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 4 Replies

Vinodkumar Kotabagi (Advocate and Trademark Attorney)     22 February 2009

 Any act of the Parliament or State Legislatures done by defeating the provisions of the Constitution, which prima facie appear to be within the power of the Parliament or state legislatures can be termed as the FRAUD ON THE CONSTITUTION. 

However, it is used as a general term and you will not get any definition in either Constitution or any other law.


Shree. ( Advocate.)     22 February 2009

Dear Assumi Sir,

    Eventually, Dr. D.C. Wadhwa, an arduous research scholar from the Gokhale Institute of Politics and Economics, Pune, stumbled upon evidence of the manipulation of successive ordinances on identical subject matters in the Bihar government. He compiled the details with great care and published his findings in a book Re-promulgation of Ordinances: A Fraud on the Constitution of India. He filed a petition in the Supreme Court against the fraudulent use of the constitutional power. In its judgment in D.C. Wadhwa vs State of Bihar (AIR 1987 SC 579), the Constitution Bench headed by Chief Justice P.N. Bhagwati observed: "The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be 'perverted to serve political ends'. It is contrary to all democratic norms that the Executive should have the power to make a law."


In the concluding paragraph of this judgment, the court made a strong indictment: "It is a settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. This would clearly be a fraud on the constitutional provision."

In Re-promulgation of Ordinances, Prof. Wadhwa gives a quotation from the Roman legalist Julius Paulus (B.C. 204): "One who does what a statute forbids transgresses the Statute; one who contravenes the intention of a Statute without disobeying its actual words, commits a fraud on it."

Half a century ago, Dr. Ambedkar warned the people of India about the possibility of subverting the Constitution without changing its form. Paulus said some 22 centuries ago that a fraud on a statute could be committed without disobeying its actual words.

N.K.Assumi (Advocate)     22 February 2009

Yes, Shreeji, as usual you have furnished a classic informations. Thank you for the valuable information, God Bless you.

AEJAZ AHMED (Legal Consultant/Lawyer)     23 February 2009

Bombay HC verdict on Parliamentary Secretaries case on Jan 22


A division bench of the Bombay High Court at Goa will on January 22 deliver its verdict on the Public Interest Litigation (PIL) filed by social activist Adv Aires Rodriges, challenging the government appointments of parliamentary secretaries and others with cabinet status.

The PIL challenged the appointment of Nilkanth Harlankar (NCP) and Francisco Silveira (Congress) as parliamentary secretaries and conferring of cabinet status on Economic Development Corporation (EDC) chairman Agnelo Fernandes, Deputy Chairman of Goa Planning Board Dr Wilfred De Souza (NCP chief) and Commissioner of NRI affairs Eduardo Faleiro.

In his petition, Adv Rodriges has submitted that the appointment of parliamentary secretaries and conferment of rank/status of a Cabinet Minister on others was a ‘fraud on the Constitution of India and violation of the 91st Amendment, which was meant to restrict the size of the Cabinet and to prevent Jumbo size cabinets with a huge financial burden to the State Exchequer.’ It may be recalled that in 2005, the Himachal Pradesh High Court had set aside the appointments of Parliamentary Secretaries as unconstitutional.

As directed by Bombay High Court Chief Justice Swatanter Kumar and Justice Nelson. A Britto on November 21 last year, Adv Rodriges, the Goa Government, the two parliamentary secretaries and the three other respondents -- whose cabinet status has been challenged -- had already filed their written arguments in the matter.

If the appointments are held to be unconstitutional it could set off more political trouble for Chief Minister Digambar Kamat, who has been doing a balancing act holding the coalition government together.

In his application dated October 7 last year, Adv Rodriges had urged the Chief Justice of the Bombay High Court for expeditious delivery of the judgement owing to the urgency in the matter as the appointments that were challenged were ‘a huge unnecessary burden on the state exchequer and were done for political expediency.’ Bombay High Court Chief Justice Swatanter Kumar and Justice Nelson A Britto had on March 19 last year, after hearing the final arguments in the matter, had reserved the judgment.

The arguments on the PIL filed by Adv Rodriges on July 17, 2007 were initially heard by the High Court comprising Justice R M S Khandeparkar and Justice R S Mohite on August 22, 2007, and the matter was reserved for judgement.

However, on August 24, 2007, the court did not pass any orders and adjourned the matter stating that it would not be appropriate to deal with it as a similar case relating to the validity of the appointment of Parliamentary Secretaries and conferment of status of Cabinet Ministers in Assam was pending before the Supreme Court.

Adv Rodriges then moved the Supreme Court through a petition under Article 139-A (1) of the Constitution of India seeking transfer of the PIL for hearing along with the Assam case on appointment of parliamentary secretaries pending before the Supreme Court, as both the cases involved the same questions of law and of general public importance.

However, on October 12, 2007, a division bench of the Supreme Court comprising Justice S H Kapadia and Justice B Sudershan Reddy directed that it was the Bombay High Court at Goa that should hear and decide the PIL.



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