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454 THE eONSTITUTION OF INDIA [PART V


Supreme Court and one or more High Courts or before two or more High
Courts and the Supreme Court is satisfied on its own motion or on an
application made by the Attorney-General of India or by a party to any such
case that such questions are substantial questions of general importance,
the Supreme Court may withdraw the case or cases pending before the High
Court or the High Courts and dispose of all the cases itself:' . '
Provided that the Supreme Court may after determining the said
questions of law return any case so withdrawn together with a copy of its
judgment on such questions to the High Court from which the case has been
withdrawn, and the High Court shall on receipt thereof, proceed to dispose
of the case in conformity with such judgment.] .
(2) The Supreme Court may, if it deems it expedient so to do for the
ends of justice, transfer any case, appeal or other proceedings pending
before any High Court to any other High Court.]
This provision was availed, for example, in the famous Judges case
16
to bring
petitions filed before different High Courts to the Supreme Court and have an early .
and decisive statement of law. Similarly clause (2) was invoked to transfer certain
cases against a company from the Bombay to Gujarat High Court within whose
jurisdiction some other cases and proceedings concerning the company were pending
and where the company had its registered officeY
Article 139-A cannot be availed of by the Supreme Court to withdraw cases
pending before a special judge under the same High Court and to transfer them to
that High Court.
18
But this Article r:vEf not whittle down the wide powers of the
Court in this respect under other provisions such as Articles 136 and 142.
140. Ancillary powers of Supreme Court.-Parliament may by law
make provision for conferring upon the Supreme Court such supplemental
powers not' inconsistent with any of the provisions of this Constitution as
may appear to be necessary or desirable for the purpose of enabling the
Court more effectively to exercise the jurisdiction conferred upon it by or
under this Constitution.
The object of this article is to enable Parliament to confer such supplementary
powers on the Supreme Court as may appear necessary to enable it to perform
effectively the functions placed upon it under the Constitution.
141. Law declared by Supreme Court to be binding on all
courts.-The law declared by the Supreme Court shall be binding on all
courts within the territory of India.
This article enacts that the law declared by the Supreme Court shall be binding
on "all courts" in the territory of India. The expression 'law declared' is wider than
the 'law found or made' and implies the law creating role of the Court. The
expression "all courts" obviously means courts other than the Supreme Court. The
decision of the Supreme Court is binding on the High Court and it cannot ignore
it on the ground that relevant provisons were not brought to the notice of the Supreme
16. S.P. Gupta v. Union of India, 1981 Supp see 87: AIR 1982 se 149. Also Administrator, Ranchi
Municipal Corpn. v. Kamakhya Narain Singh, (1982) 3 see 387.
17. Shree V.G. Works Ltd. v.l.e. & I. Corpn. ofIndia Ltd., (1987) 3 see 94: AIR 1987 se 1574.
18. Delhi Transport Corpn. v. D.T.e. Mazdoor Conl!ress. 1991 Sunn (Ii srr (i()/). AIR lQQ\<:.r Hll
ART. 141] THE UNION JUDIeIARY
Court, and hence its decision is not binding.
19
The decision binds as much the
pending cases as future.
2o
The law declared by the Supreme Court is binding on the
State and its officers and they are bound to follow it whether the respondents in a
particular case were parties or not to the petition.
21
Even the directions issued by
the Court in a decision constitute binding law under Article 141.
22
The Supreme
Court is not bound by its own decisions and may overrule its previous decisions.
23
It may overrule them either by expressly saying so or impliedly by not following
them in a subsequent case.
24
As compared to other decisions, it would more readily
reverse decisions on constitutional questions if it is convinced that the previous
decision is clearly erroneous.
25
In Sajjan Singh v. State of RajasthanU" the Supreme
. Court said as follows:
"It is true that the Constitution does not place any restriction on our powers
to review our earlier decisions or even to depart from them and there can be
no doubt that in matters relating to the decisions of constitutional points which
haNe a significant impact on the fundamental rights of citizens, we would be
prepared to review our earlier decisions in the interest of public good. The
doctrine of stare decisis may not strictly apply to this extent and no one can
dispute the position that the said doctrine should not be permitted to perpetuate
erroneous decisions pronounced by this Court to the detriment of general
welfare."
Even so, the normal rule that judgments pronounced by the Supreme Court
would be final, should not be ignored and unless considerations of a substantial and
compelling character make it necessary to do so, the Supreme Court would be slow
to doubt the correctness of previous decisions or to depart from them.
27
Merely
because an aspect presented in the particular appeal based on a constitutional
guarantee, say, the guarantee contained in Article 19(1)(g), was not expressly
considered or a decision given, that will not take away the binding effect of those
decisions of the Supreme COurt.
28
However, the Supreme Court will review its earlier
decision even though the decision has held the field for a considerably long time,
if it is satisfied of its error or the baneful effect which a decision would have on
the general interest of the public or if it is "inconsistent" with the legal philosophy
of our Constitution.
29
If there is an apparent conflict between decisions of the
Supreme Court, the opinion expressed by larger benches of the Supreme Court must be
followed in preference to those of smaller benches unless the former can be distin
19. B.M. Lakhami v. Municipal Committee, (1970) 2 see 267; M.S.!. Hussain v. State of Maharashtra,
(1976) 3 see 598: AIR 1976 se 1992.
20. A.S. Gauraya v. S.N. Thakur, (1986) 2 SeC709: AIR 1986 se 1440.
21. T.K.N. Rajgopal v. T.M. Karunanidhi, (1972) 4 see 267.
22. Visakha v. State of Rajasthan, AIR 1997 se 3011, 3015; Khedat Mazdoor Chetna Sangath v. State of
M.P., AIR 1995 se 31.
23. Dwarka Das Shrinivas v. Sholapur Spg. and Wvg. Co. Ltd. AIR 1954 se 119, 127; Bengallmmunity
Co. v. State ofBihar, AIR 1956 Se631, 673; Sajjan Singh v. State ofRajaslhan, AIR 1965 se 845; State
ofWB. v. Corpn. of Calcutta, AIR 1967 se 997.
24. e.N. Rudramurthy v. K. Barkathulla Khan, (1998) 8 see 275.
25. Ibid.
26. AIR 1965 se 845, 855.
27. Ibid.
28. T.G. Mudaliar v. State ofT.N., (1973) I sec 336: AIR 1973 se 974; cf A.R. Antulay v. R.S. Nayak,
(1988) 2 see 602: AIR 1988 se 1531.
")0 (.:h"'PnS,l1J1 l\lnf'h ~ n r z , . n r " Ctntn rol"W 11 110'7-:1\ 1 C'rr' Q"{:,. ;\ ID 10'7'1 C'r' l.1i1"
456
457
THE CONSTITIJTION OF INDIA [PART V
guished by giving reasons. 3D A constitution bench of five judges cannot decide the
correctness or otherwise of the views expressed by an earlier bench of five judges.
3
!
Opinions of the Supreme Court under advisory jurisdiction are entitled to due
weight and respect and are normally followed by the Courts though an authoritative
pronouncement on their binding precedental value may still come.
32
As a matter of
law and practice these opinions are given after similar proceedings as in other matters
before the Court and are expressed in the same manner, inchidirtg the dissents, as
any other judgment of the Court. Therefore, except the absence of contesting parties,
no good reason exists for not treating them like any other judgment of the Court.
33
The Supreme Court may also review its earlier decision if some patent aspects
of the question remained unnoticed or if the attention of the Court was not drawn
to any relevant and material statutory provisions or if any previous decision of the
Court bearing on the point was not noticed or if the decision was clearly erroneous.
34
Judgments are not scriptual absolutes but relative reasOriings.
35
It may be of interest to note here that the House of Lords strictly adhered to
the doctrine of 'precedent' in the earlier years, but the doctrine has theoretically
been given up by the "Practice Statement (Judicial Precedent)" issued by the House
of Lords.
36
Speaking for the House of Lords, the Lord Chancellor made the following
observations:
"Their Lorships nevertheless recognise that too rigid adherence to precedent
may lead to injustice in a particular case and also unduly restrict the proper
development of the law. They propose, therefore, to modify their present practice
and, while treating former decisioL of this House as normally binding, to depart
from a previous decision when it appears right to do so."
Ratio decidendi.-"A decision is not binding because of its conclusion but in
regard to its ratio and the principles laid down therein. "37 The determination of the
ratio decidendi, i.e., the reason of the decision, is not as easy as it might appear at
first sight. In the Supreme Court each judge may state the principle in a different
language,3B and hence it may not be possible to ascertain exactly what the ratio
decidendi is. Moreover, as Professor Goodhart
39
has pointed out, it is not always
safe to accept the actual formulation of a principle by a court, since the principle
may be laid down in either too broad or too narro',\! a fashion. In Krishena Kumar
v. Union of India
40
, clarifying that the precedent consists only in 'the enunciation
30. Union of India v. K.S. Subramaniam, (1976) 3 sce 677: AIR 1976 se 2433; State of u.P. v. Ram
Chandra Trivedi, (1976) 4 see 52: AIR 1976 se 2547; Dejapada Das v. Union ofIndia, (1980) 3 see
412; Ramdas Bhikaji Chaudhari v. Sadanand, (1980) I see 550: AIR 1980 se 126.
31. Narendra Prasadji v. State ofGujarat, (1975) I see II: AIR 1974 se 2098.
32. TIle Special Courts Bill, 1978, Re, (1979) 1 see 380: AIR 1979 se 478; In the matter ofCauvery Water
Disputes Tribunal, 1993 Supp (I) sce 96: AIR 1992 se 522. For a critical analysis of the issue see H.M.
Seervai: Constitutional Law of India, 2251 ff (3rd Edn., 1984).
33. See Art. 145(4) & (5).
34. Pillani Investment Corpn. Ltd. v. 1.1:0., (1972) 1 SCC 122: AIR 1972 se 236.
35. Controller ofEstate Duty v. Kantilal Trikamlal, (1976) 4 see 643.
36. Recorded in (1966) 1 WLR 1234.
37. B. Shama Rao v. Union Territory of Pondicherry, AIR 1967 se 1480, 1486; M.K. Sabha v. A.
Faizullabhai, (1976) 3 see 832: AIR 1976 SC 1455; Bachan Singh v. State of Punjab, (1979) 3 SCC
727.
38. See Art. 145(5).
39. Essays in Jurisprudence and Common Law, p. I.
40. (1990) 4 sec 207, 226: AIR 1990 SC 1782, 1793.
ART. 141] THE UNION JUDICIARY
of the reason or principle upon which a question before a Court has been decided'
the Supreme Court has observed:
"The ratio decidendi is the underlying principle, namely, the general
reasons or the general grounds upon which the decision is based on the test or
abstract from the specific peculiarities of the particular case which gives rise
to the decision. The ratio decidendi has to be ascertained by an analysis of the
facts of the case and the process of reasoning involving the major premise
consisting of a pre-existi,g rule of law, either statutory or judge made, and a
minor premise consisting of the material facts of the case under immediate
consideration. "
Only the ratio decidendi of a case is binding and has precedent value. However,
it is not everything said by a judge when giving judgment that constitutes a
precedent. The only thing in a judge's decision binding a party is the principle upon
which the case is decided and for this reason it is important to analyse a decision
and isolate from it the ratio decidendi. According to the well-settled theory of
precedents every decision contains three basic ingredients
(i) findings of material facts, direct and inferential;
(ii) statement of the principles of law applicable to the legal problems
disclosed by the facts; and
(iii) judgment based on the combined effect of (i) and (ii) above.
For the purposes of the parties themselves and their privies ingredient (iii) is the
material element in the decision for it determines finally their rights and liabilities
in relation to the subject-matter of the action. It is the judgment that estops the
parties from reopening the disputes. However, for purposes of the doctrine of
precedent, ingredient (ii) is the vital element in the decision. That indeed is the ratio
decidendi. The ratio decidendi may be defined -as a statement of law applied to the
legal problems raised by the facts as found, upon which the decision is based. The
other two elements are not precedents. This means that even where the direct facts
of an earlier case appear to be identical to those of the case before the court, the
judge is not bound to draw the same inference as drawn in the earlier case. Thus a
decision on a question of sentence depending upon the facts and circumstances of
a particular case can never be regarded as a binding precedent, much less 'law
declared' under Article 141 so as to bind all law courts within the territory of India.
4
!
If a provision is upheld by a majority the fact that the reasoning of some of
them is different from the ratio of that case will not affect its validity.42 Where the
earlier decision is altogether unpalatable to the court in the latter case, the latter
court may be persuaded to interpret it as narrowly as possible. Some judges may in
extreme and unusual circumstances be apt to seize on almost any factual difference
between the previous case and the case before them in order to arrive at a different
decision. The limit of the process is reached when a judge says that the precedent
is an authority only "on its actual facts". These devices are not permissible for the
High Courts when decisions of the Supreme Court are cited before them not merely
because of the jurisprudence of precedents but because of the imperatives of Article
141.
43
41. DalbirSingh v. State ofPunjab, (1979) 3 see 745.
42. Minerva Mills lid. v. Union ofIndia, (1980) 3 see 625, 687: AIR 1980 se 1789, per Bhagwati, J.
43. Fuzlunbi v. K. Khader Vall. (980) 4 see 125: AIR l Q ~ O sr lTlO
458
THE CONSTITUTION OF INDIA
[PART V
ART. 142] THE UNION JUDICIARY
459
Decisions per incurium do not constitute binding precedent. Such decisions are
those which are given in ignorance of the terms of the Constitution or of a statute
or of a rule having the force of a statute. Also an order delivered without argument,
without reference to the relevant provisions of the Constitution or the Act and without
any citation of authority is per incurium.
44
Similarly, decisions sub silentio have no
precedental value. Such decisions are those which are given on a point of law not
perceived by the court or present to its mind.
45
SometimesweU considered obiter
dicta of the Supreme Court is taken as precedent but every passing expression of a
judge cannot be treated as an authority.46 "Normally even an obiter dictum is
expected to be oheyed and followed... 47 A special leave petition under Article 136
dismissed by a non-speaking order does not lay down any law and is therefore not
a precedent under Article 141.
48
Prospective overruling in constitutional cases.-The general rule is that the
overruling of an earlier decision is retrospective except as regards matters that are
res judicata
49
or accounts that have been settled in the meantime. The result is that
any intermediate transactions made on the strength of the supposed rule are governed
by the law established in the overruling decision. In the case of I.e. Golak Nath v.
State of Punjab
50
, the Supreme Court has established the rule of prospective
overruling to a limited extent. This would mean that an overruling decision shall
not affect intermediate transactions made on the basis of the overruled decision or
even the parties in the instant case, but shall apply only to the cases arising in future.
The following are the conditions under which the doctrine may apply:
(i) The doctrine of prospective overruling can be invoked only in matters
arising under the Constitution;
(ii) it can be applied only by the highest court of the country, i.e., the Supreme
Court, as it has the constitutional jurisdiction to declare law binding on
all the courts in India; and
(iii) the scope of the retroactive operation of the law declared by the Supreme
Court superseding its earlier decisions is left to its discretion to be
moulded in accordance with the justice of the cause or matter before it.
142. Enforcement of decrees and orders of Supreme Court and
orders as to discovery, etc.-(1) The Supreme Court in the exercise of its
jurisdiction may pass such decree or make such order as is necessary for
doing complete justice in any cause or matter pending before it, and any
decree so passed or order so made shall be enforceable throughout the
territory of India in such manner as may be prescribed by or under any law
44. Municipal Corpn. ofDelhi v. Gurnam Kaur, (1989) I SCC 101; alsoAR. AntI/lay v. R.S. Nayak, (1988)
2 SCC 602: AIR 1988 SC 1531.
45. Id., MCD case. Also Stare of V.P. v. Synthetics and Chemicals Ltd., (1991) 4 SCC 139; Arnit Das v.
State ofBihar, (2000) 5 SCC 988: AIR 2000 SC 2264.
46. Ibid.; Saiyada Mossarrat v. Hindustan Steel Ltd., Bhilai Steel Plant, (1989) I SCC 272, 278: AIR 1989
SC406.
47. Sarwan Singh wmba v. Vnion ofIndia, AIR 1995 SC 1729, 1734.
48. Supreme Court Employees' Welfare Assn. v. Vnion ofIndia, (1989) 4 SCC 187, 206. Also State ofPunjab
v. Surinder Kumar, (1992) I SCC 489: AIR 1992 SC 1593; State ofManipurv. Thingujam Brojen Meetei,
AIR 1996 SC 2124.
49. See comment nuder Art. 142.
50. AIR 1967 SC 1643.
made by Parliament and, until provision in that behalf is so made, in such
manner as the President may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament,
the Supreme Court shall, as respects the whole of the territory of India, have
all and every power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any documents, or
the investigation or punishment of any contempt of itself.
Under the Government of India Act, 1935, the Federal Court had no machinery
for executing its decrees. In exercise of its original jurisdiction it could only
pronounce a declaratory judgment. In the exercise of its appellate jurisdiction, if the
Federal Court allowed an appeal, it had to remit the case to the court from which
the appeal was brought, with a declaration as to the judgment, decree or order which
was to be substituted for the judgment, decree or order appealed against. There is
no such limitation under the present Constitution. The Supreme Court, in the exercise
of its jurisdiction, may pass such order as is necessary for doing complete justice
in the matter pending before it. This power of the Court cannot be curtailed even
by a legislation. Its exercise is subject only to the conditions that (1) it can be
exercised only when the Court otherwise exercises its jurisdiction and (2) the order
passed by the Court must be necessary for doing complete justice in the cause or
matter pending before it.
51
It is a residuary power, supplementary and complementary
to the powers specifically conferred on the Court which it may exercise whenever
it is just and equitable to do so and in particular to ensure the observance of the
due process of law, to do complete justice between the parties, while adminis
tering justice according to law.
52
The Court has held that it is advisable to leave
its power under Article 142 undefined and uncatalogued so that it remains elastic
enough to be moulded to suit the situation.
53
The order made by the Court shall
be enforceable in such manner as may be prescribed by or under any law made
by Parliament, but only throughout the territory of India.
54
Until provision is
made by Parliament, the orders of the court will be enforced in the manner
prescribed by the President.
55
An order under Article 142 in order to do complete justice between the parties
must not only be consistent with the fundamental rights guaranteed by the Constitu
tion but also with the substantive provisions of the relevant statutory laws.
56
This
power cannot be used to 'supplant' substantive law applicable to the case or cause
under consideration of the Court. Thus in the exercise of its power to punish a
lawyer for its contempt the Court cannot cancel or suspend his license under Article
142 because the power to do so is specifically assigned to the Bar Council under
the Advocates Act, 1961 read with the Rules made under the Act.
57
Nor can it be
51. Chandrakallt Patil v. State, (1998) 3 SCC 38.
52. Supreme Court Bar Assn. v. Vnion ofIndia, (1998) 4 SCC 409.
53. DDA v. Skipper Construction Co. (P) Ltd., AIR 1996 SC 2005.
54. N. Masthan Sahib v. ChiefCommr., AIR 1963 SC 533.
55. See the Supreme Court (Decrees and Orders) Enforcement Order, 1950, made by the President and
published nuder Notification No. S.R.O. 49, dated 12th May, 1950, in the Gazelle ofIndia, Extraordinary,
1950, Part 11, S. 3, p. 13.
56. Prem Chand Garg v. Excise Commr., AIR 1963 SC 996: 1963 Supp (1) SCR 885.
57. Supreme Court Bar Assn. v. Vnion ofIndia, 19984 SCC 409 overruling; In re, Vinay Chandra Mishra,
(1995) 2 SCC 584; Bonkya v. State ofMaharashtra, AIR 1996 SC 257. See also other cases relating to
other laws e.g. M.S. Ahlawat v. State ofHaryana, (2000) I SCC 278: AIR 2000 SC 168; M.e. Mehta v.
Y ................ l 'AT..... *"l.. '''If\fV\\ t::. 1:."00 "1 ~ . A lD "lfV\O 1:."0 1 nn....,
461 ART. 143] THE UNION JUDICIARY
460 THE CONSTITUTION OF INDIA [PART V
exercised in contravention of a provision of the Constitution. Thus in a case before
two judge bench of the Court, if the two judges differ with each other one of them
cannot rely on Article 142 to enforce his opinion because such enforcement con
travenes Article 145(5).58 It has been held that so long as Article 142 is in operation
and the matter is sub judice in the Supreme Court, the Governor has no right to
suspend the sentence under Article 161.
59
.
Where an appeal to the Supreme Court has been allowed, the Court may in
order to do complete justice, direct that appellants who had not prosecuted their
appeals should also have benefit of its judgment.
6o
Our Constitution does not expressly or by necessary implication speak against
the doctrine of prospective overruling. Indeed, Articles 32, 141 and 142 are couched
in such wide and elastic terms as to enable the Supreme Court to formulate legal
doctrines to meet the ends of justice. These articles are designedly made compre
hensive to enable the Supreme Court to declare law and to give such directions or
pass such orders, as are necessary to do complete justice. The expression "declared"
is wider than "found or made". To declare is to announce opinion. Indeed, the latter
involves the process, while the former expresses the result. Interpretation, ascertain
ment and evolution are parts of the process, while that interpreted, ascertained or
evolved is declared as law. The law declared by the Supreme Court is the law of
the land. If so, there seems to be no acceptable reason why the Supreme Court in
declaring the law in supersession of the law declared by it earlier, could not restrict
the operation of the law as declared to future and save the transactions, whether
statutory or otherwise, that were effected on the basis of the earlier law.
6
!
The importance and potentiality of the first part of Article 142(1) was noted in
Delhi Juaicial Service Assn. v. State of Gujarat
62
, where in pursuance of contempt
proceedings against some police officials of Gujarat for assaulting, handcuffing and
maliciously prosecuting a Chief Judicial Magistrate the Supreme Court not only
sentenced the police officers and their accomplices but also quashed the criminal
proceedings against the CJM. The respondents contended that the Court had no
power to quash the criminal proceedings. Rejecting the contention the Court held
that its inherent power under Article 142 coupled with the plenary and residuary
powers under Articles 32 and 136 embraces power to quash criminal proceedings
pending before any court to do complete justice in the matter before the Supreme
Court. In Union Carbide Corpn. v. Union of India
63
, upholding the settlement
between the Union of India and the UCC which, among others, terminated all civil
and criminal proceedings against the UCC pending in any court, the Supreme Court
held that it was competent to do so under Article 142 in order to do complete justice
in the matter pending before it. Prohibitions or limitations in ordinary laws do not
ipso facto apply to Article 142 though the Court may evolve similar prohibitions or
limitations on its powers on considerations of public policy. Similarly in State of
Punjab v. Bakshish Singh
64
, the Court passed an order in favour of the respondent,
even though the respondent had not filed a cross appeal, removing an inconsistency
in the order of the first appellate court which could not be noticed even by the High
Court in the second appeal. Article 142 may also be invoked to fill in the legislative
gap if the legislature, also the executive, fails to perform its responsibility.65
In the exercise of its power under Article 142 the Court has passed suitable
orders in different matters such as grant of divorce not otherwise clearly
by legislation
66
, ordering of cm inqiry,67 production of Assembly Speaker for
contempt of court,68 imposition of exemplary costs
69
payment of interim
sation to rape victim
70
and compensation for illegal detention.
7
!
143. Power of President to consult Supreme Court.-(1) If at any
time it appears to the President that a question of law or fact has arisen,
or is likely to arise, which is of such a nature and of such public
importance that it is expedient to obtain the opinion of the Supreme Court
upon it, he may refer the question to that Court for consideration and the
Court may, after such hearing as it thinks fit, report to the President its
opinion thereon.
(2) The President may, notwithstanding anything in 72[* * *] the proviso
to Article 131, refer a dispute of the J.:!nd mentioned in the 73[said proviso]
to the Supreme Court for opinior. and the Supreme Court shall, after such
hearing as it thinks fit, report the President its opinion thereon.
CLAUSE (1)
Advisory or consultative jurisdiction.-Normally the function of a court of
law is to answer questions of law or fact when properly raised before it in a dispute
between the parties. This article, however, confers a particular jurisdiction, com
monly called the consultative or advisory jurisdiction, on the Supreme Court to give
its opinion on questions unconnected with a pending case.7
4
A similar power was
conferred on the Federal Court of India by Section 213 of the Government of India
Act, 1935.
75
65. Vineet Narain v. Union ofIndia, (1998) I SCC 226.
66. Romesh Chander v. Savitri. AIR 1995 se 851; Kanchan Devi v. Promod K1Wlar Mittal, AIR 1996 SC
3192; Ashok Hurra v. Rupa Bipin Zaveri, AIR 1997 SC 1266; Sneh Prabha v. Ravinder Kumar, AIR
1995 SC 2170.
67. Maniyeri Madhvan v. Sub-Inspector of Police, AIR 1994 SC 1033.
68. 1. Manilal Singh v. H. Borobabu Singh, AIR 1994 se 505.
69. R.G. Shinde v. State ofMaharashtra, AIR 1994 se 1673.
70. Bodhisattwa Gautam v. SuMra Chakraborty, AIR 1996 SC 922.
71. MoM Zahid v. Govt. ofNCTofDelhi, AIR !999 SC 2023.
72. The words, brackets and figure "clause (i) of' omitted by the Constitution (Seventh Amendment) Act,
1956, S. 29 and Sch.
73. Subs. by S. 29 and Sch., ibid., for "said clause".
74. So far the Supreme Court has rendered seven advisory opinions; The Delhi Laws Act, Re, AIR 1951 se
332: 1951 SCR 747; Kerala Education Bill, 1957, Re, AIR 1958 SC 956: 1959SCR 995; Berubari Union
and Exchange ofEnclaves, Re, AIR 1960SC 875: (1960) 3 SCR350; Sea Customs Act, 1871, Re, Section
20(2), AIR 1963 SC 1760; Powers, Privileges and Immunities of State Legislatures, Re, AIR 1965 SC
745; Presidential Poll, Re, (1974) 2 SCC 33: AIR 1974 SC 1682 and The Special Courts Bill, 1978, Re,
(1979) I SCC 380.
,....-; 75. S. 213, Government of India Act, 1935, enacted as follows:
58. Gaurav Jain v. Union ofIndia, (1998) 4 sce 270.
"(1) If at any time it appears to the Governor-General that a question oflaw has arisen, or is likely to
59. K.M. Nanavati v. State ofBombay, AIR 1961 SC 112.
arise, which is of such nature and of such public importance that it is expedient to obtain the opinion of
60. R.N. Nagarajan v. State ofMysore, AIR 1966 SC 1942: (1966) 3 SCR 682.
the Federal Court upon it, he may in his discretion refer the question to that court for consideration, and
61. I.e. Golak Nath v. State of Punjab, AIR 1967 SC 1643, 1688: (1967) 2 SCR 762. the court may, after such hearing as they trjnk fit, report to the Governor-General thereon.
62. Delhi Judicial Service Assn. v. State ofGujarat, (1991) 4 sec 406. (2) No report shall be made under this section save in accordance with an opinion delivered in open
63. (1991) 4 sec 584.
court with the concurrence of a majority of the judges present at the hearing of the case, but nothing in
64. (1998) 8 SCC 222.
462 THE CONSTITUTION OF INDIA [PART V ART. 143] TIlE UNION JUDICIARY 463
Article 143 authorises the President to refer to the Supreme Court a question
of law or fact which in his opinion is of such a nature and of such public importance
that it is expedient to obtain its opinion upon it. The words of Article 143 are quite
wide and there is no condition that it is only in respect of matters falling within the
powers, functions, and duties of the President that it would be competent to him to
frame questions for the advisory opinion of the Supreme Court. The only conditions
are: (i) that he should be satisfied that a question of law or fact has arisen or. is
likely to arise; (ii) that he should also be satisfied that such a question is of such a
nature and of such public importance that it is expedient to obtain the opinion of
the Court on it. The' President may accordingly formulate for the advisory opinion
of the Supreme Court questions relating to the validity of the provisions of existing
laws or in regard to the validity of provisions proposed to be included in the Bills'
which would come before the legislature or in respect of any other question of
constitutional importance.
76
A question of law which has already been decided by
the Supreme Court in the exercise of its judicial powers cannot be referred to the
Court under Article 143. The Court cannot sit in appeal against its earlier decisions
in the exercise of its advisory jurisdiction under Article 143.
77
On receipt of the reference the Registrar gives notice to the Attorney-General
to appear before the Court and take directions of the Court as to the parties who
will be served with notice of such reference.
78
The Court also permits such persons
and group of persons as may be interested to appear as interveners.
79
The Court is to report after such hearing as it thinks fit. Every report shall be
made' in accordance with an opinion delivered in open Court with the concurrence
of the majority of the judges present, with liberty to any judge who does not concur,
to deliver a dissenting opinion.
8o
The procedure is similar to that followed by the
Court in the exercise of its original jurisdiction..
The advisory jurisdiction of the Supreme Court is analogous to that possessed
by the Privy Council under Section 4 of the Judicial Committee Act, 1833, which
provides that His Majesty may refer to the Judicial Committee, for hearing or
consideration, any matter whatsoever as His Majesty may think fit, and that the
Committee shall thereupon hear and consider the same, and shall advise His Majesty
thereon. The procedure under the Judicial Committee Act differs from that under
Article 143 in two respects, namely, (i) dissenting opinions are not delivered in the
Privy Council, and (ii) it is made obligatory for the Judicial Committee to hear and
consider the matter and advise His Majesty thereon. Similarly, Section 60, Canadian
Supreme Court Act, empowers the Governor-General-in-Council to refer important
questions of law touching certain matters to the Supreme Court for hearing and
consideration. The Supreme Court is bound to entertain and answer the reference
and the opinion of the Court upon such a reference is subject to appeal to His
Majesty in Council. The Supreme Court of the Canadian Provinces and several of
the State Supreme Courts in the United States have been invested with similar ...
this sub-section shall be deemed to prevent a judge who does not concur from delivering a dissenting
opinion. " .
76. Powers, Privileges and Immunities ofState Legislatures, Re, AIR 1965 SC 745.
77. In the matter ofCauvery Water Disputes Tribunal, 1993 Supp (I) SCC 96 (11): AIR 1992 SC 522.
78. Or. 35, R. I of Supreme Court Rules, 1966. See also Presidential Poll, Re, (1974) 2 sec 33, 36: AIR
1974 SC 1682 (summary of arguments).
79. See Presidential Poll, Re, (1974) 2 sec 33: AIR 1974 SC 1682.
80. Or. 37, R. 3, Supreme Court Rules, 1966.
jurisdiction. But the Supreme Court of the United States has consistently refused to \
pronounce advisory opinions upon abstract questions of law on the ground that to
do so would be incompatible with the position it occupies in the Constitution of the
United States.
8l
In the Commonwealth of Australia Constitution Act too there is no
[, provision similar to Article 143. The Permanent Court of International Justice was
invested with the competence to deliver advisory opinions by Article 14 of the
Covenant of the League of Nations.
Strictly speaking the advisory opinion of the Supreme Court under this article
t is not binding on the President
82
though the President normally honours it and
sometimes the Court also takes the undertaking through the Attorney General that
he will honour it.
83
Similarly the Supreme Court has a discretion in the matter and
may in a proper case and for good reasons decline to expres3 any opinion on the
I
questions submitted to it.
84
It may therefore refuse to express its advisory opinion
if it is satisfied that it should not express its opinion,85 having regard to the nature

of the questions forwarded to it and having regard to other relevant facts. and f
circumstances,- e.g., if the questions formulated for advisory opinion are purely \
socio-economic or political questions which have no relation with aay of the
provisions of the Constitution or have nO constitutional significance.
86
In
M. Ismail Faruqui v. Union of India:-: the Court declined to answer the reference
by the President because it had betume superfluous and unnecessary after the Court's
opinion on the validity of the Act challenged in that case.
There has been considerable difference of opinion amongst jurists and political
thinkers as to the expediency of placing on the courts an obligation to advise the
Executive on difficult questions of law. In spite of weighty arguments to the contrary,
the framers of the Constitution thought it expedient to confer advisory jurisdiction
upon the Supreme Court.
It is for the President to determine what questions should be referred and if
he does not entertain any serious doubts on the other it is not for any party
to say that doubts arise also out of them, and the. Court cannot go beyond the
reference and discuss those problems. The circumstances that the President has not
thought fit to refer other questions as to the constitutional validity of some of the
clauses of the Bill on the ground that they infringe other provisions of the Constitu
tion cannot be a. good or cogent reason for declining to the reference
...9.uestion touching over or in respect of which-the
not entertain any doybt.88
"''"------ - - I
In The Special Courts Bill, 1978, Re,89 the question referred by the President 1
to the Supreme Court was whether the Special Courts Bill, 1978, or any of its
provisions, if enacted, would be constitutionally invalid. On the general issues ('
relating to the extent and scope of Article 143(1) the Court expressed the following.
opinion:
81. Muskrat v. U.S., (1911) 56 LEd 246, 252.
82. Levy ofEstate Duty, Re, AIR 1944 Fe 73.
83. In Re, Presidential Reference, AIR 1999 SC I, 15.
84. Kerala Education Bill, I957,In re, AIR 1958 se 956, 964.
85. Powers, Privileges and Immunities ofState Legislatures, Re, AIR 1965 se 745, 747: (1965) I SCR 413.
86. Ad hoc Committee Report on the Supreme Court, p. 61.
87. AIR 1995 SC 605.
88. Kerala Education Bill, 1957, Re, AIR 1958 SC 956: 1959 SCR 995.
89. The Special Courts Bill, 1978, Re, (1979) I SCC 380, 401: AIR 1979 SC 478.
464
THE eONSTITIITION OF INDIA
[PART V
ART. 143] THE UNION JUDIeIARY 465
(a) Whether the Supreme Court can decline to answer a reference.-Article
143(1) is couched in broad general terms which provide that any question of law
or fact may be referred by the President for the consideration of the Supreme Court.
It is not necessary that the question on which the opinion is sought must have arisen
actually, and it is a matter essentially for the President to decide whether it is
expedient to obtain the opinion of the Supreme Court. The plain duty and function
of the Supreme Court is to consider the question on which the President has made
the reference and report to the President its opinion. If for soine reason, the Court
considers it not proper or possible to answer the question, it would be entitled to
return the reference by pointing out the impediments. The right of the Supreme
Court to decline to answer a reference does not flow merely out of 'may' in clause
(1) of Article 143. Even in matters arising out of clause (2), the Court may be
justified in returning the reference unanswered for a valid reason.
(b) Propriety of referring hypothetical questions and duty ofcourt to answer.-It
is competent for. the President to make a reference at an anterior staKe, namelY,
when the President is satisfied that the question is likely to arise. The satisfaction
whether the question has arisen or is likely to arise and whether it is of such a
nature and of such public importance that it is expedient to obtain the opinion of
the Supreme Court, is a matter essentially for the President to decide. The assumption
of every reference under Article 143(1) has to be the continued existence of a
context or conditions on the basis of which the question of law or fact arises or
is likely to arise. The possibility of a change, even of a fundamental character,
cannot make the exercise of presidential jurisdiction speculative or hypothetical.
I
!
However, speculative opinions on hypothetical questions are worthless and it is
contrary to principle, inconvenient and inexpedient that opinion should be given
on such questions at all.
90
(c) Reference should be specific and not general and a
reference is made to the Supreme Court under Article 143, a care should be taken
to frame specific questions for the opinion of the Court. A reference in broad and
general terms, such as whether the Bill or any of its provision thereof would be
constitutionally valid, is difficult to answer because it gives no indication of the
specific points on which the opinion is sought. A kind of a roving inquiry into the
I
constitutionality of a Bill virtually necessitates the adoption of a process of elimi
nation with regard to all reasonably conceivable challenges under the Constitution.
Such an inquiry is not expected of the Supreme Court under Article 143.91
(d) The Supreme Court by answering the reference does not encroach upon
functions and privileges of Parliamen/.;..-The principle is firmly and wisely em
bedded in the Constitution that the policy of law and the expediency of passing it
are matters for the legislature to decide, while interpretation of law and questions
regarding their validity fall within the exclusive advisory or adjudicatory functions
of courts. When the Court deals with a reference, it is not withdrawing any matter
from the seisin of Parliament and it does not lift the Bill from Parliament. The
President is empowered to make a reference to the Supreme Court for its opinion,
and the Supreme Court is under constitutional obligation to consider the reference
and report thereon to the President. In doing so, it does not encroach upon any
particular function or privilege of Parliament.
92
90. The Special Courts Bill, 1978, Re, (1979) I see 380, 401: AIR 1979 se 478.
91. The Special Courts Bill, 1978, Re, (1979) 1 see 380, 403.
92. 1d. at pp. 404-406.
(e) The Supreme Court by answering a reference does not abrogate Article
32.-A proceeding under Article 32(1) is of an entirely different nature from the
proceeding contemplated by Article 143(1), and there is neither supplementing nor
subrogation upon the question referred to it by the President. In the proceedings
before the Supreme Court under Article 143(1), the question under reference is
whether the Bill]Jending is open tQ constitutionaTcnallenge-:-tf
the BilCiS-round valid Parliaiiient may proceed with it, orotherwise-if the Bill is
found invalid Parliament may not spend any time over passing a constitutionally
invalid Bill.
93
(f) The Supreme Court should not decline to answer the reference on ground
of futility.-The argument that it is futile for the Supreme Court to consider the
constitutional validity of the Bill because whatever view the Supreme Court takes,
it will still be open to Parliament to discuss the Bill and to pass or not to pass as
it pleases, proceeds upon an unrealistic basis, its assumption being that Parliament
will not act in a fair and proper manner. True, that nothing that the Supreme Court I
says in its opinion can deter Parliament from proceeding with the Bill in any manner. )
But since the constitutionality of the Bill is a matter which falls within the exclusive)
domain of the judiciary, the Supreme Court trusts that Parliament will not fail to I
take notice of the Court's opinion.
94
(g) The Supreme Court should not decline to answer the reference on the ground
that it raises a Purm-llali!i..cal question.""':"'The policy of the BiIranOllie motive of
the movermay be to ensure a speedy trial of persons holding high public or political
offices who are alleged to have committed certain crimes during emergency, But
the question Whether. the. or any of its provisions are consti.tu._tionallY valid. is1
not a question of politial the court should refrain answering it,95
(h) The Supreme Court should not decline to answer a reference on grounds of
expediency and propriety.-It will not be correct to say that in the interests of
expediency and propriety, the Supreme Court should decline to answer the reference
considering the repercussions of the exercise of this jurisdiction. It is of no conse
quence if the Bill might eventually emerge from the Legislature in a shape which
is very different from the one considered by the Supreme Court. The opinion of the
Supreme Court will be read with reference to the question referred to it in the
reference and not with reference to the form which the legislation finally takes. J
Article 143(1) confers advisory jurisdiction on the Supreme Court and it is not for
the Supreme Court to refuse to answer the reference on the ground that it is generally
inexpedient to exercise the advisory jurisdiction.
96
CLAUSE (2)
J Article 143(2) deals with cases in which the President may refer a dispute to
the Supreme Court, notwithstanding the prohibition prescribed by the proviso to
Article 131. If such a reference is made, the Court shall after such hearing as it
thinks fit, report to the President its opinion thereon. It will be noted that while
under Article 143(2), it is the constitutional obligation of the Supreme Court, to
make a report on that reference embodying its advisory opinion, in a reference under
Article 143(1) there is no such obligation.
93. The Special Courts Bill, 1978, Re, (1979) 1 see 380 at p.406.
94. 1d. at p. 408. .
95. The Special Courts Bill, 1978, Re, (1979) 1 see 380, 406.
96. 1d. at p. 407.
ART. 145] THE UNION JUDICIARY 467
466 THE CONSTITUTION OF INDIA [PART V
(2) Subject to the provisions of 5[* * *] clause (3), rules made under this
144. Civil and judicial authorities to act in aid of the Supreme
Court.-AII authorities, civil and judicial,. in the territory of India shall act in
aid of the Supreme Court.
1[144-A. Special provisions as to disposal of questions relating to
constitutional validity of laws.] [Omitted.]2
145. Rules of Court, etc.-(1) Subject to theprovi$ionsof any law made
by Parliament the Supreme Court may from time to time, with the approval
of the President, make rules for regulating generally the practice and
procedure of the Court including
(a) rules as to the persons practising before the Court;
(b) rules as to the procedure for hearing appeals, and other matters
pertaining to appeals inclUding the time within which appeals to the
Court are to be entered;
(c) rules as to the proceedings in the Court for the enforcement of any
of the rights conferred by Part Ill;
3[(CC) rules as to the proceedings in the Court under 4[Article 139-A];]
(d) rules as to the entertainment of appeals under sub-clause (c) of
clause (1) of Article 134;
(e) rules as to the conditions subject to which any judgment pro
nounced or order made by the Court may be reviewed and the
procedure for such review including the time within which applica
tions to the Court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the
Court and as to the fees to be charged in respect of proceedings
therein;
(g) rules as to the granting of bail;
(h) rules as to stay of proceedings;
(I) rules providing for the summary determination of any appeal which
appears to the Court to be frivolous or vexatious or brought for the
purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause (1) of
Article 317.
I. Ins. by the Constitution (Forty-second Amendment) Act, 1976, S. 25 (w.eJ. 1-2-1977). It read:
" 144-A. Special provisions as to disposal ofquestions relating to constitutional validity oflaws. -<I)
The minimum number of Judges of the Supreme Court who shall sit for the purpose of determining any
question as to the constitutional validity of any Central law or State law shall be seven.
(2) A Central law or a State law shall not be declared to be constitutionally invalid by the Supreme
Court unless a majority of not less than two-thirds of the Judges sitting for the purpose of determining
the question as to be constitutional validity of such law hold it to be constitutionally invalid."
2. Omitted by the Constitution (Forty-third Amendment) Act, 1977, S. 5(i) (assented to on 13-4-1978).
S. 5(2) provides:
"(2) Any case pending bt:fore the Supreme Court immediately before the commencement of this Act
may be dealt with by the Supreme Court as if the said Article 144-A had been omitted with effect on and
from the Ist day of February, 1977."
3. Ins. by the Constitution (Forty-second Amendment) Act, 1976, S. 26 (w.e.f. 1-2-1977).
4. Subs. by the Constitution (Forty-third Amendment) Act, 1977, S. 6(a) (w.e.f. 13-4-1978) for the words
"Articles 131-A and 139-A".
article may fix the minimum number of Judges who are to sit for any purpose,
and may provide for the powers of single Judges and Division Courts.
(3) 6[* * *] The minimum number of Judges who are to sit for the purpose
of deciding any case involving a substantial question of law as to the
interpretation of this Constitution or for the purpose of hearing 'any reference
under Article 143 shall be five:
Provided that, where the Court hearing an appeal under any of the
provisions of this Chapter other than Article 132 consists of less than five
Judges and in the course of the hearing of the appeal the Court is satisfied
that the appeal involves a substantial question of law as to the interpretation
of this Constitution the determination of which is necessary for the disposal
of the appeal, such Court shall refer the question for opinion to a Court
constituted as required by this clause for the purpose of deciding any case
involving such a question and shall on receipt of the opinion dispose of the
appeal in conformity with such opinion.
(4) No judgment shall be delivered by the Supreme Court save in open
Court, and no report shall be made under Article 143 save in accordance
with an opinion also delivered in open Court.
(5) No judgment and no such opinion shall be delivered by the Supreme
Court save with the concurrence of a majority of the Judges present at the
hearing of the case, but nothing in this clause shall be deemed to prevent
a Judge who does not concur from delivering a dissenting judgment or opinion.
Article 145 defines the rule-making power of the Supreme Court. Power is given
to the Supreme Court to make rules for regulating the practice and procedure of the
Court. The rule-making power of the Court is exercisable subject to the approval
of the President. The rules governing the practice and procedure of the Supreme
Court must be consistent with the other provisions of the Constitution. In Prem
Chand v. Excise Commissioner?, the Supreme Court invalidated a rule relating to
the furnishing of a security in writ petitions under Article 32 of the Constitution
because such a rule retarded the vindication of a fundamental right.
The rule-making power of the Supreme Court includes the power to fix the
minimum number of judges who are to sit for any purpose subject to one exception,
namely, that the minimum number of judges to hear and decide a case involving a
substantial question of law as to the interpretation of the Constitution or for hearing
a reference under Article 143 shall be five. As long as this requirement is fulfilled,
there can be no constitutional objection to the rest of the case being disposed of by
a Division Bench of less than five Judges, so as to save the time of the Constitution
Bench of five or more Judges.
8
5. The words" Article 144-A and of" inserted by the Constitution (Forty-second Amendment) Act, 1976,
S. 26 (w.e.f. 1-2- I977) omitted by the Constitution (Forty-third Amendment) Act, 1977, S. 6(b)(w.e.f.
"13-4- I978).
6. The words "Subject to the provisions of Article I44-A" , inserted by the Constitution (Forty-second
Amendment) Act, 1976, S. 26 (w.e.f. 1-2-1977) omitted by the Constitution (Forty-third Amendment)
Act, 1977, S. 6(c) (w.e.f. 13-4-1978).
7. AIR 1963 SC 996.
8. Shiv Bahadur Singh v. SUite ofVindhya Pradesh, AIR 1955 SC 446, 450: (1955) 2 SCR 206; Bhag
wan
Swamp v. State ofMaharashtra, AIR 1965 SC 682.
468 THE CONSTITUTION OF INDIA [PART V
ART. 148]
COMPTROLLER AND AUDITOR-GENERAL OF INDIA 469
Under clause (4) an obligation is imposed on the Supreme Court to give its
judgments in open court. Similarly, it is to give its opinion under Article 143 publicly.
Publicity is prescribed to avoid the impression that the Supreme Court gives private
or secret advice to the President.
Clause (5) lays down the democratic principle of majority rule in the decision
making within the Court. It ensures freedom of decision making to e;very judge. But
the binding decision will be only of the majority of the judges hearing and deciding
a case. If the judges are equally divided then no binding decision is arrived at and
the matter must be referred to the Chief Justice for constituting a new bench to hear
and decide the matter afresh.
9
This clause also gives liberty to a judge, who does
not agree with the majority judgment, to give his dissenting judgment or opinion.
In allowing expression of dissent the Supreme Court follows the practice which
prevails in the International Court at The Hague. Dissenting judgments are not
delivered in the Privy Council.
This article ensures autonomy and control of the Court on the proceedings before
it and is, therefore, an important aspect of its independence.
146. Officers and servants and the expenses of the Supreme
Court.-(1) Appointments of officers and servants of the Supreme Court
shall be made by the Chief Justice of India or such other Judge or officer
of the Court as he may direct:
Provided that the President may by rule require that in such cases as
may be specified in the rule, no person not already attached to the Court
shall be appointed to any office connected with the Court, save after
consultation with the Union Public Service Commission.
(2) Subject to the provisions of any law made by Parliament, the
conditions of service of officers and servants of the Supreme Court shall be
such as may be prescribed by rules made by the Chief Justice of India or
by some other JUdge or officer of the Court authorised by the Chief Justice
of India to make rules for the purpose: .
Provided that the rules made under this clause shall, so far as they
relate to salaries, allowances, leave or pensions, reqUire the approval of the
President.
(3) The administrative expenses of the Supreme Court, including all
salaries, allowances and pensions payable to or in respect of the officers
and servants of the Court, shall be charged upon the Consolidated Fund of
India, and any fees or other moneys taken by the Court shall form part of
that Fund.
Article 146 secures the independence of the Supreme Court in certain matters
from the control of the executive and the legislature.
Appointments of officers and servants of the Supreme Court are made by the
Chief Justice of India or such other judges or officers of the Court as he may direct.
For this purpose the Chief Justice means the person in office and not the Court or
other judges.
lO
But the President can by rule prescribe that certain appointments can
only be made after consultation with the Union Public Service Commission. Con
9. Gaurav Jain v. Union ofIndia, AIR 1998 SC 2848.
10. High Court ofJudicature, Rajasthan v. Ramfsh Chand Paliwal, AIR 1998 SC 1079.
ditions of service of officers and servants of the Court are prescribed by rules made
by the Chief Justice. But the rules relating to salaries, allowances, leave or pension
require the approval of the President.
In Supreme Court Employees Welfare Association v. Union of India
ll
empha
sising the importance of Article 146 for the independence of the Court in the
discharge of its functions the Supreme Court has held that the rules in respect of
the salaries, etc. of its employees have to be framed by the Chief Justice of India
or by any other judge or officer of the Court authorised by him. If the Chief Justice
refers the matter relating to the pay scales of the Supreme Court employees to the
pay commission and the latter's recommendations are approved by the Government
of India without any rules having been made by the former it will be a violation of
Article 146(2). The President of India is free to approve or not to approve for valid
I
reasons the rules framed by the Chief Justice of India but if no rules have been
made by the latter in this regard, Article 146(2) is violated. Thus the pay scales for
the Supreme Court employees as recommended by the Fourth Pay Commission and
approved by the Government of India were found inapplicable to such employees
unless and until appropriate rules were framed in accordance with the provisions of
Article 146(2).
Clause (3) declares that the administrative expenses of the Supreme Court
are charged upon the Consolidated Fund of India. As we have seen above, the
sums which are charged upon the Consolidated Fund are not put to vote of
Parliament.
147. Interpretation.-In this Chapter and in Chapter V of Part VI
references to any substantial question of law as to the interpretation of this
Constitution shall be construed as including references to any substantial
question of law as to the interpretation of the Government of India Act, 1935
(including any enactment amending or supplementing that Act), or of any
Order in Council or order made thereunder, or of the Indian Independence
Act, 1947, or of any order made thereunder.
Article 147 is to be read with Article 132 of the Constitution. Article 132, as
we have seen above, allows an appeal from a judgment, decree or final order of a
High Court, if the High Court certifies that the case involves a "substantial question
of law as to the interpretation of this Constitution". The expression "substantial
question of law as to the interpretation of this Constitution" used in Article 132 or
Article 133(2) as well as Article 228 includes, under the present article, any question
of law as to the interpretation of the Government of India Act, 1935 (including any
enactment amending or supplementing that Act), or any order in Council, or order
made thereunder, or of the Indian Independence Act, 1947, or of any order made
thereunder,
CHAPTER V
COMPTROLLER AND AUDITOR-GENERAL
OF INDIA
148. Comptroller and Auditor-General of India.-(1) There shall be a
Comptroller and Auditor-General. of India who shall be appointed by the
President by warrant under his hand and seal and shall only be removed
11. (JQllQ) 4 srr Ill7 AIR lQOIl<;r ~ ~ " -
II
ART. 152]
THE STATES
471
470 THE CONSTITUTION OF INDIA [PART V
from office in like manner and on the like grounds as a Judge of the Supreme
Court.
(2) Every person appointed to be the Comptroller and Auditor-General
of India shall, before he enters upon his office, make and subscribe before
the President, or some person appointed in that behalf by him, an oath or
affirmation according to the form set out for the purpose h the Third Schedule.
(3) The salary and other conditions of service of the Comptroller and
Auditor-General shall be such as may be determined by Parliament by law
and, until they are so determined, shall be as specified in the Second
Schedule:
Provided that neither the salary of a Comptroller and Auditor-General
nor his rights in respect of leave of absence, pension or age of retirement
shall be varied to his disadvantage after his appointment.
(4) The Comptroller and Auditor-General shall not be eligible for further
office either under the Government of India or under the Government of any
State after he has ceased to hold his office.
(5) Subject to the provisions of this Constitution and of any law made
by Parliament, the conditions of service of persons serving in the Indian
Audit and Accounts Department and the administrative powers of the
Comptroller and Auditor-General shall be such as may be prescribed by rules
made by the President after consultation with the Comptroller and
Auditor-General.
(6) The administrative expenses of the office of the Comptroller and
Auditor-General, including all salaries, allowances and pensions payable to
or in respect of persons serving in that office, shall be charged upon the
Consolidated Fund of India.
149. Duties and powers of the Comptroller and
Auditor-GeneraJ.-The Comptroller and Auditor-General shall perform such
duties and exercise such powers in relation to the accounts of the Union
and of the States and of any other authority or body as may be prescribed
by or under any law made by Parliament and, until provision in that behalf
is so made, shall perform such duties and exercise such powers in relation
to the accounts of the Union and of the States as were conferred on or
exercisable by the Auditor-General of India immediately before the
commencement of this Constitution in relation to the accounts of the
Dominion of India and the Provinces respectively.
12[150. Form of accounts of the Union and of the States.-The
accounts of the Union and of the States shall be kept in such form as the
President may, 13[on the advice of] the Comptroller and Auditor-General of
India, prescribe.]
12. Subs. by the Constitution (Forty-second Amendment) Act, 1976, S. 27 (w.eJ. 1-4-1977). Prior to that,
Art. 150 read:
,150. Power of Comptroller and Auditor-General to give directions as to accounts.-The accounts
of the Union and of the States shall be kept in such form as the Comptroller and Auditor-General of India
may, with the approval of the President, prescribe."
13. (Forty-fourth Amendment) Act, 1978, S. 22 for the words "after cOJ.lsultation
151. Audit reports.-(1) The reports of the Comptroller and
Auditor-General of India relating to the accounts of the Union shall be
submitted to the President, who shall cause them to be laid before each
House of Parliament.
(2) The reports of the Comptroller and Auditor-General of India
to the accounts of a State shall be submitted to the Governor 14[* * *] of the
State, who shall cause them to be laid before the Legislature of the State.
There shall be a Comptroller and Auditor-General of India who shall be
appointed by the President by warrant under his hand and seal. He can be removed
'\
from his office by the President on the ground of proved misbehaviour or incapacity
on an address of Parliament in the manner provided in clause (4) of Article 124
relating to the removal of judges of the Supreme Court. His salary and the
administrative expenses of his office are charged upon the Consolidated Fund of
India. Before he enters upon his office, he shall make and subscribe before the
President, or some person appointed in that behalf by him, an oath or affirmation
in the prescribed form. After he has ceased to hold office, he shall not be eligible
for further office under either the Government of India or the Government of any
State.
The Comptroller and Auditor-General has to ensure that withdrawal from the
Consolidated Fund are not made without adequate legal sanction. He has functions
in relation to accounts as well as to audit. He controls all disbursements and audits
all accounts of money administered by or under the authority of the Union Parliament
or the Legislature of a State. The combination of two functions, namely, those of
maintenance of accounts and audit, in the same agency has been criticised because
it makes the auditor, who is responsible for checking the accounts, himself maintain
the accounts which is an essentially administrative function. In most progressive
countries the agency for audit is different from and completely independent of the
agency maintaining accounts. IS
The reports of the Comptroller and Auditor-General of India relating to the
accounts of the Union are submitted to the President, who must place the same
before each House of Parliament. The reports relating to the accounts of a State
are submitted to the Governor, who must place them before the Legislature of
the State.
PART VI
THE STATES 16[* * *]
CHAPTER I-GENERAL
152. Definition.-In this Part, unless the context otherwise requires, the
expression "State" 17[does not include the State of Jammu and Kashmir].
Part VI of the Constitution deals with the structure of government in the States
specified in the First Schedule to the Constitution. This part does not include the
14. The words "or Rajpramukh" omitted by the Constitution (Seventh Amendment) Act, 1956, S. 29 and
Sch.
15. Lal: The Indian Parliament, p. 152.
16. The words "IN PART A OF THE FIRST SCHEDULE" omitted by the Constitution (Seventh
Amendment) Act, 1956, S. 29 and Sch..
17. Subs. by S. 29 and Sch., ibid., for "means a State specified in Part A of tbe First Schedule".