Rai Sahib Ram Jawaya Kapur v. State of Punjab (1950)
relatable provisions;
73. Extent of executive power of the Union
(1)Subject to the provisions of this Constitution, the executive power of the Union shall extend–
(a)to the matters with respect to which Parliament has power to make laws;
162. Extent of executive power of State
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:
Fact of the case - the petition was foil under article 32 of the constitution by 6 persons who climbed to carry on the business of preparing, printing, publishing and selling textbooks in the school of Punjab for different classes, preferably for the primary and middle classes under the title of “Uttar Chand Kapoor & sons” the education department of the Punjab government in pursuance of policy to nationalisation of textbook issued the notification in 1950 regarding the printing, publication and sale of these books which restricted the right of the petitioner not only to carry on their business but also ousted/expel them and others fellow traders from the business altogether.
Again in 1952 by the notification the printing, publishing and selling of the books were taken by the Punjab Government exclusively in their own hands and the authors would get only a royalty at the rate of 5% on the sale of the book, this notification omitted the publisher “altogether” and invited only the “authors and others” to submit books for approval by the Government.
1st contention - raised by Mr Pathak - that the executive government of the state is incompetent, without any legislative sanction " to engage in any trade or business activity & that the acts of the government in carrying out their policy of establishing a monopoly in the business of printing and publishing the textbooks for school students are total without jurisdiction and illegal
2nd contention - The contention was that the state could create a monopoly in respect of a particular trade or business, that could not be done by any executive but by the proper legislation, which confers the requirement under article 19(6) of the constitution, or else it is the infringement of fundamental right under article 19 (g) of the Indian constitution.
Issue -
1. What is the extent of executive power to make law?
2. Whether Curtailment of Fundamental right under article 19(g) through notification is permissible under article 19(6)?
SC observation, Chief Justice Mukherjee - The executive power of the union is vested in Article 73 while the corresponding provision of the executive power of the state is contended in Article 162. These provisions talk about the rule of distribution of executive power between the union and the states. They do not imply, as Mr Pathak stated, that if just one parliament or state legislature has legislated on specific items from their respective lists, the union or state executive, as the case may be, can proceed to function in respect of them. On the other hand, the language of Article 162 indicates that the power of a straight executive does not extend upon whether the state legislature is competent to legislate and is not confined to matters over which legislation has already been passed. The same principle underlies Article 73. Whatever Mr Pathak contented is opposite from the provisions of the constitution.
The question that arises in the present case is similar to Motilal V. government of the state of UP Pradesh 1951. Here the issue was whether the government of the state has power under the constitution to carry on the trade or business of running a bus service in the absence of legislative enactment. Authorising the state government to do so. It was held that the power to run a government bus service was incidental to the power of acquiring property which was expressly conferred by Article 298 of the constitution, the running of a transport business, therefore, was not per se outside the Ambit of the executive authority. Mootham and Wanchoo JJ., food delivered a common judgement for also opinion that there was no need for specific legislative engagement to enable a state government to run a bus service.
Suppose there is a situation where the ministry or the executive government of the state formulates a particular policy interference of which they want to start a trade or business. Will it be necessary that there must be specific legislation legalising such trade activities before they can be embarked upon? We cannot say that such legislation is always necessary. Certain specific legislation is indeed necessary if the government requires certain power in addition to what they possess under ordinary law to carry on a particular trader’s & business. When it is necessary to encroach upon private rights to enable the government to carry on their business a specific legislation sanctioning such course would have to be passed.
The Indian constitution has not indeed recognised the doctrine of separation of power in its absolute rigidity. Still, the functions of the different parts of branches of the Government have been sufficiently differentiated. Consequently, it can very well be said that our constitution does not contemplate assumption, buy one organ or part of the state, of function that essentially belongs to another. The executive indeed can exercise the power of departmental or subordinate legislation when such power is delegated to it by the legislature.
Decision - in the present case the government has not imposed anything like taxation or licence fees no have we been told that the appropriation of public revenue involved in the so-called business in textbooks carried on by the government has not been sanctioned by the legislature by proper appropriation act. To carry on the business the government do 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. In these circumstances, we are unable to agree that carrying the business of printing and publishing test books was beyond the competency of the executive government without specific legislation sanctioning such a course.
The petitioner claims fundamental rights under Article 19(1)(g) which guarantees inter alia to all persons the right to carry on any trade or business. But there is no fundamental right in the publishers that any of the books printed and published by them should be prescribed as textbooks by the school authorities or if they are once accepted as textbooks they cannot be stored or discontinued in the future. Nobody is taking away the publisher’s right to print and publish any book they like and to offer them for sale but they have no right that their book should be approved as textbooks by the government. The action of the government may be good or bad but this does not amount to infraction of the fundamental right guaranteed by Article 19(1)(g). the petition is accordingly dismissed