal

requirements for its issuance. Likewise, it established that the connection established between

this decree and the Final Agreement is fully followed.

Likewise, the Court examines the strict necessity of issuing this decree turned into law, and

that the government must justify that "the extraordinary legislative measure is imperative" in

relation to existing procedures, i.e., the Court asks if the urgency is such that it cannot be

done by existing ordinary legal mechanisms.

This issued had already been discussed in those terms in Sentence C-160 dated 2017 when

they clarified the eminently legal nature of the control of the decrees issued under the

legislative powers for peace: "This is strictly a legal trial in which grounds are given by Law

to affirm or deny the validity of the regulation under control ".

Faced with this challenge, the Court states that the measure adopted by Decree turned into

Law 298 dated 2017 fully complied with the requirement of strict necessity, taking into

account that the implementation of the material measures of protection of the members of the

new party or political movement, as well as the demobilized and their families, is covered

with urgency. However, the Court adds that Decree turned into Law 298 dated 2017 is

unconstitutional given that it is regulating a matter expressly excluded by Legislative Act 1

dated 2016 that grants legislative powers to the President for peace. The Court clarifies that

the powers granted to the President are not to reform an organic norm.

Article 2 of Legislative Act 1 dated 2016 states that legislative powers for peace may not be

used to issue legislative acts, statutory laws, organic laws, codes, laws that require qualified

or absolute majorities for their approval, or to enact taxes. On the other hand, judgment C-

699 dated 2016 considered in the ruling the content of the limitation to the legislative powers



88

of the President: "The decrees turned into law that are issued under these extraordinary

powers must facilitate or ensure the normative development of the Final Agreement, and

cannot deal with certain matters with special or strict reservation to the law. " The Court

states that the strict reservation to the law refers to the fact that the Constitution confers

exclusively to the Congress of the Republic and cannot be delegated or constitutionally

attributed to the President, since it is "(...) matters which, given their very nature, require as

much democratic discussion as possible. "

In addition, the Colombian Constitution empowers only the Congress to legislate on certain

matters, through a procedure that requires special majorities, in their voting and cannot be

delegated precisely because the procedure established in the Constitution would not be

observed. They are, among others, organic laws, which have a regulatory and constitutive

character and are used as parameters to control the regulative rules that are issued later.

In summary, Decree turned into Law 298 dated 2017 "Excluding the National Protection Unit

from the restrictions provided for in article 92 of Law 617 dated 2000" will be declared

unenforceable because of regulating a matter expressly excluded by Legislative Act 1 dated

2016 when establishing a reform to article 92 of Law 617 dated 2000 that is an organic

norm226

.

Thus, the argument of the reservation of law outlined by the Court is that section 92 of Act

617 dated 2000 empowers only the legislator to rule on matters that were cited in the organic

law implying that no other body is Qualified to do so, because these laws require a special

procedure that is not followed if the President were to exercise it with extraordinary powers.

In fact, the essence of the organic law is to give a majority participation that gives it precisely

that category of organic law and legitimizes it as such. Similarly, Article 92 of Law 617 dated

2000, having a constitutive and non-regulatory nature, imposes limits and grants powers to

institutions. As decree turned into law 298 dated 2017 was excluding the UNP to not apply a

limit established by the legislator in the organic law mentioned, this decree turned into law

298 alters the powers that Congress initially attributed to it in the law.

226 It is important to note that it is intended to not enforce Article 92 of Law 617 dated 2000, a rule of fiscal

discipline that reads as follows:

"Article 92. Control of Personal Expenses: During the next five (5) years, as of the effective date of this law, the

annual growth of personnel expenses of National Public Entities shall not exceed on average ninety percent

(90%) of the goal of Expected inflation for each year, according to the projections of the Republic Bank. From

the sixth year, these expenses will not be able to grow in real terms ".



89

With this ruling, the Court limits the President's extraordinary powers and thereby limits the

scope of the fast track mechanism. The Congress must recover its deliberative and

participatory capacity in matters of considerable national and juridical transcendence, as is

the peace agreement. The Constitutional Court has a great responsibility in this matter and

must recover the preeminence of the Constitution that cannot yield to interests derived from a

political agreement between the Government and the FARC. A judicious review is the least

that is expected of the Constitutional Court when exercising constitutionality controls that are

to come; to cite an example the Constitutionality review of the Special Justice system for

Peace, reiterating that the institutions of the country are at stake and that the role of judges is

crucial at this juncture. The Constitutional Judge is called upon to demonstrate his

impartiality, his objectivity and his legal criteria in defense of the separation of powers,

guaranteeing the preeminence of the Constitution, a fundamental premise of the Declaration

of the bill of rights and citizens of 1789 (art. 16) "A Society in which the guarantee of the

Rights is not established, nor the separation of the Powers determined, lacks Constitution".

To this, the Court adds that Decree 298 of 2017 is the result of extraordinary legislation that

does not apply a prohibition enshrined in article 92 that has the following elements: (i)

character: the exception of article 92 changes a Prohibition by permission; (Ii) the target

subject: article 92 includes several entities and decree 298 of 2017 excepts to one of them: the

National Protection Unit; (Iii) content: personnel expenses could not grow and with decree

298 of 2017 is possible; And (iv) the occasion: the temporary location that was indeterminate,

changes to generate the exception during the current fiscal period. This type of change,

without a doubt, constitutes a reform the court points out in sentence C331 of 2017.

The Indian Constitutional Law Review ISSN: 2456-8325 | Edition V


Thanking Note

The Editorial Board, Student Coordinators and the Advisory Members of the

Indian Constitutional Law Review seek to express their gratitude to all members

and contributors who have made immensely valuable contributions to the growth

and evolution of the Constitutional law landscape of India. We express our

heartfelt gratitude to all Advisory Members who have provided their valuable

insights in the framing of this edition. The Student Editors have also played a

crucial role in the development and outcome of this publication.

AMIT SINGHAL

Editor-in-Chief

On behalf of the esteemed members of the Editorial Board, Honourable Members of the

Advisory Council & the members of the Publishing Unit

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