CHAPTER 1 : GENERAL INTRODUCTION

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Illustration No 1. Goddess of Justice in the Supreme Court of India.

II Yato Dharmas Tato Jayah. II [ Whence Law, Thence Victory.]
[The Supreme Court of India :From- The Great Monogram.][1]

1.1 INTRODUCTION

It is proposed that the Role of the Supreme Court in adding to the advancement of
Constitution Law of India is extremely vital and testing. That is on the grounds that India
became a Republic in 1949 when The Father of the Indian Constitution – Dr.
Babasaheb Ambedkar dedicated an excellent National Constitution to the Nation. It was
and still is an infant republic as the passing of sixty five years is just like a drop in the
long History of India which had previously been under the different monarchies with
autocratic rules. The common people were accustomed to the despotic rule of the
native as well as the foreign rulers from the countries like Greece, Turkey, Arabia,
England, France and last but not least Portugal. The small Princely States were always
under strong central Sovereigns like the Chakrvarti Ashoka the Great in ancient times,
the Shehenshahs like Akbar the Great in medieval times and the Emperors like King –
Emperor George VI in modern times. Dr. Ambedkar always stressed that the
Democracy is not only a system of Government but also is an influential way of common
life and he expected that the people of India would quickly grasp the ways of life
suitable to a Territorial Representative Democracy. However the medieval attitude of
some of the people causes injustice as they don’t truly believe in the noble principles of
liberty equality and fraternity enshrined under the Constitution Law of India. In such
circumstances it becomes the sacred duty of the Supreme Court of India to set the
things right by deciding the matters of the parties who knock the doors of the justice.
Sometimes the Court has to take the SUO MOTU Actions as the victim is so
suppressed that cannot come to the Bench on account of socio-economic as well as
political reasons.
Dr. Ambedkar has particularly made the Indian Constitution partly rigid and partly
flexible. He must have expected certain changes in the passage of time. He was looking
ahead of his ages. He also knew the limitations of any written document. He once
expressed an important opinion that the success of a Constitution depends not upon its
liberal provisions but upon its prudent runners. Internationally acknowledged jurists
Bradley and Wade in their book made the point clearer when they composed:
"However, no composed report alone can guarantee the smooth working of an
arrangement of a Government. A composed archive has no more prominent power than
that which people in power will ascribe to it… Nor can a composed Constitution contain
all the point by point rules whereupon Government depends."[2]
Dr. Ambedkar was very careful about the Indian historical and the social factors which
ultimately become economic too. In a representative democracy based upon the
territorial representation the religious, the ethnic and the social minorities were bound to
 suffer in the numerical statistics of the Parliamentary elections and ultimately occupying
the various offices of profit in the country. There was and still is the fear of an oligarchy
with a dictatorship of the majority under which the minorities are bound to be
suppressed. In such crucial circumstances there is much scope to the judicial
interpretation. Thus the Role of the Supreme Court becomes pivotal when Dr.
Ambedkar raises its importance as a Custodian of the Constitution. The present
research analyses the very success which it has achieved so far. The researcher further
aims to put his suggestions for the further effective functioning of the Supreme Court of
India.

1.2 RESEARCH PROBLEM AND HYPOTHESIS

The researcher has kept an intensive research problem and hypothesis in his
mind while engaged in present research. It is plainly put in the following words –
“Whether the Constitution of India is a static document or is an important epoch making
event in the history of democratic India. If it is just like the flow of water – how for the
Supreme Court of India has played its role in developing the Constitution – so that it
becomes suitable for the Indian citizens of the twenty first centuries.

1.3 OBJECTIVES OF RESEARCH-

The researcher has kept the following objectives in his mind while doing the ensuing
research:-
a) To enable the Indian students to critically assess the role of the Indian Judiciary in
protecting the ideals enshrined by the Constitution of India.
b) To enable the Indian students to study the role of the Supreme Court in analyzing and
interpreting the Doctrines of the Constitution of India in order to preserve its liberal
democratic nature.
c) To critically analyze the various amendments to the Constitution of India suggested by
the Supreme Court of India in order to make it suitable to the changing social needs.
d) To bring a system of liberal studies in law so that the judgments of the apex Court are
open for the critical studies for the academic purposes only.
1.4 SCOPE OF STUDIES
The researcher has chosen the topic “The role of Supreme Court in developing the
Constitution Law”. It is somewhat a broad legal and Constitutional topic in which the
researcher aims to study the nature and the scope of judicial interpretation by which the
liberal doc trine enshrined under the Constitution of India become quite pragmatic and
helps us.

1.5 LIMITATIONS OF RESEARCH

The research work does not fully attempt and exhaustive critical study upon the vast
Constitution of India which itself is the biggest Constitution of the world. The studies are
limited to the very role of the only Supreme Court of India in analyzing, interpreting and
thus developing the Constitution Law of India. Even the Role of various High Courts and
the Subordinate Courts in India is outside the ambit of the present research work.

1.6 RESEARCH METHODOLOGY

The methodology followed in this study is not Uni-dimensional. It is rather a blend of the
historical, theoretical and practical aspects of human rights. A historical approach has
been followed for the study of the origin and development of the Rule of Law followed
by the implementation of the Principles of Natural Justice and the Indepedence of
Judiciary in India. In analyzing the judicial behavior of the Supreme Court and the State
High Courts as well as the role and function of the Privy Council and the International
Court of Justice, the methodology adopted is analytical. However it should be noted
carefully that our prime focus is only upon the Supreme Court of India. This study seeks
to understand and evaluate the role of Apex Judiciary in Indian Legal System especially
after the National Independence 1947.
As the statement of the problem is, “THE ROLE OF SUPREME COURT IN
DEVELOPING THE CONSTITUTIONAL LAW OF INDIA” the literature consisted
mainly of case law used in relation to the Protection of Fundamental Human Rights. The
researcher thought it fit to confine his study to judicial decisions of the International
Court of Justice, the Hon’ble Supreme Court of India and the Hon’ble High Courts of
the constituent States as the law declared by these Constitutional Courts is called the
 Law of the Land and it is quite binding on all the subordinate courts in India including
the District courts, Tribunals, Nyaya Panchayats, Arbitration Councils and all the
Judicial inquiries in India. For this purpose, the. All the decisions of the Supreme Court
of India in relation to the protecting and. To name a few renowned authors whose books
are studied by the researcher are produced here. The thesis further looks at the hidden
ideas of the Constitution of India with unique reference to Indian legal in particular: the
Supremacy of the Constitution, the principle of partition of forces, the guideline of law,
the enforcement of the principles of natural justice and the independence of judiciary in
India. It briefly addresses India’s Legal and Constitutional History and the legal system
within which the Supreme Court operates. The survey further explores the evolution of
the Supreme Court of India from its immediate predecessors- the Federal Court of India
and the Judicial Committee of the Grand Privy Council.
The following exhaustive material will be examined-[3]
(a) Our Grundnorm, The Constitution of India.
(b) Judgments of the Supreme Court of India
(ii) A Comparative Study and analysis of the Constitution of India with the other
leading Constitutions like the UK, US, USSR France, Japan and Saudi Arabia
(iii) Examination of the Indian Constitution Law cases as determined by the Supreme
Court of India and other High Courts exercising common law Jurisdiction.
(iv) References and consideration of relevant literature on Constitution Law and
International Law Issues like the Universal declaration of Human Rights and other
United Nations declarations to which India is a member.

1.7 Chapterization of the Thesis -- The Role of Supreme Court In Developing The
Constitutional Law Of India
The Thesis consists of the following TEN Chapters.
Chapter 1 States and examines the central topic of the theory. The part additionally
analyzes the significance of Constitution Law and the significance and importance of
popular government and great administration as a vital foundation to the proposal and
having respect to its subject.
Chapter 2 of the dissertation In all Fifty One important books and treatises are minutely
assessed in order to draw conclusions
Chapter4 this section further analyzes the fundamental ideas of the Constitution of India
with uncommon reference to Indian legal to be specific: the Supremacy of the
Constitution, the convention of detachment of forces, the guideline of law, the
implementation of the standards of common equity and the autonomy of legal in India.
Chapter 5 looks at the immensely critical question or issue of the part of the Supreme
Court in connection to the understanding of The Constitution of India.
Chapter 6 The Supreme Court and the force of legal audit of authoritative Action
Chapter 7 The Supreme Court and the force of legal audit of official Action
Chapter 8 inspects what might be considered as the most unmistakable commitment of
the Supreme Court to the improvement of Constitution Law In India, in particular, the
topic of the authorization of basic human rights and opportunities and of the Constitution
separately.
Chapter 9 inspects the part of the Supreme Court in implementing the beliefs cherished
under the Constitution of India. It further expounds the real part of the Supreme Court in
recommending the alterations to the Constitution of India without obliterating its Basic
Structure and in this manner to accomplish the objectives revered by our Fathers of the
Constitution. The Amendments are done just to make the Constitution pertinent to the
Time.
Chapter 10 is dedicated to general conclusions, lessons and proposals for the future
advancement of Constitution Law in India, given the fact that a national Constitution is a
dynamic record which is defenseless to change, development and improvement with no
modification to the Basic Structure.
The Thesis further contains an exhaustive Bibliography along with certain
Appendices.

The Role of Supreme Court In Developing The Constitutional Law Of India

1.8 SPECIAL INTRODUCTION
 Illusration No. 2 – The Spacious Campus of the Spureme Court of India.

The discussion in this Thesis can represent that the qualities of popular government and
great administration are the same. They supplement each other. It is recommended that
every one of these characteristics of popular government and great administration are
deserving of authorization by Indian legal. Our nation has given full autonomy to legal.
The Supreme Court of India has turned out to be entirely effective in guarding the
common freedoms of the general population to be specific: the standard of
responsibility; investment by the general population in matters influencing their everyday
lives, particularly, the decentralized Government organization by fortifying the
neighborhood Government framework; the foundation and authorization of the tenet of
law; the assurance and requirement of the all inclusive basic human rights and the
Constitutional Fundamental Rights and the six brilliant flexibilities as cherished in the
Constitution of India the vital requirement for guaranteeing the autonomy of the legal;
requirement for compromise in all parts of national life and due and sufficient
remuneration to every single guiltless individual: the living and the dead (through their
surviving relatives) who had outlandishly endured treachery and death toll and property
on account of past unfortunate riots like the torture of our Sikh brothers after the
assassination of our late Prime Minister Mrs. Indira Gandhi.[4]
Thus the Supreme Court of India too must respectfully welcome the very appropriate
comments of the Hon Mr Justice Brennean, from the High Court of Australia, in one of
Her Majesty’s Sixteen Commonwealth Realms. He has clearly Stated in an address:[5]
“The Courts don't look to meddle with legal approach: that is the best possible space of
the political branches. Be that as it may, the Courts are worried to subject political
branches of Government to the standard of law, for that is the Constitutional basic which
ties all branches of Government. It can barely be against majority rule to control the
Parliament to it's Constitutional force, nor to compel the Executive to fit in with the
Constitution and the laws enActed by the Parliament."
Here it must be taken into consideration that all the Realms like the United Kingdom,
Australia, Canada, New Zealand etc. under Her Majesty Queen Elizabeth II are of
course, Constitutional Monarchies under the Royal House of Windsor. The strict
application of the Doctrine of the Separation of Power as expounded by the great
French philosopher Montesquieu and fully adopted by the eminent jurist Thomas
Jefferson, The Father of the American Constitution, cannot be fully applied to the
Constitutions of these Realms. There are chances of fusion rather than separation of
power in these Realms including the United Kingdom where much part of the
Constitutional Law is still unwritten. Hence the views of the Hon Mr Justice Brennean,
from the High Court of Australia must be carefully taken. In India the fathers of our
Constitution have chosen the Westminster model of democracy by broadly substituting
the indirectly elected Head of the State to a hereditary monarch. There are many
advantages as well a few disadvantages of this system. They can only be seen in case,
very rarely, if the Head of the State unofficially remains attached to the political party
elevating him to the apex Constitutional position. The researcher, of course has
theoretically discussed about the extra-ordinary circumstances which had never
occurred in the History of Indian Democracy.
The Constitution of a nation is its supreme law. The Researcher might in this section
look at the focal subject of this paper on The Role of the Supreme Court in the
Developing the Constitution Law in India. The Constitution of a Nation is its Supreme
Law. It is the ‘Grundnorm’ upon which all the Executive, the Legislative and the judicial
functions take place.[6]
The Father of the Indian Constitution – Dr. Babasaheb Ambedkar had made the
Supreme Court of India – a Custodian of the Constitution. The Supreme Court has a
duty to protect the Constitution and thus to preserve the democratic institutions. The
 intention of the present thesis is to critically assess the role of Supreme Court in
developing the Constitution Law of India.
In that respect, it shows up from the choices and professions by the Judges in the
Supreme Court, which had been built up under the Indian Republican Constitution 1949,
that their stated goals had dependably been the guard of the Constitution, the Rule of
Law and the precepts of vote based system as they comprehend it. Late choices of the
Supreme Court likewise extend comparative targets. In solid terms, the Supreme Court
appears to perceive that it has a part to play in the advancement, implementation and
sustenance of a really Democratic System of Government, Good Governance and the
Protection of the Universal Human Rights and the Constitutional Fundamental Rights
and Six Golden Freedoms in India. This is the Central Theme going through the
following sections of the paper.
native Indians which resulted in the passing of the following measure enActments which
form the base of our earlier Constitution Law. They are as follows –
(a) Indian Councils Act 1861
(b) Indian Councils Act 1909 (Minto – Morley Reforms)
(c) Government of India (GOI) Act 1919 (Montague – Chelmsford Reforms)
(d) Government of India (GOI) Act 1935

After the passing of the Indian Independence Act, 1947, the Central Legislature ceased
to exist on the 14th Aug 1947 Henceforth, the Constitution was framed and thereafter
until a new Legislature was constituted under the new Constitution. Thus, the
constituent Assembly, after independence, discharges a dual function constituent as
well as legislative.
The constituent Assembly set up a Drafting committee under the Chairmanship of DR.
B.R.Ambedkar, Shri B.N. Rao was the Constitutional Adviser of the committee and the
committee consisted of M. Gopalaswami Ayyangar, Alladi Krishanswami Iyer, K, M.
Munshi, T.T. Krishnamachari, Mohamed Sadullah, N.Madhav Rao and D.P. Kaithan.
The Draft prepared by the committee was fully discussed both in the Country and in the
Constituent Assembly. The Constitution was finally adopted on 26-Nov,1947 and came
into effect on January 26,1950. The first Parliament and the first Legislature constituted
under the Constitution of India started functioning in 1952.[9]
The famous French philosophers Montesquieu had
advised the world democracies to have a water tight compartmentalization between the
Executive, the Legislation and the Judiciary. He expected no overlapping between
them. The judicial independence is the key of people’s liberty. The American
Constitution has provided full Independence of Judiciary in the same way the Indian
Constitution has also provided the similar type of Independence of judiciary in our
country. In some countries the out word independence is given to the judiciaries. But it
is not granted practically.[10]
The Constitution has several provisions for the
maintenance of independence of judiciary. They are given here under. Separation of
judiciary from executive: Article 50 (of part-IV: Directive principles of State policy)
explains that the State should find a way to isolate the legal from the official in people in
general administrations of the State. It is necessary to study the aspects of Legal
Realism as depicted from the some of the following cases decided by the Supreme
Court of India.
The whole judicial system in modern India is organized on
hierarchical pattern. At the apex there is a Supreme Court, then come the High Courts
of which there is one in each State below the High Courts, there are subordinate civil
and criminal Courts, The Civil Courts below the High Court’s owe their existence and
Jurisdiction to the enactment of each State concerned. Now civil and criminal
procedures fall in the Concurrent List. Hence a State Legislature can pass legislation for
the purpose subject to any law which Parliament may enact in this area, in spite of
dissimilarities in different States about the Jurisdictional matters of subordinate Court,
some uniformity is found in the organization of these subordinate Courts throughout the
country.
In Actual working the country has faced many difficulties but the nature and scope of
the appropriate amendments has saved us from the unnecessary upheavals. For
examples in the cases of Champakam the welfare causes of the weaker sections were
severally damaged. The Constitutional Amendment saved the country from wide
dissatisfaction. In the same way in the case of Shah Bano Begum the Freedom of
Religion became a burning problem. Once again the Constitutional Amendment saved
the country from wide dissatisfaction. The researcher has a great respect for the
Hon’ble Judges who delivered the judgments as per the provisions of the then Law but
here there has been arisen a great necessity to come at a Golden Mean Point.
The Constitution of a nation is its supreme law. It is
the ‘Grundnorm’ upon which all the executive, Legislative and the judicial functions take
place. The Constitutional position of the various other Supreme Courts apex Courts and
the federal Courts establish under the other foreign Constitution may be different from
each other. In Judicial Organization, the Supreme Court is at the apex of the hierarchy
of Courts established throughout the country.

The Supreme Court of India was established on January, 26th 1950 replacing the
Federal Court of India established in 1937 under the necessities of the Government of
India (GOI) Act, 1935. The necessities for its establishment, powers and Jurisdiction are
set out in Article 124 to 147 under the Chapter-IV of the Union Judiciary part of the
Constitution of India. Here we find the great and the outstanding nature of the work
which out Father of the Indian Constitution Dr. Babasaheb Ambedkar did for his
countrymen. He has particularly and even purposefully made the Honorable Supreme
Court of India – a Custodian of our sacred Constitution. He has given the Supreme
Court a duty to protect the Constitution and thus to preserve the democratic institutions.
The present researcher wants to assess how far the aim of the Father of the Indian
Constitution Dr. Babasaheb Ambedkar has been fulfilled so far. He has of course given
the power to the democratically elected Legislature with a majority mandate to amend
the Constitution of India but the elected majority must always watch with a high
responsibility that the Basic organization of the Constitution must never be altered at
any cost. The intention of the present thesis is to critically assess the Role of Supreme
Court in Developing the Constitution Law of India.

1.9 MEANING OF CONSTITUTION LAW

The word ‘Constitution’ is derived from the Latin word ‘constituto’ which means to
establish.[11] The Constitution is the basic document of a State. It contains the
fundamental rules which determine the method of working of a Government that runs
the State. Let’s see some of leading definitions of the word ‘Constitution’-
Aristotle defined the Constitution as ‘the way of life which the State has chosen for
itsself’.[12]
Diecy says that the Constitution is ‘the product of all those rules which affect the
sovereignty of a State’.[13]
Austin says that the ‘Constitution fixes the structure of the Supreme Government’ [14]

The word ‘Constitution Law’ is not the very synonym of the word ‘Constitution’ itself. The
Constitution of India was accepted by all the Members of the Constituent Assembly who
represented their constituencies. In other words the Constitution was accepted by the
people of the country. Thus ‘The Constitution of India’ became ‘The Constitutional Law
of India.’ However, according to the present researcher ‘The Constitution Law of India’
is certainly broad than the word ‘The Constitution of India.’ ‘The Constitutional Law of
India’ is bound to include various Indian Amendments, the International agreements
treaties and covenants. The Constitutional Law of any country is a growing document
because The Constitution is enforced at a particular time. There is always a provision
for the amendments in any Constitution in order to face the changes of the coming
ages. However, it must be noted that the Basic Structure of the Constitution must not be
changed. The Supreme Court has suggested a number of amendments and has further
recognized a number of customs which are presently having the force of law. Let’s see
some of leading definitions of the word ‘The Constitution Law’
Dicey says that the Constitution Law is the law that provides all rules directly or
indirectly affecting the distribution or exerting of the Sovereign Power in a State.[15]
Holland has Stated that the political center of gravity of any given State is ascertained
by the Constitution Law.[16]
According to Marshall ‘The Constitution of a Nation’ becomes ‘The Constitution Law of
that Nation’ and thus in that capacity, also becomes the SUPREME LAW of that
particular nation. The rest of the enactments [passed before or after the Promulgation of
The Constitution] must remain under it. They can be repealed or amended at any time.
All these are the old definitions. Let’s have a birds eyes’ view upon the modern
Constitution Law thinkers. The world famous jurist Professor D C Yardley carefully
illustrates us the proper meanings of the term Constitution Law. He tells us-[17]
“The Constitution of any nation must involve the crucial structure and association of that
nation, and that along these lines Constitution Law is its principal, its fundamental, key
law, whether it be considerate, criminal, open or private together with those standards of
behavior set down to administer the activity of State force by the official organs of the
State The Constitution Law is that law which is worried with the Constitution of the
nation."
Yardley goes ahead to expound on the general definition. He advance keeps in touch
with this significant branch of law as "The arrangement of laws, traditions and traditions
which characterize the piece and powers of organs of the State and manage the
relations of the different State organs to each other and to the private native."
In the wake of analyzing the issue of what constitutes Constitution Law, Yardley
presumes that it comprises of : the law representing the organization of the national
council and administrative forces; the structure and elements of the focal Government;
the arrangement and forces of any subordinate or degenerated lawmaking body or
official inside the UK; the progressive system and status of Courts of law; the cutoff
points of individual freedom and the privileges of the people; citizenship and status of
outsiders; status of certain national foundations, for example, the Armed Forces and the
Church; and the relations between the focal and nearby Governments.
It is intriguing to note that different legal scholars like Bradley and Wade have also
defined the term the Constitution Law in the same way more or less akin to Yardley.
According to them Constitution Law means [18]
"That part of the law which identifies with the arrangement of Government of the nation.
It is more helpful to characterize Constitution Law as significance those laws which
control the structure of the important organs of Government and their association with
each other and to the subject, and decide their primary capacities."
Earlier on the scope of Constitution Law the eminent writers A W Bradley and K Ewing
through their famous commentary Constitutional and Administrative Law [19]
Every student of law is aware that the Administrative Law is the off-shoot of the
Constitution Law but has become quite strong especially in the modern times of the
Welfare State in the same way as a young son becomes strong than that of his father.
The powers of the administration are constantly increasing or have reached up to zenith
in 21st century. In such scenario it is safe to have a bird’s eyes view on the very relation
which exactly exists between the two branches of law.
In talking about the part of the Supreme Court in the improvement of Constitution Law in
a nation, for example, India we have to recognize the Constitution Law from the
Administrative Law. In any case, as pointed out by Bradley and Wade-[20]
"There is no exact division amongst Constitutional and managerial law… [which] might
be characterized as the law which decides the association, forces and obligations of
regulatory powers.
Like Constitution Law, authoritative law manages the activity and control of
Governmental force. A harsh qualification might be drawn by recommending that
Constitution Law is for the most part worried with the structure of the essential organs of
Government, where as managerial law is worried with the work of authority
organizations in giving administrations and in controlling the Activities of residents."
Bradley and Wade likewise talked about the elements of authoritative law and have
properly reasoned that
"Authoritative law serves to guarantee that open powers take their choices as per the
law; it is additionally a method for advancing the responsibility of open powers and of
securing some open investment in their choices."

1.10 Meaning and Importance Of Good Governance And Democracy:-

The term “Democracy” and “Good Governance” are two sides of the same coin. They
have achieved both national and worldwide hugeness and significance. In his 2000
Report to the Commonwealth Heads of Government [CHOGM] entitled: "Congruity and
Renewal in the New Millennium" portions of which were distributed in Commonwealth
Currents the Commonwealth Secretary-General, The Rt. Hon. Mr. Wear McKinnon,
communicated the conviction that in the very words-[21]
"The advancement of popular government and great administration is the way to
enhancing the general population's lives and that the developing hole amongst rich and
the poor is the most effective destabilizing power and the best risk to majority rules
system."

1.11 DIFFERENT MEANINGS OF DEMOCRACY

The Father of the Indian Constitution – Dr. Babasaheb Ambedkar has an expectation
that the true spirit of republicanism should always form as a way of life for the Indian
citizens. The generation witnessing the glorious era of Indian Freedom Struggle is
approximately on the verge of becoming a part and parcel of history. We have certainly
learnt the high democratic skills in the last sixty five years since the introduction of
democracy in India.
However the long route is still ahead when we have to
achieve the all goals enshrined under our grundnorm The Constitution of India. If those
ideal goals are achieved there shall actually be minimum governance. The Executive as
well as the common citizens will behave in such a way that there will only be a nominal
need of the entity like ‘The Government’. Our Father of the Nation Mahatma Gandhi in
his historic speech after promulgation of the Indian Independence Act 1947, has
referred a beautiful stanza from the sacred world classic, ‘The Mahabharata’ [Shanti
Parva] [22]
Naiv Rajyam Na Cha Raja
Sita Na Dando Na Cha Dandika,
Dharma Naiva Praja Sarva
Rakshanti Cha Parsparam
Gandhiji was deadly against the State interference into the lives of the individuals. In his
Philosophy of the Ideal State he stressed that there is neither need of the Police
Department nor of the Judiciary. The people in the said Ideal State would protect each
other under the Spiritual Law.
 It should be stressed that the concept of democracy deserves a
great interest to Indians. In this manner the greater part of the general population of
India has; through their monstrous investment in all the Post Independence
Parliamentary Elections have grasped the equitable arrangement of Government as
desirable over despotic or religious guideline.
Our Democracy provides Equality Fraternity and Liberty under the spirit of Secularism
and the Socialism. Any authoritarian, dictatorial or tyrannical attitude of the Executive
automatically becomes illegal if it is brought to the notice of the Supreme Court, High
Courts or the Subordinate Courts as per the requirements of the Jurisdiction of each of
the aforesaid Courts. The system has become successful in establishing a classic rule
of law in the country. But we cannot deny that we are still far away from the Gandhian
Ideas of Democracy.

Abraham Lincoln, the former President of the USA has attributed the world famous
definition of democracy-[23]
‘The Government of the people, by the people and for the people’
Professor E A Boateng, the great academician from Ghana was of the opinion that the
Indian model of democracy is more suitable to the newly independent African countries
than that of the American model because of the great similarity between the depressed
Indian and the African Economy. He makes the same point clear in the following words-

"So solid has this predominance [the thought of democracy] turn into that even the most
undemocratic nations either claim to be popularity based or hope for toward the
foundation of vote based types of Government for their kin. It is hard to think about any
nation today which is set up to concede that it has no faith in popular government even
as a long haul objective. As a rule, nations that still work undemocratic types of
Government look for respectability and acknowledgment by the global group by
recommending that majority rules system is of numerous sorts and that the specific
structures they take after happen to be not the same as the Western model which might
be appropriate for the nations of Western Europe however not as a matter of course for
all different nations." [24]
It is in the light of the above contemplations, that Schmitter and Karl, both Professors of
Political Science at Stanford University, likewise communicated the perspective that
majority rules system as a political type of Government has diverse implications,
contingent upon the nation's political and financial conditions. They Stated-
"There are numerous sorts of majority rule government, and their various prActices
deliver a comparatively changed arrangement of impacts. The particular structure
majority rules system takes is dependent upon a nation's financial conditions and in
addition its settled in State structures and approach hones."

In the light of the above perception, the vote based system might be seen as unique in
relation to the edges of the diverse legal advisers as far as its degree and power.
Nevertheless, and regardless of the nonattendance of a typical meaning of what vote
based system is, it might be characterized as a "brought together framework for sorting
out relations amongst rulers and the ruled"; and that it has the accompanying all around
acknowledged properties or requirements:
(i) The right of individual residents of the nation of sound personality and sensible age
to vote at the standard decisions - with every individual qualified for vote under the
guideline of "exclusive one vote";
(ii) The presence of Majority Rule, ie where a gathering secures the votes of more than
half or most of the qualified electorates and where choices
(iii) Each individual qualified for vote has the privilege to offer himself for any Political
office;
(iv) Can be come to, by a greater part vote, without unanimity or accord;
(v) The presence of a Parliament comprising of the Representatives of the general
population - picked at normal races - uninhibitedly and reasonably directed;
(vi) Where the Government loses the certainty of the electorate, it must be changed
through a constitutionally settled methodology and not through any savage means,
for example, an upset de-etat.
(vii) The unreservedly chose Government must be considered responsible to the
general population by the residents Acting through their chose delegates;
(viii) The foundation and advancement of the Rule of Law, Principles of Natural Justice
and Independence of Judiciary.
The Constitution of India is regarded as a social as well as a legal document with a
sanctity given by the Indian citizens to it in the last 67 years by truly watching the
benefits which it has provided to the people at large under the great Benthamite Theory
of - [Bahujan Hitaya- Bahujan Sukhaya. (The Maximum Good of the Maximum
Number)]
However Dr. Ambedkar, along with the benefits of the majorities was always conscious
of the benefits of the minorities. He was in fact a Pioneer of Social Justice and actually
brought the Social Principles in our Constitution in such a delicacy that the expected
Welfare of all the sections of the Indian society must be done in the coming years. Let
us have a bird’s eye’s view upon the salient features of our Constitution with a special
reference to Indian Judiciary in general and Supreme Court of India in particular.
In total, we may characterize majority rule government as far as what The Constitution
of India expects-control of misuse of force, political resilience, general and free and
reasonable races, tolerating the aftereffects of decisions, multiparty framework,
responsibility, straightforwardness, financial opportunity prompting the guideline of law
and the due procedure of law, key human rights and justice. The Constitution further
expects that the Supreme Court, as a custodian, is bound to protect the Fundamental\
Human Rights

1.12 MEANING OF GOOD GOVERNANCE

Having inspected what constitutes popular government, the following inquiry to be
analyzed is: what is truly implied by the expression "great administration." The subject
of advancing great administration in India has, similar to that of majority rules system,
likewise expected both universal and national importance.
It ought to be watched that, similar to the term majority rule government there is no
broad agreement with respect to what constitutes "great administration." There is no
blue print for good administration, a wide achieving idea which must be accomplished
under a just political framework. The great administration requires the
straightforwardness and responsibility of open organizations furthermore depends on
quality open area establishments and a solid common society. It advances the standard
of law; and that it guarantees that the political, social and financial needs depend on
expansive accord in the public arena and that the voices of the poorest and most
defenseless are heard in basic leadership over the designation of improvement assets.
In this way in an article entitled: "Media, great administration and advancement," Kofi
Akordor said-"What is great administration and in what manner would it be able to be
caused and maintained? There might be distinctive sentiments with respect to what
constitutes great administration however regardless of what one look like and it, certain
components are essential and crucial. These incorporate responsibility,
straightforwardness, investment, the standard of law and human rights." [26]
The Indian System of Good Governance is understood when
we consider the following salient features of the Indian Constitution framed by the
world’s renowned jurist and legal expert Dr. B. R. Ambedkar. They are also the Basic
Features which must not be amended even with a high majority. Dr. B. R. Ambedkar
carefully entrusted the bulky task of the protection, preservation and the guardianship of
our grundnorm- The Constitution of India to the Supreme Court of India. Here we find
his vision and foresight. One of the intention of the present thesis is to critically examine
how far the Supreme Court of India has become successful in the duty entrusted to it
by our Father of the Constitution.
 Illistration 3. Dr. B. R. Ambedkar- The Father of the Indian Constitution
1.13 SALIENT FEATURES OF THE INDIAN CONSTITUTION
(1)The Lengthiest Written and Enacted Constitution:- The Constitution of India.
1950 is the lengthiest Constitution among the existing Constitutions in the world then. It
is five times bigger than the Constitution of the USA and seven times bigger than the
Constitution of France, Originally it consisted of 395 Articles divided into 22 parts and 9
Schedules.
(2)The Preamble as Guidance:-The Preamble to the Constitution embodies the ideal
aspirations of the people of India. It declares India to be a sovereign, communist,
mainstream, Democratic, Republic and to secure to every one of its subjects. It
promises Justice, social Economic and Political, Liberty of thought, Expression, Belief
Faith and Worship. It gives Equality of status and of chance and to advance among
every one of them Fraternity and guaranteeing the pride of the individual and the
solidarity and respectability of the country.
(3)Parliamentary Form of Government: - The Constitution of India established a
Parliamentary form of Government both at the Center and the State. In this respect the
makers of the Constitution have followed many aspects of the British model. The
Government is responsible to the Legislature consisting of the members elected by
adults. The President is the Constitutional head of the State. The real executive power
is vested in the Council of Ministers whose head is the Prime Minster. The Council of
Ministers is collectively responsible to the Lower House (Lok Sabha). The members of
the Lok Sabha are elected by the people directly for a period of five years. There is
Upper House (Rajya Sabha) consisting of members elected indirectly. The similar
system with a few modifications has been introduced in the province (States). Each
State shall have a governor appointed by the President of India. He is the Constitutional
head of the State and he is to Act according to the advice of the Council of Ministers in
that State.
(4)Fundamental Rights:- The Constitution of India has granted certain Fundamental
Rights such as Equal Protection of Laws, Freedom of Speech and Expression, Freedom
to Move freely and Reside and settle anywhere in India, Freedom of Assembly and
Association, Freedom to follow any Occupation, Trade or Business, Freedom against
Double Jeopardy and ex-post-facto-laws and Freedom of Worship and religion etc in it
Articles 12 to 35 in Part-III. Some of them are available only to the citizens. These
Fundamental Rights are not absolute but they are subject to the limitations imposed by
the Constitution. The Constitution provides for their supervision in certain conditions.
(5) Directive Principles of State Policy:- Novel feature of Indian Constitution is the
inclusion of a chapter in Directive Principles of State policy. (part-IV containing Articles
36 to 51) adopted with some modifications from the Constitution of Ireland. The
observance of these principles by the Government while enActing legislation on the
subject mentioned in Constitution itself is deemed essential for the welfare of the
people. These principles lay down certain social, economic and political principles which
should be taken into account by the Union and State Governments in formulating the
policy and making the law. These principles are not enforceable by the Court.
(6)Fundamentals Duties:- Certain fundamental duties of citizens of India towards State
society and nature have been introduced in the Constitution of India by the Constitution
(42nd Amendment) Act, 1976 (part IV-A, Articles 51 A) of the Constitution (we can call
them as “Ten National commandments”
(7) Independent Judiciary and the Conformation of the Previous Laws:- The
Constitution established an independent judiciary. It has been given wide power and
Jurisdiction to protect the rights of the citizens and also of the States. The salary of the
Judges has been fixed by the Constitution and cannot be reduced during the term of
their service. Special procedure has been laid down for their removal. The Indian
judiciary is a watchdog of Constitutional liberties guaranteed to the people of India.
The Independence of India, acquired up on 15th day of August in 1947, did not
undermine the ideas established during the period of British rule, Nor did it endanger
the legislation already enacted. The Constitution of 1950 formally provides for the
maintenance of the former law as per Article 372 for the Constitution.

(8) Adult Suffrage:-Under the Indian Constitution every man and woman above 187
years of age has been given the right to elect representatives for the legislature. The
adoption of the universal adult suffrage without any qualification either of sex, property,
taxation, race, religion or the like is a unique one.
(9) Single Citizenship:- The Republic of India is more unitary than federal. The
American [USA] Republic is truly federal although the links make it slightly unitary. In
the USA every constituent State has a separate flag while citizen is first the citizen of
his State and separately the Citizen of the USA. The Son of the Soil theory is followed
strictly for many aspects like admissions and job opportunities upto a certain limit as
decided by the concernd State. In India we have a single citizenship. We are the
Citizens of India domiciled in a particular constituent State. The Union Government
even alter the borders of the States. The Indian States have no right to leave the Union
of India. Every Indian is the citizen of India and enjoys the same rights of citizenship is
provided for non-resident Indians (NRIs).
(10) Gross-Root Democracy:-The Constitution provides the guidelines regarding the
powers, functions and elections etc regarding the panchayats, municipality
administration in Articles 243 to 243 ZG in Par-IX and IX-A by the Constitution (73rd
Amendment) Act, 1992 and the Constitution 74th Amendment Act, 1992 w.e.f. 1-6-1993.
(11) Miscellaneous Provisions:- The Constitution of India also contained minute
provisions relating to centre-State, financial, administrative relations, freedom to trade,
commerce and intercourse, tribunals, services under the Union and States, elections,
official language, special provisions relating to certain classes i.e. scheduled castes,
scheduled tribes, Anglo-Indian and Linguistic Minorities, and the procedure of
amendments to the Constitution etc.
(12) Unique Blend of Rigidity and flexibility:- The Constitution is neither flexible nor
rigid. Certain provisions which are basic features of Constitution may not be changed.
Certain provisions of the Constitution may be amended by the simple majority and for
the amendment of source of its provisions majority the consent of half of the State
Legislature is also required.

(13) Both Federal and Unitary:- Certain features of the Constitution of India has a
definite swing towards unitary system though the basis structure remains federal in
charActer Article 1 of the Constitution declares that “India, that is Bharat, shall be the
Union of States” The Indian Constitution has established a federal type of Government.
In a federal Government, the federating units agree to transfer some of the powers to
the central body and thus curtail their sovereignty to the extent. The choice for a
federation with a strong centre was made both for political and administrative reasons
although the move to describe the Constitution as federal failed. Dr. Ambedkar Stated,
“Though India was to be a federal, the Federation was not the result of an agreement by
the States to join in federation and that the federation not being the result of an
agreement, no State has the right to secede from it. The federation is a Union because
it is indestructible”.
The Constitution acquires a unitary character during the time of emergency. The
Constitution empowers the President to declare emergency in the event of threat to the
security of India or any part there of whether by war, external aggression or armed
rebellion or imminent danger thereof. Under the emergency powers the President can
issue directions to the State Government and thus he can empower the Parliament to
legislate for whole or any part of India with respect to any matter included in the State
list. In such cases of emergency the States can be deprived of their autonomy.
Similarly,the Union Government can supersede the State Government in the case when
the Constitutional machinery fails in the State. In the words of K.C.Wheare,
“The new Constitution established indeed a system of Government which is at most
quasi-federal, almost devolutionary in character, a unitary State with subsidiary federal
features rather than a Federal State with subsidiary unitary features”.
1.14. CASE LAW ON GOOD GOVERNANCE
Let us analyze the very pragmatic position of the democratic good governance in our
country as witnessed in some of the landmark cases

In State Of Rajasthan Vs. Vidyavati (A.I.R. 1962 S.C. 933) [Art. 300] The husband of
the petitioner was knocked down by a car, which resulted in multiple injuries, and
thereafter in his death. The driver of the car was an employee of the State of Rajasthan,
and the driver of the car caused this injury, and it was caused while driving in the course
of his Government service. The petitioner sued the driver and the State of Rajasthan for
compensation. It was contended on behalf of the State of Rajasthan that the State was
not liable for the torts committed by its employee. The trial Court upheld the contention
of the Government, but the High Court of Rajasthan did not accept the contention and
decreed the suit against the State of Rajasthan. The State of Rajasthan appealed to the
Supreme Court. The Supreme Court held that the State was as much liable for tort in
respect of an Act committed by its servent (within the Scope of employment and
functioning) as any other employer.
In Kasturilal Vs. State Of U.P.(A.I.R. 1965 S.C. 1039) [Art. 300] In this case Supreme
Court distinguished the decision in the State of Rajasthan V. Vidyavati (above) on the
ground that the driver in Vidyavati’s case, while driving The car of the Collector from the
workshop to his residence, was not discharging Any sovereign function. The Supreme
Court observed as follows: “If a tortious Act is committed by a public servant, and it
gives rise to a claim for damages, the question to ask is: was the tortious Act committed
by the public servant in discharge of statutory functions, which are referable to, and
ultimately based on the delegation of the sovereign powers of the State to such public
servant?
In State Of Rajasthan and Others Vs Union of India (Air 1977 S.C. 1361) [Art 356]
In this case, the State of Rajasthan approached the Supreme Court of india for a
declaration that the so called "directive" contained in a letter issued by Shri Charan
Singh, the Union home minister to the chief minister of the State was unconstitutional,
illegal and ultra vires the Constitution, and for a declaration that the State of Rajasthan
would not be Constitutionally or legally obliged to comply with , or give effect to such
directive. This case called for an interpretation of several articles of the Constitution
and in particular, the satisfaction of the President under article 356 of the Constitution
and the power of the Court to question such satisfaction. The Supreme Court held that
Article 356 calls for an assessment of a "situation" . In so far as this article embraces
matters of political and executives policy and expediency, the Court will not interfere
unless and until it is shown what Constitutional provision the President has contravened
or is going to contravene.
While article 74(2) to disable the Court from inquiring into the very existence of nature of
ministerial advice to the President,aricle356(5) makes it impossible for Courts to
question such satisfaction "on any ground ".According to the Supreme Court, the
fulfillment of the President is a subjective one, and cannot be tried by reference to any
goal tests. It is intentionally and thoughtfully subjective, on the grounds that the matter
in admiration of which he is to be fulfilled is of such nature that its choice should
essentially be left to an official branch of the Government. It can't by its exceptionally
nature, be a fit topic for legal determination and henceforth its left to the subjective
fulfillment of the focal Government, which is in the best position to choose it.
The Court can't go being referred to of rightness or ampleness on the realities and
circumstances on which the fulfillment of the focal Government is based. That would be
a perilous activity for the Courts for two reasons: firstly, the Court is not a fit instrument
for deciding inquiry of this kind and besides thusly, the Court would enter in "the political
brush", which it must maintain a strategic distance from on the off chance that it is to
hold its authenticity with the general population.
State Of West Bengal Vs. Anwar Ali Sarkar(A.I.R 1952 S.C.75)[Art.14] The
Government of West Bengal passed an Act where by the State Government was
empowered to constitute, by notification, a special Court of criminal Jurisdiction, for
such reason, and to sit at such places, as may be notified. The Act further provided that
the Special Court would try such offences as the State Government may by general or
special order in writing direct, The Act also provided the procedure to be adopted by
such a Special Court, the procedure being different from the one provided for in the
criminal procedure code. The procedure empowered the Court to convict a person of an
offence with which he was not charged if it was found on evidence that he had
committed that offence. The right of revision to the High Court was taken away entirely,
though appeals were allowed. The petitioner was one of the 50 persons tried and
convicted by such special Tribunal, and he filed a petition before the Calcutta High
Court (under Article 226 of the Constitution) questioning the legality of the trial and
conviction.The Calcutta High Court quashed the conviction and sentence imposed by
the special tribunal, and laid down the following principles:
(1) Art.14 guarantees equal protection against substantive and procedural laws and also
against the administration of law.
(2) When a law is challenged as discriminatory, the relative consideration is the fAct of
the law, and not the intention of the legislature. But when a law is non – discriminatory,
but its administration is challenged as discriminatory, the question of intention of the
administrative authority becomes material. In such a case, the administrative Action
cannot be said to have offended Art.14 unless it was mala fide or Actuated by hostile
intention.
(3) Art.14. however. Permits the legislature to make a reasonable classification. In order
that such a classification may be permissible, it must fulfill two condition :(a)The
classification must be founded on illegible differentia, which distinguish those that are
grouped together from others; and (b) That differentia must have a rational relation to
the object sought to be achieved by the Act.
(4) Though there is a presumption in favor of the Constitutionality of an enactment, it is
of no avail when a law is discriminatory. On the face of it is patent that the legislature
made no attempt to make any classification.
(5) A law which authorizes the executive to select cases of specials treatment, without
providing any code or standard for such differentiation is, on the face of it,
discriminatory.
State Of Punjab Vs. Sat Pal Singh (C.A. 1427 And 1428 Of 1951) [Arts. 174 And
209]In this case a Constitution bench of the Supreme Court decided questions of great
importance relating to the powers of State Governors. The relevant facts were briefly as
under: In the general elections held in February 1967, the Congress party won 43 out of
the 104 seats in the Punjab Legislative Assembly. The other parties, none of which had
a majority in the House, formed a United Front Ministry under Sardar Gurman Singh. On
November 22, 1967, 18 members of the United Front Party including Sardar Lachman
Singh Gill “defected”and formed the Punjab Janata Party, and with the support of the
Congress Party formed a new ministry under Gill. The legislative Assembly was
summoned on February 22, 1968, and as the budget was to be considered, the financial
Statement was discussed on March 4, 5 and 6. On March 6, a motion of no confidence
in the Speaker was moved, and the next day the Speaker ruled it out of order. As there
were rowdy scenes in the House, the Speaker adjourned the Assembly for two months.
The action of the Speaker caused a political crisis, for as the budget was not passed, no
expenditure in the State could be made from April 1, 1968. On March 11, 1968, the
Governor prorogued the Assembly under Art. 174(2)(a). The order of prorogation was
gazette the same day, and copies of the gazette were dispatched to the Speaker and
the other members the next day. On March, 13, 1968, the Governor promulgated the
Punjab Legislature (Regulation of Procedure in Relation to Financial Business)
ordinance, 1968. On March 14, 1968, the Governor summoned the Assembly to a
sitting on March 18, 1968, and directed the Assembly to consider two Appropriation
Bills, Supplementary Estimates, and Demands for Grants. When the Assembly met, it
transActed some business when Sardar Gurman Singh raised a point of order, but was
asked to wait till the House considered other matters.
Section 3 of the impugned Ordinance provided that the sitting of either House of the
Legislature was not to be adjourned without the consent of that House until the financial
business was completed. When Sardar Gurman Singh rose to move his point of order,
he was reminded that a resolution to the same effect was to be brought before the
Assembly. However, he raised his point of order which was that the Ordinance was void
as it was promulgated when the Assembly was in session, and that the House was
summoned before the Assembly was prorogued. The Speaker who had some doubts
about his power adjourn the House in face of Section 3 of the Ordinance, ruled that the
House was prorogued on March 18, that the Governor’s order summoning the House
was void and illegal, and consequently according to his previous ruling the House stood
adjourned for two months. The Speaker left the House, but members continued to sit.
The Deputy Speaker took the Chair. He declared that the adjournment ordered by the
Speaker was null and void and he called upon the Chief Minister to move the
consideration of the Expenditure, the two Appropriation Bills and other demands, were
also passed. The bills were transmitted to the Legislative Council, after the Deputy
Speaker had certified them to be Money Bills. An objection that the Bills had not been
certified by the Speaker was over ruled by the Chairman, and the Bills were passed and
received the Governor’s assent. Two writ petitions were filed in the High Court. A full
Bench held by a majority that the certification by the Deputy Speaker was invalid and
that S. 3 of the Ordinance was unconstitutional. The full Bench unanimously held the
Appropriation Acts unconstitutional.
It was contended before the Supreme Court that the Assembly was prorogued on March
18 or 16 with the result that the Ordinance issued by Governor was void as it was
passed when the Assembly was in session. Again, as the House was prorogued on
March 18 or March 16, the Assembly was invalidly summoned. S. 3 of the Ordinance
was challenged as invalid, and it was contended that the ruling of the Speaker on March
18 was not open to challenge in Courts, and all proceedings subsequently to the ruling
were illegal. In any event, only the Speaker could certify the two Appropriation Bills as
money Bills, and as they were certified by the Deputy Speaker, they were invalid. Hon
Mr Justice M Hidayatullah, C.J. held that –
Art. 174(2) which enabled the Governor to see that the Assembly placed no restriction
on his power.
The exercise of the Governor’s power could not be described as mala fide, in the sense
of being exercised in excess of his power or in colorable exercise of his powers. The
Speaker’s ruling on March 7, adjourning the Assembly for 2 months before the Budget
was passed, made it impossible for the Government to draw any money from the
Consolidated Fund from April 1, having regard to Art. 266(3).the Governor had to Act
quickly to “put back the legislative machinery of the State into life.” He followed the only
practicable course, namely to get the adjournment out of the way by prorogation and to
summon the Assembly to meet.
The legislative powers of the Governor under Article 213(2) were co-existensive with
those of legislature, and were not limited to the matters continued in the legislative lists.
The legislature could make a law under Art. 209, and consequently, the Governor’s
Ordinance was validly enacted under Art. 209 and 213.
Art. 209 were meant to speed up financial business and to prevent filibuster,
adjournments or other methods to delay such business. If ever there was an occasion
for passing a law under Art. 209, this was the occasion.
S.3 of the Ordinance did not conflict with Art. 182(2)which permitted an adjournment of
the House for lack of a quorum. And S. 3 must be read down for it was a well-settled
principle of construction that wide general words must be “understood as not attempting
something beyond the competence of the legislative body.” S. 3 was, therefore intra
vires.
The contention that the adjournment of the Assembly by the Speaker on the 18th was
valid, and that in any event, his ruling was final and could not be questioned, is
incorrect.
Banwarilal Vs. State Of Bihar (AIR 1961 Sc 849) In this case the Mines Act 1952 was
enacted by Parliament. It is the parent Act. Section 59 of this Act provides compulsory
consultation with the Mining Boards by the Central Government before formulating rules
and regulations. The provisions of Section 59 are mandatory. in this case, while
formulating regulations, no consultations were conducted. The petitioner challenged it.
The Supreme Court quashed the regulations as ultra vires.
Thus in the beginning chapter, the researcher has provided a broad study only five
classic judgments of delivered by the Hon upreme Court of India. They are capable
enough to provide information upon the democratic pattern vogue in India.

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