CASE LAW STUDIES

1- Berubari Union case 1960

BENCH

1. BP Sinha
2. AS Shah
3. K Dasgupta
4. KS Rao
5. M Hidayatullah
6. P Gajendragadkar
7. S Das

FACT
 A commission was established with a motive of apportionment of
the State of Bihar, which was headed by Sir Cyril Radcliffe acting
as its chairperson.
 Later on, a borderline was stabilised between both the countries,
i.e. India and Pakistan. This division gave rise to
some quarrels between both the nations regarding
same location of the apportionment.
 Later, the district of Jalpaiguri was apportioned between India and
Pakistan by Sir Cyril John Radcliffe, in which some thanas (police
stations) were given to Pakistan while some remained with India.
 During this, he left out one such place which was known as
Berubari Union No. 12, which was later granted to India in the
year 1947 on 14th of August. This exclusion or space that was
formed by the commission led Pakistan to claim for the territory
as its own.
 During all these processes was underway, the Indian
Constitution came into force on 26th of January 1950, and Article
1 of our constitution provided India shall be a Union of States and
shall be mentioned in Part A, B, and C of the First Schedule of the
constitution. West Bengal was included in Part A of the Indian
 Constitution and Berubari Union No. 12 was also included in it, as
it was awarded by the Boundary Commission to India.
 The Government of Pakistan claimed their right over the Berubari
Union first time in year 1952. However, the dispute came to
a resolution in year 1958 through an agreement which distributed
the Berubari Union into two parts, out of which one part was taken
from India while; the other part was awarded to India.

ISSUE
1. Whether there is a need for legislative action to carry out an
agreement relating to the Berubari union?
2. Whether the case where there is such a need for action, does a law
of parliament concerning Article 3 of the Constitution of India,
1950 sufficient, or is an amendment of the constitution
following Article 368 of constitution necessary?
3. Whether by Article 3 of the Constitution of India parliament is
empowered to implement the agreement relating to Berubari
Union or is there a need for amendment under Article 368 of the
Constitution for such action?

JUDGEMENT
Preamble: Supreme Court further concluded that the Preamble is not
a part of the Indian Constitution.
Article 1(3) (c): Supreme Court, held that the article does not grant
authority to India to acquire territories. It makes a provision for the
absorption and integration of foreign territories that may be acquired
by the Indian Union.
Article 368: It was decided that amending Article 1 is under the
purview of the power to amend our Constitution. Hence, it would
logically include the power to cede national territory in favour of a
foreign state.

This means Nehru-Noon Agreement is subjected to the approval of

both houses of parliament. Any territory of India can be ceded to a
foreign country only after amending Article 1 with a special majority
of parliament.

2-S. R. Bommai v/s Union of India

S.R Bommai was the Karnataka chief minister between August 1988
and April 1989. he led Janata Dal government which was dismissed
on 21st April 1989 when president's rule article 356 was imposed in
Karnataka.
Bench of judges: - S.R.Pandian,A.M.Ahmadi Kuldip Singh, J.S.
Verma,P.B. Sawant, K. Ramaswamy, S.C Agarwal ,Yogeshwar Dayal
,B.P.Jeevan Reddy.
S.R Bommai case give one of the landmark judgements of the
supreme court regarding the basic structure doctrine as well as
recording the balant misuse of article 356.

Article 356:
Empowers of president to issues state emergency. if he is satisfied that
state cannot be carried on in accordance with the provisions of the
constitution. President can act either on a report of governor of the
state or otherwise too.
FACT
1- Sr Bommai was the chief minister of the Janata Dal government in
Karnataka between 13 August 1988 and 21st April 1989.
2- His government was dismissed on 21 April 1989 under article 356
of the constitution and president's rule was imposed in what was then
a party mostly mode to keep opposition party at bay.
3- The dismissal was on grounds that the government had lost
majority following large scale defections engineered by several party
leaders of the day.
4- Then governor p Venkatasubbaiah refused to give an opportunity
to test his majority in the assembly despite the letter presenting him
with a copy of the resolution passed by the Janata Dal legislative
party.
 Bommai went to court against the governor's decisions to
recommend president's rule and the H.c.which dismissed his
writ petition. then he moved the supreme court.
On April the governors sent a report to the president stating
there in dissensions and defection is in the ruling party. he
further stated that in view of the withdrawal of the support by
the state legislature the chief minister Bommai. I did not
command party in the assembly and hence it was inappropriate
under the constitution to have the state administration by an
executive consisting of council ministers which do not come on
the majority in the state assembly. The president that he should
exercise power under article 356(1). the governors and yet
another report to the president on the same day 20/4/1989 and
stated that the chief minister had lost the confidence of the
majority in the house and repeated his earlier request for action
under article 356 (1) the president issued the proclamation in
question with the recitals already referred to above.
JUDGEMENT
1-The verdict concluded that the power of the President to
dismiss a state government is not absolute.

2-The verdict Said the president should exercise the power only
after his proclamation imposing her rule is approved by both
houses of parliament.

3-The court said the president can only suspend the legislative
assembly by the suspending the provisions of constitution
relating to the legislative assembly.

4-In case the proclamation does not get the approval of both the
houses, it lapses at the end of a period of two months and the
dismissed government is revived.

5-The suspended legislative assembly also gets reactivated.

6-The supreme court also stated that the proclamation of the

imposition of article 356 is subject to judicial review.
3- Sajjan Singh v/s State of Rajasthan
Bench: - Gajendragadkar, P.B(CJ),Wanchoo, K.N,
Hidayatullah, M. Dayal, Raghubar , Mudholkar, J.R.
FACTS: -
In order to give effect to various policies enacted by the state
legislatures for agrarian reforms the parliaments brought in the
constitution (First Amendment) Act,1951which added article 31A and
31B to the constitution which lead to the introduction of 9th schedule.
The object of the schedule is that any law placed under the schedule
cannot be challenged on the basis fundamental violation. Further in
the constitution (Seventeenth Amendment) Act ,1964. Article 31A
was further amended and 44 more such enforcements were added to
the schedule. Aggrieved by these enactments the petitioner challenged
the validity of the said amendment and all those legislations which
were added to the schedule under article 32 of the constitution.
ISSUES: -
1-Whether the term law under article includes amendments to the
constitution?
2- Whether there is a need to reconsider the decision in Shankari
Prasad v/s Union of India?
JUDGEMENT: -
The petitioners contended that,
1- The term law under Article 13 includes amendments made
to the constitution.
2- Legal immunity to the legislations from being challenged
is beyond the amending powers of the parliament.
3- The decision in the case of Shankari Prasad v/s Union of
India wherein the court held that, amendments are not law
under Article 13 is to be reconsidered.
 4- The powers prescribed under Article 226 is likely to be
affected be the amendment.
5- Parliament has no authority to make laws with respect to
land as it falls under entry 18 of list II.
However, the respondents contended that, law under Article 13
includes only legislative enactments enacted under Article 245, 246,
248 of the constitution and does not include amendments made to the
constitution.
Upon hearing the parties to the case, the court held that, the impugned
amendment is brought on only for the fulfilment of socioeconomic
policy. Also the effect of the amendment on Article 226 is incidental
and insignificant. The parliament is not enacting any land legislation
but is merely validating the already enacted ones by the state
legislature therefore the parliament reserves the authority for the
same. Finally, the court concluded that, the ruling in Shankari Prasad
v/s Union of India is valid and there is no necessity to reconsider the
same.
4-Golaknath v/s State of Punjab
FACTS: -
A petition was filled in the supreme court questioning the validity of
Punjab Security of Land Tenures Act, 1953(Act 10 of 1953) and of
the Mysore Land Reforms Act(Act 10 of 1962) as amended by Act 14
of 1965. Since the legislations were added to the 9th schedule of the
constitution by the Seventeenth Amendment Act ,1964, the said
amendment was also challenged.
ISSUES: -
1- Whether the term law under Article 13 includes
amendments made to the constitution?
2- Whether the parliament has exclusive rights to amend any
part of the constitution?
 JUDGEMENT: -
Through the question whether the term law under Article 13 includes
amendments or was not already addressed in the case of Sankari
Prasad v/s Union of India and Sajjan Singh v/s state of Rajasthan it
still came up for consideration before a 11 judges constitutional bench
of the supreme court in the instant case. The petitioners contended
that, part III rights are supreme to any other law enacted by the
parliament including amendments, therefore the above stated
legislations inserted in the 9th schedule along with the amendment
stand unconstitutional. The respondent contended that, law refers to
legislatives enactments under Article 245,246,248 and those are not
made under Article 368, therefore the amendment stands valid.
Upon hearing the parties to the case, the court held that, Article 368
merely laid down the procedure in which the legislative powers of the
parliament under Article 245 has to be exercised. Article 368 alone do
not confer any authority over the parliament therefore all enactments
of parliaments falls well within the ambit of the term law under
Article 13 and must be in consonance with the fundamental rights of
the citizens.

5- Kesavananda Bharti v/s State of Kerala

FACTS: -
The main petitioner, Kesavananda Bharti was the chief of a religious
sect of Edneer Mutt in Kerala. Kesavananda Bharati had certain land
areas of the sect in his name. There were some disputes between the
state government and the sect members over the ownership of these
lands. The state government of Kerala introduced the Land Reforms
Amendment Act, 1969 under which the state government had the
right to take some parts of the land which belonged to the case.
Kesavananda Bharati moved to the Supreme Court under Article 32
of the Indian constitution for the infringement of his fundamental
rights under Article 25 (Right to practice and propagate religion) and
Article 26 (Right to manage religious affairs), Article 14 ( Right to
Equality), Article 31 (compulsory acquisition of property) and Article
19(1)(f) (freedom to acquire property).
When the matter was still pending in the court the Kerala government
passed another act called Kerala Land Reforms (Amendment) Act,
1971. In the case of Golaknath vs the State of Punjab, certain
amendments were made like the 24th Constitutional (Amendment),
Act 1971, which states that Parliament has the power to amend the
provisions of the constitution. The 25th Constitutional (Amendment)
Act states that if the state government takes private property it’s not
the responsibility of the state to compensate the owner equally.
ISSUES: -
Firstly, Is there any constitutional validity of the 24th Constitutional
(Amendment) and the 25th Constitutional (Amendment)?
Secondly, whether the Parliament can amend the constitution or not?
JUDGEMENT: -
In the case of Kesavananda Bharati v/s State of Kerala, it was held by
the Supreme Court that the Parliament has the right to change the
provision of the constitution but it shall not change the basic structure
of the Indian constitution. The majority bench held that the basic
structure of the constitution, meaning thereby the true essence of the
constitution, shall be changed by the Parliament under Article 368 of
the constitution of India. Thus, the 24th Amendment Act was
completely upheld by the court and two parts of the 25th Amendment
were found ultra and intra-vires.