Political Philosophy
Not on That Ground: What the Constitution's Own Ouster Clauses Actually Withdraw
15 September 2026 · 13 min read
Judicial review in India is usually discussed as a contest between the Constitution and Parliament: an amendment narrows the courts, and the courts answer that some part of what was narrowed was not Parliament's to take. The framing assumes the Constitution is on one side of the contest.
It is not entirely. In roughly a dozen places the Constitution itself directs that a question shall not be examined in a court. Article 74(2) provides that "the question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court". Article 122(1) provides that "the validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure". Article 363(1) provides that "neither the Supreme Court nor any other court shall have jurisdiction" in a dispute arising out of a pre-Constitution covenant with the Ruler of an Indian State. Three separate articles carry the heading "Bar to interference by courts in electoral matters". None of the first three was inserted by an amendment hostile to the judiciary; all three were in the document as enacted.
That inventory was once turned into an argument. When the Constitution (Thirty-ninth Amendment) Act, 1975 inserted Article 329A and placed the election of the Prime Minister and the Speaker beyond the reach of any court, one answer offered to the objection that judicial review is part of the basic structure was that the Constitution as originally enacted had itself excluded review in a considerable number of important matters. A seven-Judge Bench recorded that reasoning in L. Chandra Kumar v. Union of India, (1997) 3 SCC 261. Chandrachud, J., the Bench noted, had pointed out that the Constitution as originally enacted expressly excluded judicial review in a large number of important matters, and had concluded from that — in the later Bench's words — that "judicial review cannot be considered to be a part of the basic structure in so far as legislative elections are concerned".
The argument depends on counting. It treats the ouster clauses as a single class and infers from their number that the Constitution is indifferent to review over whole subjects. Whether the inference holds is a question about what the clauses individually say, and they turn out to say markedly different things.
Five ways of withdrawing less than a question
Read against each other, most of the clauses are narrower than the sentence that introduces them.
A ground, not a question. Article 122(1) is the clearest instance. The validity of proceedings in Parliament may not be called in question — "on the ground of any alleged irregularity of procedure". The qualifying words are the whole of the clause's work. They name one ground of challenge and exclude it; the clause says nothing, either way, about any other ground. Article 212(1) does the same, in the same terms, for the Legislature of a State. What is left of a challenge once irregularity of procedure has been taken out of it has been litigated repeatedly, and nothing in the present point turns on how that has been resolved. The textual observation is only that the drafting selects a ground rather than a subject.
Articles 77(2) and 166(2) work the same way on executive instruments. An order authenticated in the manner the rules prescribe may not be called in question "on the ground that it is not an order or instrument made or executed by the President" — or, in Article 166(2), the Governor. That is a rule about what need not be established concerning provenance. It forecloses an argument about who signed and leaves every argument about what was ordered where it was.
A forum and a moment, not the question. The three electoral articles share a heading and a structure. Article 329(b) provides that "no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature". Article 243-O(b), inserted with Part IX by the Constitution (Seventy-third Amendment) Act, 1992, says the same for a Panchayat; Article 243-ZG(b), inserted with Part IXA by the Seventy-fourth Amendment of the same year, says it for a Municipality.
Nothing there is withdrawn from adjudication. The clause names the proceeding in which the question must be raised and, by implication, the point at which it becomes available — after the election, not during it. A voter who might otherwise have moved a High Court mid-poll is required to wait and to use a petition. The heading says "bar to interference"; the operative words are a rule of channelling. The difference matters for the counting argument, because a clause that routes a question to a particular forum is not evidence that the Constitution was content to let the question go unanswered.
A fact, not the act. Article 74(2) — and Article 163(3), its counterpart for the Governor — forbids inquiry into "the question whether any, and if so what, advice was tendered by Ministers". What is placed beyond inquiry is a fact about how a decision was reached, not the decision. The order made in the President's name remains an order like any other; what may not be extracted is the advice behind it. Article 163(2) goes further and does withdraw a question — whether a matter is one in which the Governor is required to act in his discretion is made final by his own decision, and the validity of what he does "shall not be called in question on the ground that he ought or ought not to have acted in his discretion". That clause is worth noticing precisely because it is the outlier in a neighbourhood of narrower ones.
A person, for a period. Article 361 is the longest of the group and the most carefully limited. Clause (1) provides that the President and the Governor of a State "shall not be answerable to any court for the exercise and performance of the powers and duties of his office" — and then attaches two provisos, the second of which expressly preserves "the right of any person to bring appropriate proceedings against the Government of India or the Government of a State". The immunity is personal; the act done in the office remains open to challenge in proceedings against the government. Clauses (2), (3) and (4) bar criminal proceedings, arrest and certain civil proceedings, and each closes with the same limitation: "during his term of office". Nothing is extinguished. A remedy against an individual is suspended for as long as the individual holds the post.
A permission, not a prohibition. Article 262 is not an ouster clause at all until Parliament makes it one. Clause (2) provides that "Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction" in respect of an inter-State river water dispute. The Constitution supplies a competence and leaves the exclusion to be enacted, narrowed or repealed by ordinary legislation.
The clauses that withdraw a subject
Set against those, a small number of provisions do what the counting argument assumes they all do. They identify a subject and remove it.
Article 363(1) is the plainest. It opens "Notwithstanding anything in this Constitution but subject to the provisions of article 143" — reserving only the President's power to seek an advisory opinion — and then provides that neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of a treaty, agreement, covenant, engagement, sanad or similar instrument entered into or executed before the commencement of the Constitution by a Ruler of an Indian State, and to which the Government of the Dominion of India or one of its predecessor Governments was a party. No ground is specified, no alternative forum is named, and no period is set.
Article 31B applies the technique to a class of statutes rather than a class of disputes: "none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void", on the ground of inconsistency with Part III, and that is so "notwithstanding any judgment, decree or order of any court or Tribunal to the contrary".
Clause 2(d) of Article 323A empowered Parliament, in a law establishing administrative tribunals, to "exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136"; clause 3(d) of Article 323B did the same for the tribunals of the other listed subjects. Part XIVA, which contains both, was inserted by the Constitution (Forty-second Amendment) Act, 1976.
Paragraph 7 of the Tenth Schedule, added by the Constitution (Fifty-second Amendment) Act, 1985, was the most complete of all: "Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule."
And the first limb of each of the three electoral articles — Articles 329(a), 243-O(a) and 243-ZG(a) — provides that the validity of a law relating to the delimitation of constituencies or the allotment of seats to constituencies "shall not be called in question in any court".
What became of them
The list of unlimited ousters is short, and almost every item on it has since been undone.
Paragraph 7 of the Tenth Schedule is printed in the official compilation with an asterisk, and the footnote records why: it was "declared invalid for want of ratification in accordance with the proviso to clause (2) of article 368 as per majority opinion" in Kihoto Hollohan v. Zachillhu, decided on 18 February 1992 and reported at AIR 1993 SC 412. The ground is worth noting, because it is procedural rather than doctrinal. A bar on the jurisdiction of every court changed the provisions of the Constitution relating to the Supreme Court and to the High Courts, and an amendment that does that must, under the proviso to Article 368(2), "be ratified by the Legislatures of not less than one-half of the States" before it is presented for assent. It had not been. The Constitution's own amending procedure defeated it.
Clause 2(d) of Article 323A and clause 3(d) of Article 323B survive on the page but not in operation. In L. Chandra Kumar the Court held, in paragraph 100, that both clauses, "to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional", and that the "exclusion of jurisdiction" clauses in every other enactment made under those articles "would, to the same extent, be unconstitutional".
Article 329A, the provision that prompted the argument in the first place, lasted less than four years. It was inserted by the Thirty-ninth Amendment with effect from 10 August 1975 and omitted by the Constitution (Forty-fourth Amendment) Act, 1978 with effect from 20 June 1979. The same amendment struck the words "but subject to the provisions of article 329A" from the opening of Article 329 itself.
Four further provisions of the same kind were removed not by a court but by Parliament, and all that the compilation now prints of each is a heading in square brackets followed by the word "Omitted". The headings record what they did. Article 32A, inserted by the Constitution (Forty-second Amendment) Act, 1976, was headed "Constitutional validity of State laws not to be considered in proceedings under article 32". Article 226A was its mirror image for the High Courts: "Constitutional validity of Central laws not to be considered in proceedings under article 226". Article 131A was headed "Exclusive jurisdiction of the Supreme Court in regard to questions as to constitutional validity of Central laws", and Article 228A "Special provisions as to disposal of questions relating to constitutional validity of State laws". All four were omitted by the Constitution (Forty-third Amendment) Act, 1977 with effect from 13 April 1978, having been in force for a little over a year.
Article 363 remains and is untouched. Its subject matter, however, has largely been withdrawn from underneath it. Article 363A, inserted by the Constitution (Twenty-sixth Amendment) Act, 1971, provides that the recognition of the Rulers of Indian States shall cease and that "privy purse is abolished and all rights, liabilities and obligations in respect of privy purse are extinguished". A bar on jurisdiction over disputes arising out of the covenants continues to operate over a shrinking field.
That leaves the delimitation limb of the three electoral articles as the unqualified exclusion of a subject that is both intact and operative. It is a narrow subject, and one with a feature the others lack. A delimitation challenge, if it succeeded after the constituencies had been polled, would unsettle every election held in them; the finality attaches to a class of law whose consequences are difficult to unwind rather than to a class of conduct that is to go unexamined.
What the pattern suggests
The counting argument is not answered by producing a smaller number. It is answered by observing that the items counted are not alike.
A clause that forecloses one ground of challenge decides which question a court may be asked. A clause requiring an election to be questioned by petition rather than by writ decides where the question is answered, not whether. A clause suspending proceedings against an officeholder during his term decides when. A clause permitting Parliament to exclude jurisdiction over river water disputes decides nothing at all until Parliament acts. In each case the Constitution has narrowed the question, or moved it, or delayed it. None of them places a subject outside adjudication — and a list assembled by searching for the words "shall not be called in question" will be full of them.
Where the Constitution has withdrawn a subject entirely, the withdrawal has been unstable. One such clause was defeated by the ratification requirement in the proviso to Article 368(2). Two were held unconstitutional to the extent that they excluded the constitutional courts. Four were repealed by the same Parliament that had enacted them, a little over a year after they came into force. One was omitted along with the amendment that had created it. One survives over a field that a later amendment has emptied. The single clean survivor covers laws of delimitation, where the reason for finality is the difficulty of unwinding completed elections rather than any position about what courts are for.
The Constitution is therefore not indifferent to review over whole subjects. It narrows grounds readily, channels forums readily, defers moments and shields particular facts readily. The record of the occasions on which it has gone further is a record of retreat — effected, as often as not, by Parliament rather than by a court.
Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.