Swaran Singh Committee Report
Cite as : (1976) 2 SCC (Jour) 45
The following is the text of the report of the Swaran Singh Committee, set up by the Congress President to suggest amendments to the Constitution:
The tentative proposals formulated by the Committee for amendment of the Constitution were circulated to all the Congress Chief Ministers and Pradesh Congress Committee presidents for ascertaining their views.
The Committee held discussions on the proposals with members of the Congress Party in Parliament on May 10, 11, 12 and 14, 1976.
The Committee invited the Bar Associations of the Supreme Court and all the High Courts to send their representatives for eliciting their views on the proposals. The Supreme Court Bar, the All-India Bar, the Bar Council of India, and the Bars and Bar Councils of several High Courts responded to the invitation. Their representatives met the Committee from May 17 to May 20, 1976, and there was a free and frank exchange of views on the different aspects and implications of the Committee's proposals. A few individuals, including Shri P.K. Tripathi, Member Law Commission and Shri Ramrao Adik, Advocate-General of Maharasthra, and representatives of organisations interested in the legal and constitutional studies also met the Committee.
The tentative proposals received wide notice in the press and in public forums and several newspapers editorially commented on them and some carried special articles. A large number of written memoranda and opinions have been received from individuals, professional bodies, etc.
The Committee has given earnest attention and careful thought to the several views expressed. The discussions with members of Parliament and the representatives of the Bar have been particularly rewarding. They have greatly assisted the Committee in clarifying its own thoughts and views and have influenced it to some extent in modifying some of its earlier tentative proposals. The Committee's recommendations set out below are made in this background.
In making these recommendations the Committee has kept before it certain important objectives. Our Constitution has functioned without any serious impediment during the past 26 years and more. While this is so, difficulties have been thrown up from time to time in the interpretation of some of its provisions, more particularly where they concern the right of Parliament to be most authentic and effective instrument to give expression and content to the sovereign will of the people. It is the scheme of the Constitution that the three main pillars of our parliamentary democracy, namely, the Legislature, the Executive, and the Judiciary have to function harmoniously if we are to achieve our desired objectives of securing to all citizens justice, social, economic and political. Ours is a dynamic, moving and changing society, and the need to quicken the pace of socio-economic progress of our people has never been more urgent. Some of the amendments to the Constitution that we have proposed have been conceived in this spirit. The Committee would like to emphasize that the respect of the people for the three organs of our democracy and their confidence in these organs have to be sustained and strengthened. An attempt has been made to clarify and define, where possible, with greater precision their respective functions in the light of the experience gained, so that our democratic institutions may work smoothly in an atmosphere of complete understanding.
I. SYSTEM OF GOVERNMENT
The Parliamentary system is the best suited to our country, and it is unnecessary to abandon it in favour of the Presidential or any other system. In a vast country like India, with the kind of regional diversity as we have, the Parliamentary system preserves best the unity and integrity of the country and ensures greater responsiveness to the voice of the people.
II. THE PREAMBLE
The Committee is of the opinion that the concepts of Secularism and Socialism should be clearly spelt out in the Constitution. It is accordingly recommended that the Preamble should be amended by substituting the expression "Sovereign, Democratic, Secular, Socialist Republic" for "Sovereign Democratic Republic". It is also proposed that the words "and integrity" should be inserted after the word "unity".
III. AMENDMENT OF THE CONSTITUTION
The constituent power of Parliament to amend the Constitution as provided in Article 368 should not be open to question or challenge. The Constitution is the supreme law of the country and any amendment thereof is as much a fundamental law as is the rest of the Constitution. Though the language of Article 368, as it stands at present, is clear and categoric, it is considered necessary that the matter should be placed beyond doubt. It is accordingly proposed that a new clause may be inserted in Article 368 to the effect that any amendment of the Constitution, passed in accordance with the requirements specified in that Article, shall not be called in question in any court on any ground.
IV. POWER OF JUDICIAL REVIEW
1. Constitutional Validity of Laws.Article 13 of the Constitution expressly prohibits the making of any law which may be inconsistent with or in derogation of any of the fundamental rights. Articles 32 and 226 confer power on the Supreme Court and the High Courts respectively for the enforcement of fundamental rights. The legislative power of the Union Parliament and the State Legislatures is contained primarily in Articles 245 and 246.
The constitutional validity of a law may be challenged on the ground that the subject-matter of the legislation is not within the competence of the legislature which has passed the law or that the law, or some provision thereof, is repugnant to provision of the Constitution. The validity of a law can also be challenged on the ground that it infringes one of the fundamental rights contained in the Constitution.
At present, the constitutional validity of a law, whether Central or State, may be challenged in any High Court or in the Supreme Court. The Committee is of the opinion that the Constitution should be suitably amended so as to provide that the constitutional validity of a Central law and any rule, regulation or bye-law made thereunder may be challenged only in the Supreme Court. The constitutional validity of any State law and any rule, regulation or bye-law made under that law may be challenged in the High Court having jurisdiction in the matter, with a right of appeal to the Supreme Court. Where in a case the constitutional validity both of a Central law and a State law is challenged, the questions of law involved may be decided only by the Supreme Court. The number of judges of the Supreme Court who are to sit for the purpose of deciding any case involving a question of constitutional validity of a law shall be not less than seven, and the decision of the Court declaring a law invalid must have the support of not less than two-thirds of the number of judges constituting the Bench. The number of judges of a High Court for the same purpose shall be not less than five, and the decision of the Court declaring a law invalid must be supported by not less than two-thirds of the number of judges constituting the Bench. In a High Court where the total number of judges is less than five the full court shall sit, and the decision as to invalidity of a law should have the support of the whole court.
The Committee would like to observe that normally it should be presumed that Parliament or a State Legislature will take due care to ensure that any law passed by it will be strictly in conformity with the provisions of the Constitution. It is for the Executive as well as for Parliament and States Legislatures to devise suitable agency in this regard.
2. Article 226.The words "for any other purpose" in Article 226 have given very wide powers to the High Courts in the matter of writ jurisdiction. While the jurisdiction conferred on the Supreme Court is restricted to the enforcement of fundamental rights, the High Courts have been given power to issue directions, orders or writs not only for the enforcement of fundamental rights but also for any other purpose. The words "for any other purpose" have given the High Courts an extraordinary jurisdiction which the Supreme Court does not enjoy. Experience has shown that it has not been possible to define, or to ascertain with any degree of certainty, the precise limits of this extraordinary jurisdiction. It was, however, represented to the Committee very forcefully that the existence of these words in Article 226 had proved to be the real constitutional safeguard for a citizen against what was broadly described as "bureaucratic excesses". It is of interest to point out in this connection that in 1954 a special Sub-Committee appointed by the Congress Working Committee, presided over by Shri Jawaharlal Nahru, made the following recommendation, which the Working Committee accepted at its meeting held on May 22, 1954:
"Right to issue directions, orders, or writs should be restricted to cases in which there has been substantial failure of justice or where public interest so requires. Delete 'for any other purpose' from the last sentence of Article 226(1)."
One of the suggestions put forward to the Committee was that if this power enjoyed by the High Courts at present in regard to citizens' complaints against administrative abuses or excess is to be taken away, a tribunal somewhat on the French model may be constituted to deal with such complaints and provide appropriate remedies. The Committee feels that while this suggestion has certain undoubted merits, it may not be possible to adopt it at this stage as we have not yet developed a system of administrative law.
The Committee has considered the matter at great length. Keeping in view the recommendations of the special Sub-Committee headed by Shri Jawaharlal Nehru, and having regard to the several points of view expressed, the Committee would recommend the amendment of Article 226 in the following manner:
(i) The words "and for any other purpose" may be deleted.
(ii) The existing power of the High Courts to issue writs for the enforcement of fundamental rights will continue. A new clause may be inserted in Article 226 to the effect that the power conferred by clause (1) of that Article to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court in cases in which there has been a contravention of any provision of the Constitution other than any fundamental right enumerated in Part III, or the contravention of any provision of a statutory law where such contravention has resulted in substantial failure of justice. The exercise of this power should, however, be subject to the proviso that where an alternative remedy is available under the Constitution or any provision of a statutory law, no such direction, order or writ shall be issued.
(iii) Another new clause may be added to provide that a court empowered to issue a writ under this Article shall not issue any interim stay or injunction or any other such interim order unless prior notice of the proposal to move the court in that behalf is served on the respondent and copies of all documents in support of the plea for stay or injunction or any other such interim order are filed in the court and served on the opposite party and opportunity given to the respondent to be heard.
3. Service Matters.Administrative Tribunals may be set up both at the State level and at the Centre to decide cases relating to service matters. These tribunals shall be constituted under a Central law.
4. Industrial and Labour Disputes.Provision may be made for setting up an All-India Labour Appellate Tribunal to decide appeals from Labour Courts and Industrial Courts.
5. Matters Relating to Revenue, Land Reforms, Procurement and Distribution of Foodgrains and Others Essential Commodities.Disputes relating to the following matters shall be decided by tribunals:
(i) Any matter concerning the revenue or concerning any act ordered or done in the collection thereof.
(ii) Any matter relating to land reforms, ceiling on urban property, and procurement and distribution of foodgrains and other essential commodities.
In regard to the matters specified in (3), (4) and (5) above the writ jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 shall be excluded.
The relevant statutes governing these matters will also make specific provision excluding the jurisdiction of courts over such matters. The right to apply for special leave under Article 136 of the Constitution from the decision of any tribunal shall however remain.
In the matter of constituting tribunals referred to above, it should be ensured that they inspire confidence among all concerned and that the members are persons of high standing possessing special knowledge and experience in the respective fields. The tribunals should not be single-members tribunals. The objective should be that the matters going before these tribunals are decided fairly and expeditiously.
6. Election Matters.No writ shall lie in relation to election matters.
7. Article 227.Reference to tribunals in Article 227 should be omitted.
V. DIRECTIVE PRINCIPLES
Article 31-C provides that no law giving effect to the directive principles specified in clause (b) or clause (c) of Article 39 shall be deemed to be void on the ground that it contravenes Articles 14, 19 or 31. It is proposed that the scope of the present Article 31-C should be widened so as to cover legislation for implementation of all or any of the directive principles enumerated in Part IV of the Constitution, and that such legislation should not be called in question on the ground of infringement of any of the fundamental rights contained in Part III. Provision should, however, be made that no such law shall affect the special safeguards or rights conferred on the minorities, or the Scheduled Castes, the Scheduled Tribes or Other Backward Classes under the Constitution.
VI. DISQUALIFICATION FOR MEMBERSHIP
(1) Under Article 71 and 329-A of the Constitution, disputed elections in relation to the offices of President, Vice-President, Prime Minister and Speaker are to be decided by an authority or body to be created by a law of Parliament. It is felt that the Constitution should provide for another body or authority to determine all questions of disqualification (including the period of such disqualification) of Members, both of Parliament and of State Legislatures. This body or authority may consist of 9 members, 3 each from the Rajya Sabha and Lok Sabha and 3 to be nominated by the President. At present, this power is exercised by the President/Governor after consulting the Election Commission and in accordance with the Commission's advice.
(2) Article 102(1)(a) and Article 191(1)(a) in the case of members of State Legislatures may be amended so as to provide that a person shall be disqualified for being chosen as, and for being a member of either House of Parliament (or either House of a State Legislature) if he holds any office of profit under Government declared by Parliament (or by the State Legislature in respect of its members) by law to disqualify its holder for such membership. The existing position has led to a great deal of uncertainty.
VII. EMERGENCY: ARTICLE 352
This Article may be amended so as to clarify that the President may, if he is satisfied, make a declaration of emergency restricted in scope to such part of the territory of India as may be specified in the Proclamation. Provision may also be made to enable the President to lift the emergency from any part of the territory of India where emergency has been proclaimed.
VIII. CENTRE-STATE CO-ORDINATION
(1) Agriculture and Education are subjects of prime importance to the country's rapid progress towards achieving desired socio-economic changes. The need to evolve all-India policies in relation to these two subjects cannot be overemphasized. It is, therefore, suggested that Education and Agriculture should be placed in the Concurrent List. It may be clarified that the administration of these subjects will remain with the State Governments.
(2) The Centre's help is often sought when there is a grave situation of law and order in a State. If the Centre is to be able to render help effectively to the States in such situations, it should have the power to deploy police or other similar forces under its own superintendence and control in any State. Suitable provision may be made in the Constitution for this purpose. Generally, however, the Centre should consult the States, if possible, before exercising this power.
(1) Some of the proposals made by the Committee will involve consequential amendments to other provisions of the Constitution. Similarly, proposals regarding the vesting of exclusive jurisdiction in regard to certain matters in tribunals will involve amendment of the relevant statutes. Suitable provision will also have to be made regarding pending suits in courts.
(2) The Committee feels that certain other provisions of the Constitution may need amendment to meet some administrative or procedural requirements. There are also provisions in the Constitution which have become obsolete or redundant and may therefore be deleted. Separate proposals will be made in this behalf.
(3) In the course of the Committee's deliberations the subject of judicial delays was brought up very prominently. The Committee would like that Government and the Judiciary should give serious and urgent attention to this and devise effective measures to remedy the situation. Protracted judicial processes may often result in denial of justice, apart from the heavy cost to the affected parties.