Indian Kanoon - Search engine for Indian Law

ii) The second submission of the learned Advocate General was that since the number of the MLA's from the Rest of Maharashtra would outweigh the total number of MLA's from Vidharbha and Marathwada, hence if the Directives issued by the Governor are put to voting then the same could never be implemented thus defeating the very purpose of Article 371.

iii) The next submission of the learned Advocate General was Article 371(2) does not violate the basic structure of the Constitution. He stated that the sole objective behind passing Page 1639 Article 371(2) was due to historical considerations. It basically carved out a sphere of responsibility for the Governor from the domain of the Legislature. Mr. Kadam argued that Article 371 would have lost its meaning if the same wasn't carved for the Governor and be carved instead for the Legislature. He thus denied that the same could be vetoed by the Legislature under Article 202 and 203, as it would be a power always remaining on paper for the Governor that too on the whims and fancies of the Legislature to do as they sought to do, i.e, to allocate funds in a manner they wished to by voting on the distribution plan laid down by the Governor.

Paragraph No. 135:

We are of the opinion that the provisions in the particular situation and the permissible latitudes cannot be said to be unconstitutional.

Page 1641

2. Dr. C.Surekha v. Union of India . The relevant paragraph No. 4 reads as under:

Andhra Pradesh institutions were kept out from the purview of the Scheme by order of this Court. It is true that the direction in the order dated July 26, 1984 left the matter open to be agitated and petitioner's application seems to come within the limits left open. Mr. Choudhary appearing for the State of Andhra Pradesh referred to the historical background leading to the incorporation of Article 371-D in the Constitution by the 32nd Amendment with effect from July 1, 1974. The decision of this Court in P. Sambamurthy v. State of Andhra Pradesh does not support the petitioner's contention that Article 371-D militates against the basic structure of the Constitution. The question that was considered by the Constitution Bench in Sambamurthy case was denial of judicial review on the principle accepted in Minerva Mills Ltd. v. Union of India and Sampat case (S.P. Sampath Kumar v. Union of India , (reference) decision. This Court came to hold that Clause (5) which provided that the final order of the Administrative Tribunal shall become effective by its confirmation by the State Government and it was open to the State Government to modify or annul that order within 90 days militated against the Doctrine of Basic Structure. At the same time, the Court held that Article 371-D(3) was valid and intra vires the amending powers of the Parliament. This clearly means that the Scheme of Article 371-D was valid and the provision in Clause (5) along was bad. Clause (10) of Article 371-D provides : The provisions of this Article and any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.

In view of the terms of Clause (10) and the effect of the decision of the Constitution Bench in Sambamurthy case, the petitioner is not entitled to any relief on the first ground, namely for a declaration that Article 371-D militates against the basic structure of the Constitution.

3. State of Sikkim v. Surendra Prasad Sharma and Ors. , ...So also the High Court missed the efficacy of the non obstante clause in relation to Clauses (i) and (j). The nonobstante clause Page 1642 insofar as it concerns Clause (i) is intended to protect the constitution of the High Court, the appointments of Judges of the High Court, etc., from being assailed on the ground that they did not accord with Chapter V of Part VI of the Constitution. Similar appears to be the intendment of Clause (j) also with this difference that the protected courts and authorities will henceforth exercise their respective functions, subject to the provisions of the Constitution. It is therefore, obvious that the learned Judge in the High Court missed the real objective of qualifying all the clauses of Article 371-F with the omnibus - notwithstanding anything in this Constitution.

4. Waman Rao and Ors. v. Union of India and Ors. :

...We would like to add that every case in which the protection of a fundamental right is withdrawn will not necessarily result in damaging or destroying the basic structure of the Constitution. The question as to whether the basic structure is damaged or destroyed in any given case would depend upon which particular Article of Part III is in issue and whether what is withdrawn is quintessential to the basic structure of the Constitution.

The learned Advocate General thus submitted that Article 371(2) is not subject to Article 202 and 203. He also said that Article 371(2) is not a charge on expenditure under Article 202(3)(f) as it has not been so declared expressly under the Constitution.