viii. miscellaneous
AC. Constitution of India — Arts. 74 and 77 — Comparative scope
Per Jeevan Reddy and Agrawal, JJ.
Articles 74 and 77 are in a sense complementary to each other, though they may operate in different fields. Insofar as the executive action of the Government of India is concerned, it has to be taken by the Minister/official to whom the business is allocated by the rules of business made under clause (3) of Article 77 There is no occasion in such cases for any aid and advice being tendered to the President by the Council of Ministers. Though expressed in the name of the President, they are the acts of the Government of India. They are distinct from the acts of the President “in the exercise of his functions” contemplated by Article 74.
(Para 320)
AD. Constitution of India — Arts. 168, 172, 324(1), 329(b) and 32, 136, 226 — Election process once set in motion should run its full course and all election disputes shall be resolved in accordance with the procedure established by R.P Act (Per K. Ramaswamy, J.) — Election
(Para 244)
AE. Constitution of India — Preamble — Nature of the Constitution
Per Pandian, J.
The Indian Constitution is both a legal and social document. It provides a machinery for the governance of the country. It also contains the ideals expected by the nation. The political machinery created by the Constitution is a means to the achieving of this ideal.
(Para 3)
AF. Constitutional Law — Conventions — Role and significance of
Per K. Ramaswamy, J.
The constitutional conventions provide the flesh which clothes the dry bones of the law; they make the constitution work; they keep it in touch with the growth of ideas. A constitution does not work itself; it has to be worked by men. It is an instrument of national cooperation which is as necessary as the instrument. The conventions are the rules elaborated for effecting that cooperation. Conventions entrust power granted in the constitution from one person to the other when the law is exercised by whom they are granted, they are in practice by some other person or body of persons. The primary role of conventions is to regulate exercise of the discretion facing that irresponsible abuse of power. Upsetting the settled convention and the law and adopting value oriented interpretation would generate uncertainty and create constitutional crises in the administration and the Government and would lead to failing the Constitution itself.
(Paras 231 and 233)
K.C Wheare : Modern Constitution (1967 Edn.), relied on
Supreme Court Advocates-on-Record Association v. Union of India, (1993) 4 SCC 441 : JT (1993) SC 479, relied on
AG. Interpretation of the Constitution — Provision having potentiality to unsettle and subvert the entire constitutional scheme should be so construed as to maintain the fundamental constitutional balance (Per Sawant and Agrawal, JJ.) — Constitution of India, Art. 356
(Para 96)
AH. Interpretation of the Constitution — Presumption — Motives, bad faith or abuse of powers cannot be presumed — Evidence Act, 1872, S. 114, Ill. (e)
Per K. Ramaswamy, J.
In interpreting the Constitution neither motives nor bad faith nor abuse of power be presumed unless in an individual case it is assailed and arises for consideration on that premise. Section 114, Ill. (e) of the Evidence Act raises statutory presumption that official acts have been regularly performed.
(Para 212)
AI. Interpretation of the Constitution — Casus omissus — Courts should not fill in gaps in the constitutional provisions when language is plain and clear and there is no obvious inadvertent omission
Per K. Ramaswamy, J.
Though it is settled law that in working the law and finding yearning gaps therein, to give life and force to the legislative intent, instead of blaming the draftsman, the courts iron out the creases by appropriate technique of interpretation and infused life into dry bones of law. But such an interpretation is not permissible, when the Court is called upon to interpret the organic Constitution and working the political institutions created therein. Where the language of a statute is clear and unambiguous, there is no room for the application either of the doctrine of casus omissus or of pressing into service external aid, for in such a case the words used by the Constitution or the statute speak for themselves and it is not the function of the court to add words or expressions merely to suit what the courts think is the supposed intention of the legislature.
(Para 238)
If a particular case is omitted from the terms of a statute, even though such a case is within the obvious purpose of the statute and the omission appears to have been due to accident or inadvertence, the court cannot include the omitted case by supplying the omission. This is equally true where the omission was due to the failure of the legislature to foresee the missing case. To permit the court to supply the omissions in statutes, would generally constitute an encroachment upon the field of the legislature. In construing the Constitution we cannot look beyond the letter of the Constitution to adopt something which would commend itself to our minds as being implied from the context.
(Para 239)
The court when caught in a paralysis of dilemma should adopt self-restraint, it must use the judicial review with greatest caution. In clash of political forces in political statement the interpretation should only be in rare and auspicious occasions to nullify ultra vires orders in highly arbitrary or wholly irrelevant proclamation which does not bear any nexus to the predominant purpose for which the proclamation was issued, to declare it to be unconstitutional and no more.
(Para 241)
Craies on Statute Law, 7th Edn., p. 69; Crawford : Construction of Statutes at page 269 in paragraph 169; Craig R. Ducat : Modes of Constitutional Interpretation, 1978 Edn. at p. 125, relied on
State of Tasmania v. Commonwealth of Australia and State of Victoria, (1904) 1 CLR 329; Dennis v. US, 341 US 494 : 95 L Ed 1137 (1951), relied on
R-M/12893.C
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