SYMBIOSIS LAW SCHOOL, PUNE

Constituent of Symbiosis International University, Pune

[Accredited by NAAC (UGC) with ‘A’ Grade]

Submitted by
ABHA TOTLA
Course: One Year LLM (2018-2019)
PRN: 18010143075

FIRST INTERNALASSIGNMENT
(COMPARATIVE PUBLIC LAW )
ON
ANALYSIS OF THREE CASES BASED ON IRAC METHOD

1
 INDEX

Sr No. Topic Page no.

1 SR Bommai v. Union of India, 1994 3-12

2 UNISON v. Lord Chancellor, 2017 13-19

3 Reynolds v. Sims, 1964 20-22

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Case No. 1: S R Bommaiv.Union of India {1994(2) SCR 644, AIR
1994 SC 1918}

INDEX

Sr no. Sub-Topic Page no.

1 Introduction 4

2 Issues Involved 4-5

3 Rules Laid Down 5-6

4 Content Analysis 6-11

5 Conclusion 11-12

3
Introduction:
The case of S.R Bommai v. Union of India is a landmark case which falls within the purview
of history of Constitution of India which relates to the proclamation of emergency u/Article
356 of Indian Constitution. The main issue that came up with this case was The President’s
Power to issue proclamation under Article 356 of the Indian Constitution which includes the
power of dissolving the Legislative Assemblies of the State and issues relating to secularism
and federalism as part of its basic structure.

The facts and situation as to how the case arose are mentioned below:-

“The case of S.R. Bommai had come before the bench of 9 Judges. The President issued a
Proclamation under Article 356 of the Indian Constitution on 21st April 1989 which
dismissed the Government of S. R. Bommai and thereby dissolved the legislative assembly of
Karnataka State. On 26th April, 1989 a Writ Petition which challenged the validity of the
Proclamation was filed. The said writ Petition was dismissed by a special bench of 3 Judges
of Karnataka High Court. The President issued a Proclamation under Article 356(1) of the
Indian Constitution on 11th October 1991 and thereby dismissed the Government of
Meghalaya and dissolved the Legislative Assembly as well. The President then issued a
Proclamation on7th August 1988whereby is dissolved the Government of Nagaland along
with the State Legislative Assembly.Guwahati High Court challenged the validity of the
Proclamation. A Division bench comprising of Chief Justice and Hansaria J heard the
petition. The matter was referred to the third Judge as there was a difference of opinion in
regard to the effect and operation of Article 74(2). The Union of India granted a special leave
to the appeal before the third judge could have have heard the matter and stay was imposed
on further proceeding in the High Court. A proclamation under Article 356 was issued by the
President whereby he dismissed the State Government along with Legislative Assemblies in
the State of Rajasthan, Himachal Pradesh and Madhya Pradesh on 15th December, 1952.In
appropriate High Courts the validity of these Proclamations was challenged by Writ Petitions.
The Writ Petition relating to Madhya Pradesh was accepted in the MP High Court. Whereas
the WP relating to Himachal Pradesh and Rajasthan were presented before the Supreme
Court. In the case of S.R. Bommai, the arguments began on the early first week of October
1993 and came to an end in about the last week of December 1993. After the demolition of
the Babri Masjid in the year 1992 the law of land came to a change and it was during this
period that the state was ruled by BJP government and that under Article 356 of Indian
Constitution this BJP Government was removed.

The main issue in the case of S.R. Bommai comprised not only of Proclamation of
emergency by the President but it all had many different kinds of issues which related to
Secularism and Federalism in the Indian context as per the Indian Constitution. The matter of
judicial review of Article 356 of the Indian Constitution as to its capability of exercising the
test was invalidating the proclamation was as well enhanced.

The case of S.R.Bommai related to declaration of State Emergency under Article 356 of the
Indian Constitution. The discussion of State Emergency is incomplete without this case being
discussed. Centre- State relation is the major part which has been discussed in this case.

4
Issues Involved:
1. Whether or not there was malafide exercise of Art 356?
2. Whether the President has unfettered powers to issue Proclamation under Article 356(1)
of the Constitution of India?

3. Validity of Article 74 and Justiciability of advice of Council of Ministers to President

4. Whether the President has unrestricted power to proclaim emergency?

5. Is it valid to grant any relief when the question as to the validity of proclamation rises and
is it possible for the Court to grant an interim stay order to restrict ant fresh elect from
being held?

Rules laid down

The Supreme Court had laid down certain guidelines to prevent Article 356 of Constitution’s
misuse.
1. The floor of the House shall test the majority enjoyed by the Council of Ministers.
2. The Council of Ministers cannot be questioned by the Court as to the Advice tendered
by them to the President but, the material behind the satisfaction of the President can
be questioned. Thus, judicial reviews involves 3 questions:
i. Whether or not there is any material behind the Proclamation?
ii. Whether or not the material is relevant?
iii. Whether or not there was malafide use of power?
3. A warning should be given by the Centre to the state along with time duration of 1
week to reply.
4. In case the Article 356 of Indian Constitution is misused, the Court shall provide for a
remedy thereby.
5. Only when there is breakdown of the Constitutional Machinery can Article 356 is
justified and not otherwise.
6. Limitation on the powers of the President has been specified under Article 356(3) of
the Indian Constitution and therefore unless the Proclamation has not been approved
by the Parliament, the President is not supposed to take any irreversible action which
means that he cannot dissolve the assembly.
The constitutional structure between the Centre and State can be destroyed with in the ambit
Article 356 and hence it should sparingly be used. It was even asked by the Father of Indian
Constitution to let Article 356 be a ‘Dead Letter’.
On the basis of the Sarkaria Commission [which defines the Centre- State Relations (1988)]
in SR Bommai’s Case, the Supreme Court has given the list of situations as to when would
the use of Article 356 be rational and irrational...

5
In the following situations, the imposition of President’s Rule would be Rational.
 When no party secures a majority after the General Elections i.e. Hung Assembly.
 When the party in assembly with majority fails to form Ministry and the Governor in
the assembly as well fails to find a coalition ministry with majority.
 When the state disregards the Constitutional directions laid by the Centre.
 When the Government has physically broken-down and is willingly refused to
discharge its constitutional obligations endangering the security of the state.
 When after defeat, a ministry resigns and there is no other party in the assembly in
majority who is willing to or able to form a ministry.
 Where a government is violently revolting against the law and Constitution i.e.
Internal Supervision.
In the following situations, the imposition of President’s Rule would be irrational:-
Where a ministry resigns or is dismissed on losing majority support in the assembly and the
governor recommends imposition of President’s Rule without probing the possibility of
forming an alternative ministry.

 When the power has been used for an irrelevant purpose which is so conferred by the
constitution or for any such purpose such as sorting out the internal party issues of the
ruling party.
 When, in the General Elections massive defeat has been faced by the ruling party who
was enjoying majority support.
 When there are Internal Disturbances which do not amount to Internal Subversion,
physical breakdown

Content Analysis:
As per discussed above the first issue taken into consideration is whether or not was Article
356 of the Indian Constitution exercised in a malaise manner. Question of Politics was
involved in the Judicial Review and Justice Ahmadi in this context held that, political
judgement of the President was reflected when he acted on the basis of the Governors report
and it is difficult to evolve judicially manageable norms for scrutinizing political decisions.
Hence by the manner in which things govern the decisions under Article 356, it cannot be
justified. Justice Ramaswamy held that, the reason required for governing the decisions under
Article 356 is a political reason and not the one which can judicially be managed for as long
as there is no malice irrationality being suffered by the decision, material inadequacy or
insufficiency cannot merely be the grounds on which the decision can be challenged. Same
opinion was expressed by Justice Reddy and he held that the merits of the decision are not to
be concerned but the manners in which they are taken have to be considered. Justice Sawant
as well held that, the proclamation issued under Article 356 is judicially reviewable. Justice
Sawantheld that, the Proclamation issued under Article 356 is judicially reviewable to the
extent of examining as to whether or notits issuance was based on any material at all or was

6
it relevant or has it suffered from malafides, but he also held that material sufficiency cannot
be questioned. Only the legitimacy of the inferences can be drawn from such material, which
is open to judicial review.

TheSupreme Court held that the power conferred by Article 356 upon the President is a
conditionals power and not an absolute power. This conclusion may be formed either on the
basis of the report of the Governor or on the basis of other information received by him or
both.Existence of relevant material is a pre-conditionfor the formation of satisfaction and
this the satisfaction has to be formed on the basis of relevant material. The Legislative
Assembly should be dissolved to only when it is necessary for achieving the purposes of the
proclamation. This power can be exercised only when an approval of the both Houses of
Parliament is received.

The next issue which is taken into consideration Non-Justiciability of the Cabinet advice.
‘Under Article 74(2) of the Constitution, the scope and ambit which bars the Court from
embarking upon an inquiry as to whether any advice was tendered by the Council of
Ministers to the President has been discussed. According to the implications of Article 74(2),
it was held by the Supreme Court that no Court is concerned as to what advice had been
tendered by the Minister to the President, but it is only concerned with whether the order is
valid or not and what happens in the inner council of the President and the Ministers is not
the concern of any court. Just merely because the order isn’t in accordance with the advice
tendered by the Minister or no advice was made for the same, it cannot be challenged.

According to the Court, if the President acts without the advice of the Ministers, case if
impeachment arises but, it is an act of the President if he acts on the advice of the ministers.
Protection and preservation of secrecy between the President and his Council of Ministers is
the ambit Article 74(2) even though its scope is limited. This Article cannot override the
basic provisions of the Constitution relating to Judicial Review. This doesn’t in any manner
release the government from justifying the Act of the President which he does in of his
functions. But, when an Act or Order of the President is questioned in a Court, the Council of
Ministers has the responsibility to justify the President’s act by disclosing the materials which
formed the basis of the Act.’

In the issue of judicial review application of Sec.123 of the Indian Evidence Act, Article
74(3) of Constitution of India, and administrative law were also there. Though the advice of
the Council of Ministers cannot be examined, the material on which it was based upon is
reviewable asArticle 74(2) has to be harmonized with Article 142 as held by Justice
Ramaswamy. No broad principle be laid downfor a plea underSec. 123 and it has to be
examined on merits only. Before or after Parliament approves the proclamation, the scrutiny
of the material on which the decision of the Council of Ministers was based upon can be done
as held by Justice Jeevan Reddy. The principles of administrative law are inapplicable to the
decision of constitutional authority as clearly held byMajority of the judges.These principles
are applicable because there has to be a test done by the doctrine of proportionality at the
same moment when the situation arises for any decision being taken under Article 356(1) as
held by Justice Sawant. Even if the President is immune from judicial scrutiny, the Council of
Ministers would be liable under the name of the Union of India and any plea under Article
361 shall be summarily dismissed on the same ground. The decisions in Jayantilal Sodhan vs.
F.N.Rana, that the executive power of the President is different from the executive power of
the Union and that this principle has not expressly been overruled in any of the cases which
was laid down by a bench of 5 judges before the summary dismissal of the plea of Article
361.

7
As discussed earlier I would deal with the issue of democracy and secularism relating to this
case only. ‘Democracy and secularism being the basic feature of the Indian Constitution.As
India has a responsible and parliamentary form of government which is accountable to an
elected legislature, it is a democratic country.’

SECULARISM
‘Secularism means that all citizens are equal and that the religion of a citizen is irrelevant in
the matter of his enjoyment of Fundamental Rights which is not just the basis but also a part
of basic structure of Indian Constitution. Equal freedom for all religion is ensured by the
Indian Constitution and it as well provides that the religion of the citizen has nothing to do in
socio-economic matters.’

‘The concept of secularism is not merely a passive attitude of religious tolerance but. It is
also a positive concept of equal treatment of all religionsas observed by Justice Sawant and
Justice B.P. Jeevan Reddy. Though at the making of the Constitution, this concept was not
expressly incorporated but the trails of its application can be seen in the Directive Principles
and Fundamental Rights. The concept of secularism was deeply embedded in the
constitutional philosophy, though it was not expressly stated in the constitution. The concept
of secularism came into being with the 42nd amendment in the Constitution in the year 1967.
Theword ‘secular’it is kept undefined in the constitutionas it is a very elastic term and not
capable of any precise definition’.

Secularism has a positive content in the Indian context and this concept is not an anti-god as
rightly said by Justice Ramaswamy.The American doctrine of secularism i.e. the concept of
erecting “a wall of separation between Religion and State" has not been accepted in the
Indian Constitution as, the Indian Constitution embodies the positive concept.Spiritualism
with individual faithis separated by the positive concept of secularism.’

FEDERALISM
The second issue that comes up is the federal structure of India as per the context of S.R.
Bommai. ‘The power of President to proclaim the failure of Constitutional Machinery, under
Art.356 gave rise to the question of federalism in relation to the discussion of the main topic.
‘Federalism is an essential feature of our Constitution and was as well a part of basic
structure’ as per the observation of Justice Sawant and Kuldip Singh. As per the observation
of Justice Jeevan Reddy, ‘the States are not merely a part of the Centre but, the fact is that
under the scheme of our Constitution, greater power is conferred upon the States. Centre are
not allowed to tamper with the powers allotted to the states as in India, States are supreme to
the Centre according to the sphere of powers allotted to them. This means that, no approach
or interpretation can be adopted by any Court which may reduce or underutilise the powers
allotted to the States16.Thus federalism in India is one of the principles and not merely a
matter of administrative convenience.

The next crucial issue to be dealt after the issue of secularism and federalism in the context of
this is the dissolution of the Legislative Assembly.

8
Dissolution of the Legislative Assembly- ‘According to Article 174(1) (b) the governor has
power of dissolving the Legislative Assembly before the expiration of the term of 5 years.

Normally, the Assembly cannot be dissolved for till the Ministry is enjoying support in the
House and the term of 5 years expires. The Legislative Assembly can be dissolved by the
governor by exercising his discretionary powers only when the ministry in power has lost the
majority support and there is no alternative left to stable the ministry. Unless the
proclamation under Article 356 of the Indian Constitution made by the President has been
approved by both the houses of the Parliament, no Assembly can be dissolved- held by
Supreme Court in this matter. Any dissolution by the President after issuance of the
proclamation would be equivalent to the dissolution of the Assembly by the Governor whose
powers are being taken over.’

The Scope and Ambit of Article 356 is one of the most important issues of this case without
which the case is incomplete.

‘President’s rule is invoked, in case the following occasions or situations arisein which result
from instability of the state government, or in a situation which results from the problems of
law and order, when the legislators make frequent defections and change in loyalties, misuse
of power for partisan ends, ground of corruption, mal administration. In 1977, there was an
imposition of the President’s Rule and an unusual instance of invoking the powers conferred
under Article 356 were bought into action after the Emergency declared in 1975 was revoked
and lifted and in the year of 1977. The Lok Sabha General Elections were held.’

‘A number of guidelines which reflects the majority view have been laid down by the
Supreme Court. Those are:

Extra ordinary powerhave been conferred under Article 356 on the President. The President
has to exercise these powers conferred on him by Article 356 sparingly and with great
circumspection. Observations made by Dr. B.R. Ambedkar on Article 356 were minutely
observed by the Court. According to Dr. B. R. Ambedkar, emergency provisions should be
invoked in rarest of rare cases In regard to the use of Article 356; recommendations made in
the Sarkaria Commission were taken on record by the Court. Before invoking Article 356(1)
the State should be given a warning in specific terms according to the recommendations made
by the Sarkaria Commission. There should be no alternative left untried to contain the
situation and all attempts should be made to resolve the crisis of the State level.

Sub-clause (a) of Article 356(1) Article has implicit power for dissolution though Article 356
does not expressly speak of it. Since Article 174(2) (b) empowers the Governor to dissolve
the Legislative Assembly and the President under Article 356(1) (a) assumes to himself the
powers and functions of both of the Government and the Governor. As part of the
proclamation issued under Article 356(1) or by a subsequent order, he can dissolve the
Legislative Assembly.

The Proclamation has to be laid before both Houses of Parliamentto dissolve the Legislative
Assembly as perClause (3) of Article 356 as held by the court relating to the power. Before
the approval of the Proclamation by the Parliament, the power to suspend the Legislative
Assembly lies with the President under Article 356 (1) (c).

A writ petition questioning the Proclamation can be entertained by the High Court or the
Supreme Court having jurisdiction if it is satisfied that arguable question with respect to the

9
validity of the Proclamation is raised by the Writ Petition. The court may also grant an
interim stay on the dissolution of the Legislative Assembly if the situation so demands until
the final order is passed.

A control on the power of the President and as well as a safeguard against abuse has been
conceived under Clause (3) of Article 356. Both the State Government and the State
Assembly can be revived if the two Houses of Parliament do not approve the issuance of
Proclamation.

If the proclamation issued is held invalid by the Court then, it will be open to the Court to
restore the status quoi ante to the issuance of Proclamation notwithstanding the fact that the
proclamation is approved by the both House of Parliamentand hence to restore the Legislative
Assembly and the Ministry.

It was thus held that the proper course for testing the strength of the Ministry was holding the
Test on the floor of the Housein all cases where the Ministry loses majority support, except in
the case where it was not possible to hold the floor test.

The Union Council of Ministers can be called by the Court to disclose the material upon
which the President had formed the requisite satisfaction under Article 74(2).’ The power of
the President is a constitutional power and not an absolute power under Article 365 of the
Constitution.

‘The imposition of President’s Rule in 1996 in the State of Uttar Pradesh was the most recent
instance in which the invocation of Article 356 has taken place.In the case of Uttar Pradesh in
the year 1996, the Mayawati Government resigned and the Samajwadi Party and the B.J.P.
who were the main parties then refused to form the Government. The Governor
recommended The President’s rule was recommended by the Governor in the State and that
there has to be a suspended animation of the Legislative Assembly until both the Houses of
the Parliament confirm the Proclamation under Article 356 of the Indian Constitution.

The federal nature of the Indian Constitution, the extent to which Article 356 of Indian
Constitution can be justifiable, if it is justifiable then, is it subject to judicial review were the
aspects that put in test. Seven different opinions were given in this case by a nine bench
Judge. Original position was restored by the President’s Rule as it was held to be in violation
of the Constitution in certain states. New Governments were established as fresh elections
had already been taken place.In its seven opinions, the Court has stated as to what is the
federal nature of the Indian Constitution.

The fact that the application of the principle of a Federal State of Constitution of America
would be misleading the Indian Constitution has been further stressed upon. In India, it is
highly impossible to follow the concept of Federalism in its strict sense. Whether a
President’s Rule can be subject to judicial review was the second contention answered by the
nine judges.There is no harm in Art 356 being put to judicial review as per the opinion of the
nine judges. There are certain provisions envisaged in the Article 356 of the Indian
Constitution which the President has to primarily satisfy. Judicial review is permitted because
relevance of the objective facts is important as the satisfaction is subjective in nature. The
parameters for carrying out the judicial review differed from one opinion to other. There were
a few similarities which dealt with the narrowing and widening the scope of Judicial Review.
They concluded saying that when there is no other option left in the hands of the President,
invoking Art 356 of the Constitution is the last-resort power.

10
Sarkaria’s Commission Report
No rules as such can be stuck on as there are different factors on which judicial review can be
carried on. The Sarkaria Commission Report, 1987 proved to be a great piece of relevance in
this case to the Court. The President’s Rule can be justified and be accepted as maintainable
only when there are instances of the Constitutional Machinery failing, application of Article
356 would be held good. There are four heads under which the instances can be broadly
classified into, they are as follows:-
(i) Political crises
(ii) Physical breakdown.
(iii) Internal subversion.
(iv) Constitutional directions of the Union Executive are not complied
There has been no claim as to whether or not the categorization is perfect, but in a given
situation it helps us to determine whether there was a necessity to invoke the last resort of
Article 356 in a given situation.
The Sarkaria Commission has also given a list of certain circumstances in cases where no
failure of Constitutional machinery occurs. Following are the circumstance,
(i) maladministration in a State,
(ii) when a government which is not defeated at the floor of the House and also has
not been given no opportunity was given to it to prove its majority is being
removed,
(iii) in case the government in the State resigns or is dismissed and there is non-
exploration of the possibility of installing an alternative government
(iv) Massive defeat of aparty in the Lok Sabha elections such as the one in 1977 and
1980,
(v) No internal subversion or physical breakdown because of internal disturbances,
(vi) exercise of the power without prior warning except in case of disturbances or
intra-party problems of the ruling party,
(vii) to sort out internal disturbances,
(viii) stringent financial exigencies of a State,
(ix) allegation of corruption against ministry,
(x) Power has been exercised for a purpose which is extraneous or irrelevant as per
the Constitution.
The Supreme Court hence gave a structure towards the Centre-State relationship with bold
limitations with respect to Article 356 of the Indian Constitution. Article 365 should be
invoked only when there is no other measure left and it is the last resort power given to
President for there is a failure in the State’s Constitutional machinery.

Conclusion:

S.R. Bommai case was decided by the Supreme Court of India and it is a vast case whose
decision is of more than nearly 250 pages. This case is very important in the history of Indian
Constitution and its development along with my analysis over the case; I have tried to find
the traces of some of the main issues dealing with the case along with their implications. My
analysis deals with various issues such as secularism , federalism, application of Article 356
etc along with the view of various learned Judges according to whom secularism and
federalism are the most essential and important features of the Indian constitution along with
the basic structure of the State Legislature. The President’s proclamation for the dissolution
of the State Assembly has to be verified by both the houses of the parliament as mentioned
under Article 356 of the Constitution and Article 174(1) (b) deals with the issue of

11
dissolution of the legislative assembly. Moreover, in case of cabinets power to advice, it was
held by the court that it is non-justifiable and that the Court has no concern as to the Advice
tendered by the Ministers to the President but, it is concerned with the material behind the
satisfaction of the President which is protected under Article 74(2) of the Indian
Constitution.

Not just the summing up of the Article 356 is done in the case but extraordinary powers to the
President has as well been laid down which the President shall be sparingly used only for the
protection of democratic form of Government and for protect paralysis of political process50 .
‘in this case majority of the view was laid down in the case of Barium Chemicals Ltd51 and
the test for validity of the administrative action cannot be a test for justifiability of the
President under Article 356.The decision by Kuldeep Singh JJ and Sawant held that the
parameter developed in the field of administrative law for judicial review are not antithetical
in the field of constitutional law and they can be equally applied to the domain covered under
by Constitutional Law.’

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 Case No. 2: UNICEF v. Lord Chancellor {[2017] UKSC 51}

INDEX

Sr no. Sub-Topic Page no.

1 Introduction 14
2 Issues Involved 14
3 Rules Laid Down 14-16
4 Content Analysis 16-19
5 Conclusion 19

13
Introduction:

Until the enactment of the Employment Tribunals and Employment Appeal Tribunal Fees
Order 2013, SI 2013/1893, claimants were able to bring proceedings in an employment
tribunal and appeal to the Employment Appeal Tribunal without paying any fees.
The Fees Order introduced fees (i) to issue a claim form with an employment tribunal; (ii) to
lodge an appeal with the EAT; (iii) for the hearing of a claim; and (iv) for the making of
various kinds of application. Prior to this Supreme Court ruling, a claim or appeal would be
rejected or dismissed unless it was accompanied by a fee or remission application.
The Government’s primary aim for introducing the Fees Order was transferring some of the
cost burden of the employment tribunal and EATS system from general taxpayers to users of
the system. Its secondary aims were deterring unmeritorious or claims and encouraging
earlier settlement.
The amounts of the issue fee and hearing fee varied depending on whether the claim was
brought by a single claimant or a group and also the type of claim brought, with over 60 types
of claim being defined as ‘type A’, with all other claims being ‘type B’. The type B category,
which comprised claims for unfair dismissal, equal pay and discrimination attracted higher
fees under the Fees Order.
UNISON’s appeal to the Supreme Court was born out of judicial review proceedings it
initiated against the enactment of the Fees Order for (i) interfering unjustifiably with the right
of access to justice under (a) common law and (b) EU law, (ii) for frustrating the operation of
Parliamentary legislation granting employment rights; and (iii) for discriminating unlawfully
against women and other protected groups.

Issues Raised:

1. Whether the Fees Order is unlawful for effectively preventing access to justice under
domestic law?
2. Whether the Fees Order cut down statutory rights, which it is unlawful for subordinate
legislation to do?

Rule of Law:

When a question as to what kind of interpretation is a clear commitment to a nuanced,

purposive reading/construction of statutes a reference will always be made to the judgement

14
made by Lord Reed in the aforesaid case. According to Lord Reed, the Court must consider
not only the text of the provision mentioned by Section 42(1) of the 2007 Act but the test
relating to the Constitutional Provisions which underlie the text along with the statutory
principles of interpretation through which those principles receive effect while determining
the extent of the power conferred on the Lord Chancellor by section 42(1) of the 2007 Act.
Here the principles in question, Moreover, according to Lord Reed, the doctrine of ‘specific
statutory rights’ should not be chopped down merely because of a subordinate legislation
under the vires of a different Act has been passedand the principles herein question are the
constitutional right of access to justice.

The Rule of law makes the constitutional right of access to the courts to be an inherent right.
One cannot be without the other is a notion established of co-dependency between the two as
established by Lord Reed. As part of what has to be seen as an extraordinarily lengthy and
determined judicial analysis of the rule of law, Lord Reed, in what I consider to be one of the
most powerful paragraphs of the judgement, says:

At the heart of the concept of the rule of law is the idea that society is governed by law.
Parliament exists primarily in order to make laws for society in this country. There exists a
democratic procedure primarily so as to ensure that the Members of Parliament who are
chosen by the people of this country are included by the Parliament which makes those laws
and that they as well are accountable to them. To ensure that there is a proper application and
enforcement of the laws made by the Parliament, and the common law created by the courts
themselves, Courts exist. This role of the Court ensures that the executive branch of
government carries out its functions in accordance with the law. There has to be an
unimpeded access by the people to the courts for the courts to perform their role effectively.
Work done by the Parliament will become useless, there would be no meaning left to the
democratic elections of the Ministry of the Parliament and Laws would as well become a
dead letter if no such access is granted. That is why the courts do not merely provide a public
service like any other (see Paul Daly on the potential risk of incoherence under this
definition).
The constitutional significance of the judgement, and indeed the importance of the rule of
law, is further enhanced by the subtle use of language and precedent and the thoroughness
with which the legal analysis is conducted.

For instance, the example Lord Reed gives to underpin the importance of the courts
developing legal principles for the benefit of all and not just the claimant (see Joe Tomlinson

15
on this point) is the seminal House of Lords decision in Donoghue v Stevenson{[1932] AC
562}. Lord Reed also specifically recognises the law-making role of the courts by saying that
the common law is created, applied and enforced by the courts themselves. Lord Reed then
rather sharply points out to the Lord Chancellor that he himself relied on over 60 cases in his
submissions, insinuating that he would clearly appreciate the importance of cases being
brought to the courts. Quoting the words of Mark Elliott, it has rightly included the
consideration of hypothetical scenarios while he states that ‘it is striking that the Court was
prepared to engage in detailed consideration of relevant statistical and financial information,
so as to build up a comprehensive picture of the real-world impact of the Fees Order.’ The
vigour with which the arguments on both sides were scrutinised creates an atmosphere of
seriousness and responsibility. Finally, stating that the Fees Order is unlawful abinitio and
consequently quashing it gives the judgement real bite.

Content analysis:

Under both domestic and EU, the Fees Order is unlawful as itp-revents access to justice.
Since it had that effect as soon as it was made, it was therefore unlawful and must be
quashed.

Even if it is an inherent constitutional right to have access to the courts under the rule of law
what has to be ensured is that the laws created by the Courts and the Parliament are enforced
and applied. For those who bring the claims before the tribunals, tribunals are merely the
providers for service for them alone. If the degree of intrusion in the access of justice is
greater than that as justified by the purpose of the Fees Order or if there is a real risk that the
person will be effectively prevented from justice then the Fees Order is unlawful as a matter
of domestic law. There is no direct relation to the amount to be paid as the value of claim in
case of the ET and EAT fees and therefore it can be expected to act as a deterrent to claims
for modest amounts or non-monetary remedies (which together form the majority of ET
claims) unlike the court fees for small claims which are related to the value of the claim.
Just because there are chances that upon success of the case there will be a recoverability of
costs, the access to justice as a right cannot be restricted with huge amount of claim fee.
Taking into consideration the evidences which were laid before the Court, it can be
concluded that due to the Fees Order there was a continuous fall in the number of claims
which were being bought before the ETs and moreover a greater fall in the number of lower
value claims and specially the claims in which there was no financial remedy sought. The
most frequent cited reason for not submitting a claim was the Fees.
The first foremost issue that has to be taken into consideration is whether fees effectively
prevent access to justice. This issue has to be decided taking into consideration the most
likely impact of the fees on behaviour in the real world. Fees charged should be such that it
can reasonably be afforded and not just afforded in a theoretical sense.
The Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher
fees for type B claims put women at a particular disadvantage, because a higher proportion of
women bring type B than bring type claims. The charging of higher fees was not a
proportionate means of achieving the stated aims of the Fees Order.

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 First, the evidence before the Court led to the conclusion that the fees were not set at a level
that everyone could afford, even taking into account the availability of remission. It was -
sufficient that a real risk had been demonstrated, but in any event the fall in the number of
claims has been so sharp, so substantial and so serious that the result of which was that a
great number of people who would have otherwise brought the claims dint do so as the fees
was unaffordable. Moreover, fees can prevent access to justice not only where they are
unaffordable, but also where they render it futile or irrational to bring a claim. This was the
case here, since many ET claims do not seek any financial award or seek only modest
amounts.
Secondly, the primary aim of the Fees Order – to transfer some of the cost burden to users of
the system – has been achieved to some extent, but it does not follow that fees which intruded
to a lesser extent upon the right of access to justice would have been any less effective. The
Government proceeded on the basis that the higher the fee is, the more effective it is, but it is
elementary economics and common sense that the revenue derived from the supply of a
service is not maximised by maximising the price, but by identifying the optimal price. It was
clear that the fees were not set at the optimal price: the price elasticity of demand was greatly
underestimated. Nor had fees at the level set in the Fees Order been shown to be necessary in
order to achieve its secondary aims. Further, in setting the fees the Government had failed to
consider the public benefits flowing from the enforcement of rights which Parliament had
conferred. Fundamentally, it was because of that failure that the system of fees was, from the
outset, calculated to infringe constitutional rights.

They generally required more judicial case management and longer hearings because of their
legal and factual complexity. These meant fees were higher for complex claims irrespective
of the amount of relief sought.
They argued that the fees unjustifiably interfered with the right of access to justice under both
the common law and European Union (EU) law, impeded statutory employment rights, and
discriminated against women and other protected groups.
The government argued that the fees were lawful because there was no conclusive evidence
that someone had been denied access to the courts due to inability to pay. It considered the
fees affordable because poor people qualified for full fee cancellation and others had the
disposable income to pay. Rejecting these arguments, the Court confirmed it does not require
‘conclusive evidence’ to determine denial of access to justice. It is sufficient if a real risk is
demonstrated, and the Court inferred from the sharp, substantial, and sustained fall in the
number of claims that a significant number of people who would otherwise have brought
claims found the fees to be unaffordable. The discretionary fee cancellation was deemed
inadequate as the problems identified were systemic rather than confined to exceptional
circumstances. It further held that it is not only unaffordable fees that prevent access to
justice, but also circumstances where fees would render it futile or irrational to bring a claim.
Significantly, the Court found that the fees cannot be regarded as affordable “here households
on low to middle incomes can only afford fees by sacrificing the ordinary and reasonable
expenditure required to maintain what would generally be regarded as an acceptable standard
of living.”
The Court determined that even an interference with access to the courts which is not
insurmountable will be unlawful unless it can be justified as reasonably necessary to meet a
legitimate objective.
Amongst other legal references, the Court drew at the domestic level on the constitutional
right to unimpeded access to the courts and at the regional level on the norm of effective

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judicial protection as enshrined in the European Convention on Human Rights and reaffirmed
by the Charter of Fundamental Rights of the European Union
The Court also found the Fees Order to be indirectly discriminatory under Section 19 of the
Equality Act 2010 because the higher fees for certain (i.e. Type B) claims put women and
others with protected characteristics, who bring a higher proportion of such claims, at a
particular disadvantage.
There are five points of general interest.
First, the common law constitution was brought to bear on the interpretation of the scope of
the relevant statutory powers. To begin with, “his constitutional right of access to the courts
is inherent in the rule of law”. Here, moreover, the enforcement mechanism provided for by
statute allowed claims to be brought which would “enable legislation to have the deterrent
and other effects which Parliament intended, provide authoritative guidance as to its meaning
and application, and underpin alternative methods of dispute resolution”. It is by now clear
that “any hindrance or impediment by the executive” of the right of access to the courts
“requires clear authorisation by Parliament.” As a result, if the delegated legislation
created “a real risk that persons will effectively be prevented from having access to justice”,
it would be ultra vires. Indeed, “even where primary legislation authorises the imposition of
an intrusion on the right of access to justice, it is presumed to be subject to an implied
limitation the degree of intrusion must not be greater than is justified by the objectives which
the measure is intended to serve.” On the facts, the Fees Order “effectively prevents access to
justice, and is therefore unlawful.”
Second, Lord Reed determined whether there was a real risk that persons would effectively
be prevented from having access to justice not by reference to the circumstances of individual
claimants, but by reference to statistical evidence contained in official reports:
In the first place, as the Review Report concludes, “it is clear that there has been a sharp,
substantial and sustained fall in the volume of case receipts as a result of the introduction of
fees.
The relevant questions had to be answered in what might be described as a common-sense
manner, “according to the likely impact of the fees on behaviour in the real world”. Lord
Reed supported the conclusions based on statistical evidence and common sense with some
“hypothetical examples” proposed by the claimants, for it was “common ground that payment
of the fees would result in the hypothetical households having less income than is estimated
by the Joseph Rowntree Foundation as being necessary to meet acceptable living standards”.
This is an interesting approach, which can usefully be contrasted with the reluctance of courts
outside the United Kingdom to apply common sense to statistical evidence suggestive of pre-
judgement on the part of (in particular) immigration decision-makers.
Thirdly, the existence of a discretionary power of remission was not sufficient to save the
scheme:
The statutory scheme of remission is of very restricted scope…The effects of the Fees Order
have occurred notwithstanding the existence of that scheme. The discretionary power of
remission may be capable of greater use than has been the case in the past, but it can only be
exercised “where the Lord Chancellor is satisfied that there are exceptional circumstances
which justify doing so.” The problems which have been identified in these proceedings are
not confined to exceptional circumstances: they are systemic.

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There are echoes here — and, indeed, throughout the judgment — of the Supreme Court of
Canada’s decision in Trial Lawyers .A discretionary power of the same nature also existed in
the scheme under review in that case, but McLachlin C.J. held that it would be an “affront to
dignity” to ask for a remission of fees. In Trial Lawyers, the scheme under review was held to
be unconstitutional (as a violation of s.96 of the Constitution Act 1867), but in a set of
concurring reasons that track Lord Reed’s judgment quite closely, Cromwell J. applied
common-law principles to reach a similar result.
Fourthly, Lord Reed held that the appropriate remedy was to quash the Fees Order as void ab
initio:
If the original decision to make the Fees Order was lawful, but the Lord Chancellor acted
unreasonably in subsequently failing to decide that it should no longer be maintained in force,
then it is argued that the appropriate form of relief is a declaration to that effect. That
argument mistakes the nature of the illegality with which we are concerned. Since it had that
effect as soon as it was made, it was therefore unlawful ab initio, and must be quashed.
That fees were imposed and paid (and that some impecunious employees were denied access
to the machinery necessary to enforce their rights) without statutory authority may well lead
to further litigation. One is not inclined to feel great sympathy for the Lord Chancellor, who
must have known that the Fees Order would inhibit access to justice in these circumstances.
But one can imagine more sympathetic respondents introducing delegated legislation in good
faith only to find that it does not operate as anticipated and then to see it struck down as void
ab initio. That is why the courts do not merely provide a public service like any other.

Conclusion:
The author of Osborn and A v BBC, Lord Reed with this judgement gave shape to the
common law constitution which can perhaps be compared Laws LJ in the 1980s and 1990s
and Lord Bingham in the 1990s and 2000s and further established himself as one of the key
Judges with the judgement he gave in the aforesaid case.

As an effect of the UNISON case it can be said that as the UK constitution is found in the
common law,it is in the hands of the Judges rather than being in the hands of the
politicians.The notions the rule of law, the separation of powers and the UK constitution as
displayed in R (Evans) v Attorney General have been strengthened by the UNISON case and
it will be seen as one of the most important judgements of the year 2017 in the history of
UKSC along with the with R (Miller) v Secretary of State for Exiting the European Union.

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 Case No. 3: Reynolds v. Sims{379 U.S. 870(1964)}

INDEX

Sr no. Sub-Topic Page no.

1 Introduction 3

2 Issues Involved 4

3 Rules Laid Down 5

4 Content Analysis 6-11

5 Conclusion 12

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Introduction:
The case Reynolds v. Sims revolves around the ‘Equal Protection’ Clause of the Fourteenth
Amendment. On August 21, 1961 a case was filed in the United States District Court for the
Middle District of Alabama, challenging the apportionment of the Alabama Legislature.
According to Article IX section 199 of State legislature it was a rule that it shall be the duty
of legislature to take census for every ten years so as to fix the number of representatives and
apportion them among the several counties of the State. It was alleged that the last
apportionment was done in the year 1900 and on that basis elections were conducted till
1960. It was argued that since 1900 the population growth had grown precipitously, even then
the number of representatives and apportionment was not changed. Thus this violates the
rights of citizens to vote and it violates the Constitution of Alabama and the Fourteenth
Amendment of Federal Constitution. The original suit was filed in a lower federal court and
later it was appealed to the Supreme Court in 1964.

Issues:
1. Does the Alabama’s apportionment scheme violate the Equal Protection Clause of
Fourteenth Amendment?
2. Is the mandate valid of one representative per county (106) and creating as many
senatorial districts as there were senators (67) , regardless of the population count?

Rules:
Equal protection clause signifies the right of citizens regardless of their race, sex occupation
or geographical unit. No person shall be denied the right of suffrage.
The apportionment of state legislature must be on population basis rather than geographical
areas.

Analysis:
The Fourteenth Amendment played a significant role in deciding unconstitutionality of
Alabama’s State legislature apportionment. This case went to become a landmark judgment
in the history of USA. The Supreme Court applied the rule of “one person, one vote” for the
severely malapportioned state legislative districts of Alabama. The Chief Justice Earl Warren
stated that the apportionment of the state should be done on population basis and not
geographical units because the representatives represent the people and not the trees or acres.
According to the state legislature it was mandatory to conduct an apportionment for every 10
years but in Alabama this apportionment was not conducted for six decades. Hence there was
irregular distribution of representatives and all the citizens were not equally represented.
Many of the citizens were deprived from the right of suffrage. A case was filed in the lower
federal court where it was rightly held that the existing as well the new proposed plans were
invalid. Further the same was upheld by Supreme Court. The Court stated that the “federal
analogy “won’t work because it is difficult to divide the districts strictly in equal ratio and

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thus apportionment should be more population based rather than geographical area based.
Along with this District Court ordered a temporary reapportionment for the 1962 general
election by combining features of the two plans adopted by the legislature which were
otherwise constitutionally invalid as whole, and in retaining jurisdiction while deferring a
hearing on the issuance of a final injunction to give the reapportioned legislature an
opportunity to act effectively.

Conclusion:
The Supreme Court affirmed the District court’s decision. The existing plan of the bicameral
legislature of apportionment was violating the Equal Protection Clause. And that the
apportionment should be strictly based on population basis and the federal analogy will be
violating the fundamental right to vote.

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