Introduction: laws.” Provided that in any matter with respect

Introduction:

 

From 1905 to 1950 the
method adopted by the government for selection of the textbook for recognised
schools was commonly known as the alternative method. Under this method, books
were prepared by the publishers on the basis of the principles laid down by the
educational department, which were then submitted to the government for
approval. The government would then recommend a number of books leaving it to
the discretion of the headmasters to choose from the list of approved books.
The government fixed the prices as well as the size and contents of the books
and the publishers would print and sell it to the students. Under this system
the authors could also submit their books which if selected, the authors would
have to get them published in order to be sold to the students.

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But after the
independence, with a move towards the welfare state the government started
preparing and publishing text books for the recognised subjects on their own
without inviting them from the publishers, but with regards to other subject’s
text books were still invited and choice was given to the headmaster to choose
from the selected books. However the government took 5% royalty from the
publishers and the authors.

In the year 1952, came
more drastic changes from the educational department of the government, the
educational department of the government issued a notification on 9th
august, the notification omitted the words “publishers” and invited only
“authors and others” to submit their books for approval of the government. The
authors were paid a royalty of 5% on the price of the sale of the books.

Both of these
notifications by the educational department of the Punjab government were done
without any legislation on the point, therefore solely by executive authority.
The petitioner by means of this petition had challenged the validity of these
notifications.

The Indian constitution
incorporates the theory of separation of powers, though our constitution cannot
be said to have incorporated the theory of separation of powers entirely with
some intermixing. The legislature and executive in India are intermixed but we
can make out that the three organs of the government are the legislative,
executive and judiciary. In this case of Rai Sahab Ram Jawaya Kapur vs State of
Punjab the powers of the executive has been called into question, where it is alleged
that the executive has encroached upon the powers of the legislature.

Article 73 and 162 of our
constitution were relied upon by the petitioner. Article 73 of the constitution
relates to the executive powers of the union, while the article 162 of the
constitution relates to the executive powers of the state. Article 162 of the
constitution lays down as:

“Subject to the
provisions of this constitution the executive power of a state shall extend to
the matters with respect to which the legislature of the state has power to
make laws.”

Provided that in any
matter with respect to which the Legislature of a State and Parliament have
power to make laws, the executive power of the State shall be subject to, and
limited by, the executive power expressly conferred by this Constitution or by
any law made by Parliament upon the Union or authorities thereof.

 

 

Statement
of facts:

 

1.     
From 1905-1950 all the recognised schools
in Punjab had to follow the course of studies approved by the educational
department of the government and the pupils had to use the text books
prescribed or authorised by the department. The department used to choose
between the books submitted by the authors or the publishers.

 

2.     
But after the independence and the
education department of the state of Punjab in pursuance of their policy of
nationalisation of printing and publishing of the text books issued
notification in May 1950. Due to which books on various subjects were to be
prepared and published by the education department of the state.

 

 

3.     
Such nationalisation of the printing and
publishing of the text books for the state of Punjab was done to a full extent
from 9th august 1952, due to which only authors can submit their
books which would be, if selected, be printed and published by the educational
department of the government. And the authors would get a 5% royalty with
respect to the sale of the text books.

 

4.     
Thus the publishing, printing and selling
of the books were taken by the government exclusively in their own hands and
the private publishers were altogether ousted from the business of text books.

 

 

5.     
The petitioners under the name of “Uttar
Chand Kapur & sons” were running the business of printing and publishing
the text books mainly for the primary and middle classes.

 

6.     
Due to the notifications of the
educational department of the state their business got affected and they have
prayed for a writ in the nature of mandamus directing the educational
department of the state to take back those notifications.

 

 

 

Arguments:

 

Arguments
advanced by the petitioner:                                                        

·       
Contentions of the petitioner:

1.      It
is contended in the first place that the executive Government of a 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 monopoly in the business of printing and publishing text
books for school students is wholly without jurisdiction and illegal.

2.      His
second contention is, that assuming that the State could create 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 a proper legislation which should conform
to the requirements of Article 19(6) of the Constitution.

3.      Lastly
it was contended that 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.

 

·       
Arguments advanced in respect of the above
three contentions

1.      That
the Government has no power in law to carry on the business of printing or
selling text books for the use of school students in competition with private
agencies without the sanction of the legislature.

 

2.      That
as our constitution clearly recognises a division of governmental functions
into three categories, viz., the legislative, the judicial and the executive,
the function of the executive cannot but be to execute the laws passed by the
legislature or to supervise the enforcement of the same. The legislature must first
enact a measure which the executive can then carry out.

 

That it is only when the Parliament or the
State Legislature has legislated on certain items appertaining to their
respective lists,  that the Union or the
State executive, as the case may be, can proceed to function in respect to
them.

 

3.      That
the article 73 and 162 of the constitution are analogous to article 61 of the
constitution of Australia, which lays down as :

 

“The executive power of the commonwealth
is vested in the queen and is exercised by the governor-general as the queen’s
representative and extends to the execution and maintenance of the constitution
and of the laws of the commonwealth.”

 

And the petitioner had placed reliance
upon Australian cases (commonwealth and the central wool committee vs colonial
combing, spinning and weaving co. Ltd., vide Attorney general of Australia vs
the commonwealth) where the view of the court was that the power of the
executive is limited to the matters already legislated upon and cannot exercise
any power where no such legislation is made.

 

Therefore by putting in comparison the
Australian and the Indian constitution, the petitioner had tried to show that
the articles 73,162 of Indian constitution and article 61 of the Australian
constitution are analogous and therefore this case should be decreed as the
Australian cases have been.

 

4.      That
fundamental right of the petitioners under article 19(1) (g), to carry on any
trade or business has been violated by such a move of the government to
nationalise the printing and publishing of the text books.

 

·       
Arguments of the respondent state: In the
judgement of the Hon’ble Supreme Court there is no mention of arguments raised
by the respondent.

 

·       
Issues raised in the case:

1.      Competence
of the executive government, without any legislation, to engage in any trade or
business activity and that the acts of the Government in carrying out their
policy of establishing monopoly in the business of printing and publishing text
books for school students.

2.      What
fundamental rights of the petitioner, 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 nationalisation of the text books for the school
students?

3.      As
whether the government could establish a monopoly without any legislation under
article 19(6) of the constitution

4.      Payment
of compensation as required under article 31 of the constitution to the
petitioner

 

Decision of the court on
the issues:

                                                                                                                                                      

·       
Issue no.1:

A modern state is not
like a police state or merely concerned with collection of   taxes, a modern state is more of a welfare
state and is expected to engage in all activities necessary for promotion of
social and economic welfare of the community.

The article 61 of the Australian
constitution is in no way analogous to the article 73 and 162 of the Indian
constitution and therefore the judgement of the Australian courts referred by
the counsel for the petitioner has no significance in respect of the present
case

The language of the article
162 clearly indicates that the powers of the state executive do extend to matters
over which legislature is competent to legislate and not confined to matters
over which the legislations have already been passed. The same is for the article
73 of the Indian constitution and therefore the article 73 and 162 do not lend
any support to the contentions of the counsel for the petitioner.

Though it may not be
possible to form an exhaustive definition of what executive means and implies. Ordinarily
the executive powers connotes the residue of governmental functions that remain
after legislative and judicial functions are taken away.

As the constitution has
not recognised the doctrine of separation of powers in its entirety. The Indian
constitution does not follow the concept of separation of powers rigidly, the
legislature and executive are mixed. When he executive involves in such trade
or contract, then it requires funds, which only the parliament authorises and
gives the expenditure from the consolidated funds of the state. For such
receiving of funds the department has to demand for grants to the legislature
and therefore when the legislature assents such a demand for grant it is
implied that the authority and will of the legislature is with the department
of the government to involve in such trade or contract.

Only when any act of the
legislature or executive is against any law or the constitution then it will be
invalidated.

·       
Issues 2:

The petitioners are into
the business of printing and publishing of the books with coming in to force of
the notification no right of the petitioner is affected in respect of the
printing and publishing books and hence there has been no such violation of the
fundamental right of the petitioner under article 19(1)(g).

 

·       
Issue 3:

As the petitioners have
no fundamental right under Article 19(1)(g) of the Constitution, the question
whether the Government could establish a monopoly without any legislation under
Article 19(6) of the Constitution is altogether immaterial.

 

·       
Issue 4:

Again a mere chance or
prospect of having particular customers cannot be said to be a right to
property or to any interest in an undertaking within the meaning of Article
31(2) of the Constitution and no question of payment of compensation can arise
because the petitioners have been deprived of the same.

The result is that the
petition is dismissed with costs.

 

 

Improvements
made by the case on the law:

The case in an early independence
period clears the question on separation of power and the overlapping of powers
of the executive and the legislature. With the concept of separation of powers
being included in the Indian constitution, this case lays a guiding principle
with regard to the extent of separation of powers. Thus the main improvement it
does is that it brings clarity on the scope of separation of powers in India,
which is followed till date due to decision being of the constitutional bench
of the Supreme Court. Thus any further disputes that may arise on this subject
can be dealt quickly without any difference.

One of the main
principles that it lays is that of residuary legatee of the executive, i.e executive
powers connotes the residue of governmental functions that remain after
legislative and judicial functions are taken away.

As the decision being of
the constitutional bench (5 judge bench) the decision would always remain
difficult to overrule and thus can be said to be a concrete decision on the
subject.

 

 

Own
comments:

The step taken by the
educational department of the Punjab government is totally justified, these
steps were for the welfare of the state. The court has agreed that the
publishers have no right that their books should be recommended by the
educational department, there was only a probability and it was at the sole discretion
of the government that whose book they would recommend.

But if the educational
department in their second notification would have included the word
“publishers” along with “authors and others” then the publisher would also have
been able to send their books of which they have a copyright, and therefore
competition would have increased and the educational department would have had
more books to choose from, as an end result the text book may have been better.  Though then also the publishers would have
got no right to that their books should be put in the course, there was only
probability.

Such a power of the
executive to act upon the matters upon which laws can be made by the
legislature is important because sometimes if there is a need of a law
immediately then the executive can with such immediate effect bring out
notification and the legislation can be made at a later date.

 

 

Status
of law today:

There has been no
amendment in the article 73 and 162. And therefore this case serves as an
important precedent till date. This case has been continuously referred and
relied upon by the courts.

 

 

Concluding
comments:

The constitution of India is world’s longest written
constitution and follows many principles from other constitutions, but this
case sheds light upon one of such principle which is separation of powers. This
case explains that though the principle of separation of power is in the Indian
constitution, but this principle is not in its rigidity. The principle was
amended so as to fit the needs and conditions of India. Therefore like this
principle and other provisions have been borrowed by our constitution, it is
very important to see how they are amended to fit the conditions prevailing
here.  

This case is a very brief judgement yet a very
important judgement, it has not been over-ruled and has been relied and referred
on in recent judgements also. Though a very simple judgement it solves a very
complex issue. It considers the welfare nature of the modern Indian state and
also that any action of the government should be looked in the light of the aim
of that action of the government, unless and otherwise it is in contravention
of the constitution or any other law of India.