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Ram Jawayya Kapur vs. State of Punjab

Giving touchstone for a Federal Constitution
via Separation of Powers

Date: December 2, 2016 Author: legalvoiceblog 0 Comments

-Taru Agarwal & Anurag Pandey,

Student, NALSAR University of Law, Hyderabad

Introduction

With the changing time and era, we have seen that every aspect of a human life has
evolved. The same applies with the various institutions of a state, may that be the
Legislature, the Executive or the Judiciary. The State, which forms an integral part of the
present society guided by values of liberalism, democratization etc. also has new duties as
compared to the state pre-libertarian era. The new State does not only function as a police
state but also acts as a welfare state. Accordingly, with the change in the duties and
functions of the State, the powers of various functionaries of the State have also evolved to
keep pace with the changing times.

The three main institutions of the State have been given clear and distinct power. The
legislature has the inherent power to deliberate and enact legislations. The executive has
the power to take necessary steps to enforce the legislations put in place by the legislature.
And the judiciary has the power to adjudicate upon ma ers before it. The three institutions
keep a check on the each other thereby maintaining balance between the various organs of
the State[1] with respect to the functions and powers of the same. But in recent times, this
distinction between the powers of various organs of the state has been questioned as the
various organs perform functions that do not strictly follow the separation of power among
them.

In this work the author has analyzed the case of Ram Jawayya Kapur v State of Punjab[2],
where the Supreme Court of India (SC) had to deal with the question of extent of executive
power and executive function in a situation where the executive was alleged to have
violated the fundamental rights of the citizen vested in them by the Constitution of India
without a legislative sanction. This landmark judgment delivered by our apex court in the
wake of our independence is now acting as a touchstone for understanding the federal
feature of the Indian Constitution through separation of powers.

Even years after this judgment, it becomes an important case not only in understanding
separation of powers in Indian context but also worldwide as it discusses the basis for the
new understanding of the doctrine of separation of powers in present times. This
understanding becomes especially important in situations were one of the organs is alleged
to have encroach upon the powers or functions of other organs of the state.

Ram Jawayya v State of Punjab

Facts of the Case

From 1905 to 1950, in the State of Punjab, the recognized schools of Punjab had to refer to
the books from the list of alternate text as approved by the Education Department of
Punjab. For the purpose of approval, various publishers or independent authors submi ed
their textbooks that were prepared with their own money, to the Government of Punjab.
The Education Department then approved a few text books out of various text books
published by various publishers in accordance with the principles laid down by it.

In May 1950, post partition of the erstwhile Punjab into three zones, this procedure was
changed by certain resolutions passed by the Government of Punjab. The Government
prepared and published textbooks on few subjects without inviting them from the
publishers and authors. On the remaining subjects, the earlier procedure was followed but
instead of approving a list of textbooks, the Government only approved one textbook on
each subject. The Government also charged 5% of the sale price as royalty on all the
approved textbooks.

Through another notification in August 1952, the Government only invited textbooks from
authors for approval. Also, the authors whose textbooks were approved were made to
enter an agreement according to which the copyright in these books vested absolutely in
the Government and the authors would get only 5% royalty on the sale of the text books at
the price or prices specified in the list. Thus the Government took the publishing, printing
and selling of the books exclusively in their own hands.

The present petition was filed under Article 32 of the Indian Constitution against the
notification of the Government passed in August 1952. The six petitioners, who were
individuals engaged in the occupation of publishing, printing and selling textbooks,
contented that the Government of Punjab, was not only imposing on them, unwarranted
restriction on the regular carrying out of their occupation of publishing books but had
altogether oust the petitioners and other fellow traders from their business. It was
contended by the petitioner that this act of government was not only violative of their
fundamental right of carrying any type of trade or commerce mentioned in Art. 19 (1)(g),
but was also ultra-vires to the constitutional power vested in the government, as the
government being an executory body of the State did not have the power to do so without
any specific legislation empowering them to enter into that activity or trade.

The respondent, the Government of Punjab, on the other hand, maintained that the said
action was completely covered under the ambit of their implied executive power as owing
to the changing era, the executive now has an increased ambit of powers and functions as
opposed to the traditional function of maintaining state security and decorum. The
government further contended that they acted in accordance to the procedure required and
hence not only making it completely intra-vires their powers but also in line with the
fundamental rights of the petitioner.

Issues Raised

The issues before the Court were:

1. Whether there was a violation of the FR of the petitioners in creation monopoly in the
business of printing and publishing text books for schools was ultra vires their powers?
2. Even if the State could create a monopoly in its favor, whether it could have been done
by any executive act or did it necessarily require a specific legislation?

Holding

While dealing with the issues of the case, the Court had to answer the nature of executive
power and the extent of the functions of executive. In order to determine the nature of
executive power, the Court referred to the two Australian cases of The Commonwealth and
the Central Wool Commi ee v. The Colonial Combing, Spinning and Weaving Co. Ltd.[3], and
A orney-General for Victoria v. The Commonwealth[4]. In the opinion of the Court, the
Australian Constitution specifically defines executive power so as to include only
maintenance of the Constitution and of the laws of the Commonwealth. But since no such
restriction on the extent of executive power is defined in the Indian Constitution, the Court
held that the understanding of executive power in the Australian context does not apply to
India and cannot be restricted to mere implementations of legislations.

While dealing with the nature of executive function, the Court relied on the federal
structure of the Indian Constitution that is based on the British Parliamentary system
where the executive is deemed to have the function to formulate governmental policy and
to incorporate it into law while retaining the confidence of the Legislature.[5] Generally, the
executive has the function of implementing the legislations put in place by the legislature.
But, in modern times, owing to the expansion of the functions of the state, there are
overlaps between various functions of the legislature, executive, and the judiciary. In the
Indian context, the executive can exercise legislative function through subordinate
legislation when such powers are delegated to it by the legislature and is also empowered
to exercise judicial functions in a limited way provided that in exercise of such functions,
the executive cannot go against the provisions of the Constitution or of any law as in
provided in Article 154 of the Constitution. Hence, the Court noted that in India there is no
strict separation of powers. Also, the Court relied on the case of Motilal v. Government of
State of U ar Pradesh[6] to conclude that in order to enable the executive to function, there is
no need for a specific law to be already in existence and the executive function is not
merely restricted to implementing such laws. Backing of specific legislations is only
required when the government require certain extra powers in addition to what they by
default posses under ordinary law for carrying a particular trade or business. In cases were
such activities require expenditure of funds, the only requirement is authorization of the
Parliament regarding such expenditure either directly or under the provisions of a statute.

In the present case, the Government of Punjab, had estimated and shown the expenses to
be incurred in the process in the annual financial statement and were also sanctioned by the
State Legislature and due Appropriation Acts were passed. Hence, the Court did not agree
with the petitioners on their contention that the Government of Punjab was not entitled to
make such a notification without a specific legislation sanctioning such course.

With respect to the question of violation of FR, the Court held that the government action
in question was not in violation of the fundamental right of the petitioner, which are
mentioned in Art. 19(1)(g) of the Constitution of India; as the government by the said notice
may have restricted the book used in schools but still these publishers and authors were
free to approach the private book shops for business.

The Court further held that since there was no violation of any FR of the petitioners in the
first place, the Government could not be said to have infringed such FR through the
notifications.

Hence, the Court dismissed the petition holding that in India, there is a strict separation of
powers but the separation of functions is not observed in strictest sense.

Analysis

Even after decades after the judgments, Ram Jawayya v State of Punjab, is still an important
case in the field of constitutional law as it discusses about the complexity and extent of
separation of powers in the Indian context while interpreting separation of powers in the
light of the federal nature of the Indian Constitution.

The court emphasized on the view that with the rising need in change of paradigm of
functions of the State, there needs to be some intrinsic change in the understanding and
constituent of the executive powers. While analyzing this concept the court of law held that
now there is a need for the executive body to be capable of taking the step for fulfilling
their obligations without the backing of any legislation permi ing the act. Owing to the
changing era, there was a need to redefine the powers and functions of the state and to shift
from the traditional one, which include the protection of the state and its civilians and
territory from both foreign and domestic enemy. The present definition of functions of the
state, according to apex court, also included the social welfare activity as an intrinsic
feature. Therefore, the Court held that the executive, in exercise of its functions, does not
need any particular legislation to sanction the act, but rather only requires to follow the
procedure; mainly detailing the cause of the financial appropriation.

Thus, the Court held that the modern day interpretation of the doctrine of separation of
powers provides for a distinction to be drawn between ‘essential’ and ‘incidental’ powers.
[7] Hence, the Court made a strict distinction between the powers of the various organs but
recognized the possibility of over-lap between the functions carried out by various organs
in exercise of their powers. The Court concluded that while one organ of the State cannot
usurp or encroach upon the essential functions of another organ, but may exercise the
incidental functions thereof.

This understanding becomes imperative in contemporary times because it is often seen that
even in countries like US, which is considered to be a truly federal country, and even
though there is strict separation of powers, the doctrine is not devoid of few exceptions[8]
with a view to introduce system of checks and balances.[9] At the same time, in countries
like England, where separation of power is not applied in strictest sense, there are instances
where one organ does not interfere with the functioning of the other. Hence, while
determining the relevance of doctrine of separation of powers, one must keep in mind the
practical applicability along with the theoretical understanding of the doctrine while
applying the doctrine on a day-to-day functioning of various organs of the State. One must
understand that the Government cannot be divided into watertight compartments. Smooth
running of government is possible only by co-operation and mutual adjustment of all the
three organs of the government.

Conclusion

The author while concluding wants to say that this case is indeed an important one in India
in the context of understanding the constitutions federal structure and separation of power
among the 3 wings of the government, i.e. the Legislature, Executive and Judiciary. The
case is also important for understanding the scope till which an executive body can
interfere in a private right without any specific legislative backing.

This case apart from this separation of power and federalism aspect is also important in
understanding the changing paradigm of the constitutional need, especially the executive
power which, according to the court should now be interpreted broadly to cover all the
necessary power needed to act for the development and uplifting the society.

It can be concluded that the doctrine of separation of power, in contemporary times, is not
restricted to the strict division of powers among various organs of the State but includes
the exercise of such power on the principle of “Checks and Balances” signifying the fact
that none of the organs of Government should usurp the essential functions of the other
organs. The case furthers the understanding of separation of power by protecting those acts
of an organ that might appear to encroach upon the powers and functions of other organs
but is mere incidental to its main powers or functions. Hence, even though it allows for a
situation were an organ might encroach upon the powers of the other, it uphold the
independence of each organ as well.

This understanding of the relationship between the three organs of the State becomes
relevant in contemporary times throughout the world owing to the increase in complexity
of functions of each of the organs.

The doctrine is still valid throughout various constitutions of the world not in interpreting
the doctrine in the strict sense, which may be seen as undesirable or rather impractical, but
it is relevant in order to dispense with any possibility of exercise of power by any organ of
the state in absolute sense. Hence the doctrine can be be er appreciated as a doctrine of
‘check and balance’.

[1] Bani Mahajan,’Doctrine of Separation of Powers’ (2014) <

h p://www.lawctopus.com/academike/doctrine-of-separation-of-powers/ > accessed 13
April 2016

[2] Supra .

[3]The Commonwealth and the Central Wool Commi ee v. The Colonial Combing, Spinning and
Weaving Co. Ltd., 31 C.L.R. 421 (HC)

[4]A orney-General for Victoria v. The Commonwealth, 52 C.L.R. 533 (HC)

[5] Anonymous, ‘Separation of Powers in The UK’ (2013) < h p://www.lawteacher.net/free-

law-essays/family-law/separation-of-powers-in-the-uk.php > accessed 13 April 2016

[6]Motilal v. Government of State of U ar Pradesh, AIR 1951 All 257(S.C.)

[7] Aishvarya Rajiv Gupta, ‘An Analysis of the Limitation of the Doctrine of Separation of
Powers: Re-Visiting the Judgment Delivered in Ram Jawaya Kapur v. State of Punjab (AIR
1955 SC 549)’ (2011) < h p://papers.ssrn.com/sol3/papers.cfm?abstract_id=2104288&gt;
accessed 13 April 2016

[8] For example, the President in the exercise of his legislative power may veto a bill passed
by the Congress. Also treaty-making power is with the President but it is not effective till
approved by the Senate. The Supreme Court has the power to declare the acts passed by
the Congress as unconstitutional.

[9] Yashu Bansal, ‘Doctrine of Separation of Power’ (2015), <

h p://www.lawctopus.com/academike/doctrine-of-separation-of-power/> accessed 13 April
2016

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