Role of Judiciary in Democracy

Judicial powers and its scope

Judiciary enjoys neither the legislative nor executive power. Its duty is to preserve Constitution, its mandates and make the people wielding power to act within limits provided by the Constitution and make them directly accountable for their acts to the authorities provided under the hierarchy of Constitution. It is said constitution is just to be common sense of the people and was never designed for trial of logical skills or visionary speculation.

Once the limits are imposed by law or Legislature, consequences are inevitable. The acts can only be done in accordance with the enactment. Judges’ morality or morality of one section may be pernicious. Courts cannot impose their views for the governance of the people who have a right to be governed by law or elective representatives but not by an unelected representatives and unaccountable committee of lawyers applying no will but their own. Continue reading “Role of Judiciary in Democracy”


Legal doctrine of Occupied Field

Doctrine of Occupied Field is attracted in a variety of ways. For example if a special law covers a subject, general law stands automatically excluded because that field of law is already occupied.

Claim of Gratuity made  under Section 33-C(2) Industrial Disputes Act instead of Payment of Gratuity Act — Validity.

It was urged that the Payment of Gratuity Act is a self-contained code incorporating all the essential provisions relating to payment of gratuity which can be claimed under that Act, and its provisions impliedly exclude recourse to any other statute for that purpose.

Supreme Court accepted this contention in following words:

“A careful perusal of the relevant provisions of the Payment of Gratuity Act shows that Parliament has enacted a closely knit scheme providing for payment of gratuity. A controlling authority is appointed by the appropriate Government under section 3 and Parliament has made him responsible for the administration of the entire Act. In what event gratuity will become payable and how it will be quantified are detailed in section 4. Section 7(1) entitled a person eligible for payment of gratuity to apply in that behalf to the employer. Under section 72, the employer is obliged,as soon as gratuity becomes payable and whether an application has or has not been made for payment gratuity, to determine the amount of gratuity and inform the person to whom the gratuity is payable specifying the amount of gratuity so determined. He is obliged, by virtue of the same provision, to inform the controlling authority also, thus ensuring that the controlling authority is seized at all times of information in regard to gratuity as it becomes payable. If a dispute is raised in regard to the amount of gratuity payable or as to the admissibility of any claim to gratuity, or as to the person entitled to receive the gratuity, section 7(4) a requires the employer to deposit with the controlling authority such amount as he admits to be payable by him as gratuity. The controlling authority is empowered. under section 7(4)(b), to enter upon adjudication of the dispute, and after due inquiry, and after giving the parties to the dispute a reasonable opportunity of being heard, he is required to determine the amount of gratuity payable.

Continue reading “Legal doctrine of Occupied Field”

Arbitration clause can not oust tenancy protection law

Arbitration clause in Rent Agreement

Facts of the Tenancy eviction case:

The appellants have inducted the respondents as tenants in respect of a shop room measuring 600 sq. feet at HA-3, Sector-3, Salt Lake City, Kolkata, and paying a monthly rent to the appellants. In respect of the tenancy, the appellants and the respondents have executed an unregistered tenancy agreement which has been notarized on 10.11.2003. On 06.03.2008, the appellants, through their Advocates, served a notice on the respondents terminating the tenancy and asking them to vacate the shop premises and the notice stated that after April, 2008 the relationship of landlord and tenant between the appellants and the respondents shall cease to exist and the respondents will be deemed to be trespassers liable to pay damages at the rate of Rs.500/- per day for wrongful occupation of the shop. The respondents, however, did not vacate the shop premises and the appellants filed Title Suit No.89 of 2008 against the respondents for eviction, arrears of rent, arrears of municipal tax, mesne profit and for permanent injunction in the Court of the Civil Judge (Senior Division), 2nd Court at Barasat, District North 24-Parganas in the State of West Bengal. In the suit, the respondents filed a petition under Section 8 of the Arbitration and Conciliation Act, 1996 (for short ‘the 1996 Act’) stating therein that the tenancy agreement contains an arbitration agreement in clause 15 and praying that all the disputes in the suit be referred to the arbitrator. By order dated 10.06.2009, the learned Civil Judge dismissed the petition under Section 8 of the 1996 Act and posted the matter to 10.07.2009 for filing of written statement by the defendants (respondents herein).

Aggrieved, the respondents filed an application (C.O. No.2440 of 2009) under Article 227 of the Constitution of India before the Calcutta High Court and contended that the tenancy agreement contains an arbitration agreement in Clause 15, which provides that any dispute regarding the contents or construction of the agreement or dispute arising out of the agreement shall be settled by Joint Arbitration of two arbitrators, one to be appointed by the landlords and the other to be appointed by the tenants and the decision of the arbitrators or umpires appointed by them shall be final and that the arbitration will be in accordance with the 1996 Act and, therefore, the learned Civil Judge rejected the petition of the respondents to refer the disputes to arbitration contrary to the mandate in Section 8 of the 1996 Act. The appellants opposed the application under Article 227 of the Constitution of India contending inter alia that the dispute between the appellants and the respondents, who are landlords and tenants respectively, can only be decided by a Civil Judge in accordance with the provisions of the West Bengal Premises Tenancy Act, 1997 (for short ‘the Tenancy Act’). By the impugned judgment dated 16.04.2010, the High Court has held that in view of the decisions of this Court in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums [(2003) 6 SCC 503], Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors. [(2007) 3 SCC 686] and Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata & Anr. [(2009) 10 SCC 103], the Court has no other alternative but to refer the disputes to the arbitrators to be appointed by the parties as per the arbitration agreement. The High Court, however, has observed in the impugned judgment that if any dispute is raised regarding arbitrability of such dispute before the arbitral tribunal, such dispute will be decided by the arbitral tribunal.

Relevant Rent/Tenancy Law:

The relevant portion of Section 6 of the Tenancy Act 1997 is quoted hereinbelow:

“6. Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, except on a suit being instituted by such landlord on one or more of the following grounds………..”
[Note the words in red.]


Supreme Court decided that arbitration clause is overridden by Tenancy Act:

It will be clear from the language of Section 6 of the Tenancy Act 1997 quoted above that ‘notwithstanding anything to the contrary contained in any contract’, no order or decree for recovery of possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, ‘except on a suit being instituted by such landlord’ on one or more grounds mentioned therein. It is, thus, clear that Section 6 of the Tenancy Act overrides a contract between the landlord and the tenant and provides that only the Civil Judge having jurisdiction can order or decree for recovery of possession only in a suit to be filed by the landlord.

In this case, there is an arbitration agreement in clause 15 of the tenancy agreement, which provides that any dispute regarding the contents or construction of the tenancy agreement or dispute arising out of the tenancy agreement shall be settled by arbitration in accordance with the provisions of the 1996 Act. But the words ‘notwithstanding anything in any contract’ in Section 6 of the Tenancy Act, will override the arbitration agreement in clause 15 of the tenancy agreement where a suit for recovery of possession of any premises has been filed by a landlord against the tenant. Such a suit filed by the landlord against the tenant for recovery of possession, therefore, cannot be referred under Section 8 of the 1996 Act to arbitration. In fact, sub-section (3) of Section 2 of the 1996 Act expressly provides that Part-I which relates to ‘arbitration’ where the place of arbitration is in India shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. Section 6 of the Tenancy Act is one such law which clearly bars arbitration in a dispute relating to recovery of possession of premises by the landlord from the tenant. Since the suit filed by the appellants was for eviction, it was a suit for recovery of possession and could not be referred to arbitration because of a statutory provision in Section 6 of the Tenancy Act.

The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in Section 8 of the 1996 Act. On the contrary, the relief claimed by the appellants being mainly for eviction, it could only be granted by the “Civil Judge having jurisdiction” in a suit filed by the landlord as provided in Section 6 of the Tenancy Act. The expression “Civil Judge having jurisdiction” will obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit.

[Source: Ranjit Kumar Bose v. Anannya Chowdhury]

Constitution of India is quasi federal in nature.

Constitution of India:

Federal of Unitary?

Debate about federal or unitary Constitution:

When the Constitution of India which came into force on January 26, 1950, Mr. Wheare [author of Federal Government, 4th Edition, pages 26-27.], said “Constitution of republic of India, has federal features though it does not in fact claim that it establishes a Federal Union………It seems clear that after allowing for the federal features of the Indian Union, it can only be concluded that the Constitution is ‘ quasi-federal.’

Supreme Court of India agrees that Constitution of India is quasi federal:

India is not a federal State in the traditional sense of the term. Continue reading “Constitution of India is quasi federal in nature.”

Original Jurisdiction of Supreme Court of India under article 131 of Constitution of India.

Original Jurisdiction of Supreme Court of India

Article 131 of the Constitution of India defines the original jurisdiction of Supreme Court of India.

The Supreme Court of India has Original jurisdiction in respect of following matters:

  1. between the Government of India and one or more States; or
  2. between the Government of India and any State  or States on one side and one or more other States on the other; or
  3. between two or more States,

if, and in so far as, the dispute involves any question (whether of law or of fact), on which the existence or extent of a legal right depends.

Suit against Railway over a commercial dispute: Continue reading “Original Jurisdiction of Supreme Court of India under article 131 of Constitution of India.”

Substantive Due Process of Law in India

Comparison of Substantive Due Process
with Doctrine of Basic Structure of Constitution

‘Due process of law’ is a term used in USA Constitution and it enables court to strike down laws on somewhat more wide grounds that the doctrine of ultra vires used by English Courts. In India similar result is obtained by the  of violation  ‘Doctrine of Basic Structure of Constitution.’

Following observations of Allahabad High Court make an interesting point in this regard:

“27. Thus we see that the ‘due process’ clause was specifically and deliberately excluded from the Constitution by the Constitution makers, and this fact was noted in A. K. Gopalan’s case (AIR 1950 SC 27) (supra). However, in Sunil Batra v. Delhi Admn., (1978) 4 SCS 494 : (AIR 1978 SC 1675), Krishna Iyer, J. held that after the decisions in R. C. Cooper’s case (AIR 1970 SC 564) and Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the due process clause must be deemed to be ingrained in Article 21. No doubt in Air India v. Nergesh Meerza, AIR 1981 SC 1829 (paras 84 and 85) there are some observations to the contrary (in a 3 Judge bench decision) but these have been made without noticing the series of decisions on Article 21 (mentioned above), beginning from Maneka Gandhi’s case (which is a 7 Judge Constitution Bench Decision), and hence these observations have to be either treated as per incuriam or restricted to mean that the ‘due process’ clause cannot be utilized in our country to invalidate laws infringing freedom of contract. (It is well known that the U. S. Supreme Court had at one time struck down several laws infringing freedom of contract, particularly some of the Neal Deal Legislation of President Roosevelt, on the ground that they violated the ‘due process’ clauses in the Fifth and Fourteenth Amendments).

28. It may be mentioned that ‘due process’ is of two kinds procedural due process, and substantive due process. Procedural due process means that no one can be deprived of his life, liberty or property except in accordance with the procedure laid down in the statutory law. Substantive due process means that this procedure (for depriving a person of his life, liberty or property) must be fair, just and reasonable. Thus, while on a literal interpretation Article 21 only embodies procedural due process, by judicial interpretation it has been held to include substantive due process also. Thus, in Bachan Singh v. State of Punjab, AIR 1982 SC 1325, the Supreme Court held that ‘the concept of reasonableness runs through the entire fabric of the Constitution’ (vide para 16), and also “every facet of the law which deprives a person of life or personal liberty would therefore, have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21” (vide para 16).

29. In Maneka Gandhi’s case (AIR 1978 SC 597) (supra) the Supreme Court observed (vide para 56): “The principle of reasonableness which legally as well as philosophically is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer to the test of reasonableness in order to be in conformity with Article 14.”

30. I may clarify that I am not resting my decision on the “due process” clause. Even independently of the ‘due process’ clause the same conclusion-can be reached on the basis of the decision in Maneka Gandhi’s case and other decisions of the Supreme Court on Articles 14 and 21. I have referred to the due process’ clause only to point out that substantive due process means (so far as life and liberty is concerned) almost the same thing which has been said in Maneka Gandhi’s case, namely, that the procedure depriving one of his life or liberty must be fair, just and reasonable.”

Source: Ganesh Chandra Bhatt v. Distict Magistrate

This judgement produces an interesting debate about the subject.

Positive discrimination in promotion

Discrimination under Article 16 of Constitution of India.

Accelerated Promotions in employment:

Reservation in promotion with consequential seniority, if legally valid?

The Question:
Petitioners invoked Article 32 of the Constitution for a writ in the nature of certiorari to quash the Constitution (Eighty-Fifth Amendment] Act, 2001 inserting Article 16(4A) of the Constitution retrospectively from 17.6.1995 providing reservation in promotion with consequential seniority as being unconstitutional and violative of the basic structure.

Observations of Supreme Court: 

Constitution is not an ephemeral legal document embodying a set of legal rules for the passing hour. It sets out principles for an expanding future and is intended to endure for ages to come and consequently to be adapted to the various crisis of human affairs. Therefore, a purposive rather than a strict literal approach to the interpretation should be adopted. A Constitutional provision must be construed not in a narrow and constricted sense but in a wide and liberal manner so as to anticipate and take account of changing conditions and purposes so that constitutional provision does not get fossilized but remains flexible enough to meet the newly emerging problems and challenges.
This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value.

At the outset, it may be noted that equality, rule of law, judicial review and separation of powers are distinct concepts. They have to be treated separately, though they are intimately connected. There can be no rule of law if there is no equality before the law; and rule of law and equality before the law would be empty words if their violation was not a matter of judicial scrutiny or judicial review and judicial relief and all these features would lose their significance if judicial, executive and legislative functions were united in only one authority, whose dictates had the force of law. The rule of law and equality before the law are designed to secure among other things justice both social and economic. Secondly, a federal Constitution with its distribution of legislative powers between Parliament and State legislatures involves a limitation on legislative powers and this requires an authority other than Parliament and State Legislatures to ascertain whether the limits are transgressed and to prevent such violation and transgression.

Once it is held that fundamental rights could be abridged but not destroyed and once it is further held that several features of the Constitution can not be destroyed, the concept of ‘express limitation’ on the amending power loses its force for a precise formulation of the basic feature of the Constitution and for the courts to pronounce on the validity of a constitutional amendment.

In the present case, we are concerned with the right of an individual of equal opportunity on one hand and preferential treatment to an individual belonging to a backward class in order to bring about equal level- playing field in the matter of public employment. Therefore, in the present case, we are concerned with conflicting claims within the concept of ‘justice, social, economic and political’, which concept as stated above exists both in Part-III and Part-IV of the Constitution. Public employment is a scarce commodity in economic terms. As the supply is scarce, demand is chasing that commodity. This is reality of life. The concept of ‘public employment’ unlike right to property is socialistic and, therefore, falls within the preamble to the Constitution which states that WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC.
Similarly, the preamble mentions the objective to be achieved, namely, justice, social, economic and political. Therefore, the concept of ‘equality of opportunity’ in public employment concerns an individual, whether that individual belongs to general category or backward class. The conflicting claim of individual right under Article 16(1) and the preferential treatment given to a backward class has to be balanced. Both the claims have a particular object to be achieved. The question is of optimization of these conflicting interests and claims.

Conclusions on validity of accelerated promotion:

The impugned constitutional amendments by which Articles 16(4A) and 16(4B) have been inserted flow from Article 16(4). They do not alter the structure of Article 16(4). They retain the controlling factors or the compelling reasons, namely, backwardness and inadequacy of representation which enables the States to provide for reservation keeping in mind the overall efficiency of the State administration under Article 335. These impugned amendments are confined only to SCs and STs. They do not obliterate any of the constitutional requirements, namely, ceiling-limit of 50% (quantitative limitation), the concept of creamy layer (qualitative exclusion), the sub-classification between OBC on one hand and SCs and STs on the other hand as held in  Indra Sawhney v. Union of India, the concept of post-based Roster with in-built concept of replacement as held in R.K. Sabharwal & Others v. State of Punjab
We reiterate that the ceiling-limit of 50%, the concept of creamy layer and the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency are all constitutional requirements without which the structure of equality of opportunity in Article 16 would collapse.
However, in this case, as stated, the main issue concerns the “extent of reservation”. In this regard the concerned State will have to show in each case the existence of the compelling reasons, namely, backwardness, inadequacy of representation and overall administrative efficiency before making provision for reservation. As stated above, the impugned provision is an enabling provision. The State is not bound to make reservation for SC/ST in matter of promotions. However if they wish to exercise their discretion and make such provision, the State has to collect quantifiable data showing backwardness of the class and inadequacy of representation of that class in public employment in addition to compliance of Article 335. It is made clear that even if the State has compelling reasons, as stated above, the State will have to see that its reservation provision does not lead to excessiveness so as to breach the ceiling-limit of 50% or obliterate the creamy layer or extend the reservation indefinitely.
Subject to above, we uphold the constitutional validity of the Constitution (Seventy-Seventh Amendment) Act, 1995, the Constitution (Eighty-First Amendment) Act, 2000, the Constitution (Eighty-Second Amendment) Act, 2000 and the Constitution (Eighty-Fifth Amendment) Act, 2001.
M. Nagaraj v. Union of India, decided by Supreme Court of India on 19 October, 2006.

Note: Thus the Court will evaluate each law to see if it is supported by data.
Does it not involve subjective Due Process of another kind?

How fundamental are the Fundamental Rights of citizens of India.

Ninth Schedule of Constitution of India.

Can a law included in Ninth schedule of the Constitution of India, be challenged on the ground that it violates basic structure of the Constitution even if it can not be challenged as being violative of Fundamental Rights in Part III of the Constitution?


Doctrine of Basic Structure of Constitution and fundamental rights.

(i) A law that abrogates or abridges fundamental rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

(ii) The majority judgment in Kesavananda Bharati’s case read with Indira Gandhi’s case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the fundamental rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

Judicial review to check violation of Basic Structure of the Constitution:

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.
This is our answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho v. State of Tamil Nadu [(1999) 7 SCC 580].

Prospective operation of judgement:

(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.

(vi) Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.

[Full judgement source: I.R.Coelho v. State Of Tamil Nadu.]

Appeal: Absence of remedy of appeal is not unconstitutional.

Remedy of appeal if not necessary:

Quasi judicial proceedings without remedy of appeal; Validity.

It is attractive to hear the argument that an order passed by an authority, which becomes infallibly final in the absence of an appeal or revision, is apt to be arbitrary and bad.


An appeal is a desirable corrective but not an indispensable imperative and while its presence is an extra check on wayward orders its absence is not a sure index of arbitrary potential. It depends on the nature of the subject matter, other available correctives, possible harm flowing from wrong orders and a wealth of other factors.

Necessity of appeal is determined by subject matter:

If a death sentence is allowed to become conclusive without so much as a single appeal, Articles 14 and 21 may imperil such a provision but if a fine of Rs. 5/- imposed for a minor offence in a summary trial by a First-Class Magistrate is imparted a finality, subject, of course, to a constitutional remedy in the event of perverse or patent illegality we may still uphold that provision with an easy constitutional conscience. In the present case, a hearing is given to the affected party. Reasons have to be recorded in the order awarding damages. The writ jurisdiction is ready to review glaring errors. The maximum harm is pecuniary liability limited by the statute. A high official hears and decides. Under such circumstances the needs of the factual situation and the legal milieu are such that the absence of appellate review in no way militates against the justice and reasonableness of the provision. The argument of arbitrariness on this score is untenable. The section is not bad. Maybe, action under the section may be challenged in writ jurisdiction provided infirmities which attract such jurisdiction vitiate the order.

[Source: Per Kirishna Aiyer J. in Organo Chemicals.]