Indian Judicial Doctrines Principles Of Constitutional Law

Aman Bahri, Advocate
Punjab and Haryana High Court, Chandigarh

Date : 13/03/2024 Location : P/842/2000, Punjab and Haryana High Court, Chandigarh
📱 +91 9815098190

Indian Judicial Doctrines Principles Of Constitutional Law

1. Doctrine of Basic Structure In 1973, in Kesavananda Bharti v. State of Kerala case, the Supreme Court upheld the validity of the 24th Constitution Amendment Act by reviewing its decision in Golaknath case. The Supreme Court held that the Parliament has power to amend any provision of the constitution, but in doing so, the basic structure of the constitution is to be maintained.

Some examples of basic features of the Constitution are as follows:

a. Republican and democratic form of government

b. Federal character of the constitution

c. Separation of power.

The creature of the Constitution (i.e. the parliament) cannot become its master and change the very nature of the document to which it owes its existence.

Important Supreme Court Decisions


Decision by the Supreme Court

Shankari Prasad v. Union of India, 5 judges AIR 1951 SC 458

The Parliament, under Article 368, has power to amend any part of the constitution

Sajjan Singh v. State of Rajasthan 5 judges, AIR 1965 SC 845

The Parliament, under Article 368, has power to amend any part of the constitution

Golak Nath v. State of Punjab, 11 judges AIR 1967 SC 1643

The Parliament is not empowered to amend the Part III (Fundamental Rights) of the constitution

Kesavananda Bharti v. State of Kerala, 13 judges (1973) 4 SCC 225

The Parliament can amend any provision, but can't dilute the basic structure

Indira Gandhi v. Raj Narain, 5 judges AIR 1975 SC 2299

The Supreme Court reaffirmed its concept of basic structure

Minerva Mills v. Union of India, 5 judges AIR 1980 SC 1789

The concept of basic structure was further developed by adding 'judicial review' and the 'balance between Fundamental Rights and Directive Principles' to the basic features

Indira Sawhney v. Union of India, 7 judges AIR 1993 SC 477

'Rule of law, was added to the basic features

S.R Bommai v. Union of India, 7 judges AIR 1994 SC 1918

Federal structure, unity and integrity of India, secularism, socialism, social justice and judicial review were reiterated as basic features

I.R. Coelho v. St of TN 9 judges (2007) 2 SCC 1

Basic Structure Doctrine re-iterated and limitation on legislative power explained

2. Doctrine of Colourable Legislation

Doctrine of Colourable Legislation is built upon the founding stones of the Doctrine of Separation of Power. Separation of Power mandates that a balance of power is to be struck between the different components of the State i.e. between the Legislature, the Executive and the Judiciary. The Primary Function of the legislature is to make laws. Whenever, Legislature tries to shift this balance of power towards itself then the Doctrine of Colourable Legislation is attracted to take care of Legislative Accountability.


Black's Law Dictionary defines `Colourable' as:

1. Appearing to be true, valid or right.

2. Intended to deceive; counterfeit.

3. `Colour' has been defined to mean `Appearance, guise or semblance'.

The literal meaning of Colourable Legislation is that under the `colour' or `guise' of power conferred for one particular purpose, the legislature cannot seek to achieve some other purpose which it is otherwise not competent to legislate on. In common parlance, it is meant to be understood as "Whatever legislature can't do directly, it can't do indirectly.

There is always a Presumption of Constitutionality in favour of the Statute. In our Constitution, this doctrine is usually applied to Article 246 which has demarcated the Legislative Competence of the Parliament and the State Legislative Assemblies by outlining the different subjects under List I for the Union, List II for the States and List III for both, as mentioned in the Seventh Schedule.

This doctrine comes into play when a Legislature does not possess the power to make law upon a particular subject but nonetheless indirectly makes one. By applying this principle the fate of the Impugned Legislation is decided.

In KC Gajapati Narayan Deo v. State of Orrisa AIR 1953 SC 375 (9 judges) it was held by the Hon'ble Supreme Court as below :-

"It was contended that the Orissa Agricultural Income-tax (Amendment) Act of 1950 was a fraud on the Constitution and as such invalid as it was a colourable legislation to effect a drastic reduction in the compensation payable under the Estates Abolition Act:


"(i) that the question whether a law was a colourable legislation and as such void did not depend on the motive or bona fides of the legislature in passing the law but upon the competency of the legislature to pass that particular law, and what the courts have to determine in such cases is whether though the legislature has purported to act within the limits of its powers, it has in substance and reality transgressed those powers, the transgression being veiled by what appears, on proper, examination, to be a mere pretence or disguise. The whole doctrine of colourable legislation is based upon the maxim that you cannot do indirectly what you cannot do directly.

(ii) The impugned Act was in substance and form a law in respect to the "taxing of agricultural income", as described in entry 46 of List II of the Seventh Schedule to the Constitution and, as the State Legislature was competent to legislate on this subject, the Act was not void, and the fact that the object of the legislature was to accomplish another purpose, viz., to reduce the compensation payable under the Estates Abolition Act, cannot render this law a colourable legislation and void as such, as the ulterior object itself was not beyond the competence of the legislature."

The Constitution Bench in STO v. Ajit Mills Ltd (1977) 4 SCC 98 (7 judges) held as follows :

(Sales tax was wrongly collected by a dealer which was sought to be forfeited by the impugned legislation) :

"If the legislature is competent to pass the particular law, the motives which impel it to pass the law are really irrelevant. If a legislation, apparently enacted under one Entry in the List, falls in plain truth and fact, within the content, not of that Entry but of one assigned to another legislature it can be struck down as colourable even if the motive were most commendable".

"Therefore, if the dealers in the appeals before us charge the enactment with the vice of colourability, they must make out that in pith and substance the impugned legislation does not fall within Entry 54 read with Entry 64 of List II, that it is not embraced even by the expansive connotation of ancillary powers and that it is not possible to save the law even by reading down some of the wide expressions used. In the present case, the narrow issue is as to whether the forfeiture clause in S. 37(1) is bad because of the besetting sin of colourability. If it is a punitive measure to protect public interest in the enforcement of the fiscal legislation, it falls squarely within the area of implied powers."

3. Doctrine of Pith & Substance

Pith means "true nature" or "essence" and substance means the essential nature underlying a phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a statute.

Doctrine of Pith and Substance says that where the question arises of determining whether a particular law relates to a particular subject (mentioned in one List or another), the court looks to the substance of the matter. Thus, if the substance falls within Union List, then the incidental encroachment by the law on the State List does not make it invalid.

If the encroachment by the State Legislature is only incidental in nature, it will not affect the Competence of the State Legislature to enact the law in question. Also, if the substance of the enactment falls within the Union List then the incidental encroachment by the enactment on the State List would not make it invalid.

The Hon'ble Supreme Court in Zameer Ahmed Latifur Rehman v. State of Maharashtra AIR 2010 SC 2633 (2 judges) held as below:

"Where a challenge is made to the constitutional validity of a particular State Act with reference to a subject mentioned in any entry in List I, the Court has to look to the substance of the State Act and on such analysis and examination, if it is found that in the pith and substance, it falls under an entry in the State List but there is only an incidental encroachment on any of the matters enumerated in the Union List, the State Act would not become invalid merely because there is incidental encroachment on any of the matters in the Union List".

A Constitutional Bench of this Court while discussing the said doctrine in Kartar Singh v. State of Punjab (1994) 3 SCC 569 (6 judges) observed as under:

"60. This doctrine of `pith and substance' is applied when the legislative competence of a legislature with regard to a particular enactment is challenged with reference to the entries in the various lists i.e. a law dealing with the subject in one list is also touching on a subject in another list. In such a case, what has to be ascertained is the pith and substance of the enactment. On a scrutiny of the Act in question, if found, that the legislation is in substance one on a matter assigned to the legislature enacting that statute, then that Act as a whole must be held to be valid notwithstanding any incidental trenching upon matters beyond its competence i.e. on a matter included in the list belonging to the other legislature. To say differently, incidental encroachment is not altogether forbidden."

4. Doctrine of Repugnancy

Repugnancy argument can be countered by the Pith and Substance argument. Pith and Substance relates to incidental encroachment whereas in Repugnancy the encroachment is supposed to be substantial.

According to Black's Law Dictionary, Repugnancy could be defined as "an inconsistency or contradiction between two or more parts of a legal instrument (such as a statute or a contract)".

In M. Karunanidhi v. Union of India, (1979) 3 SCC 431 (5 judges) the principles to be applied for determining repugnancy between a law made by the Parliament and a law made by the State Legislature were considered by a Constitution Bench of the Supreme Court and it was held that:

"1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy.

2. Where however a law passed by the State comes into collision with a law passed by Parliament on an Entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254.

3. Where a law passed by the State Legislature while being substantially within the scope of the entries in the State List entrenches upon any of the Entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential.

4. Where, however, a law made by the State Legislature on a subject covered by the Concurrent List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State Legislature under the proviso to Article 254." In para 24, the Court further laid down the conditions which must be satisfied before any repugnancy could arise, the said conditions are as follows:-

"1. That there is a clear and direct inconsistency between the Central Act and the State Act.

2. That such an inconsistency is absolutely irreconcilable.

3. That the inconsistency between the provisions of the two Acts is of such nature as to bring the two Acts into direct collision with each other and a situation is reached where it is impossible to obey the one without disobeying the other.

5. Doctrine of Presumption of Innocence

Presumption of innocence is a restatement of the rule that in criminal matters the public prosecutor has the burden of proving guilt of the accused for him to be convicted of the crime of which he is charged.

Article 20 expressly empowers citizens against "self-incrimination". Article 21 deals with "Right to Life and Personal Liberty". The guarantee of "presumption of innocence" bears a direct link to the "right against self-incrimination", since compelling the accused person to testify would place the burden of proving innocence on accused instead on requiring the prosecution to prove guilt. In a criminal case , to secure a conviction, the quality of evidence is therefore required to be "beyond reasonable doubt". Evidence of doubtful integrity is fatal to the prosecution case.

Also if two views are possible, one pointing towards conviction and the other towards acquittal , this doctrine helps secure the favourable view for the accused.

In The State of Goa v. Sanjay Thakran 2007 (3) SCC 755, while relying on the judgment in State of Rajasthan v. Raja Ram 2003 (8) SCC 180 it was observed as under:

"15. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.... The principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.

The Court further held as follows:

"16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below.

6. Doctrine of Equal Pay for Equal Work

The Doctrine of Equal pay for Equal work is contained in clause (d) of Article 39 of the Constitution of India which envisages that the state shall, in particular, direct its policy towards securing that there is equal pay for equal work for both men and women.

In State of Haryana and others v. Charanjit Singh (2006) 9 SCC 321 (3 judges) the Hon'ble Supreme Court observed as under:-

"19. Having considered the authorities and the submissions we are of the view that the authorities in the cases of Jasmer Singh (1996) 11 SCC 77, Tilak Raj (2003) 6 SCC 123, Orissa University of Agriculture & Technology (2003) 5 SCC 188 and Tarun K. Roy (2004) 1 SCC 347 lay down the correct law. Undoubtedly, the doctrine of "equal pay for equal work" is not an abstract doctrine and is capable of being enforced in a court of law. But equal pay must be for equal work of equal value. The principle of "equal pay for equal work" has no mechanical application in every case. Article 14 permits reasonable classification based on qualities or characteristics of persons recruited and grouped together, as against those who were left out. Of course, the qualities or characteristics must have a reasonable relation to the object sought to be achieved. In service matters, merit or experience can be a proper basis for classification for the purposes of pay in order to promote efficiency in administration. A higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues is also an acceptable reason for pay differentiation. The very fact that the person has not gone through the process of recruitment may itself, in certain cases, make a difference. If the educational qualifications are different, then also the doctrine may have no application. Even though persons may do the same work, their quality of work may differ.

A large number of factors, namely, educational qualifications, nature of duty, nature of responsibility, nature of method of recruitment, etc. will be relevant for determining equivalence in the matter of fixation of scale of pay. (See Finance Deptt. v. W.B. Registration Service Assn., 1993 Supp (1) SCC 153, State of U.P. v. J.P. Chaurasia (1989) 1 SCC 121, Union of India v. Pradip Kumar Dey (2000)8 SCC 580 and State of Haryana v. Haryana Civil Secretariat Personal Staff Assn. (2002) 6 SCC 72).

In State of Bihar and Ors. v. The Bihar Secondary Teachers Struggle Committee, Munger & Ors AIR 2019 SC 2521 the Hon'ble Supreme Court has laid down the following principles :

"Analysis of the decisions referred to above shows that this Court has accepted following limitations or qualifications to the applicability of the doctrine of `equal pay for equal work' :-

i) The doctrine of `equal pay for equal work' is not an abstract doctrine.

ii) The principle of `equal pay for equal work' has no mechanical application in every case.

iii) The very fact that the person has not gone through the process of recruitment may itself, in certain cases, makes a difference.

iv) The application of the principle of `equal pay for equal work' requires consideration of various dimensions of a given job.

v) Thus normally the applicability of this principle must be left to be evaluated and determined by an expert body. These are not matters where a writ court can lightly interfere.

vi) Granting pay scales is a purely executive function and hence the court should not interfere with the same. It may have a cascading effect creating all kinds of problems for the Government and authorities.

vii) Equation of posts and salary is a complex matter which should be left to an expert body.

viii) Granting of pay parity by the court may result in a cascading effect and reaction which can have adverse consequences.

ix) Before entertaining and accepting the claim based on the principle of equal pay for equal work, the Court must consider the factors like the source and mode of recruitment/appointment."

However in respect of claim of temporary employees (daily-wage employees, ad-hoc appointees, employees appointed on casual basis, contractual employees and the like) the Hon'ble Supreme Court in Civil Appeal No. 213 OF 2013 titled State of Punjab & Ors. v. Jagjit Singh & Ors. after setting aside a Full Bench decision of our High Court in the case of Avtar Singh and held as under:

"52. In view of all our above conclusions, the decision rendered by the full bench of the High Court in Avtar Singh v. State of Punjab & Ors. (CWP no. 14796 of 2003), dated 11.11.2011, is liable to be set aside, and the same is hereby set aside. The decision rendered by the division bench of the High Court in State of Punjab & Ors. v. Rajinder Singh & Ors. (LPA no. 337 of 2003, decided on 7.1.2009) is also liable to be set aside, and the same is also hereby set aside. We affirm the decision rendered in State of Punjab & Ors. v. Rajinder Kumar (LPA no. 1024 of 2009, decided on 30.8.2010), with the modification, that the concerned employees would be entitled to the minimum of the pay-scale, of the category to which they belong, but would not be entitled to allowances attached to the posts held by them.

The Hon'ble Supreme Court held that the determination in the impugned judgment rendered by the full bench of the High Court, whereby it classified temporary employees for differential treatment on the subject of wages, was clearly unsustainable, and was liable to be set aside. The Full Bench had denied even minimum of the pay scale to temporary employees but had carved a few exceptions when the said minimum pay scale could be granted like :

"(1) A daily wager, ad hoc or contractual appointee against the regular sanctioned posts, if appointed after undergoing a selection process based upon fairness and equality of opportunity to all other eligible candidates, shall be entitled to minimum of the regular pay scale from the date of engagement.

(2) But if daily wagers, ad hoc or contractual appointees are not appointed against regular sanctioned posts and their services are availed continuously, with notional breaks, by the State Government or its instrumentalities for a sufficient long period i.e. for 10 years, such daily wagers, ad hoc or contractual appointees shall be entitled to minimum of the regular pay scale without any allowances on the assumption that work of perennial nature is available and having worked for such long period of time, an equitable right is created in such category of persons."

It was the above classification that was held by the Hon'ble Supreme Court to be not proper while setting aside the Full Bench judgment in Avtar Singh's case.

7. Doctrine of Legitimate Expectation

The doctrine's use has essentially been embedded into Article 14 of the Constitution and thus `non-arbitrariness and unreasonableness' have been made the necessary qualifiers for assessing as to whether there was a denial of legitimate expectation or not.

The Supreme Court elaborated on the nature of the doctrine of legitimate expectations in Food Corporation of India v. Kamdhenu Cattle Feed Industries ((1993) 1. S.C.C. 71), that the duty to act fairly on part of public authorities, entitles every citizen to have legitimate expectation to be treated in a fair manner and it is imperative to give due importance to such an expectation to satisfy the requirement of non-arbitrariness in state action or otherwise it may amount to abuse of power. The Court further made a remarkable point that such a reasonable or legitimate expectation may not be a directly enforceable legal right but failure in taking it into account may deem a decision arbitrary. To decide whether an expectation is a legitimate one is contextual and has to be decided on a case by case basis.

It was laid down in P.T.R. Exports (Madras) Pvt. Ltd. and others v. Union of India and others (AIR 1996 SC 3461) that the doctrine of legitimate expectations has no role to play when the appropriate authority is empowered to take a decision under an executive policy or the law itself and that the Government is not restricted from evolving new policy on account of `legitimate expectations' as and when required in public interest.

In Hira Tikkoo v. Union Territory, Chandigarh & Ors (2004) 6 SCC 765 the Hon'ble Supreme Court relieved the State from the rigours of the Doctrine on the ground of larger public interest :-

"The learned senior counsel then made some attempts to rely on the doctrines of 'promissory estoppel' and 'legitimate expectation'. Doctrine of 'legitimate expectation' has developed as a principle of reasonableness and fairness and is used against statutory bodies and government authorities on whose representations or promises, parties or citizens act and some detrimental consequences ensue because of refusal of authorities to fulfil their promises or honour their commitments. The argument under the label of 'estoppel' and 'legitimate expectation' are substantially the same. The Administration herein no doubt is guilty of gross mistake in including in its development scheme, a portion of land covered by the forest and land with restrictions under the Aircrafts Act."

A vital mistake has been committed by the Chandigarh Administration in overlooking the notification reserving land under the Forest Act and the restrictions imposed under the Aircrafts Act, but overriding public interest outweighs the obligation of a promise or representation made on behalf of the Administration. Where public interest is likely to be harmed, neither the doctrine of 'legitimate expectation' nor 'estoppel' can be allowed to be pressed into service by any citizen against the State Authorities. In M/s Jit Ram Shiv Kumar & Ors. v. State of Haryana & Ors. [1981 (1) SCC 11], a two-Judge Bench of this Court by explaining and distinguishing Union of India v. Indo- Afgan Agencies Ltd., [1968 (2) SCR 366] and Motilal Padampat Sugar Mills Co. (P) Ltd. v. State of U.P. [1979 (2) SCC 409], observed thus :-

'It is only in public interest that it is recognized that an authority acting on behalf of the government or by virtue of statutory powers cannot exceed his authority. Rule of ultra vires will become applicable when he exceeds his authority and the government would not be bound by such action. Any person who enters into an arrangement with the government has to ascertain and satisfy himself that the authority who purports to act for the government, acts within the scope of his authority and cannot urge that the government is in the position of any other litigant liable to be charged with liability'.

8. Doctrine of Parens Patriae

Parens patriae' is a Latin term meaning `parent of his or her country'.

Black's Law Dictionary defines `parens patriae' as:

1. The State is regarded as a sovereign; the state in its capacity as provider of protection to those unable to care for themselves.

2. A Doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, especially on behalf of someone who is under a legal disability to prosecute the suit. The State ordinarily has no standing to sue on behalf of its citizens, unless a separate, sovereign interest will be served by the suit.

It is stated that parens patriae is the inherent power and authority of a State to provide protection to the person and property of persons non Sui juris, such as minor, insane, and incompetent persons. Today, this term is used to designate the State referring to its sovereign power of guardianship over persons under disability.

Non sui juris is a Latin term meaning "not his own master". It is used to refer to an individual who lacks the legal capacity to act on his or her own behalf, such as an infant or an insane person.

Thus in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

Please refer to Article 39A of the Constitution of India which states that Equal Justice and Free Legal Aid is not to be denied to any citizen by reason of any disability.

In a decision by the Hon'ble Punjab & Haryana High Court titled Court on its own motion v. Chandigarh Administration - CWP No.18253 of 2009 the court has used this Doctrine and issued the following direction:

"We, by invoking our parens patriae jurisdiction, declare Sukhna Lake as legal entity/legal person/juristic person/ juridicial person/moral person/artificial person for its survival, preservation and conservation having distinct persona with corresponding rights, duties and liabilities of a living person. All the citizens of U.T, Chandigarh are hereby declared as loco parentis as the human face to save Sukhna Lake from extinction".

In Chandigarh Administration v. Nemo - CWP No. 8760 of 2009, Hon'ble Punjab & Haryana High Court assumed parens-patriae jurisdiction and passed the following directions:

"[38]. If the Expert Body forms a bona-fide opinion that the pregnancy needs to be medically terminated in the best interest of the victim, we in exercise of our parens-patriae jurisdiction, direct the petitioner Administration to admit the victim in the Government Medical College and Hospital, Sector 32, Chandigarh, constitute a team of Medical Experts comprising not less than two Gynaecologists and the other related associates, who shall then terminate the pregnancy of the victim forthwith and without any delay as soon as the report of the Expert Body is received".

9. Doctrine of Pleasure

In England, the normal rule is that a Civil Servant of Crown holds his office during the pleasure of the Crown. This means that his services can be terminated at any time by the Crown, without assigning any reason. Even if there is a contract of employment with the Crown, the Crown is not bound by it. In other words, if a Civil Servant is dismissed from services he cannot claim arrears of salary or damages for premature termination of his service. In India, Article 310 of the Indian Constitution incorporates the common law doctrine of pleasure. It expressly provides that all persons who are members of the Defence Services or the Civil services of the Union or of all-India Services hold office during the pleasure of the President. Similarly, members of the State Services hold office during the pleasure of the Governor.

This does not mean that the President or the Governor may dismiss, remove or reduce the ranks of such civil servants at will. Adequate protections have been provided under Article 311 for holding an inquiry and grant of opportunity of hearing in respect of the charges and the allegations levelled. Dismissal or removal can only be by an authority not subordinate to the one which made the appointment. It is not necessary to give opportunity of making a representation on the penalty proposed. Proviso to Article 311 (2) dispenses with the requirement of conducting an inquiry in certain cases where it is not reasonably practicable to hold such inquiry or where the interest of the security of the State is involved etc.

The Hon'ble Supreme Court in the case of B.P. Singhal v. Union Of India & Anr. Writ Petition (Civil) No. 296 of 2004 (5 judges) held as under:

"13. There is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by rule of law. In a nineteenth century feudal set-up unfettered power and discretion of the Crown was not an alien concept. However, in a democracy governed by Rule of Law, where arbitrariness in any form is eschewed, no Government or Authority has the right to do what it pleases. The doctrine of pleasure does not mean a licence to act arbitrarily, capriciously or whimsically. It is presumed that discretionary powers conferred in absolute and unfettered terms on any public authority will necessarily and obviously be exercised reasonably and for public good.

19. Article 310 read with Article 311 provide an example of the application of `at pleasure' doctrine subject to restrictions. Clause (1) of Article 310 relates to tenure of office of persons serving the Union or a State, being subject to doctrine of pleasure. However, clause (2) of Article 310 and Article 311 restricts the operation of the `at pleasure' doctrine contained in Article 310(1). For convenience, we extract below clause (1) of Article 310 referring to pleasure doctrine and clause (2) of Article 311 containing the restriction on the pleasure doctrine :

21. Constitution of India thus provides for three different types of tenure:

(i) Those who hold office during the pleasure of the President (or Governor);

(ii) Those who hold office during the pleasure of the President (or Governor), subject to restrictions;

(iii) Those who hold office for specified terms with immunity against removal, except by impeachment, who are not subject to the doctrine of pleasure. Constitutional Assembly debates clearly show that after elaborate discussions, varying levels of protection against removal were adopted in relation to different kinds of offices.

We may conveniently enumerate them:

(i) Offices to which the doctrine of pleasure applied absolutely without any restrictions (Ministers, Governors, Attorney General and Advocate General);

(ii) Offices to which doctrine of pleasure applied with restrictions (Members of defence service, Members of civil service of the Union, Member of an All-India service, holders of posts connected with defence or any civil post under the Union, Member of a civil service of a State and holders of civil posts under the State); and

(iii) Offices to which the doctrine of pleasure does not apply at all (President, Judges of Supreme Court, Comptroller & Auditor General of India, Judges of the High Court, and Election Commissioners).

Having regard to the constitutional scheme, it is not possible to mix up or extend the type of protection against removal, granted to one category of offices, to another category".

10. Doctrine of Eminent Domain

The state has sovereign power into three categories namely the power of taxation, the power of eminent domain and the police powers.

The doctrine of Eminent domain, in its general meaning, means the supreme power of the government under which property of any individual can be taken over in the concern of the general public. However, over the years such taking over the property by the government has been made conceivable only after recompensing the land proprietor of such property. Thus eminent domain clarified as the power of the government to take over the property of a secluded person when it is wanted for a public purpose, an example would be if they were trying to build a highway.

Eminent Domain is the power of the sovereign to acquire the property of an individual for public use without the necessity of his consent. This power is based on the sovereignty of the State. Payment of just compensation to the owner of the land which is acquired is part of the exercise of this power.

Please see Article 300-A of the Constitution of India. Right to property though not a fundamental right but has a Constitutional protection against acquisition without authority of law.

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