Constitutional Doctrines used for the Interpretation of the Constitution

1. Doctrine of Basic Structure

The basic structure doctrine is an Indian judicial principle that the Constitution of
India has certain basic features that cannot be altered or destroyed through
amendments by the parliament.

But what should be considered as the basic features of the Indian Constitution is
not explicitly defined by the Judiciary. It is widely believed that democracy,
federalism, independence of the judiciary, secularism etc. are part of the basic
features.

The claim of any particular feature of the Constitution to be a “basic” feature is

determined by the Court on a case-by-case basis.

This doctrine was first expressed in Kesavananda Bharati v. The State of Kerala
(1973). Thanks to Kesavananda Bharati, Palkhivala and the seven judges who
were in the majority, India continues to be the world’s largest democracy.

2. Doctrine of Harmonious Construction

 This doctrine was brought about to bring harmony between the different
lists mentioned in the Schedule 7 of the Constitution of India. Different
subjects are mentioned in different lists in this schedule.
 However, there can be a situation where an entry of one list overlaps with
that of another list. This is the time when this doctrine comes into the
picture.
 It was said that the words of the entries should be given wide amplitude
and the courts shall bring harmony between the different entries and lists.
 Supreme Court applied this Doctrine in the case of Tika Ramji vs. the State
of UP.

3. Doctrine of Eclipse

 The doctrine states that if any law becomes contradictory to

the fundamental rights, then it does not permanently die but becomes
inactive.
 As soon as that fundamental right is omitted from the Constitution, the
inactive law becomes revived.
 When a court strikes a part of the law, it becomes unenforceable. Hence, an
‘eclipse’ is said to be cast on it. The law just becomes invalid but continues
to exist.
 The eclipse is removed when another (probably a higher level court) makes
the law valid again or an amendment is brought to it by way of legislation.
 Supreme Court first applied this doctrine in the case of Bhikaji vs. State of
Madhya Pradesh where it applied to pre-constitutional law. The extension to
the post-constitutional law was stated in the case of Dulare Lodh vs. ADJ
Kanpur.

4. Doctrine of Pith and Substance 

 This doctrine comes into picture when there is a conflict between the
different subjects in different lists. There is an interpretation of List 1 and
List 2 of the Constitution of India.
 There can be a situation when a subject of one list touches the subject of
another List. Hence this doctrine is applied then.
 Pith and Substance means the true nature of law.
 The real subject matter is challenged and not its incidental effect on
another field.
 The doctrine has been applied in India also to provide a degree of flexibility
in the otherwise rigid scheme of distribution of powers.
 The reason for the adoption of this doctrine is that if every legislation were
to be declared invalid on the grounds that it encroached powers, the powers
of the legislature would be drastically circumscribed.
 It was applied by the Supreme Court in the case State of Bombay Vs F.N
Balasar.

5.  Doctrine of Incidental or Ancillary Powers

 This principle is an addition to the doctrine of Pith and Substance.

 What it means is that the power to legislate on a subject also includes the
power to legislate on ancillary matters that are reasonably connected to that
subject.
 For example, the power to impose tax would include the power to search
and seizure to prevent the evasion of that tax. However, power relating to
banking cannot be extended to include power relating to non-banking
entities.
 However, if a subject is explicitly mentioned in a State or Union list, it
cannot be said to be an ancillary matter. For example, the power to tax is
mentioned in specific entries in the lists and so the power to tax cannot be
claimed as ancillary to the power relating to any other entry of the lists.
 As held in the case of State of Rajasthan vs. G Chawla AIR 1959, the power
to legislate on a topic includes the power to legislate on an ancillary matter
which can be said to be reasonably included in the topic.
 However, this does not mean that the scope of the power can be extended
to any unreasonable extent. Supreme Court has consistently cautioned
against such extended construction. For example, in R M D
Chamarbaugwala vs. State of Mysore, AIR 1962, SC held that betting and
gambling is a state subject as mentioned in Entry 34 of State list but it does
not include power to impose taxes on betting and gambling because it
exists as a separate item as Entry 62 in the same list.

6. Doctrine of Colourable Legislation

 This is applied when the legislature enacting the law has transgressed its
power as is mentioned in the Constitution.
 The expression “colourable legislation” simply means what cannot be
done directly, cannot be done indirectly too.
 It is the substance that is material and not the outward appearance.
 Hence there are certain situations when it seems that it is within the power
of the legislature enacting the law but actually it is transgressing. This is
when this doctrine comes into the picture.
 It was applied by the Supreme Court of India in the case State of Bihar vs.
Kameshwar Singh and it was held that the Bihar Land Reforms Act was
invalid.

7. Doctrine of Severability

 According to this doctrine, if there is any offending part in a statute, then,

only the offending part is declared void and not the entire statute.
 Article 13 states that the portion that is invalid should be struck off and not
the entire one. The valid part can be kept.
 However, it should be kept in mind that even after separation; the
remaining part should not become ambiguous.
 If the remaining part becomes ambiguous, then the whole statute would be
declared void and of no use.
 Supreme Court in the case of RMDC vs. UOI states that doctrine of
severability is a matter of substance and not of form.

8. Doctrine of Territorial Nexus

 Article 245 states that a state legislature can make laws on the territory of
the state and not on extraterritorial laws provided there is nexus or
connection between the sate and the object of the legislation.
 Article 245(1) of the Constitution states that the Parliament of India can
make laws for the whole or any territory of India.
 Similarly, a state legislature can do the same.
 Such laws cannot be declared invalid on the growth that they are extra-
territorial according to Article 245(2).
 To determine whether a particular legislation is within the territorial nexus
or not, this doctrine is applied.
 Supreme Court applied this doctrine in the case of Tata Iron Steel vs. the
State of Bihar.

9.  Doctrine of Laches

 Laches means delay. The doctrine of laches is based on the maxim that
“equity aids the vigilant and not those who slumber on their rights.” (Black’s
Law Dictionary).
 The outcome is that a legal right or claim will not be enforced or allowed if
a long delay in asserting the right or claim has prejudiced the adverse party.
 Elements of laches include knowledge of a claim, unreasonable delay,
neglect, which taken together hurt the opponent.
 It is well known that one who wants remedy must come before the court
within a reasonable time.
 Lapse of time violates equity and it is against the concept of justice.
 Hence the issue came up whether delay can be a ground to deny
fundamental rights under Article 32.
 It was said that denial of fundamental rights only on the ground of delay is
not justified as fundamental rights are basic and very essential for the
development of the individual.
 Supreme Court under the case of Ravindra Jain vs. UOI stated that remedy
under article 32 can be denied on grounds of unreasonable delay. However,
there has been no case to overrule the above-mentioned case law by the
Supreme Court order.

10. Doctrine of Waiver

 In this, a person intentionally gives up his right or privilege

or chooses not to exercise his right or privilege which is
conferred on him by the state.
 In Basheshar Nath v. Commissioner of Income Tax, the
Supreme Court held that fundamental rights of a person
cannot be waived.
 In Jaswantsingh Mathurasingh & Anr. V. Ahmadabad
Municipal Corporation & Ors,  the court said that everyone
has the right to waive an advantage or protection that seeks
to give him. For instance, in the case of a tenant-owner
dispute, if a notice is issued and no representation is made
either by the owner, tenant or sub-tenant, it would be a
waiver of opportunity and that person cannot be allowed to
turn around at a later stage.

11. The doctrine of Judicial Review

 It is of American origin. The doctrine of judicial review refers

to the power of the Judiciary to interpret the law and to
declare law which is inconsistent with constitution, void.
 According to this doctrine, Executive and the Legislature’s
review power is with Judiciary. It is for checking the exercise
of the power of public authorities, whether they are
constitutional, quasi-judicial or governmental. For example,
if there is a law enacted, and the Constitutionality is
challenged, the Judiciary has the power to strike down the
law. This means that the judiciary is guarding the
Constitution and protecting it from any Executive or
Legislative action which might violate it.
 Both the Supreme Court and the High Court exercise the
power of the Judicial Review. But the final power to
 determine the constitutional validity of any law is in the
hands of India’s Supreme Court.
 It can be conducted in respect of all Central and State laws,
the orders and ordinances of the executives and
constitutional amendments.
 It cannot be conducted in respect of the laws in Schedule 9
of the Indian Constitution.

12. Doctrine of Due process of law

 It not only examines that there is any law to deny life and
individual freedom but also checks if the law made is
reasonable, just and not arbitrary.
 If the Supreme Court finds any law to be not fair, it will
declare it void. Individual rights can be treated more fairly
with the help of this doctrine.
 Under this doctrine, the state should respect all the legal
rights owed to a person by the state as it is a legal
requirement and laws that states enact must conform to the
laws of the land like – fairness, fundamental rights, liberty,
etc.
 In Maneka Gandhi vs. Union of India,[15] the court while
delivering the judgment used “Procedure established by law”
instead of  “Due process of law” however it must be ‘ right
and fair and fair ‘ and ‘ not arbitrary, fanciful or oppressive, ‘
otherwise it would not be a procedure at all and the
requirement of Article 21 would not be met.

13. Doctrine of Eclipse

In the case of Keshavan Madhava Menon v. The State of Bombay [1], the
law in question was an existing law at the time when the Constitution came
into force. That existing law imposed on the exercise of the right
guaranteed to the citizens of India by article 19(1)(g) restrictions which
could not be justified as reasonable under clause (6) as it then stood and
consequently under article 13(1)[2] that existing law became void “to the
extent of such inconsistency”.

The court said that the law became void not in toto or for all purposes or
for all times or for all persons but only “to the extent of such
inconsistency”, that is to say, to the extent it became inconsistent with the
provisions of Part III which conferred the fundamental rights on the
citizens.

This reasoning was also adopted in the case of Bhikaji Narain Dhakras
and Others v. The State Of Madhya Pradesh And Another [3]. This case
also held that “on and after the commencement of the Constitution,
the existing law, as a result of its becoming inconsistent with the
provisions of article 19(1)(g) read with clause (6) as it then stood, could
not be permitted to stand in the way of the exercise of that fundamental
right. Article 13(1) by reason of its language cannot be read as having
obliterated the entire operation of the inconsistent law or having wiped
it out altogether the statute, book. Such law existed for all past
transactions and for enforcement of rights and liabilities accrued before
the date of the Constitution. The law continued in force, even after the
commencement of the Constitution, with respect to persons who were
not citizens and could not claim the fundamental right”.

The court also said that article 13(1) had the effect of nullifying or rendering
the existing law which had become inconsistent with fundamental right as
it then stood, ineffectual, nugatory and devoid of any legal force or binding
effect, only with respect to the exercise of the fundamental right on and
after the date of the commencement of the Constitution. Finally the court
said something that we today know of as the crux of Doctrine of Eclipse.

“The true position is that the impugned law became, as it were, eclipsed,

for the time being, by the fundamental right.”

We see that such laws are not dead for all purposes. They exist for the
purposes of pre-Constitution rights and liabilities and they remain
operative, even after the commencement of the Constitution, as
against non-citizens. It is only as against the citizens that they remain in a
dormant or moribund condition.
 Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution
Laws that violate fundamental rights upon the premise that such laws are
not null and void ab initio but become unenforceable only to the extent of
such inconsistency with the fundamental rights. If any subsequent
amendment to the Constitution removes the inconsistency or the conflict
of the existing law with the fundamental rights, then the Eclipse vanishes
and that particular law again becomes active again.

14. Doctrine of Repugnancy

Introduction

It is Article 254 of the Constitution of India that firmly entrenches the Doctrine of

Repugnancy in India. 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)”. Before understanding the
Doctrine of Repugnancy, let us first understand a bit about the legislative scheme
envisaged in our Constitution.

Article 245 states that Parliament may make laws for whole or any part of India
and the Legislature of a State may make laws for whole or any part of the State. It
further states that no law made by Parliament shall be deemed to be invalid on
the ground that it would have extra-territorial operation.

Article 246 also talks about Legislative power of the Parliament and the
Legislature of a State. It states that:

1. The Parliament has exclusive power to make laws with respect to any of the
matters enumerated in List I or the Union List in the Seventh Schedule.

2. The Legislature of any State has exclusive power to make laws for such state
with respect to any of the matters enumerated in List II or the State List in the
Seventh Schedule.

3. The Parliament and the Legislature of any State have power to make laws with
respect to any of the matters enumerated in the List III or Concurrent List in the
Seventh Schedule.
4. Parliament has power to make laws with respect to any matter for any part of
the territory of India not included in a State notwithstanding that such matter is a
matter enumerated in the State List.

The Legislative Scheme in our Constitution is both complex and lengthy. In the
present post, I will confine myself only to Repugnancy and its niceties. I will not
deal not with any other provisions relating to the Legislative Scheme of our
Constitution. The only articles that I will be touching in this respect are article
245, article 246 and article 254.

Supreme Court’s Interpretation of Doctrine of Repugnancy

Article 254[1] has been beautifully summarized by the Supreme Court in M.

Karunanidhi v. Union of India[2]. The court said 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.

Now, the conditions which must be satisfied before any repugnancy could arise
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.”

Thereafter, the court laid down following propositions in this respect:

“1. That in order to decide the question of repugnancy it must be shown that
the two enactments contain inconsistent and irreconcilable provisions, so that
they cannot stand together or operate in the same field.

2. That there can be no repeal by implication unless the inconsistency appears on

the face of the two statutes.

3. That where the two statutes occupy a particular field, but there is room or
possibility of both the statutes operating in the same field without coming into
collision with each other, no repugnancy results.

4. That where there is no inconsistency but a statute occupying the same field
seeks to create distinct and separate offences, no question of repugnancy arises
and both the statutes continue to operate in the same field.”

Further in the case of Govt. of A.P. v. J.B. Educational Society [3], the court held
that:

“1. There is no doubt that both Parliament and the State Legislature are supreme
in their respective assigned fields. It is the duty of the court to interpret the
legislations made by Parliament and the State Legislature in such a manner as to
avoid any conflict. However, if the conflict is unavoidable, and the two
enactments are irreconcilable, then by the force of the non obstante clause in
clause (1) of Article 246, the parliamentary legislation would prevail
notwithstanding the exclusive power of the State Legislature to make a law with
respect to a matter enumerated in the State List.

2. With respect to matters enumerated in List III (Concurrent List), both

Parliament and the State Legislature have equal competence to legislate. Here
again, the courts are charged with the duty of interpreting the enactments of
Parliament and the State Legislature in such manner as to avoid a conflict. If the
conflict becomes unavoidable, then Article 245 indicates the manner of resolution
of such a conflict.”

The Court also said that:

1. Where the legislations, though enacted with respect to matters in their allotted
sphere, overlap and conflict. Second, where the two legislations are with respect
to matters in the Concurrent List and there is a conflict. In both the situations,
parliamentary legislation will predominate, in the first, by virtue of the non
obstante clause in Article 246(1), in the second, by reason of Article 254(1).

2. Clause (2) of Article 254 deals with a situation where the State legislation
having been reserved and having obtained President's assent, prevails in that
State; this again is subject to the proviso that Parliament can again bring a
legislation to override even such State legislation.

In the case of National Engg. Industries Ltd. v. Shri Kishan Bhageria [4], it was
held that “the best test of repugnancy is that if one prevails, the other cannot
prevail”. All the above mentioned cases have been upheld by the Supreme Court
in Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra [5].

Thus, we see that Doctrine of Repugnancy is firmly entrenched in our

constitutional scheme and is here to stay for a long time to come. In the
subsequent posts, I will try to discuss doctrines like Pith and Substance,
Colourable Legislation, Legislative Competence, Doctrine of Eclipse etc.

[1] Article 254 – (1) If any provision of a law made by the Legislature of a State is
repugnant to any provision of a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing law with respect to one of
the matters enumerated in the Concurrent List, then, subject to the provisions of
clause (2), the law made by Parliament, whether passed before or after the law
made by the Legislature of such State, or, as the case may be, the existing law,
shall prevail and the law made by the Legislature of the State shall, to the extent
of the repugnancy, be void.
(2) Where a law made by the Legislature of a State with respect to one of the
matters enumerated in the Concurrent List contains any provision repugnant to
the provisions of an earlier law made by Parliament or an existing law with
respect to that matter, then, the law so made by the Legislature of such State
shall, if it has been reserved for the consideration of the President and has
received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any
time any law with respect to the same matter including a law adding to,
amending, varying or repealing the law so made by the Legislature of the State.

15. The Doctrine of Occupied Field

Even where there is no repugnancy between a Union law and a State law the
Union law will not allow a State law to co-exist if the Parliament intended to
occupy the whole field relating to the subject. For example, an Assam Act
provided that a person may be appointed as a member of an Industrial Tribunal
only in consultation with the High Court. Later Parliament made a law which
stated only the qualifications and did not mention consultation with High Court. It
was held the Central legislation was indeed to be an exhaustive code and no
consultation was required. In Deep chand case, the Supreme Court held that the
intention of Parliament while enacting the Motor Vehicles Amending Act, 1956
was to occupy the whole field of nationalization of motor transport. Hence the
U.P. Act providing for nationalization of transport services could not co-exist.
The intention to occupy the whole field should be clearly established. Where this
intention can be inferred the Union law shall prevail.

There is a very thin of line of difference between doctrine of

Repugnancy and Doctrine of Occupied Field. As we know that
repugnance arises only if there is an actual conflict between
two legislations, one enacted by the State Legislature and the
other by Parliament, both of which were competent to do so.
On the other hand, doctrine of Occupied Field simply refers to
those legislative entries of State List, which are expressly
made ‘subject’ to a corresponding Entry in either the Union
List or the Concurrent List. Doctrine of Occupied Field has
nothing to do with the conflict of laws between the state and
the centre. It is merely concerned with the ‘existence of
legislative power’ whereas repugnance is concerned with the
‘exercise of legislative power’ that is shown to exist. Doctrine
 of Occupied Field comes into picture even before the Union
Law or the State Law has commenced. Under Article 254, as
soon as a Union law receives assent of the President, it is said
to be ‘a law made by the Parliament’. Actual commencement of
the law is not important for the purpose of attracting doctrine
of Occupied Field.

16. Doctrine of Implied Power

Definition and Meaning

Before going through the manner in which our Supreme Court has dealt with this
doctrine, let us discuss the dictionary meaning of the term ‘implied power’.
Black’s Law Dictionary defines ‘implied power’ as:

“A political power that is not enumerated but that nonetheless exists because it
is needed to carry out an express power.”

Thus as the name suggests, ‘implied power’ is something that has existence by
virtue of express power and is something without which an express power cannot
be exercised.

The Tobacco Merchants Case discusses various definitions relating to the

Doctrine of Implied Powers. It starts with ‘Craies on Statute Law’ which says that:

“One of the first principles of law with regard to the effect of an enabling act is that
if a Legislature enables something to be done, it gives power at the same time by
necessary implication to do everything which is indispensable for the purpose of
carrying out the purposes in view.”

In Michael Fenton and James Fraser v. John Stephen Hampton, (1857-1859) 117 R.R.
32, it was observed that:

“Whenever anything is authorised, and especially if, as matter of duty, required

to be done by law, and it is found impossible to do that thing unless something
else not authorised in express terms be also done, then that something will be
supplied by necessary intendment.”
 Thus the importance of this Doctrine comes into play in cases where it is observed
that the Statute confers a duty upon an Authority and that duty cannot be
discharged or that power cannot be exercised unless some ‘other’ power is
assumed to exist and in absence of such ‘other’ power, the obligation prescribed
under the Statute becomes impossible to comply with. The impossibility must be
of such nature that it has no exceptions and the Statute would become a dead
letter if that ‘other’ power is not assumed.

17. Doctrine of Pleasure

Definition and Origin

Article 156 (1) states that the Governor shall hold office during the pleasure of the
President. What does ‘pleasure of the President’ mean? There are various
connotations and contexts attached to this term.

Before understanding the meaning of Doctrine of Pleasure in Indian Context, let

us first understand the genesis of this term.

The origin of the Doctrine of Pleasure can be traced to a Latin Maxim durante

bene placito which means “during good pleasure” or “during the pleasure of the
appointer” as opposed to an office held dum bene se gesserit which means
“during good conduct”, also called quadiu se bene gesserit (“as long as he shall
behave himself well”).[1]

Black’s Dictionary defines ‘Pleasure Appointment’ as the assignment of someone

to employment that can be taken away at any time, with no requirement for notice
or hearing.

We have borrowed this concept from the English Law. In Dunn v. Queen [2], the
Court of Appeal referred to the old common law rule that a public servant under
the British Crown had no tenure but held that his position is at the absolute
discretion of the Crown.

However, the Indian situation is quite different. Let us discuss how this doctrine
has taken shape in India.

Application of Doctrine of Pleasure in India

There are three kinds of Offices held during the Pleasure of the President that are
referred to in our Constitution.

1. Offices held during the pleasure of the President without any restrictions –
Article 75(2) relating to ministers, Article 76 (4) relating to Attorney General and
Article 156(1) relating to Governors. There are no restrictions whatsoever. The
Governors and Ministers can be dismissed summarily by the President.

2. Offices held during the pleasure of the President with restrictions – “The

pleasure of the President is clearly controlled by the provisions of Art. 311, and
so, the field that is covered by Art. 311 on a fair and reasonable construction of
the relevant words used in that Article would be excluded from the operation of
the absolute doctrine of pleasure. The pleasure of the President would still be
there, but it has to be exercised in accordance with the requirements of Art.
311”[3]. This includes 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.

3. Appointments to which said doctrine is not applicable – This includes

constitutional functionaries such as the Supreme Court Judges, the High Court
Judges, the Election Commissioners, the Comptroller and Auditor General etc.
that cannot be removed except by way of Impeachment.

Doctrine of Pleasure in relation to the Governor

It is the first scenario (pleasure of the President without any restrictions) that we
are concerned with in the present post. We see that there is no such thing as
absolute and unfettered discretion in India. There is a distinction between the
doctrine of pleasure as it existed in a medieval set-up and the doctrine of
pleasure in a democracy governed by Rule of Law. Where Rule of Law prevails,
there is nothing like unrestricted discretion or unaccountable action. The degree
of need for reason may vary. The degree of scrutiny during judicial review may
vary. But the need for reason exists.

Thus where there are no express limitations or restrictions existing, it should be

read as being subject to the “fundamentals of constitutionalism”.

In the case of B.P. Singhal v. Union of India & Another [4], the court has
categorically stated that the ‘Doctrine of Pleasure’ in its absolute unrestricted
application does not exist in India. The court further said that:
“The aforesaid doctrine is severely curtailed in the case of government
employment, as will be evident from clause (2) of Article 310 and clauses (1) and
(2) of Article 311[5]. Even in regard to cases falling within the proviso to clause
(2) of Article 311, the application of the doctrine is not unrestricted, but
moderately restricted in the sense that the circumstances mentioned therein
should exist for its operation.”

Even the Canadian Supreme Court in Wells v. Newfound land [6] has concluded
that “at pleasure” doctrine is no longer justifiable in the context of modern
employment relationship.

B.P. Singhal’s Case also held that the doctrine of pleasure is not a licence to act
with unfettered discretion to act arbitrarily, whimsically, or capriciously. It does
not dispense with the need for a cause for withdrawal of the pleasure. In other
words, “at pleasure” doctrine enables the removal of a person holding office at
the pleasure of an Authority, summarily, without any obligation to give any notice
or hearing to the person removed, and without any obligation to assign any
reasons or disclose any cause for the removal, or withdrawal of
pleasure. However, the withdrawal of pleasure cannot be at the sweet will, whim
and fancy of the Authority, but can only be for valid reasons.

Thus, we see that Doctrine of Pleasure refers to the discretion vested in the
President to remove various constitutional functionaries. Article 156 merely
mentions that the Governor shall hold office during the pleasure of the President.
It does not prescribe any conditions for exercising this pleasure. However, this
does not mean that the discretion is absolute, unrestricted and unfettered. The
President can remove a Governor summarily but valid explanation for such
removal must exist.

18. The Doctrine of ‘Prospective Overruling: It’s Application in India

It is commonly acknowledged that when a judicial pronouncement is made, it not

only applies to any particular case but the ratio would apply to the future cases
also. This is also the essence of the concept of precedent. In other words, the law
declared by the court is not descriptive as the court holds it but also prescriptive
in the sense the future judges have to use it. This, is other words, places
precedent on a higher pedestal- a major source of law.
Precedent, as a source of law, is both declaratory and constitutive of law. And
traditionally, the rule of retrospectivity is the norm. This means that when a law is
declared invalid, then it is deemed to be invalid from the date law had come into
existence or the date on which it was enacted. Thus, the rule of retrospective
operation of a decision or pronouncement of a court, which is also one of the
indispensable features of a precedent, confirms to the declaratory character of a
precedent. This, in essence, is what is meant by Blackstonian principle wherein
he says that judges do not make law, but only declare the law. Thus, we see that
the declaratory theory supports retroactive operation of a precedent.

Now, the concept of Prospective Overruling, as the title of the project reflects, is a
deviation from the principle of retroactive operation of a decision and thus, a
deviation from the traditional Blackstonian principle too. This principle, borrowed
from the American Constitution, found its application first in the famous case of
Golaknath v. State of Punjab . To illustrate, in very simple words, the implication
of the invocation of the doctrine is that the decision of such a case would not
have retrospective operation but would operate only in the future, i.e., have only
prospective operation. This project now seeks to embark on a detailed analysis of
the application and implications, both positive and negative, of the doctrine in the
light of its invocation in the above mentioned case.

The Doctrine of Prospective Overruling, as noted above, is a deviation for the

traditional Blackstonian view of law, viz., the duty of the Court was "not to
pronounce a new rule but to maintain and expound the old one". This doctrine
offers foundations for an extended view of judicial function, which primarily
centers on discretion and freedom of choice, to specify the time frame and the
cases to which a particular pronouncement in a case will be applicable to. In the
case of Naryanan Nair v. State of Kerala, Mathew J. explains the thrust of the
doctrine by observing that it was not meant to supplant the traditional
Blackstonian doctrine but was essentially meant to protect the interests of the
litigants when judicial overruling of a precedent entailed a change in the law. In
effect, what is contemplated through the doctrine is to lay down the scope of the
pronouncement in a particular case with regard to its applicability to future cases
and disputes. And the primary interest behind the courts actually applying this
doctrine is the fact, as already mentioned, that courts always want to do justice
and may apply various criteria to reach their ends. In this effort of theirs, there are
instances when courts have themselves have invoked and laid down effective
principles which will guide them in their endeavor and the above doctrine bears
testimony to this point.
The essence of prospective overruling is that the Supreme Court lays down the
parameters within which a law laid down in a case which overrules a previous
judgment has to operate. The whole purpose is to avoid reopening of settled
issues and also prevent multiplicity of proceedings; in effect, this means that all
actions prior to the declaration do not stand invalidated. Also, as laid down in the
case of Baburam v. C.C. Jacob , all the subordinate courts are bound to apply the
law to future cases only. There may also be instances where the Supreme Court
may specify the date when the declaration shall come into effect thereby not
disturbing the decisions taken before such a date. All this happens during the
process of invalidating a law or overruling a decision.

Golaknath Case and the Doctrine of Prospective Overruling

It was in the case of Golaknath v. State of Punjab, that the then Chief Justice
Subba Rao had first invoked the doctrine of prospective overruling. He had taken
import from American Law where Jurists like George F. Canfield, Robert Hill
Freeman, John Henry Wigmore and Cardozo had considered this doctrine to be
an effective judicial tool. In the words of Canfield, the said expression means:
"........ a court should recognize a duty to announce a new and better rule for
future transactions whenever the court has reached the conviction that an old
rule (as established by the precedents) is unsound even though feeling
compelled by stare decisis to apply the old and condemned rule to the instant
case and to transactions which had already taken place".

Taking cue from such formulation, Justice Subba Rao used this doctrine to
preserve the constitutional validity of the Constitution (Seventeenth Amendment)
Act, legality of which had been challenged. He drew protective cover offered by
the doctrine over the impugned amendments while manifestly holding that the
impugned amendments abridged the scope of fundamental rights. Justifying his
stand, he held that:
What then is the effect of our conclusion on the instant case? Having regard to
the history of the amendments, their impact on the social and economic affairs of
our country and the chaotic situation that may be brought about by the sudden
withdrawal at this stage of the amendments from the Constitution, we think that
considerable judicial restraint is called for. We, therefore, declare that our
decisions will not affect the validity of the constitution (Seventeenth Amendment)
Act, 1964, or other amendments made to the Constitution taking away or
abridging the fundamental rights. We further declare that in future Parliament will
have no power to amend Part III of the Constitution so as to take away or abridge
the fundamental rights.

He then went on to analyse the objections that had been laid down against the
use of the doctrine of prospective overruling which are as under:
1) the doctrine involved legislation by courts; (2) it would not encourage parties
to prefer appeals as they would not get any benefit there from; (3) the declaration
for the future would only be obiter; (4) it is not a desirable change; and (5) the
doctrine of retroactivity serves as a brake on courts which otherwise might be
tempted to be so facile in overruling.

Subba Rao J. discarded these objections as not insurmountable. He supported

the legitimacy of the doctrine of prospective overruling and held that overruling
as a concept included within its ambit the discretion to decide whether a
particular decision will have retrospective effect or not. He further added that
what is being laid down cannot be considered to be obiter as what the court is
doing in effect is to declare the law and by the use of a doctrine restrict its scope.
This is strict legal sense may encompass making law but according to the Chief
Justice, what is being done is to strike a pragmatic balance between the two
conflicting considerations, which are, a court finds law and a court makes law.

Further, to buttress his point, he said that there is no statutory provision that in
fact prevents or bars him from employing the doctrine. He says that courts in
India have the inherent power to reject retroactivity of law when it affects vested
rights. Similarly, he questions vehemently as to why in the judicial process,
should one not recognize a principle of construction which tends to deviate from
the principle of retrospectivity to judicial pronouncements where they entail a
change in the law.

To further substantiate and justify his stand on the invoking the doctrine, he says
that such a practice will not lead to a retrogression or a violation of the
constitutional provisions. For this he says that the Indian Constitution does not
expressly or by necessary implication speak against the doctrine of prospective
over-ruling. Talking about Articles 32, 141 and 142, he says they are couched in
such wide and elastic terms as to enable this Court to formulate legal doctrines to
meet the ends of justice. The only limitation thereon, he says, is reason, restraint
and injustice. These articles are designedly made comprehensive to enable the
Supreme Court to declare law and to give such directions or pass such orders as
are necessary to do complete justice.

The expression "declared" is wider than the words "found or made" wherein the
latter involves giving an opinion. He says that the power of the Supreme Court to
declare law under Article 141 also inheres in it the power to declare that the law
should have prospective effect only. He also says that the denial of this power to
the most powerful instrument at the highest level, i.e., the Supreme Court on the
basis of some passé theory is not a pragmatic thing to contemplate and the only
consequence of this is going to be that the Supreme Court is going to be
rendered impotent, thus being crippled of its power. In effect, what he means to
say is that it was high time we recognised the potential of the evolution of new
doctrines applicable to the prevailing socio-economic milieu and not deny the
power to do this by cloaking it with outdated theories which have rare application
now. However, while doing this, since it was the first time this doctrine was being
invoked, the Chief justice laid down the following principles of guidelines
regarding the applicability of prospective overruling:
"As this court for the first time has been called upon to apply the doctrine
evolved in a different country under different circumstances, we would like to
move warily in the beginning. We would lay down the following propositions:
(1) the doctrine of prospective overruling can be invoked only in matters arising
under our Constitution;
(2) it can be applied only by the highest court of the country, i.e., the Supreme
Court, as it has the Constitutional jurisdiction to declare law binding on all the
courts in India;
(3) the scope of the retroactive operation of the law declared by the Supreme
Court superseding its 'earlier decisions' is left to its discretion to be moulded in
accordance with the justice of the cause or matter before it."

Thus, this decision by Justice Subba Rao saw the dawn of the principle of
prospective overruling in India. This principle has been invoked in other cases by
the Supreme Court too and this will looked at in greater detail later in the project.
This judgment by Subba Rao has been well received by some jurists who claim
that the adoption of this doctrine is a realistic response to the awareness that the
supreme appellate body in the country is capable of making laws. On the other
hand, there has been some sort of criticism coming in to Justice Subba Rao’s
articulation of the above doctrine. All this will be considered hereon.

Thus, we see that Justice Subba Rao has tried to take a bold and imaginative
step, challenging the very roots of traditional jurisprudence, in order to
accommodate a smooth future which represents an acceptable working
arrangement in the eyes of the Constitution with a past which has seen a major
transformation in the economic, social and political structure since
independence. The Chief Justice has contemplated this by holding that the
amendments thus introduced will continue in effect. This can be inferred from his
conclusion, where he states that the first, fourth and seventeenth amendments
are ‘valid’ and ‘hold the field’, and therefore any acts passed which were
protected by these amendments ‘cannot be questioned’. The effect of the
decision is that from the ‘date of the decision’ the Parliament will have no power
to make laws which would affect the fundamental rights.

Minority judgment in Golaknath

The judges who delivered the minority judgment in the Golaknath case
dissented with the view of the invocation of the doctrine of prospective
overruling. They seemed to rest their argument on the traditional Blackstonian
theory where they said that courts declare law and a declaration being the law
of the land takes effect from the date the law comes into force. This is a very
restricted way of looking at it. They further said that it would be loathsome to
change the above principle and supersede it by the doctrine of prospective
overruling. It is submitted here that the doctrine of prospective overruling in
anyway does not supersede the already existing doctrine but simply tries to
enrich the existing and rather complex practice with regard to the effects of
new judicial decisions, by the adoption of an alternative discretionary device
to be employed in appropriate cases. So, the basic characteristics of the
above doctrine are the flexibility of content and fitfulness of occurrence.

19. Doctrine of Double Jeopardy and

 Introduction

Fundamental right which is guaranteed under Article 20(2) of Constitution of

India incorporates the principles of  “autrefois convict” or Double jeopardy
which means that person must not be punished twice for the offence. Doctrine
against Double Jeopardy embodies in English common law’s maxim ‘nemo
debet bis vexari, si constat curice quod sit pro una iti eadem causa ” (no man
shall be punished twice, if it appears to the court that it is for one and the
same cause). It also follows the “audi alterum partem rule” which means that
no person can be punished for the same offence more than ones. And if a
person is punished twice for the same offence it is termed Double jeopardy.

1. Meaning of Jeopardy

The word Jeopardy refers to the “danger” of conviction that an accused

person is subjected to when one trial for a criminal offence.

The act of putting a person through a second trial of an offence for which he
or she has already been prosecuted or convicted.

This means that if a person is prosecuted or convicted ones cannot be

punished again for that criminal act. And if a person is indicated again for the
same offence in the court then he has the plea of Double Jeopardy as a valid
defense.

 Indian Law and Double Jeopardy

The Double Jeopardy principle was existed in India prior to the enforcement of
the Constitution of India. It was enacted under in section 26.[3] Section 26
states that “provision as to offences punishable under two or more
enactments,- where an act or omission constitutes an offence under two or
more enactments, then the offender shall be liable to be prosecuted or
punished under either or any of those enactments, but shall not be liable to be
punished twice for the same offence.

And section 403(1) of (the old) CrPC[4],1898 (Section 300 of the amended
Criminal Procedure Code,1973) , which states, 300(1) a person who has once
been tried by a court of competent jurisdiction for an offence and convicted or
acquitted of offence shall, while such conviction or acquittal remains in force,
not to be liable to be tried again for the same offence, nor on the same facts
for any other offence for which a different charge from the one made against
him might have been under sub- section (1) of the section 221 or for sub-
section (2) thereof. It is to be noted that, the Code of Criminal procedure
recognize both the pleas of autrefois acquit as well as autrefois convict. The
conditions which should be satisfied for raising either of the plea under the
Code are: firstly; that there should be previous conviction or acquittal,
secondly; the conviction or acquittal must be by be a court of competent
jurisdiction, and thirdly; the subsequent proceeding must be for the same
offence. The expression “same offence” shows that the offence for which the
accused shall be tried and the offence for which he is again being tried must
be identical, and based on the same set of facts.[5]

Section 71 of IPC[6] runs as- limits of punishment of offence made up of

several offences where anything which is an offence is made up of parts is
itself an offence, the offender shall not be punished of more than one of such
his offences, unless it be so expressly provided.

 Constitutional Implication

In Constitution of India, Double Jeopardy is incorporated under Article 20(2)

and it is one of fundamental right of the Indian Constitution. And the features
of fundamental rights have been borrowed from U.S. Constitution and the
concept of Double Jeopardy is also one of them. Principle of Double Jeopardy
is incorporated into the U.S. Constitution in the Fifth Amendment, which says
that “no person shall be twice put in Jeopardy of life or limb.”

Article 20 of the Indian Constitution provides protection in respect of

conviction for offences, and article 20(2) contains the rule against double
jeopardy which says that “no person shall be prosecuted or punished for the
same offence more than once.” The protection under clause (2) of Article 20 of
Constitution of India is narrower than the American and British laws against
Double Jeopardy.

Under the American and British Constitution the protection against Double
Jeopardy is given for the second prosecution for the same offence
irrespective of whether an accused was acquitted or convicted in the first trial.
But under Article 20(2) the protection against double punishment is given only
when the accused has not only been ‘prosecuted’ but also ‘punished’, and is
sought to be prosecuted second time for the same offence. The use of the
word ‘prosecution’ thus limits the scope of the protection under clause (1) of
Article 20. If there is no punishment for the offence as a result of the
prosecution clause (2) of the article 20 has no application and an appeal
against acquittal, if provided by the procedure is in substance a continuance
of the prosecution.[7]
IV. Can Different Charge Is Laid For the Same Action or Same Offence?

Doctrine against Double Jeopardy in Constitution of India, Article 20(2) says

that ‘no person shall be prosecuted and punished for the same offence more
than once.” But it is subjected to certain restrictions. And it is to be noted that
Article 20(2) of Constitution of India does not apply to a continuing offence.

There are some examples of cited cases mentioned below which throw light
on the above question:

In Venkataraman v. Union of India,[8] An enquiry was made before the enquiry

commissioner on the appellant under the Public Service Enquiry Act,1960 & as
a result, he was dismissed from the service. He was later on, charged for
committed the offence under Indian Penal Code & the Prevention of
Corruption Act. The court held that the proceeding held by the enquiry
commissioner was only a mere enquiry & did not amount to a prosecution for
an offence. Hence, the second prosecution did not attract the doctrine of
Double Jeopardy or protection guaranteed under Fundamental Right Article 20
(2).

It is to be noted that Article 20 (2) will applicable only where punishment is for
the same offence, In Leo Roy v. Superintendent District Jail,[9] The Court held:
if the offences are distinct the rule of Double Jeopardy will not apply. Thus,
where a person was prosecuted and punished under sea customs act, and
was later on prosecuted under the Indian Penal Code for criminal conspiracy,
it was held that second prosecution was not barred since it was not for the
same offence.

In Roshan Lal & ors v. State of Punjab, [10] the accused had disappeared the
evidence of two separate offences under section 330 & section 348 Indian
Penal Code. So, it was held by the court that the accused was liable to be
convicted for two separate sentences.

In this case,[11] the appellants were charged under section 409 IPC & Section
5 of the prevention of Corruption Act,1947 for making false panchnama in
which they have shown recovery of 90 gold biscuits while according to the
prosecution case, they had recovered 99 gold biscuits. The appellants were
tried for the same & acquitted. The appellants were again tried for the offence
under section 120-B of Indian Penal Code, Section 135 & 136 of the Customs
Act, Section 85 of the Gold (control) Act & Section 23(1-A) of FERA and
Section 5 of Import Export (control) Act,1947. The validity of the subsequent
prosecution was challenged by the appellant by the appellant on the ground
that it contravened the constitutional guaranteed embodied in Article 20(2).
The court held: “After giving our careful consideration to the facts and
circumstances of the case and the submissions made by the learned counsel
for the respective parties, it appears to us that the ingredients of the offences
for which the appellants were charged in the first trial are entirely different.
The second trial with which we are concerned in this appeal, envisages a
different fact- situation and the enquiry for finding out constituting offences
under the Customs Act and the Gold (Control) Act in the second trial is of a
different nature. Not only the ingredients of offences in the previous and the
second trial are different, the factual foundation of the first trial and such
foundation for the second trial is also not indented (sic). Accordingly, the
second trial was not barred under Section 403 CrPC OF 1898 as alleged by the
appellants.”

In Union of India & Anr. v. P.D. Yadav,[12] In this case, the pension of the
officer, who was convicted by a Court-Martial, had been forfeited. The court
held: “This principle is embodied in the well-known maxim nemo debet bis
vexari si constat curiae quod sit pro una et eadem causa, meaning no one
ought to be vexed twice if it appears to the court that it is for one and the same
cause. Doctrine of Double Jeopardy is a protection against prosecution twice
for the same offence. Under Article 20-22 of the Indian Constitution, provisions
are made relating to personal liberty of citizens and others offences such as
criminal breach of trust, misappropriation, cheating, defamation etc., may give
rise to prosecution on criminal side and also for action in civil court/ other
forum for recovery of money by way of damages etc., unless there is a bar
created by law. In the proceedings before General Court Martial, a person is
tried for an offence of misconduct and whereas in passing order under
Regulation 16 (a) for forfeiting pension, a person is not tried for the same
offence of misconduct after the punishment is imposed for a proven
misconduct by the General Court Martial resulting in cashiering, dismissing or
removing from service. Only further action is taken under Regulation 16 (a) are
entirely different. Hence, there is no question of applying principle of Double
Jeopardy to the present cases.”

In Jitendra Panchal v. Intelligence Officer N.C.B.,[13] 17th October, 2002,

officers of the US Drug Enforcement Agency, along with officers of the
Narcotics Bureau, India, seized a consignment of 1243 pounds equivalent to
565.2 Kgs. of Hashish in Newark, USA. During the investigation, it appears to
have transpired that one Niranjan Shah and the appellant were engaged in
trafficking Hashish out of India into the USA and Europe and that the seized
contraband had been smuggled out of India by the appellant and the said
Niranjan Shah along with one Kishore. The appellant was arrested in Vienna in
Austria by officers of the Drug Enforcement Agency, USA on 5th December,
2002 and was extradited to the USA. Soon, thereafter, on 25th March, 2003, the
Deputy Director General of the Narcotics Control Bureau, hereinafter referred
as `the NCB', visited the USA and recorded the appellant's statement.
Subsequently, on 9th April, 2003, officers of the NCB arrested Niranjan Shah,
Kishore Joshi and Irfan Gazali in India and prosecution was launched against
them in India. On 5th September, 2003, a complaint was filed by the NCB
before the learned Special Judge, Mumbai, against Niranjan Shah, Kishore
Joshi and two others under Sections 29/20/23/27A/24 read with Section 8(c)/12
of the Narcotic Drugs and Psychotropic Substances Act, 1985, hereinafter
referred to as `the NDPS Act', in connection with the above-mentioned
incident. While the said Niranjan Shah and others were being proceeded with
before the learned Special Judge in Mumbai, the appellant, who had been
extradited to the USA, was tried before the District Court at Michigan, USA,[14]
On pleading guilty of the charge of conspiracy to possess with intention to
distribute controlled substances, which is an offence under USC Controlled
Substances Act[15], the appellant was sentenced to imprisonment on 27th
June, 2006, for a total term of 54 months. After serving out the aforesaid
sentence, the appellant was deported to India on 5th April, 2007, and on his
arrival at New Delhi, he was arrested by officers of the NCB and was taken to
Mumbai and on 10th April, 2007, he was produced before the learned Chief
Metropolitan Magistrate and was remanded to judicial custody. At this
juncture, it may be indicated that although the appellant could have been
prosecuted for other offences under Title 21 USC, the other charges against
the appellant were dropped as he had pleaded guilty to the offence of
conspiring to possess controlled substances. On 25th April, 2007, on the
appellant's application that the proceedings against the appellant in India
would amount to double jeopardy, the learned Special Judge, Mumbai,
rejected the appellant's contention upon holding that the charges which had
been dropped against the appellant in the proceedings in the USA had not
been dealt with while imposing sentence against him in the District Court of
Michigan, USA. The Special Judge extended the judicial custody of the
appellant and subsequently rejected his prayer for bail on 17th May, 2007.

V. Conclusion
The rule against Double Jeopardy stipulates that no one may be put in peril
twice for the same offence. It is a concept originated from “Natural Justice
System” for the protection of integrity of the “Criminal Justice System”. The
concept of Double Jeopardy follows the “audi altermn partum rule” which
means a person cannot be punished twice for the same offence. But it is to be
noted that there are some restrictions too in the Indian laws related to Double
Jeopardy.

In The State of Bombay v. S.L. Apte and anr.,[16] The Constitution Bench of
this Court while dealing with the issue of double jeopardy under Article 20(2),
held: “To operate as a bar the second prosecution and the consequential
punishment there under, must be for “the same offence”. The crucial
requirement therefore for attracting the Article is that the offences are the
same i.e. they should be identical. If, however, the two offences are distinct,
then notwithstanding that the allegations of facts in the two complaints might
be substantially similar, the benefit of the ban cannot be invoked. It is,
therefore, necessary to analyze and compare not the allegations in the two
complaints but the ingredients of the two offences and see whether their
identity is made out. The next point to be considered is as regards the scope
 of Section 26 of the General Clauses Act. Though Section 26 in its opening
words refers to “the act or omission constituting an offence under two or
more enactments”, the emphasis is not on the facts alleged in the two
complaints but rather on the ingredients which constitute the two offences
with which a person is charged. This is made clear by the concluding portion
of the section which refers to “shall not be liable to be punished twice for the
same offence”. If the offences are not the same but are distinct, the ban
imposed by this provision also cannot be invoked.”

20. Doctrine against self-incrimination

Throughout the web of English criminal law, one golden thread is always to be
seen, that it is the duty of the prosecution to prove the prisoner’s guilt" [1]
The main provision regarding crime investigation and trial in the Indian
Constitution is Art. 20(3). It deals with the privilege against self-incrimination. The
privilege against `self incrimination is a fundamental canon of Common law
criminal jurisprudence [2]. Art. 20(3) which embody this privilege read, "No
person accused of any offence shall be compelled to be a witness against
himself".

No one is bound to criminate himself. Hence although an accused person may of

his own accord make a voluntary statement as to the charge against himself, a
justice, before receiving such statement from him is required to caution him that
he is not obliged to say anything and that what he does say may be given in
evidence against himself. Hence also arises the rule that evidence of a
confession by the accused is not admissible unless it is proved that such
confession was free and voluntary[3]

The privilege against self-incrimination thus enables the maintenance of human

privacy in the enforcement of criminal justice. It also goes with the maxim Nemo
Tenetur Seipsum Accusare[4] i.e., ‘No man, not even the accused himself can be
compelled to answer any question, which may tend to prove him guilty of a crime,
he has been accused of.’ If the confession from the accused is derived from any
physical or moral compulsion (be it under hypnotic state of mind) it should stand
to be rejected by the court. The right against forced self-incrimination, widely
known as the Right to Silence is enshrined in the Code of Criminal Procedure
(CrPC) and the Indian Constitution. In the CrPC, the legislature has guarded a
citizen’s right against self-incrimination. S.161 (2) of the Code of Criminal
Procedure states that every person is bound to answer truthfully all questions,
put to him by [a police] officer, other than questions the answers to which would
have a tendency to expose that person to a criminal charge, penalty or forfeiture.
But where the accused makes a confession without any inducement, threat or
promise art 20(3) does not apply.
Status of Provision In Different Countries [5]

A) U.S.A.:-
The fifth amendment of the U.S. constitution provides that:-
No person shall be compelled in any Criminal Case, to be a Witness against
Himself
By judicial Interpretation the above provision has been given a very wide
connotation. The privilege against Self-Incrimination has been held to apply to
witnesses as well as parties in proceedings-criminal and civil. It covers
documentary evidence and oral evidence, and extends to all disclosures
including answers which by themselves support a criminal conviction or furnish
a link in the chain of evidence needed for a conviction.

B) Britain:-
It is a fundamental principle of the Common Law that a person accused of any
offence shall not be compelled to discover documents or objects which
incriminate him. No witness, whether party or stranger is, except in a few cases,
compellable to answer any question or to produce any document the tendency of
which is to expose the witness (or the spouse of the witness), to any criminal
charge, penalty or forfeiture.

The privilege is based on the policy of encouraging persons to come forward with
evidence in courts of justice, protecting them, as far as possible, from injury, or
needless annoyance, in consequence of doing so.

C) India:-

Article 20(3) reads that-

No person accused of any offence shall be compelled to be a witness against

himself
The privilege against self-incrimination is a fundamental canon of common
criminal law jurisprudence. The characteristics features of this provisions are –
# That the accused is presumed to be innocent,
# That it is for the prosecution to establish his guilt, and
# That the accused need not make any statement against his will.

Ingredients Constituting the Provision

This provision contains following ingredients-
1. It is a right available to a person accused of an offence [6].
2. It is a protection against compulsion to be a witness.
3. It is a protection against such compulsion resulting in his giving evidence
against himself.

Elaborating the ingredients

Origin-
The origins of right to silence may not be exactly clear but the right goes back to
the middle ages in England. During the 16th century, the English Courts of Star
Chamber and High Commission developed the practice of compelling suspects to
take an oath known as the ex-officio oath and, the accused had to answer
questions, without even a formal charge, put by the judge and the prosecutor. If a
person refused to take oath, he could be tortured. These Star Chambers and
Commissions were later abolished. The right to silence is based on the principle
‘nemo debet prodere ipsum’, the privilege against self-incrimination.

Accused of an offence- The privilege under this clause is only available to an

accused i.e., a person against whom a formal accusation relating to the
commission of an offence has been leveled which in the normal course may
result in the prosecution. It is however not necessary , to avail the privilege, that
the actual trial or enquiry should have commenced before the court or tribunal.
Thus a person against whom the FIR[7] has been recorded by the police and
investigation ordered by the Magistrate can claim the benefit of the protection.

Even if his name is not mentioned in the FIR as an accused, it will not take him
out of the category.In America the right against self incrimination is not only
available to accused but also to the witness. But Not Under Indian Laws.
But in Nandini Sathpathy Vs. P.L. Dani[8]
It was subsequently held that, the right extends to witness and accused alike, that
the expression 'accused of any offence’[9], must mean formally accused in
present not in future, that it applies at every stage at which furnishing of
information and collection of materials takes place, that the privilege extends not
only to the deployment of the information obtained as evidence in a criminal
prosecution, but to the extraction of the information itself.

Compulsion to be a witness

The application of Narcoanalysis test involves the fundamental question

pertaining to judicial matters and also to Human Rights. The legal position of
applying this technique as an investigative aid raises genuine issues like
encroachment of an individual’s rights, liberties and freedom. In case of State
Bombay v. Kathikalu [9] it must be shown hat the accused was compelled to
make statement likely to be incriminative of him. Compulsion means duress,
which includes threatening, beating or imprisonment of wife, parent or child of
person. Thus where the accused makes a confession without any inducement,
threat or promise art 20(3) does not apply.

Compulsion resulting in his giving evidence against himself-

The right to silence has various facets. One is that the burden is on the State
or rather the prosecution to prove that the accused is guilty. Another is that an
accused is presumed to be innocent till he is proved to be guilty. A third is the
right of the accused against self incrimination, namely, the right to be silent
 and that he cannot be compelled to incriminate himself. There are also
exceptions to the rule. An accused can be compelled to submit to
investigation by allowing his photographs taken, voice recorded, his blood
sample tested, his hair or other bodily material used for DNA testing etc.

Some of the aspects relating to right to silence

Universal Declaration of Human Rights, 1948. Art. 11.1
Everyone charged with a penal offence has the right to be presumed innocent
until proved guilty according to law in a public trial at which he has had all the
guarantees necessary for his defence.

2. The International Covenant on Civil and Political Rights, 1966 to which India
is a party states in Art. 14(3) (g)
Not to be compelled to testify against himself or to confess guilt.

The European Convention for the Protection of Human Rights and

Fundamental Freedoms states in Art. 6(1) that every person charged has a
right to a ‘fair’ trial and Art. 6(2) thereof states:

Everyone charged with a criminal offence shall be presumed innocent until

proved guilty according to law.

Conclusion
A survey of the current law in various countries reveals that in USA, Canada
and India in view of the constitutional provisions against self incrimination the
Courts have required the prosecution to prove guilt beyond reasonable doubt
and there has been no encroachment whether at the stage of interrogation or
trial, into the right to silence vested in the suspect or accused.

It is well established that the Right to Silence has been granted to the accused
by virtue of the pronouncement in the case of Nandini Sathpathy vs. P.L.Dani.
No one can forcibly extract statements from the accused. He has the right to
keep silent during the course of interrogation (investigation). By the
administration of these tests, forcible intrusion into one's mind is being
restored to, thereby nullifying the validity and legitimacy of the Right to
Silence.

Law is a living process, which changes according to the changes in society,

science, and ethics and so on. The Legal System should imbibe developments
and advances that take place in science as long as they do not violate
fundamental legal principles and are for the good of the society. The criminal
justice system should be based on just and equitable principles.

Doctrine of Parents Patriae in the Constitution

Meaning and Definition

‘Parens patriae’ is a Latin term meaning ‘parent of his or her country’.

Black’s Law Dictionary defines ‘parens patriae’ as:

1. The State 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[1], 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.

In Heller vs. DOE [2], Justice Kennedy observed:

“The State has a legitimate interest under its parens patriae powers in providing

care to its citizens who are unable to care for themselves.”

Also, in the case of State of Kerala v. N.M. Thomas [3], it has been categorically
held that the Court is also ‘State’ within the meaning of Article 12 of the
Constitution of India. Thus, Court can also act as Parens Patriae so as to meet the
ends of justice.

Relying on the above-mentioned reasoning, the Supreme Court has stated

that “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”[4].

The doctrine of ‘Parens Patriae’ has been evolved in common law and is applied
in situations where the State must make decisions in order to protect the
interests of those persons who are unable to take care of themselves[5].
The Two Tests

There are two tests in relation to this doctrine. These tests help the court to
ascertain the course of action that it can adopt depending upon the situation. It is
important to remember that these tests are merely guiding principles so as to
help the court to reach a logical conclusion.

1. ‘Best Interests’ Test – The ‘Best interests’ test requires the Court to ascertain
the course of action which would serve the best interests of the person in
question. It is important to note that the Court's decision should be guided by
the interests of the victim alone and not those of other stakeholders such as
guardians or society in general.

2. ‘Substituted Judgment’ Test – The application of the ‘Substituted

Judgment’ test requires the court to step into the shoes of a person who is
considered to be mentally incapable and attempt to make the decision which the
said person would have made, if he/she was competent to do so. This is a more
complex inquiry but this test can only be applied to make decisions on behalf of
persons who are conclusively shown to be mentally incompetent.

Doctrine of Parens Patriae and the Constitution of India

Conceptually, the Parens Patriae theory is the obligation of the State to protect
and take into custody the rights and privileges of its citizens for discharging its
obligations[6].

The Directive Principles as well as the Fundamental Rights enshrined in our

Constitution make it imperative for the State to secure to all its citizens the rights
guaranteed by the Constitution and where the citizens are not in a position to
assert these rights, the State comes into picture and protects the rights of such
Citizens.

The Preamble to our Constitution read with Article 38[7], Article 39[8] and Article
39A[9] makes it amply clear that the State must take up these responsibilities.
The State must strive to promote social, economic and political welfare of the
people. A harmony needs to be maintained between the Fundamental Rights and
the Directive Principles of State Policy by the State so as to effectively discharge
its commitments towards the people. While discharging these commitments, the
state may even deprive some rights and privileges of the individual victims or
their heirs to protect their other important rights in a better manner and secure
the ends of social welfare.
Some Scholars believe that Constitution is a Social Contract entered into by the
people amongst themselves so as to live cooperatively and harmoniously. The
values enshrined in our Constitution are a testimony of the standard of
governance and welfare that the people expect from their representatives to
maintain and carry out respectively. Doctrine of Parens Patriae is simply one of
the links in this long chain. This doctrine makes sure that the voiceless,
abandoned and disabled people are ultimately the responsibility of the State and
the State must take all the steps to ensure their well-being as they are not in a
position to do so.