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Ram Jawaya Kapur and Ors. is one of the landmark cases dealing with the powers and functions of the executive. The court held that with change in time the powers and functions of the executive also change and that the executive does not always need a legislative sanction for its functions. The Court held that there are times when these organs overlap each other’s functions. The court accepted a non-rigid definition of separation of powers as it found that in a rigid sense this doctrine would become an impractical one.
Citation: AIR 1955 SC 549
Coram: Mukherjea, V Bose, Jagannadhadas, V Ayyar, Imam
Factual Background
It was alleged by six persons by the means of a writ petition under Article 32 of the Constitution who claim to carry on the business of preparing, printing, publishing and selling textbooks for different classes in the schools of Punjab under the name “Uttar Chand Kapur & Sons”. It was purported that the Education department of the Government of Punjab in performance of their ostensible policy of nationalisation of textbooks issued a series of notifications since the 1950s with regards to the printing, publication and sale of the same.
It was contested in the petition that the sale of these books placed unwarrantable restrictions ousting other fellow traders from the business. It was maintained by petitioners that their right to carry on trade i.e Article 19(1)(g) was infringed without any proper legislation sans executive order & therefore the petitioners prayed for the writ of mandamus directing the Government of Punjab to withdraw the notifications in violation of their rights.
Issues Involved
- What is the scope and extent of executive powers?
- Whether the Government of a State has the power under the Constitution of India to carry on a trade or business without any legislative sanction?
- Whether the Government of Punjab in creating a monopoly in the business of printing and publishing the school textbooks violated the Fundamental Rights of the petitioners enshrined under Article 19(1)(g)?
Petitioners Arguments
- The executive Government of a State is wholly incompetent without any legislative sanction to engage in any trade or business activity. Basing the contentions on Article 71 and Article 162 of the Constitution of India it was contended that the legislature must enact first which the executive will carry out and therefore, the acts of the Government of Punjab in carrying out their policy of establishing a monopoly in the business of printing and publishing textbooks for school students is whole without jurisdiction and hence illegal.
- The State in doing so is creating a monopoly in its favour in respect of a particular trade or business that could be done not by any executive act but by means of proper legislation which should conform to the requirements of Article 19(6) of the Constitution not infringing the Fundamental Rights of the petitioners.
- The Government is doing so and depriving the petitioners of their interest in any business or undertaking which amounts to property without authority of law and without payment of compensation as is required under Article 31.
Judgement
The judgement was delivered by Mukharjea, CJ where the scope and extent of executive powers were discussed and held that it is not possible to frame an exhaustive definition of what executive function means and implies. Referring to Article 73 and Article 162 which concerns with distribution of executive powers of Union and State respectively where Article 73 provides that the executive power of the Union shall extend to matters with respect to which Parliament has exercisable powers of the Union shall extend to matters with respect to which Parliament has the power to make laws and to exercise such rights, authority, jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.
It further lays down that with respect to the Concurrent List it will be left with the state as to how it desires to exercise these powers but Parliament can extend the power of executive Union to these matters as well. Similarly, Article 162, deals with the executive authority of the State and enlists that it is exclusive in respect to matters in List II of 7th Schedule and extends to Concurrent list as well if and when any laws are passed by Parliament.
It indicates that the powers of the State executive do extend to the matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. Hence, it was maintained that these two Articles do not contain any definition as to the functions and activities within its scope and negate the contentions of the petitioners.
Even after taking the words of Article 154 of the Constitution into consideration, it cant be said that in order to enable the executive to function there must be an existent law and that the powers of the executive are limited to carrying out these laws.
The Indian Constitution recognises the ‘doctrine of separation’ of powers where it clearly recognises a distinction between legislative, judicial and executive functions whereby the function of the executive is to execute the laws passed by the legislature or to supervise the enforcement of the same. However, the Constitution of India has not recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of Govt have been sufficiently differentiated.
Executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away but, as per the Indian Constitution the executive can exercise the powers of department or subordinate legislation when such powers are delegated to it by the legislature at the same time it can also when so empowered can exercise judicial functions.
Modelled on the British Parliamentary system, the Executive power of the Union vested in the President by virtue of Article 53(1). However, by virtue of Article 75, there has to be a Council of Ministers with the Prime Minister to aid and advise the President making the President only a formal head and vesting the real executive powers with the Council of Ministers. And, in the States, the same position is occupied by the Governor where he is the head of the executive in the state but it is the Council of Ministers who carry out the governmental functions.
With regards to the powers of doing business, it was highlighted that a modern state is expected to engage in all activities necessary for the promotion of social and economic welfare of the community and it is the function of the executive to determine policies as well as carry on its execution which includes initiation of legislation, maintenance of order, promotion of social and economic welfare and carrying on or general supervision of the state.
Reference was made to an Allahabad HC judgement in Motilal v. Government of State of Uttar Pradesh where the majority held that the executive powers include all powers that may be needed to carry into effect the aims and objects of the Constitution. The state, therefore, has the right to hold and manage its own property and carry on such trade or business as a citizen so long as such activity does not encroach upon the rights of others or is not contrary to law.
It was held that an act would be within the executive power of the State if it is not an act which has been assigned by the Constitution of India to other authorities or bodies and is not contrary to the provisions of any law and does not infringe public rights.
It has highlighted that the power of contract is expressly vested in the Government under Article 298 of the Constitution and therefore, for the purpose of carrying on business, government does not require any additional powers and whatever is necessary for their purpose they can have by entering into contracts with authors and other people.
The Indian Constitution is a written constitution and provides that even the legislature cannot override the Fundamental Rights guaranteed by it to its citizens. Therefore, even if the acts are sanctioned by the legislature which overrides Fundamental Rights can be declared void. Whereas even if the acts of the executive are illegal i.e not warranted by law but not infringing any Fundamental Rights the petitioners will not have the right to complain under Article 32 not preventing them from availing the remedies available to them in other statutory provisions.
It was held that in this care the petitioner’s Fundamental Rights has not been infringed under Article 19(1)(g). There is no fundamental right of the petitioners in the fact that books printed and published by them only should be prescribed as school textbooks and can’t be discontinued in future once they are accepted. The Government Schools receive aids from the Government and are primarily run and recognised by the Government and so it is free, the government can prescribe textbooks and it is the Government who will decide as to which ones to select.
A trader might be lucky in securing a particular market for his goods but if he loses that field because a particular class of customers choose someone else over them that does not mean that their Fundamental Rights are being violated as no one took away their right to print and publish books and offer them to sale which would have amounted infringement of Fundamental Right to carry on trade or business.
Lastly, with regards to the demands of the Petitioners about compensation, it was held that a mere chance of prospect of having particular customers can’t be said to be a right to property or to any interest in an undertaking within the meaning of Article 31 (2) so no question of payment of compensation arises because they have been deprived of the same and with this, the petition was dismissed.
Conclusion
The Supreme Court, in this case, emphasised the theme of responsible government and promote & strengthen the parliamentary system of government. Mukharjea, C.J, speaking on behalf of the Supreme Court stated that our constitution has adopted the British system of Parliamentary Executive where the President is only ‘a formal or constitutional head of the executive’ and the real powers are vested in the Council of Ministers. The Supreme Court discussed in detail the scope of executive powers & negatived the contentions of the Petitioners who were stating that the Executive could not engage in trade or business activity without any law being passed for the same.
The parliamentary system is based on an intimate contact and a close liaison between the Executive and the Legislative wings and India recognised no doctrine of separation between them. The Indian Constitution as stated by the Supreme Court does demarcate the functions between the Legislature and the Executive as it postulates that no organ should assume the functions belonging essentially to the other organ yet, there is no separation between them in its absolute rigidity.
The Constitutionally recognised doctrine of separation of power rather indicates parallelism of power with hierarchies between the three organs in particular filed which must be maintained by each organ to checks by the other two. Therefore, the Government can carry on the administrative instructions until the legislature chooses to make a law in that behalf.
The SC held that the expenses necessary to carry on the business of publishing textbooks have been approved by the Legislature in Appropriation Act and Government required no additional power to carry on the business as whatever was necessary for that purpose could be secured by entering into contracts with authors and other people.
No private right was being infringed as the publishers were not being debarred from publishing books. Therefore, the carrying on of the business of publishing textbooks without a specific law sanctioning the same was not beyond the competence of the Executive. It was held that the Government can prescribe textbooks for schools in the exercise of its executive powers so long as it does not infringe the rights of anyone.
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