The modern state is expected to engage in all the activities necessary for the promotion of the social and economic welfare of the community: Supreme Court
The federal structure of the largest democracy of the world functions through three organs: Legislative, Executive and Judiciary. The doctrine of separation of powers lays down that all the three functions of these organs are different and are not to be transgressed. However, this does not mean that the executive does not have the law making power. A balance, thus, is required to be sought in order to prevent the abuse of power exercised by these organs of the state.
Rai Sahib Ram Jawaya Kapur and Ors. Vs The state of Punjab
Before Supreme Court of India
Delivered on: 12 April 1955
Bench: Chief Justice Mukherjea, Justice V Bose, Justice Jagannadhadas, Justice V Ayyar, Justice Imam.
Author of the Judgement: Chief Justice Mukherjea
- Under the name and style “Uttar Chand Kapur & Sons”, six persons purport to carry on the business of preparing, printing publishing and selling textbooks for different classes in the school of Punjab, particularly for primary and the middle classes.
- It is alleged by them that the Education Department of the Punjab Government has in pursuance of their so-called policy of nationalisation of textbooks, issued series of notification since 1950 regarding the printing, publication and sale of these books which have not only placed the unwarrantable restriction upon the rights of the petitioners to carry on their business but have practically ousted them and other fellow-traders from the business altogether. The result of this notification was therefore that the Government at this time practically took upon themselves the monopoly of publishing the textbooks on some of the subjects and with regards to the rest also, the reserved for themselves a certain royalty upon the sale proceeds.
- It is said that no restrictions could be imposed upon the petitioners right to carry on trade which is guaranteed under article 19(1)(g) of the constitution by mere executive orders without proper legislation and that the legislation, if any, must conform to the requirements of clause (6) of article 19 of the constitution.
- Accordingly, the petitioners had prayed for the writs in the nature of mandamus directing the Punjab Government to withdraw the notifications which have affected their rights.
- What fundamental rights of the petitioners, if any, have been violated by the notifications and acts of the executive government of Punjab undertaken by them in furtherance of their policy of nationalization of the text books for the school students?
Contention of the Petitioner:
- The executive government of the state is wholly incompetent, without any legislative sanction, to engage in any trade or business activity and that the acts of the government in carrying out their policy of establishing a monopoly in the business of printing and publishing textbooks for school students is wholly without jurisdiction and illegal.
- Assuming that the state could create a monopoly in its favor in respect of a particular trade or business, that could be done not by an executive act but by means of a proper legislation which should conform to the requirements of article 19(6) of the constitution.
- It was not open to the Government to deprive 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 of the constitution.
- The functions of modern state like the police state of old are not confined to a mere collection of taxes or maintenance of laws and protection of realm from external or internal enemies. The modern state is expected to engage in all the activities necessary for the promotion of the social and economic welfare of the community.
- The provisions of article 73 and article 162 of the constitution are analogous to those of section 8 and 49 respectively of the Government of India Act, 1935, and lay down the rule of distribution of executive power between the Union and the States, following the same analogy as is provided in regard to the distribution of legislative powers between them.
- The language of article 162 clearly indicates that the powers of the state executive do extend to matters upon which the state legislature is competent to legislate and are not confined to matters over which the legislation has been passed already. The same principle applies to article 73 of the constitution.
- It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily, the executive power connotes the residue of governmental functions that remain after the legislative and judicial functions are taken away.
- The Indian constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can be well said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another.
- The executive can indeed exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive government, however, can never go against the provision of the constitution or of any law. This is clear from the provision of article 154 of the constitution.
- Our constitution, through federal in structure, is modeled on the British parliamentary system where the executive is deemed to have the primary responsibility for the formulation of governmental policy and its transmission into law though the condition precedent to the exercise of this responsibility is it’s retaining the confidence of the legislative branch of the state.
- For the purpose of carrying on the business the 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. This power of contract is expressly vested in the government under article 298 of the constitution.
- Under the school code, one of the main conditions upon which the recognition is granted by the Government is that the school authorities must use as textbooks only those which are prescribed or authorized by the government.
- A trader might be lucky in the securing a particular market for his goods but if he loses that field because the particular customers for some reasons or others do not choose to buy goods from him, it is not open to him to say that it was his fundamental right to have his old customers forever.
- Nobody is taking away the publishers’ right to print and publish any books they like and to offer them for sale but if they have no right that their books should be approved as textbooks by the Government it is immaterial so far as they are concerned whether the Government approves of textbooks submitted by other persons who are willing to sell their copyrights in the books to them, or choose to engage authors for the purpose of preparing the textbooks which they take upon themselves to print and publish.
- The action of the Government may be good or bad. It may be criticized and condemned in the Houses of the Legislature or outside but this does not amount to an infraction of the fundamental right guaranteed by article 19(1)(g) of the Constitution.
Held: The petition is dismissed with costs.
(This brief was prepared and submitted to LawBriefs.in by Darshan Patankar and Manish Soni, students at Gujarat National Law Universiy.)