Is the majority with the government, and logic with the opposition?
I
It is an honour to be asked to deliver the Sarat Chandra Bose lecture for 2026. Through childhood, I had heard of the heroism and valour of Netaji Subhas Chandra Bose. In January 2021, I was sworn in as the Chief Justice of the High Court of Orissa which, as all of you know, is located in Cuttack, where Netaji was born and where his father Sri Janaki Nath Bose had a flourishing law practice. The Ravenshaw Collegiate school where Netaji had his early years of schooling is next to the High Court. Netaji’s elder brother, Sri Sarat Chandra Bose, in whose memory this lecture series is being conducted, followed in his father’s footsteps as a successful barrister. He abandoned law practice to join the freedom movement. Sarat Chandra Bose was a staunch supporter of his younger sibling who was destined for a major role in the struggle for independence for our country. Much has been written, and spoken about, the close relationship of the two brothers which must be all too familiar to this audience. What perhaps needs reiteration is that Sarat Bose was himself an ardent freedom fighter who underwent two spells of imprisonment - first between 1932 and 1935 and then between 1941 and 1945. He was also active in politics having served in the years leading up to independence, as President of the Bengal Congress, Leader of the Opposition in the Bengal Legislative Assembly, leader of the Congress opposition in the Central Legislative Assembly, and a minister in the Interim Government of 1946. Sarat Bose believed in and lived a secular life; was deeply committed to the cause of communal harmony, equality and unity. He naturally was opposed to the idea of partition of the country on religious lines. In independent India he continued to champion civil liberties, resisting the authoritarian, colonial inheritances of the post-colonial state. There is so much to be learnt and imbibed from the life of the most eminent Sarat Bose. It is indeed a privilege to be asked to speak in the very place where he lived and where many of the ideas leading to the country’s Independence took shape.
II
The background to the theme of today’s talk requires to be delineated in order to place it context. For a democracy governed by the rule of law, the institutional arrangements that would be considered to be essential are a responsible Executive accountable to the people and to the Constitution, an effective and functional Legislature truly representing the will of the people and an independent Judiciary that can protect and enforce the rights of people and check legislative and executive excesses.
The Indian Constitution lays out the broad scheme of separation of powers among the three major branches of state and its concomitant doctrine of checks and balances. It is indeed neither a perfect nor a rigid separation. It is not even intended to be. The modern state envisages mutual supervision, interdependence and coordination among the branches if they intend working in public interest. We also have what Prof Mark Tushnet terms as the ‘fourth branch’ institutions. He is referring to the plethora of administrative and supranational bodies that defy the traditional three-way separation of functions. For instance, the Election Commission of India performs a variety of functions which could be termed as legislative, executive and quasi-judicial. So do several regulatory bodies in the areas of electricity, telecom and so on. But for the purposes of this lecture, it sufficient note that in the scheme of our Constitution, no organ is expected to be the repository of so much power so as to imperil the autonomy and independence of the other. The key word here is ‘expected’. In the working of Indian Constitution for over 75 years the inherent tensions between these organs of state have played out in a variety of ways.
III
The Executive
To understand the doctrine of checks and balances in the traditional sense, let us begin with the executive, whether at the centre or in the states. The process of elections culminates in the formation of a government by a political dispensation that commands the majority on the floor of the legislature, the House of the People (the Lok Sabha) in the case of the central government and of the Legislative Assembly in the case of the states. The legislature thus collectively decides who can form the government. The executive is accountable to the legislature inasmuch as any legislative measure that is proposed by it has to get the approval of the latter in order to become law.
Of course, the executive can, and it is known to do on occasion, frustrate the legislative mandate by not actually bringing into force or delay considerably the operation of a law that has been passed. [For e.g., the changed definition of ‘industry’ under the Industrial Disputes Act 1947 which was passed by an amendment in 1978 was never notified even 47 years later; the 1978 amendment to Article 22 (4) of the Constitution is yet to be notified; the Mental Health Act of 1987 although assented by the President was not notified till 1994; the Legal Services Authorities Act, 1987 was notified only in 1995 and more recently the four Labour Codes of 2019 and 2020 were notified only in November 2025]
By and large, all the major policy decisions that the executive may take and which requires enactment of laws, have to be first tested on the floor of the legislature. For sanctioning all its measures of generating revenue and spending them, the government whether at the centre or in the states, has to get the nod of the legislature during what is termed as a ‘budget session’. The planned and unplanned expenditures of ministries and departments of government, with the justifications, have to be presented for approval to the legislature or its committees, including for instance, the Public Accounts Committee. There is therefore extensive legislative oversight of executive action. [There was a variation of this during the UPA regime between 2004 and 2014 when we had an extra-constitutional National Advisory Council headed by Mrs. Sonia Gandhi which first vetted all major legislative measures including the MNREGA Act, the Food security Act, the Forest Rights Act, the new Land Acquisition Act before they reached the Cabinet and then the Parliament].
There is, of course, judicial oversight of executive action, even of what is considered to be purely in the executive domain. For instance, the President’s decision to dismiss a state government, dissolve its legislative assembly and impose President’s rule under Art 356 is subject to judicial review. In S R Bommai v. Union of India [1993] the Supreme placed fetters on the President’s power to dissolve a legislative assembly; it had to first be voted upon by a joint session of both Houses of Parliament. This had the salutary effect of sharply bringing down the number of instances of the use of that provision. The purely executive act of granting pardons and remissions to convicts is also subject to judicial review. In Kehar Singh [1989], the Supreme Court set aside an order passed by the President rejecting the mercy petition submitted by a convict in the Mrs Indira Gandhi assassination case on the ground that the Supreme Court had already pronounced his guilt. The Supreme Court reminded the President that he had to decide the mercy petition independent of and uninfluenced by the judicial verdict as it was in an entirely different domain.
Even the decision of the Governor or the President not to approve a Bill passed by a State Legislature presented for assent is, it would appear, amenable to judicial review [T Nadu Governor case and the Advisory Opinion both in 2025]. The decision of a Governor to order a floor test calling upon a party to prove that it commands the confidence of the house is also amenable to judicial review [later in this lecture I will advert to a sampling of cases where this has happened].
The Legislature
We next turn to the legislature and the checks on it. It is the government of the day that advises the President, as the titular head of the Parliament [Governor in the case of the legislative assembly], to prorogue or convene the house; determine the dates and hours of its sitting; even to accept the resignation of government prematurely to call for elections and so on. Further, the purse strings, in a literal sense, are held by executive, whether it is the salaries or the perks of the staff and officers of the legislature. The salaries and perks of the legislators also come from the funds provided by the executive.
While the union legislature is bicameral [the House of the People (Lok Sabha) and the Council of the States (Rajya Sabha), the state legislature may or may not be. While in Parliament, a Bill has normally to be approved by both the houses in order to be enacted into law, the Speaker of the Lok Sabha may simply accept the Executive decision to characterise a particular Bill as a Money Bill and thus bypass the upper House (Rajya Sabha) altogether. After the introduction of the Member of Parliament Local Area Development (MPLAD) scheme for members of Parliament, and a corresponding scheme for the Members of the Legislative Assemblies (MLAs), the finances for these schemes have to be provided by the executive at the Centre or in the states as the case may be. Individual legislators by virtue of the X Schedule to the Constitution (the anti-defection provisions) cannot step out of line and defy the whip. Resultantly, legislature is virtually dysfunctional as far as the members of the ruling party are concerned. They cannot speak against or demand accountability of their own government. More on this later. There is therefore a control by the executive over the legislature.
We next look at the judiciary’s control over the legislature. Article 13 of the Constitution enshrines the power of judicial review over legislative action. Not only the particular provisions of an enacted statute, but even an entire statute can be held to be unconstitutional by the High Courts and the Supreme Court. This could be on the grounds of legislative incompetence, or violation of the fundamental rights, or of any of the mandatory procedures delineated under the Constitution. Even amendments to the Constitution can be struck down by the constitutional courts. The same holds good for subordinate legislation as well.
The courts also have a say on the happenings within the legislature including what can constitute legislative privilege. The actions of individual Speakers of the houses of legislature, whether in the Parliament or in the State legislative assemblies, to punish for contempt or to disqualify or expel a member of the legislature are all amenable to judicial review.
Election disputes that are adjudicated by the constitutional courts result in the disqualification of an elected member of the legislature. The Supreme Court has also mandated the disclosure by all candidates contesting an election to disclose on affidavit their criminal antecedents as well as assets [ADR Case]
After the X Legislature and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. when it comes to appeals to the Supreme Court, by providing an intermediate tier of judicial review at the level of the High Court [In L Chandrakumar (1993) the Supreme Court mandated that notwithstanding the statute providing a direct appeal to the Supreme Court from the decision of an Administrative Tribunal, the litigant would have to first challenge it before a Division Bench of the jurisdictional High Court under Article 226 of the Constitution]. Even where the legislature re-enacts or enacts a statute to rectify the defects pointed out by the court the re-enacted law can still be amenable to judicial review. In other words, the judiciary has the final say on whether an enacted law will pass constitutional muster.
The Judiciary
Lastly, we turn to the judiciary. The direct instance of legislative control is the removal, by way of impeachment, of constitutional court judges. The motion for removal signed by the requisite number of parliamentarians is presented to the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha who then constitutes a committee to enquire into the charges. That report is then tabled in the house to be discussed, debated and voted upon. [By the ruling party abstaining, upon the Whip of that party issuing a directive to its members, the impeachment motion can be defeated as it happened in the Justice V Ramaswami case in 1993]
Another significant aspect of control by the legislature is the ‘impact’ that the laws enacted by it have on the functioning of the judiciary. While the financial outlay needed for enforcing a law is usually tabled in the House along with the Bill, the report of judicial impact assessment is not. Some of statutes introduce a set of offences that are bound to end up as fresh cases before the courts, at all levels. [In 1989 Section 138 of the Negotiable Instruments Act 1888 was amended to make cheque bouncing an offence. This has resulted in lakhs of cases piling up on the dockets of magistrate courts all over the country] For instance, there are criminal law statutes like the Unlawful Activities Prevention Actrevention of Money Laundering Act, 2002, that place restrictions on the courts granting bail. This too increases the judiciary’s workload at all levels.
The legislature can of course re-enact a law that has been struck down by the judiciary after removing the defects pointed out by the constitutional court. The legislature can even seek to insulate certain laws from judicial review on the ground of violation of fundamental rights by placing them in the Ninth schedule to the Constitution. The Parliament can also seek to amend provisions of Constitution and the statutes concerning the appointment process of constitutional court judges, the terms and conditions of their service, their removal and of course their age of retirement. In other words, Parliament can by its actions affect the independence and accountability of the judiciary.
The judiciary is amenable to executive control in a variety of ways. In 1993, through an innovative interpretation of the word ‘consultation’ in Article 124 (2) of the Constitution was interpreted by the Supreme Court [the Supreme Court Advocates-on-record Association case] to mean concurrence. Thus, the judiciary sought to wrest the primacy in the process of appointment of judges to constitutional courts from the executive to the Chief Justice of India, functioning in a collegium. The attempt by the executive in 2015 to alter this arrangement by institutionalising the appointment process by creating a National Judicial Appointments Commission (NJAC) failed. The Supreme Court by a 4:1 majority struck down the constitutional amendment on the ground that impaired judicial independence which was part of the basic structure of the Constitution. Nevertheless, in the last decade, there have been numerous instances of executive interference in the process of not only the appointment of judges and Chief Justices of the High Courts and their transfer but also of appointments of judges of the Supreme Court.
We next turn to an important aspect. The finances of the entire district judiciary, including the salaries and perks of its judicial officers and staff, is from the funds provided by the executive in the states. Sanctioning of the posts of judicial officers and staff, notifying their appointments, financial and technical support for judicial infrastructure, provision of the security for the courts, execution of summons and warrants issued by the courts, getting the police and administrative machinery to provide wholesome support to the functioning of the state judiciary – all of this are in the hands of the state executive. Without this, the state judiciary might collapse. Article 50 of the Constitution does talk of separation of the executive from the judiciary. But for many states in the north-east, that happened fairly recently.
The dependence of the judiciary on the executive had an early manifestation in the pre-independence era in the Supreme Court of Bombay. The Chief Justice of that court, Sir John Peter Grant, miffed by the failure of the then Governor to enforce a writ of habeas corpus, simply locked up the court and sailed to England to petition the Privy Council. In present times we have had occasional stand offs between the courts and the executive. The Nadiad case in Gujarat in 1991 is one such [Delhi Judicial Service Association v. State of Gujarat]. There, a judicial magistrate was handcuffed and paraded by the police. This invited contempt action in the Supreme Court against the police. The executive, both at the centre and the states, has created a large number of specialised tribunals (for e.g., the tax, company, telecom, electricity, consumer disputes tribunals) to purportedly take the load of these cases away from an overburdened judiciary. However, the executive can frustrate the dispensation of justice by these tribunals by not filling up the vacancies of members for a long time.
The various scenarios I have presented, concerning checks and balances, are premised on there being ideal conditions where the three organs can function in a harmonious manner fully aware of the unwritten and grey lines that separate their respective domains. However, when there is a populist government in place, which commands a sizeable majority in the legislature, these checks and balances get skewed. Not just here, but world over, in the recent past, there has been a backsliding of democracy and the palpable weakening of the institutions of democracy. The Human Development Report of 2023/2024 titled ‘Managing Interdependence in a Polarised World’ noted how through the process of periodic elections in many a democratic country in which the person first past the post is declared a winner, an autocratic government comes to power with a mere 30% majority of the polled votes in a multi-polar contest. These dispensations are termed as ‘electoral autocracies’ brought to power through a so-called popular mandate. In a pattern which has been oft repeated through history, once these dispensations come to power through legal means, they proceed to systematically eviscerate the institutions of accountability of their power and autonomy. Populism trumps constitutionalism, pun intended.
IV
Institutional posturing
Having sketched the background, I now proceed to examine the main theme in distinct contexts. The first is the historical stand off during the first two decades of our republic between the strong executive with an overwhelming majority in the Parliament and the judiciary. The early years saw the Parliament respond to court decisions whether in the realm of freedom of speech or land reforms with a series of amendments. This continued with the Supreme Court invalidating the executive’s attempts at bypassing the legislature in order to abolish privy purses or nationalise banks.
Keshav Singh case
Even before we had the historic confrontation between the judiciary and the Parliament in the late 60’s, an unusual tussle emerged between the judiciary and the state legislature several hundred miles away from Delhi in March 1964. The facts as they unfolded saw one Keshav Singh, a resident of Gorakhpur, and three others, print and distribute, in the precincts of the Uttar Pradesh Vidhan Sabha (Legislative Assembly), a pamphlet that alleged that one of its members, belonging to the ruling party, was corrupt. The Legislative Assembly passed a resolution that a reprimand be administered to three of them, including Keshav Singh, for having committed contempt. The other two appeared as summoned and received the reprimand. Despite being repeatedly summoned, Keshav Singh failed to appear before the Assembly to receive the reprimand. His excuse was that he did not have the money to pay for the railway for the journey from Gorakhpur to Lucknow. The Assembly directed the Marshal to bring him in custody and produce him at the bar of the house on 14th March 1964. Keshav Singh was arrested in Gorakhpur in 13th March and produced before the Assembly the next day, 14th March 1964.
The events then took a dramatic turn. Keshav Singh simply refused to answer any of the questions put to him by the Speaker. Not even his own name. Throughout he stood with his back to the Speaker. He would not turn around to face, though, asked to do so. The Speaker was of course upset. [Keshav Singh perhaps lacked the wit of a legislator, particularly of the likes of veteran Parliamentarian Piloo Mody, a gentleman of substantial proportions. On one occasion, Piloo Mody was censured for showing negligence to the seat by talking with his back to the Speaker. Mody shielded himself by saying, "Sir, I have neither front nor back, I am round."]
After administering the reprimand, the Speaker informed the Assembly, that three days earlier on 11th March 1964, Keshav Singh had shot off a letter to the Speaker in which he protested against the sentence of reprimand. He added that he stood by what was said in the pamphlet and that he had no hesitation in calling a corrupt man, corrupt. He termed the warrant served on him as a ‘Nadir Shahi Farman’. Keshav Singh was stirred this time. He admitted that he had indeed written such a letter. Thereupon the Assembly passed another resolution, sentencing Keshav Singh to 7 days’ imprisonment. This time for the language used in the letter and for his misbehaviour in view of the house. The Speaker promptly wrote to the Superintendent of the District jail, Lucknow requiring Keshav Singh to be detained there for a period of seven days. The warrant did not state the facts which constituted contempt. Keshav Singh was taken to jail the same day.
Five days later, on 19th March 1964, and advocate named B. Solomon presented a petition before the High Court, Lucknow Bench, comprising Justice N.U. Beg and Justice G.D. Sehgal seeking a writ of habeas corpus for Keshav Singh’s release. The ground urged was that Keshav Singh had been deprived of his personal liberty without any authority of law and that the detention was illegal. The Bench decided to treat the petition as being both under Article 226 of the Constitution as well as Section 491 of the Code of Criminal Procedure, 1898. They ordered that Keshav Singh be released on bail forthwith. The petition was admitted and notice was issued to the Respondents named in the petition which included the Legislative Assembly and its Speaker. Two points required to be noted here. This was not a criminal offence for which Keshav Singh had been sent to jail. So, the question of his being released on bail did not arise. Second, the judges were not aware that the reprimand had been administered for the contempt he had committed outside the house by publishing the objectionable pamphlet whereas the sentence of imprisonment was for a separate contempt “he was found guilty of for what happened inside the precincts of the house. It was arguable if the High Court could have interfered with this sentence in view of Article 194 (3) of the Constitution.
The next stage of the drama was that on 21st March 1964, the Legislative Assembly met and passed a resolution holding that the two judges of the High Court, the lawyer B. Solomon who had filed the petition and Keshav Singh himself were guilty of contempt of the house. It was ordered that Keshav Singh be immediately taken into custody and kept confined in the district jail to serve out the remainder of his sentence after which he would be produced before the Assembly. The other three were asked to be brought in custody before the house. Warrants to effectuate these orders were issued on 23rd March 1964 to the Marshal of the house and the Commissioner of Lucknow. These developments were relayed over the radio on 23rd evening and published in the morning newspaper of 24th March. A panicked Justice Sehgal rushed to Allahabad to file a writ petition under Article 226 of the Constitution in the High Court for a writ of certiorari to quash the resolution of Assembly, and to restrain the Speaker and the State government from implementing the Assembly’s resolution of 21st March. Possibly Justice Sehgal was not aware that a warrant had already been issued by then.
Given the extraordinary circumstances, this petition was heard on 25th March 1964 by a Full Bench of all the 28 judges of the Allahabad High Court, barring of course the two judges against whom the resolution had been passed. This is still perhaps a record for the largest Bench of an Indian Court to hear a petition on the judicial side. The Full Bench stayed the Assembly’s resolution. On the morning of the same day i.e. 25th March the Assembly met and sought to sing a different tune. It now said that it did not mean to hold the four guilty of contempt without their being afforded an opportunity. The Assembly modified its resolution to direct that the four should appear before it to explain their conduct. Meanwhile, similar petitions were presented by Justice Beg, Advocate Solomon and even the Bar Association. Similar orders were passed by the Full Bench in those petitions as well.
By this time, things had gone out of hand and so on the very next day, 26th March 1964, the President of India made a reference to the Supreme Court under Article 143 of the Constitution for its advice on a set of five questions which included one concerning the competence of the High Court to entertain Keshav Singh’s petition. The second, whether any contempt had been committed of the Legislative Assembly by Solomon filing a petition on behalf of Keshav Singh which had then been heard by the two judges of the High Court; third, whether the Legislative Assembly was competent to direct the production of the two judges and the advocate before it to call for their explanation for its contempt; fourth, whether the Full Bench of the High Court could have entertained the petition of the judges and the advocate and pass interim orders restraining the Speaker from implementing the directions of the Assembly and lastly whether a judge of the High Court could entertain a petition challenging a decision of a legislature imposing a penalty in contempt proceedings.
Answering the questions, the Supreme Court held that while legislatures have wide privileges under Article 194 (3), they are subject to the Constitution, and their actions can be reviewed if they violate constitutional provisions. High Courts could examine the legality of the detention ordered under legislative privilege to ensure that it was within constitutional bounds; legislatures cannot penalise judges for judicial acts done within jurisdiction; advocates acting in their professional capacity are also protected. Both institutions must respect each other's constitutional functions. The Supreme Court clarified that the claim that all the powers of the British House of Commons became vested in the Indian Legislatures by virtue of Article 194 (3) cannot be accepted in its entirety for there were many powers of the House of Commons -such as right of access to the sovereign, passing acts of attainder, impeachment, determining its own Constitution etc.- which cannot be possibly exercised by the Indian Legislatures. If a citizen moved the court and complained that his fundamental right under Article 21 any other applicable right had been contravened, it would plainly be the duty of this Court to examine the merits of the said contention. It would be no answer in such a case to say that the warrant issued against the citizen was a general warrant and a general warrant must stop all further judicial enquiry and scrutiny.
The postscript is equally interesting. The Assembly, after noting the advisory opinion of the Supreme Court, passed yet another resolution expressing its ‘displeasure’ but nevertheless closing the matter. However, Keshav Singh’s ordeal did not end immediately. The writ petition filed first on his behalf challenging the resolution dated 14th March 1964 of the Assembly sentencing his to 7 days’ imprisonment came to be heard by a Single Judge of the Allahabad High Court in 1965. By a detailed judgment the High Court negatived each of his contentions and dismissed his petition. It directed that Keshav Singh be taken into custody again to serve out the remaining two days of his sentence.
From Sankari Prasad Singh Deo case (1951) to Kesavananda Bharathi case (1973)
Let us shift our focus to the Parliament. In the 1967 general elections, the Congress, for the first time in the country’s history, performed poorly. The Supreme Court, after having held in both in Sankari Prasad Singh Deo (1951) and Sajjan Singh (1965) that Parliament’s power to amend the Constitution was absolute, and that it included the power to exclude fundamental rights altogether, held the opposite in I.C. Golaknath vs. State of Punjab (1967) by a narrow 6:5 majority. Meanwhile in 1969 the Congress split into INC (R) headed by Mrs Indira Gandhi and the INC (O) headed by Mr Nijalingappa. INC (R) continued in power at the centre propped up by a coalition. In 1970, the government suffered two major reverses in the Supreme Court. The attempt at Bank nationalisation failed as did the abolition of privy purses by an executive fiat, after having failed to pass the measure through Parliament. By this time Chief Justice Subba Rao had resigned to contest elections for President, Chief Justice Wanchoo’s term had ended as had Chief Justice Hidayatullah’s. Around this time started the first moves by the executive to appoint ‘committed judges’ to the Supreme Court.
In the general elections in 1971, Mrs. Gandhi’s INC (R) won a thumping majority in the Lok Sabha with 352 seats. Soon after came the liberation war of Bangladesh which boosted her image politically. Buoyed by these successes, she again trained her eyes on the judiciary, determined to ensure a reversal of Golaknath. The Prime Minister’s inner coterie included Kumaramangalam and Sidhartha Sankar Ray who were Ministers in her Union cabinet. The efforts at packing the judiciary resumed right earnest. By the time the hearing of Kesavananda Bharathi vs. State of Kerala (1973) 4 SCC 225 [hereafter the Fundamental Rights (FR) case] by a 13 Judge Bench to consider the correctness of Golaknath commenced in November 1972, 8 judges were appointed to the Supreme Court. From a variety of sources, it is now clear that 2 were nominees of Law Minister Gokhale (YV Chandrachud and D G Palekar, JJ), 1 of Mohan Kumaramangalam (KK Mathew J), 2 of Siddharth Shankar Ray (A Mukherjee and SC Roy JJ) and 2 from the Allahabad High Court who were believed to be the Prime Minister’s choices (MH Beg and Dwivedi, JJ). HR Khanna J was CJI Sikri’s lone choice. Of these 8, 5 constituted the dissent in the FR case.
What happened in the FR Case, that was argued over 68 days, is now well known. While by 7:6 majority (11 separate opinions running to 703 pages) the Court on 24th April 1973, 2 days prior to Chief Justice (CJ) Sikri’s retirement, held that Parliament did have unlimited power to amend the Constitution, including abridging the FRs, it could not in that process emasculate or abrogate or destroy the basic structure of the Constitution. The majority, with HR Khanna J being the swing vote, accepted the theory of ‘implied limitations on the amending power of Parliament’. Not all the judges in the majority were ad idem as to what constituted the basic structure. While many said that the Preamble reflected the basic features, to some of them it included supremacy of the Constitution, separation of powers, secularism, democratic and republican form of government, federalism, freedoms, sovereignty, integrity and an egalitarian society.
Indira Nehru Gandhi case (1975)
Although Khanna J said that these did not include FRs, in the subsequent judgment in Indira Nehru Gandhi v. Raj Narain 1975 Supp SCC 1 (hereafter the Election case) he explained that he only said that in the context of the right to property, and not the other FRs. In the same case Mathew J said: “the concept of basic structure as a brooding omnipresence in the sky apart from specific provisions of the Constitution is too vague and indefinite to provide a yardstick for the validity of an ordinary law.” The difficulty in extracting the essence (the ratio decidendi) of the 11 opinions explains why CJI Sikri drafted, on a separate sheet of paper, the summary of the majority opinions, which was signed only by 9 of the 13 judges (AN Ray, KK Mathew, MH Beg and Dwivedi JJ declining). Thus, in a strange anti-climax, although Golaknath was overruled, the FR case perhaps went even further in curtailing the amending power of Parliament.
The other significant case that brought forth in full measure this tug of war between the legislature and the judiciary was the invalidation in June 1975 of Mrs. Gandhi’s election to the Lok Sabha in 1971 from the Rae Bareilly constituency. This judgment by Justice Jagmohan Lal Sinha of the Allahabad High Court was partially stayed by the Supreme Court on 25th June 1975. On day later, the internal Emergency was proclaimed. The political opponents in Parliament and elsewhere were all imprisoned. On 10th August 1975, one day before Mrs. Gandhi’s election appeal was to be heard by the Supreme Court of India, the Parliament, with most of the opposition MPs in jail, hurriedly passed 39th constitutional amendment that inserted Article 329 A in the Constitution whereby the elections to the offices of the President, the Vice President, the Prime Minister and the Speaker of the Lok Sabha were insulated from judicial challenge.
In the midst of all this, CJI AN Ray made an unsuccessful attempt at constituting a 13 judge Bench to review the judgment in the FR Case. On 11 November 1975 through four separate concurring opinions, in the Election case the Supreme Court was unanimous that the 39th amendment to the Constitution was violative of the basic structure and so struck it down. None of the judges had any doubt that the independence the judiciary, the equality clause in Article 14 and the notion of free and fair elections constituted basic features of the Constitution. Further, they viewed the 39th amendment as a declaratory judgment by the legislature and therefore an usurpation by the Parliament of the judicial powers when it came to elections to a select few public offices.
This aspect of the judiciary zealously guarding its independence has persisted throughout and its recent manifestation was when it struck down the Constitutional amendments that would have put in place the NJAC to take over the entire system of appointment of judges to the High Courts and the Supreme Court.
Expulsion of members
The next context is the power of the legislature to expel its members for misconduct independent of the disqualifications spelt out in particular provisions of the Constitution like Articles 102 and 173,
Raja Ram Pal (2007) was a case concerning a cash for queries scandal unearthed in a sting operation carried out by a private tv channel. The committees constituted to examine the video footage were satisfied that the demand and acceptance of bribes and the house then proceeded to expel the members found guilty. This was held to lower the dignity of the house, an action that met with approval in the Supreme Court.
In the case of Capt. Amarinder Singh (2010), his expulsion by the 13th Punjab Vidhan Sabha for having taken a decision as chief minister during the term of the 12th Vidhan Sabha was held to be unjustified as it had no nexus with lowering the dignity of the house, that being an executive act.
Bribe givers and Bribe takers
The third context is the prosecution of members who take bribes for queries or for voting (or abstain) in the house a particular way. The 1998 decision of the Supreme Court in PV Narasimha Rao case held, by a thin majority of 3:2, that the bribe givers and bribe takers who did not complete the task for which bribe was given would not be immune from prosecution whereas bribe takers who in fact voted pursuant to the acceptance of the bribe would enjoy immunity from prosecution. This anomaly was resolved 26 years later in Sita Soren case (2024). Acceptance of the bribe, it was held, was sufficient to attract the offence. This could by no means be construed as being essential for functioning as a member of the house. The Court further pointed out that the issue of bribery is not exclusively within the jurisdiction of the House over its bribe taking members. The purpose of a House acting against a contempt by a member for receiving bribes serves a purpose distinct from a criminal prosecution. A member engaging in bribery commits a crime, which is unrelated to their ability to vote or to make a decision on their vote. This action may bring indignity to the house.
X Schedule
The fourth context is of the working of the anti-defection law, and particularly the role of the Speaker in adjudging disqualification applications.
A few words on the background to the insertion of the 10th Schedule to our Constitution by the 52nd amendment, supposed to tackle the malaise of unprincipled floor crossings by elected members of political parties. It is largely believed that the trigger for the change in the law were the large-scale defections from the Congress after its poor performance in the 1967 general elections. As noted by one legal scholar, defections vitiate the basis of representative democracy as the electoral mandate is disregarded by an opportunistic shifting of allegiance across party lines. It took 25 years more for the X Schedule to be inserted by the 52nd amendment which acknowledged the political party as the fulcrum of Parliamentary democracy, and the necessity to ensure stability of an elected government which was under threat on account of shifting of allegiances under the lure of pecuniary benefits or offices of profit. While a single member shifting camps would attract disqualification, a group of them constituting 1/3rd of the legislature party causing a split would not. Also, if 2/3rds of them decided to merge with another political party that too would not attract disqualification. Also, if a party member defied the whip issued to him by the party, he would, unless such defiance was condoned by the party, attract disqualification. In such instances, the disqualification had to be decided by the Speaker of the lower house or the Chairman of the upper house.
In deciding on the validity of the amendment, in Kihoto Hollohan case (1992), the Supreme Court judges were a divided lot. By a majority of 3:2, the Supreme Court upheld the law except striking down one clause which accorded finality to the Speaker’s decision insulating it from judicial review. This, it was held, did not have the mandatory ratification of 2/3rd of the states. As regards the Whip, the majority said that a political party functioned on a set of shared beliefs and that the freedom of members to vote as they pleased independent of the political party’s declared policies “will not only embarrass its public image and popularity but also undermine political confidence in it which in the ultimate analysis is its source of sustenance - nay indeed its very survival.” For the court, it was party discipline rather than legislator autonomy which carried utmost significance.
The majority did not see the anomaly of a ‘split, in effect being a defection by a larger number of individuals. It said that the collective crossing of the floor would amount to an ‘honest dissent’ and it was permissible for the legislature to raise a presumption of bona fide since a large group was engaged in the offending conduct. There was nothing capricious and arbitrary in this legislative perception of the distinction between a ‘defection’ and a ‘split’.
The minority Opinion was more prescient. It took note of the fact that the Speaker was after all a party functionary who would be prone to be partisan. Experience has showed that the minority was right. The ‘split’ exception caused more harm than was anticipated, leading to its omission 18 years later by an amendment in 2003.
Between 1986 and 2004 out of the total 55 petitions for disqualification only 6 resulted in success. Others largely failed due to the ‘split’ exception. But the ‘merger’ exception remained and continued to cause problems.
What one witnessed in a series of cases post 2014 is the Court’s repeated interference with the actions of the Speaker, either to decide or indefinitely defer deciding the petitions seeking disqualification of the defecting members. Either the court pre-empts or it forces the Speaker’s hand thus bringing about a result that militates against the spirit of the X Schedule. Let us illustratively look at four instances.
In Manipur a sitting MLA of the Congress walked across the floor to the BJP, soon after 2017 election results were declared. A motley group of independents and others too followed suit. As a result the BJP which had only 21 seats in the 60-member assembly as compared to the INC’s 28 seats, could form the government. The petitions seeking the defecting INC Member’s disqualification were simply not taken up by the speaker. Even after being approached twice in Sep 2107 and Jan 2018 the High Court was reluctant to issue any mandamus to the speaker despite holding that the defecting member did attract the disqualification. It took another 2 years before the Supreme Court in January 2020 in Keisham Meghanchadra Singh case for it to held that if the speaker did not decide the petition within a reasonable time he would lose the shield of the para 6 of the Tenth Schedule.
Take the Karnataka case of Shrimanth Balasaheb Patil (2019). 17 MLAs from the Congress and Janata Dal, who were coalition partners in the government pursuant to the 2018 elections to the state legislative assembly, resigned and were whisked away to a resort to remain incommunicado. Their resignations were not accepted by the Speaker. Meanwhile, the Governor asked the government to establish its majority through a non-confidence motion. The role of the Supreme Court in this saga was curious. By an interim order of 17th July 2019, the court ruled that the floor test should proceed without the 16 members who decided to abstain. It held that they should not be compelled to attend the floor test. Naturally, the government fell. The Speaker proceeded to reject the resignations and disqualified the 16 members till the end of the term of the Assembly in 2023.
The Supreme Court upheld the disqualification but ruled that the disqualified members could not be barred from contesting till the end of the assembly’s term. As a result, in the by-elections that ensued, all the defecting members successfully contested on BJP tickets and were given cabinet berths. The Supreme Court virtually brought about the regime change by refusing to enforce the ‘whip’ prohibition in the 10th Schedule.
The third instance, what happened in Madhya Pradesh. In the 2018 elections Congress secured 114 seats and the BJP 109. Kamal Nath was chosen to lead the Congress government. A disgruntled Jyotiraditya Scindia resigned from the Congress in March 2020 triggering the resignation of 22 of his loyalist MLAs who then went incommunicado. The speaker of the House on a preliminary evaluation of the resignation scheduled the floor test for 26th March 2020. This was during the peak of Covid. Shivraj Singh Chauhan of the BJP filed a petition in the Supreme Court to advance the date to March 20. The Congress opposed the plea saying that the 16 members who had resigned, were incommunicado and held hostage at a resort. Nevertheless, the court advanced the floor test to 20th March thus forcing the Speaker’s hand and predetermining the collapse of the government. Scindia was elected to the Rajya Sabha on a BJP ticket and made a Union Cabinet Minister.
The last example of Maharashtra is even more egregious. The case of Sunil Prabhu v. Principal Secretary. The Shiv Sena which was part of the MVA alliance broke up in 2022. 40 of its 55 MLAs withdrew support to the coalition. There were 2 distinct factions. The Thackeray faction and the Shinde faction. Both of them claimed to represent the real Shiv Sena. The chief whip Sunil Prabhu directed all MLAs from the Shiv Sena to attend meeting at Thackeray‘s residence on 21st June. This was disregarded by the Shinde faction. On that day they appointed their own Whip Bharat Gogawale. On 23rd June Prabhu submitted petitions for the disqualification of the Shinde faction. The Deputy Speaker asked the 34 defectors to submit the written submissions by 27 June. On that very date the Shinde faction approached the Supreme Court which extended the time to file replies till 12 July 2022.
Meanwhile, Fadnavis, the leader of the opposition wrote to the Governor asking him to require Thackeray to prove his majority. The floor test was to be directed to be held on 30th June. Prabhu then approached Supreme Court on 29th June asking for a stay, saying that the disqualification petitions pending consideration before the Deputy Speaker had to be decided first. However, the Supreme Court declined and simply stated that the trust vote would be subject to the final outcome of the petitions. With the writing on the wall as regards the outcome of the floor test, Uddhav Thackeray resigned as Chief Minister before it could take place. Meanwhile, the Shinde faction sought removal of the Deputy Speaker and held an election to the post of Speaker. One Rahul Narwekar, supported by the Shinde faction, was elected as Speaker. He immediately recognised Shinde as the leader of the Shiv Sena Legislature Party (SSLP) and Gogawale as it Chief Whip. On 4th July 2022 Shinde proved his majority. Prabhu failed fresh petitions against 39 of the Shinde faction MLAs. Gogawale filed similar petitions against the Thackeray faction MLAs. Narwekar was issued notice only in the latter petitions.
The Supreme Court in its final verdict in its 2023 accepted many of the Thackeray faction contentions. It held that the Governor was not correct in calling for the floor test without any objective material before him to act on except the request of the BJP itself. The Speaker was criticised for sitting on the disqualification applications. However, when it came to restoration of the status quo ante, the Supreme Court dithered. It held that Thackeray could not be reinstated as he had resigned without facing the floor test. Timelines were set for the Speaker Narwekar to dispose of all the disqualification petitions. However, he violated them with impunity. The announcement of fresh Elections to the house in 2024 sealed the fate of the matter. In the fresh elections, the BJP-Shinde coalition returned to power, this time with the Shinde faction being the junior partner.
V
So what do we make of all this?
To summarise some of the main points. On the broad conspectus of separation of powers between the legislature and the judiciary, the curtailment of the powers of the Parliament to not permit it to alter the basic structure of the Constitution can be termed as one of the most significant successes for the judiciary. It is commendable that this happened at a time when the executive of the day commanded a huge majority in Parliament. The attempts by subsequent regimes enjoying a similar mandate to have this reversed or diluted have not met with success. But as a country we need to remain ever vigilant to this possibility. It will depend to a large extent on the judiciary’s ability to assert itself. There lies the hope for democracy.
Every now and then we do hear some politician being vocal about an unelected judiciary being able to overturn laws that have been passed by a sizeable majority in the legislature, at the instance of an individual or a group of them. But then that is the beauty of our constitution. It does not envisage a democracy which is merely majoritarian but at a democracy which accommodates difference, diversity, plurality and is inclusive. The judiciary is the organ that enforces the accountability of the legislature, and for that matter the executive, to the people.
In terms of interpreting the provisions of the Constitution the design is to permit the judiciary to have the last word on what passes muster and what does not. The decisions we noticed where the judiciary decides what are the extent of the Parliament’s privileges and powers and the immunities of individual legislators cannot be seen as aberrations but necessary for an orderly functioning of our institutions of democracy. Understandably, so far the judiciary has also rebuffed the attempts by the legislature to whittle down its powers or its independence. One cannot say with the same degree of confidence that the judiciary has been able to stand up to a powerful executive. It appears that the last time that really happened was more than five decades ago in 1973.
Even from the point of view of federalism, in terms of the distribution of finances, the powers to levy taxes, we need the court to strike a balance between what the centre can legitimately collect as taxes without encroaching on the domain of the states that have been clearly delineated in the constitution. Therefore, the tussle between the two legislative bodies – the Parliament on the one hand and the state legislatures on the other, requires a neutral umpire like the judiciary. In the recent past another threat to federalism is the actions of the governors of various opposition ruled states in not assenting to bills passed by state legislatures. The tussle then is between the Union executive and a state legislature and thereby the state executive. This too has needed judicial intervention. We need therefore the judiciary to be strong, consistent, independent and free from pressures of all kinds. But has that been possible?
In the cases that we have reviewed, there is one trend that is discernible, and which is a cause for some concern. Where it is a coalition government at the centre, the judiciary is far more assertive than it might when it is dominated by a single political dispensation. In the past decade the judiciary has been less willing to strike down enacted laws particularly when they concern national security, sovereignty and integrity. It has been readily willing to enforce draconian criminal law provisions that severely curtail individual liberty. Also, it has delayed taking up for consideration the challenges to some of these laws till a point when the outcome is a foregone conclusion.
Add to this is the decisions rendered under the X Schedule. They show that the Supreme Court has been a major player in bringing about regime changes by subverting the spirit of the anti-defection law. It has willy-nilly entered the political thicket, and either taken over the functions of the Speaker by pre-empting the decisions on the disqualification petitions or has condoned the delayed consideration or even non-consideration of those petitions by the Speaker. It cannot be a mere coincidence that these decisions have invariably favoured the political dispensation at the centre. There may be some justification in the view expressed by some legal scholars that the judiciary has in the recent past fallen short of the expectation of being a counter-majoritarian institution.
We have talked about the legislature and about the judiciary. One question that needs to be asked is how democratic are these institutions in themselves? Before we do that it might be interesting to see how the holders of power in these institutions perceive themselves. It must be recalled that the colonisers had the royalty before them as role models when it came to the grandeur and pomp that accompanied the seats of power. The awe-striking architecture of the buildings, the high ceilings, the ornate furniture and the conscious distance between the deliberately heightened daises where those in authority sit and those whose remonstrations they are expected to address. The Rashtrapati Bhavan could easily compare with any of the erstwhile palaces, as must be the modern Parliament building and even the architecture of some of the modern High Court buildings. The nomenclature of the governors’ residences may have changed from Raj Bhavan to Lok Bhavan. But they remain palatial mansions, behinds high walls, beyond easy access to the common person. The forms of address – His Highness, His Excellency, My Lord – the liveried ushers, bedecked bodyguards, the stiffening and withdrawal of human bodies as the persons of eminence walk past are all vestiges of modern royalty. And when they travel, not only these eminences, but even the so-called people’s representatives travel in a convoy of cars (many of them of foreign origin) hogging all the road space and creating huge traffic snarls. The judiciary too has been unable to shake of its colonial forms of dress, address, protocols. There are issues with feudal and patriarchal practices within the institution.
Whether it is the legislature or the judiciary it is difficult to confidently state, even after 75 years, that they are truly representative of the cross-section of Indian society. They continue to be dominated by men, the upper castes and revel still in feudalism and patriarchy. Women’s presence whether in positions of power and authority within political parties or in the legislature as a whole is nowhere proportionate to their actual numbers in the population. The 33% reservation promise is yet to be fulfilled. Intra party democracy is a chimera. It is the age of the ‘high command’.
But it is not just the forms of the internal arrangements that has not changed. The mindset of those occupying important positions, and their sense of responsibility and accountability to the people, is far from being decolonised. It is yet to be fully aligned with the constitutional values and expectations. What economists would term as rent-seeking, permeates the mode of functioning of many a government servant or public servant whatever the power or influence they may wield. A far cry from Dr Ambedkar’s hope that decision makers in administrative positions and elsewhere would embrace constitutional morality as a creed and imbibe constitutional values in their everyday functioning. Did we say a system of the people, for the people and by the people? That needs a radical shift, a different way of thinking, a rebooting and a re-discovery of character as a nation. It matters therefore also that constitutional values are imbibed by not just each of our judges, but by each legislator and each bureaucrat and minister.
In their actual functioning, if one views the proceedings within its precincts, easily accessible now through live streaming, it is a spectacle best avoided. This is not to say there are not some spirited legislators that make meaningful interventions giving analytically incisive accounts of some of the bills tabled but this all too far and few in between. Progressively the frequency and length of legislative sessions have shortened. Ministers can get away with making misleading statements during question hour.
[From the ‘Yes Minister’ TV series on the BBC, a dialogue between the Minister Hacker and his Secretary Sir Humphrey:
Hacker: So when this next comes up at Question Time, you want me to tell Parliament that it's their fault that the Civil Service is too big?
Sir Humphrey: But it is the truth, Minister.
Hacker: I don't want the truth. I want something I can tell Parliament!]
The scenes on the floor of the house are invariably chaotic with questions not been allowed to be raised, motions not been allowed to be tabled, walkouts, boycotts, mass expulsions or suspensions of members of the opposition parties and of course wholesale expunging of remarks. Decorum is felt by its total absence. [Once, Lohia told the House that Nehru wasn’t an aristocrat as he was portrayed. “I can prove that the prime minister’s grandfather was a chaprasi in the Mughal court,” Lohia said. To which, Nehru smiled and replied: “I am glad the honourable member has, at last, accepted what I have been trying to tell him for so many years: That I am a man of the people.]
The expectation of opponents dealing with each other with civility and respect appears today to be unrealistic. [Once while rejecting an amendment moved by Rajaji, Nehru said: "You see, Rajaji, the majority is with me." Rajaji countered: "Yes, Jawaharlal, the majority is with you, but the logic is with me". Nehru laughed with the House, realised that Rajaji had a point and the amendment was carried out.]
The Speaker’s position in the Lok Sabha, and the Vice President as the Chair of the Rajya Sabha were seen as integral to the working of responsible government, standing at the junction of the executive‑legislative relationship and the daily operation of parliamentary democracy. Thanks to live streaming of the proceedings, the partisan behaviour of these office holders and their utterances both within the precincts of the house and in public fora do not inspire confidence in their ability to be statespersons capable of rising above their party affiliations.
The Tenth Schedule has resulted in power being shifted away from the individual legislator to the leadership of political parties. As one legal scholar notes, it has brought about a shift from a candidate-centric to party-centric model of representation. With the whip in place the ruling party legislator has to simply toe the line. Either he is disruptive in the house to attract attention or has to shift his activity from the legislative arena to the election arena. With the MPLADS in place the legislator is likely to focus on spending those funds to publicise himself or herself as a servant of the people. Also, in terms of the law election spending, there is a greater control through law on individual candidates rather than on parties. An individual candidate has to depend on his own sources and therefore the tendency to accumulate illicit wealth. The loss of character is inevitable.
We also have to try and understand why there are friction points between the courts and the legislators. Judges do have adjustment issues when it comes to both caste and class and a sense of superiority in terms of learning and experience vis-a-vis legislators who are people’s representatives. In the rarified atmosphere in which they function, and in the circles in which they socialise, they are naturally removed from the rough and tumble of daily life. It should not be surprising that some of them give a distinct impression of being out of touch with ground realities. In this scenario, it is difficult to imagine judges considering legislators as co-equals who occupy positions in another constitutional organ of co-equal weight. When Speakers are therefore entrusted with adjudicatory functions, judges are easily inclined to act as their appellate authorities.
All this could possibly explain why the legislator today commands little respect either among the general populace or among judges. Even judges too realise that their standing is not what it used to be four or five decades ago. This is not to say that all legislators and all judges are of the same ilk. There are fine exemplars among them too and hopefully they will be the role models for those that follow. In fact, I personally am of the view that there are many politicians and many judges, as there have been in the past, who take their tasks seriously, adhere to the constitutional values and try and give their best. They are to be admired that in the midst of the general morass of an amoral political class and a general regression in societal values, they have the courage and the conviction to hold their own. They need to be identified and encouraged so that they may inspire the next generation of aspirants.
In the end we must live in the hope of a better tomorrow. It might be useful to sign off by recalling these words from the advisory opinion of the Supreme Court way back in 1964:
“It is necessary to remember that the status, dignity and importance of the two institutions, the Legislature and the Judicature, are derived primarily from the status, dignity and importance of the respective causes that are assigned to their charge by the Constitution. These two bodies as well as the executive which is another important constituent of a democratic State, must function not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working of the three constituents of the democratic State alone will help the peaceful development, growth and stabilization of the democratic way of life in this Country.”
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Justice Dr. S. Muralidhar, Senior Advocate, Supreme Court of India and the 32nd Chief Justice of Orissa High Court delivered the lecture at Netaji Bhavan, Kolkata, on 10th January, 2026
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