Author: Aish, RIMT School Legal Studies, RIMT UNIVERSITY
ABSTRACT / HEADNOTE
No right is absolute in nature. This does not only apply to the citizens of the country but also to the governing body such as administrative agencies and governments as well. This is important to ensure that there is no arbitrariness during the administration of justice. Similarly, article 19 (1) (g) of the Indian Constitution shall also be subject to restrictions under 19(2).
It is also provided that whenever there is a question of public interests and for the welfare of the people arises, the private rights are brought back little while interpreting the matter concerned. This analysis deals with one such landmark judgement , Rai Sahib Ram Jawaya Kapur & Ors v. State of Punjab (1955) , issue where the private right was said to have been infringed by the government. But, the court found otherwise and dismissed the case.
Keywords: Writ petition, Freedom to trade, Constitution of India, Article 32, Ultra/Intra Vires
CASE DETAILS
| Judgement Cause Title | Scope and Extent of Executive powers |
| Case Number | 71 to 77 and 85 of 1955. |
| Judgement Date | 12 April , 1955. |
| Court | SUPREME COURT OF INDIA |
| Quorum | Hon’ble Justice C.J Mukherjee , Justice V Bose , Justice Jagannadhadas , Justice V Ayyar , Justice Imam. |
| Author | Hon’ble Justice C.J Mukherjee |
| Citation | AIR 1955 SUPREME COURT 549 |
| Legal Provisions Involved | Article 19(1)(g) , 19(1)(6) , 31(2) , 32 , 33 , 73 , 162 , 202 , 203 , 204 , 266 (3) , 298 , |
INTRODUCTION AND BACKGROUND OF JUDGEMENT
With respect to the first question on whether there was a violation of fundamental rights of the petitioners through the act by the state government, the court refused to accept the petitioners argued that there was a violation of fundamental rights under article 19(1) (g). It observed that, when it comes to school books, it is the school who should suggest the kind of books, and it is not the right of publishers to insist the students or school for acceptance of their books as textbooks. It noted that when a trader is lucky enough in the market, his goods would be secured, but if he loses any such trade, then he or she shall not state that his or her fundamental right to have the customers has been violated. Thus, it stated and held that the scopes of such chances are incidental to each business, and there is no fundamental right in the present case.
Lastly, With respect to the second issue, the court firstly the importance of articles 73 and 162 of the Indian Constitution as it deals with executive powers and the extent to which parliament and state powers are executed. In that way, it was observed by the court that a modern state should be expected to engage in all the activities that are required for the welfare of the people of the country. It also observed that in order to carry on particular trade or business, it is indeed required that special legislation is enacted for additional requirement of powers other than what has been provided to an executive as per law. In that situation, special legislation would be required to encroach upon the privacy rights, for that matter. As the question of whether there was a violation of the fundamental rights of petitioners was dismissed, it is also immaterial to state whether the government could, in a way, have powers to establish a monopoly without law under article 19(6) of the constitution shall remain immaterial as well.
Thus the petition was dismissed by the Supreme Court of India.
FACTS OF THE CASE
- This is a petition under Article 32 of the Constitution, preferred by six people, who imply to carry on the business of preparing, printing distributing and selling course books for various classes in the schools of Punjab, especially for the primary and middle classes, under the name and style “Uttar Chand Kapur and Sons.
- It is affirmed that the Education Department of the Punjab Government has incompatibility of their purported strategy of nationalization of reading material given a progression of notices beginning around 1950 in regards to the printing, publication and sale of these books which have not just positioned inappropriate limitations upon the freedoms of the applicants to carry on their business yet have essentially removed them and other individual brokers from the business out and out.
- In the State of Punjab, all perceived schools must follow the course of review supported by the Education Department of the Government and the utilization, by the students, of the reading material endorsed or approved by the Department is a condition point of reference to the allowing of acknowledgement to a school.
- For an extensive stretch before 1950, the technique took on by the Government for determination and endorsement of course readings for perceived schools were usually known as the elective strategy and the method followed was right away this: Books on significant subjects, by the standards set somewhere near the Education Department, were ready by the distributors with their own cash and under their plans and they were submitted for endorsement of the Government.
- The Education Department later appropriate examination chose books numbering somewhere in the range of 3 and 10 or significantly to a greater degree toward each subject as elective reading material, passing on it to the carefulness of the Head Masters of the various schools, to choose any of the elective books on a specific subject out of the endorsed list.
- The Government fixed the costs just as the size and substance of the books and when these things were done it was passed on to the distributers to print, distribute and offer the books to the students of various schools as indicated by the decision made by their particular Head Masters.
- Authors, who were not distributers, could likewise submit books for endorsement and on the off chance that any of their books were supported, they needed to make plans for distributing something similar and as a rule, they used to choose a person of the distributors currently on the line to accomplish the work.
- This procedure, which was in vogue since 1905, was altered in material particulars on and from May 1950.
- By specific goals of the Government passed approximately that time, the entire of the region of Punjab, as it stayed in the Indian Union later parcel, was isolated into three Zones. The reading material on specific subjects like farming, history, social examinations, and so on, for every one of the zones, were ready and distributed by the Government without welcoming them from the publishers.
- Concerning the leftover subjects, offers were as yet welcomed from “distributers and writers” yet the elective framework was surrendered and just a single reading material regarding each matter for each class in a specific zone was chosen. One more change presented as of now was that the Government charged, as to eminence, 5% on the deal cost of the relative multitude of supported course readings.
- Changes of an undeniably more extreme person anyway were presented in the year 1952 by a notice of the Education Department gave on the ninth of August, 1952 and it is against this notice that the protests of the solicitors are chiefly coordinated. This warning discarded “publishers” out and out and welcomed just the “author” and others” to submit books for endorsement by the Government.
- These “authors and others, ” whose books were selected, had to enter into agreements in the form prescribed by the Government and the principal terms of the agreement were that the copyright in these books would vest absolutely in the Government and the “authors and others” would only get a royalty at the rate of 5% on the sale of the textbooks at the price or prices specified in the list.
LEGAL ISSUES RAISED
- 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 , is creating a monopoly in the business of printing and publishing school textbooks , violated the Fundamental Rights of the petitioners enshrined under Article 19(1)(g) ?
PETITIONER/ APPELLANT’S ARGUMENTS
The counsels for Petitioner / Appellant submitted that the actions of the Government of Punjab without the prior sanction of legislative were incompetent and violative of the article 19(1)(g) and was ultra vires to the power vested in the public authority.
RESPONDENT’S ARGUMENTS
The counsels for Respondent submitted that activity was covered under the ambit of their inferred leader powers as attributable to the evolving period , the chief currently has an expanded ambit of abilities and capacities instead of the customary capacity of keeping up with the state security and respectability.
The counsel further contended that they acted under the procedure required and hence not only making it completely intra vires their power but also in the line with the fundamental rights of the petitioner.
JUDGEMENT
The Judge said that as in our view, the solicitors have no key directly in the current case which can be said to have been encroached by the activity of the Government, the request will undoubtedly bomb on that ground. This being the position, the other two focuses raised by Mr Pathak don’t need to be thought by any means. As the candidates have no major right under Article 19(1)(g) of the Constitution, whether or not the Government could build up an imposing business model with no regulation under Article 19(6) of the Constitution is by and largely insignificant. Again, a simple possibility or prospect of having specific clients can’t be supposed to be a right to property or any interest in an endeavour inside the importance of Article 31(2) of the Constitution and no inquiry of instalment of remuneration can emerge because the candidates have been denied of something similar. The Appeal was dismissed with costs
RATIO DECIDENDI
While managing the issues of the case , the court neede to answer the idea of the leader power and the degree of the elements of chief. To decide the idea of chief influence , the court alluded to the two Australian instances of The Commonwealth and the Central wool Committee Vs The Colonial Combing , Spinning and Weaving Co. Ltd. , and Attorney-General for Victoria Vs. The Commonwealth. According to the Court , the Australian Constitution explicitly characterizes chief influence to incorporate just upkeep of the constitution and the laws of the Commonwealth.
CONCLUSION& COMMENTS
This case is to be sure a significant one in India with regards to understanding the constitutions administrative constructions and division of power among the 3 wings of the government , i.e , the Legislature , Executive and Judiciary. The case is likewise significant for understanding the extension to which an executive body can meddle in a private right with next to no particular official support.
The doctrine of separation of power, in contemporary occasions, isn’t limited to the severe division of power among different organs of the State yet remembers the exercise of such power for the standard of “Governing rules” implying the way that none of the organs of Government ought to usurp the fundamental elements of different organs. The case encourages the comprehension of the division of force by securing those demonstrations of an organ that may seem to infringe upon the powers and elements of different organs yet is simply accidental to its fundamental powers or capacities. Henceforth, despite the fact that it takes into account a circumstance where an organ may infringe upon the powers of the other, it maintains the freedom of every organ too.
This comprehension of the connection between the three organs of the State becomes pertinent in contemporary occasions all through the world attributable to the increment in the intricacy of elements of every one of the organs.
REFERENCES
Important Cases Referred
1. The Commonwealth and the Central wool Committee Vs The Colonial Combing , Spinning and Weaving Co. Ltd. 31 C.L.R 421
2. Attorney-General for Victoria Vs. The Commonwealth 52 C.L.R 533
3. Motilal Vs. The Government of State of Uttar Pradesh AIR 1951 AII 257
Important Statutes Referred
Constitution of India , 19(1)(g) , 19(1)(6) , 31(2) , 32 , 33 , 73 , 162 , 202 , 203 , 204 , 266 (3) , 298
