PETITIONER: STATE OF KARNATAKA Vs. RESPONDENT: UNION OF INDIA & ANOTHER DATE OF JUDGMENT08/11/1977 BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. UNTWALIA, N.L. SHINGAL, P.N. SINGH, JASWANT KAILASAM, P.S. CITATION: 1978 AIR 68 1978 SCR (2) 1 1977 SCC (4) 608 CITATOR INFO : R 1984 SC1675 (11) RF 1989 SC 714 (19) ACT: Constitution of India 1950-Art. 131-Scope of-Commission of Inquiry appointed by the Central Government under the Commissions of Inquiry Act, 1932 to inquire into allegations of corruption, favouritism and nepotism against the Chief Minister of a State-Suit filed by the State under Art. 131- If maintainable-Central Government, if could constitute a Commission of Inquiry against sitting Chief Minister and Ministers of the State Government-Action of Central Government, if destructive of federal structure of the Constitution and distribution of powers between the Centre and the States-If subverts the principle of collective responsibility under which Ministers are responsible only to the State Legislature-If violates privileges of the members of the Assembly under Art. 194(3). Commissions of Inquiry Act, 1952 validity of-Section 3-Scope of-If s. 3 ultra vires Part XI of the Constitution-Inquiry- Purpose and scope of"Definite matter of public importance" meaning of. HEADNOTE: Article 131 of the Constitution of India provides that the Supreme Court shall have original jurisdiction in any dispute : (a) between the Government of India and one or more States; or (b) between Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends. A memorandum alleging corruption, favouritism and nepotism against the Chief Minister of the State of Karnataka was submitted to the Union Homo Minister by certain opposition members of the State Assembly. The Chief Minister repelled the allegations as frivolous and politically motivated. By a notification dated May 18, 1977 the State Government appointed under s.. 3(1) of the Commissions of Inquiry Act, 1952, a one man commission presided over by a retired judge of the Karnataka High Court for inquiring into the allegations specified in the notification. By notification dated May 23, 1977, the Government of India appointed under s. 3(1) of the Commissions of Inquiry Act, 1952, a one man commission presided over by a retired judge of the Supreme Court to enquire into the charges made against the Chief Minister excluding "any matter covered by the notification of the Government of Karnataka". Thereupon, the State Government filed in this Court a suit under Art. 131 of the Constitution. On the pleadings of the parties, three issues were framed by this Court. These were : (1) Is the suit maintainable ? (2) Is the impugned notification ultra vires the powers of the Central Government under s. 3 of the Commissions of Inquiry Act, 1952 ? (3) Even if the notification falls within sec. 3 of the Commissions of Inquiry Act is the section itself unconstitutional ? It was contended on behalf of the plaintiff that : (1) the Central Government has no jurisdiction or authority to constitute the Commission of Inquiry in the purported exercise of its powers under the Act; (2) the action of the Central Government in appointing the Commission against the Ministers of the State Government is destructive of the federal structure of the Constitution and the scheme of distribution of powers between the Centre and the States; (3) under the Cabinet system of government the Council of Ministers is responsible to the Legislature for all its actions and the inquiry ordered by the Central Government against the State Ministers, while they are in office would subvert the principle of collective responsibility of Ministers to the Legislature; (4) by virtue of Art 194(3) it is the privilege of the Assembly (and not of 2 any other body) to appoint a Committee for inquiring into the conduct of any of its members; (5) interpretation of a. 3 of the 1952 Act in such a way as to empower the Central Government to appoint a Commission for inquiring into matters relating to any of the entries in List II of the Seventh Schedule to the Constitution-would make a. 3 itself ultra vires the provisions of Part XI of the Constitution; and (6) since on the basis of the report the Central Government cannot take any action against the Ministers of the State Government such a Commission cannot serve any useful purpose. On the other hand, the defendant (Central Government) raised preliminary objections as to the maintainability of the suit on the ground that the appointment of such a Commission does- not affect any legal right of the State; and.(2) also that the Central Government is competent to constitute a Commission to inquire into a definite matter of public importance, (3) that, furthermore, its notification does not cover any of the matters mentioned in the State Government's notification, namely, the conduct of Ministers of the State Government. (Per majority Beg, C.J. Chandrachud, Bhagwati and Kailasam, JJ) (Untwalia, Shinghal and Jaswant Singh, JJ dissenting) The suit is maintainable. G. C. J. 1(a) The State concerned, which challenges the validity of the action of the Central Government against one or more of its Ministers in respect of acts involving exercise of its governmental powers, would have sufficient interest to maintain a suit under Art. 131 because it involves claims to what appertains to the State is a "State." [94 C-D] (b) The case involves consideration of the exercise of governmental powers which vest in the Government of the State and its Ministers as such vis-a-vis those of the Central Government and its Ministers. It also raises questions relating to the meaning and the ambit and the applicability of the particular provisions of the Constitution whose operations are of vital interest to every State. Interpretations given to those provisions must necessarily be of great concern to the Union as well. (91 C- D] (c) The Union of India, acting through the Central Government, could be said to represent the whole of the people of India. The individual States, acting through their Governments and Ministers, could be said to represent the people of each individual State and their interests. When differences arise between the representatives of the State and those of the whole people of India, on questions of interpretation of the Constitution, which must affect the welfare of the whole people, and, particularly that of the people of the State concerned, it is too technical an argument to be accepted that a suit does not lie under Article 131 of the Constitution. [91 E-P] (d) Article 131 can be invoked whenever a State and other States or the Union differ on a question of interpretation of the Constitution so that a decision of it will affect the scope or exercise of governmental powers which are attributes of a State. It makes no difference to the maintainability of the action if the powers of the State which are executive, legislative, and- judicial are exercised through particular individuals. [92 F-G] (e) The distinction between the State and its Government is, at the most,one between the whole and an inseparable part of the whole.It would be immaterial as regards claims on behalf of either the State or itsGovernment whether the two are distinct juristic entities. Assuming that these are distinctly separate entities, the claim of the Government would be that of the State. [91 H] (f)The fact that the State acts through its Ministers or officials cannot affect% the maintainability of a quit under Art. 131 of. the Constitution. Article 166(3) provides for allocation of the business of the Government ,be Ministers for "the more convenient transaction of the business". that the State cannot act merely through its Government as a whole but also 3 through its individual Ministers as provided by the rules. Articles 166(3) and 154(1), far from establishing any antithesis between the official capacity of a Minister and the State for which he acts, only show that, as a Minister, he is an agent or a limb of the Government of the State and, therefore, he can be treated as an officer for purposes of Art. 154(1). The result is that a Ministers official acts cannot be distinguished from those of the State on whose behalf he acts. There is nothing in Art. 131 of the Constitution itself to debar the State, which must always necessarily act through its officers or agents or Ministers, from suing the Central Government not only to protect one of its officers, agents or Ministers from being proceeded against, by the Central Government, but to prefer its own claim to exclusive power to deal with him and this is what the plaintiff has done by means of the suit. [92 H; 93 D] State of Rajasthan v. Union of India A.I.R. 1977 S.C. 1361, King Emperor V. Sibnath Benerji & Ors, 72 LA. 241 and Sanjeevi Naidu etc. etc. v. State of Madras & Anr. [1970] 3 S.C.R. 505 referred to. The Governor-General in Council v. The Province of Madras, [1943] FCR 1, United Provinces v. Governor-General in Council, AIR 1939 FC 58, Attorney-General for Victoria at the Relation of Dale and Ors. v. The Commonwealth & Ors., 71 C.L.R. 237 and Attorney-General for Victoria (At the ,- elation of the Victorian Chamber of Manufacturers) v. The Commonwealth 1933-1934 (2) C.L.R. 533 held inapplicable. The Central Government's notification is valid. [94 G] 2(a) A perusal of the two notifications shows that while the State notification is meant to set up the commission which has to enquire whether the veil worn by certain transactions is correct in form and covers it fully, the Central Government notification is clearly meant to enable the Commission appointed by it to tear down the veil of apparent legality and regularity which may be worn by some transactions. It cannot be said that the two notifications would be covering "the same matter" as contemplated by proviso (b) to s. 3(1) of the Act. If the State notification is meant only to superficially scratch the ,surface of the allegations made whereas the Central Government notification is meant to probe into the crux or the heart of what may or may not have gone wrong with the body politic in the State, this Court could not be too technical or astute in finding reasons to hold that the subject-matter of the two inquiries is substantially the same. [36 G-H] (b)Since the two notifications authorise inquiries into matters which are substantially different in nature and object, the inquiry of the Central Commission cannot be said to be barred by reason of the State Government notification under proviso (b) to s. 3 (1 ) of the Act even if, in order to deal with a substantially different subject-matter, central areas of fact or rules governing the transactions may be common. If the objectives are different the examination of common areas of fact and law for different purposes will be permissible. [39 B] 3(a) The obvious intention behind the 1952 Act is to enable the machinery of democratic Government to function more efficiently and effectively. It could hardly be construed is an Act meant to thwart democratic methods of Government. [44 E] (b)In all democratic countries when allegations and rumours circulate causing crisisof confidence in the integrity of public life or about other matters of public importance, it is essential that public confidence should be restored and this can be done only by thoroughly investigating and probing the rumours and allegations. Such an inquiry might reveal either that the evil exists or that there is no force in the rumours. In either case confidence is restored. [40 H] (c)In England, the Tribunal of Inquiry (Evidence) Act 1921 was passed "to displace the procedure of Select Parliamentary Committees which till then were used "to investigate alleged wrong doing in high places". Such a method of investigation by a political Tribunal was found to be wholly unsatisfactory 'because such bodies could never be free from party political influences. When 4 reports of these committees came to be debated in the House of Commons, the House was divided on party-lines and by a majority exonerated the ministers from all blame. Therefore, investigation by a political tribunal on matters causing grave public disquiet had been discredited and the 1921 Act was passed for setting up some permanent investigating machinery. Even in the United States, where the system of Congressional Committees is still in vogue, ad hoc tribunals (such as the Warren Commission) are appointed to avoid a matter being referred to Congressional Committees. This clearly, shows that, in democratic countries, not only does modem practice but statute can provide for inquiries of the kind which are to be conducted under the 1952 Act. The proceedings of the Commission can only result in a report which is to be laid before the Legislature concerned under s. 31(4) of the Act. The Act contains no provision for giving effect to the findings of the Commission or for enforcing any order which can be made by the Commission. [41 C-H; 44 E] 4. The question whether a State Government or its Chief Minister is or is not carrying out the trust which the constitutional power places in the hands of a State Government and its head for the purposes of determining whether any exercise of extraordinary powers under Art. 356 is called for or not. is a matter which lay within the powers of the Central Government. What is contemplated by Art. 356 when it speaks of the "satisfaction" of the President from a report of the Governor "or otherwise" whether a particular situation has arisen in which the Government of the State can be carried on in accordance with the provisions of the Constitution is a matter which would be of public importance. If the President deems it necessary to give the State Government or its Chief Minister an opportunity of being heard before an impartial Commission of Inquiry constituted under the Act, it could not be said that such I mode of exercise of power under Art. 356 is not fully covered by what is necessarily implied in the provisions of the Constitution, that is, the Power to order an inquiry for the purposes of the satisfaction required by Art. 356. [48 F-H] 5(a) Provisions of either Art. 75(2) or Art. 164(2) cannot operate as bars against the institution of inquiries by Commissions set up under the Act. To infer such bars would be to misunderstand the object as well as the mode and sphere of operation of these articles as also the purposes, scope, and function of Commissions to be set up under the Act. [53 H] (b)'The Council of Ministers, though theoretically appointed by the Governor, is collectively responsible to the Legislative Assembly of the State. But his collective responsibility does rot abridge or truncate the power of the Central Government to appoint a Commission under s. 3 of the Act. Collective responsibility has a scope and mode of operation which are very different from those of an inquiry under s. 3 of the Act even though the same or similar matters may some times give rise to both. Matters investigated under s. 3 of the Act may have no bearing on any collective responsibility. The sphere of inquiry under s. 3 is very different from that in which collective responsibility functions. While the object of collective responsibility is to make the whole body of Ministers collectively or vicariously responsible for acts of others even if an individual minister may not personally be responsible, the inquiry under s. 3 has been ordered by the Central Government to determine who is actually responsible for certain actions and what will be the motive behind them. [50 F] (c)Inasmuch as the Council of Ministers is able to stay in office only so, long as it continues the support and confidence of a majority of the Members of the Legislature, the whole Council of Ministers is politically responsible for the decisions and policies of each of the Ministers and of his department. So far is the Ministry's answerability to the Legislative Assembly is concerned. the whole Ministry has to be treated as one entity. The purpose of Art. 164(2) which embodies this Principle, is not to find out facts or to establish the actual responsibility of a Chief Minister or any other Minister or Ministers for particular decisions or governmental acts. The principle of individual as well as collective ministerial responsibility can work most efficiently only when cases requiring proper sifting and evaluation of evidence and discussion of questions: involved have taken place in proceedings before a Commission appointed under s. 3 of the, Art. [51 F-G) 5 6(a) The only sanction for the enforcement of collective responsibility is the pressure of public opinion., In England, the principle operators as a of convention backed by political judgment, but for us this principle in our Constitution itself [Arts. 75(2) and 164(2)]. Nevertheless here also it depends upon convention and public opinion, particularly as reflected in Parliament or in State Legislatures, for its effectiveness. The principle, of collective responsibility also exists separately and independently from the legal liability of a Minister holding an office in the Union or a State Government. [52 H] (b)An investigation by a Commission of inquiry should facilitate or help the formation of sound public opinion. A Minister's individual actions, however, do not bring into operation the principle of collective responsibility where his colleagues in the Government cannot reasonably be held guilty of dereliction or breach of any duty. [53 C-D] Constitutional Law-Wade & Phillips 8th Edn. p. 87. Constitutional and Administrative Law Prof. S. A. de Smith, pp. 170-179 referred to. 7.A Commission of Inquiry has an orbit of action of its own within which it can move so as not to conflict with or impede other forms of action or modes of redress. A Commission of Inquiry is meant to explore and discover real facts. It is neither a substitute for action in a court of law nor can its report orfindings relieve courts of their duty. The appointment of a Commission isgenerally a confession of want of sufficient evidence to take the, matter toa court combined with an attempt to satisfy the public need and desire to discover what had really gone wrong and how and where, if possible. [53 G-H] 8.There is no force in the contention that Ministers answerable to the Legislature are governed by a separate law which exempted them from liabilities under the ordinary law. Articles 194 and 105 which deal with powers, privileges and immunities of each House as well as its Members, do not apply to legislative powers of Parliament or of the State Legislatures. The powers" meant to be indicated in these Articles are powers which depend upon or are necessary for the conduct of business of each House. [57 B-C] 9(a) The Constitution could not mention and exhaust every conceivable topic of legislation and it is precisely to meet such a situation that Art. 248, read with Entry 97 was inserted. Therefore, Art. 248 read with Entry 97 of List I will fully cover s. 3 of the Act even if Entry 94 of List I does not. The term 'constitutional law can be neither clearly nor exhaustively defined. A Constitution could be expected to contain only the basic frame-work., It is not a part of its nature to exhaustively deal with all matters. It is well accepted that nit all constitutional law need be written. There can be no clear-cut distinction between what could or should and what could not or should not be comprehended within the body of rules called constitutional law. In practice,, what is embodied even in a written constitution depends sometimes on the peculiar notions of a people. It reflects their views about what should be con- sidered so basic or fundamental as to find a place in the constitutional document. To expect the content of the Constitution to be so all-embracing as to deal with every conceivable topic of legislation exhaustively so as to leave no room for doubt is to expect the humanly impracticable, if not the impossible. The most that could be expected from the human foresight of Constitution-makers is that they should Provide for the residual power of legislation which could cover topics on which Parliament or State legislatures could legislate even though the legislation may not be easily assignable to any specific entry. Such a provision our Constitution-makers did make. [61 H; 59 G-H; 61 B-C; D-E] (b)The term 'inquires' as used in Entry 94 of List I and Entry 45 of List III, without any limitations, is wide enough to embrace every kind of inquiry, whether a criminal offence by any one is disclosed or not by facts alleged. Entry 45 in List III must include inquires to cover allegations against all persons which bring them within the sphere of Entry I of List III relating to criminal law. All that "inquires" covered by Entry 45 require is that they 6 must be "for the purpose of any of the matters specified in List II or List III". The language used........ any of the matters specified. . " is broad enough to cover anything reasonably related to any of the enumerated items even if done by holders of ministerial offices in the States. Other subjects will be found in List II. Even assuming that neither Entry 94 List I nor Entry 45 of List III would cover inquires against Ministers in the States, relating to acts connected with the exercise of ministerial powers. Art. 248, read with Entry 97 of List I, must necessarily cover an inquiry against Ministers on matters of public importance, whether the allegations include violations of criminal law or not. A contrary view would have the wholly unacceptable consequence of placing Ministers in State Governments practically above the law. [63 C-E] (c)Since the powers conferred by s. 3 upon the Central and State Governments, including the power to institute inquiries of the kind set up under each of the two Notifications, are covered by the express constitutional provisions, no question of any exclusion, either by necessary implication or by any principle, supposed to form a part of or to flow from the basic structure of the Constitution, can rise here. Nor is it possible to so read down and interpret s. 3 of the Act as to exclude from its purview inquiries of the kind instituted under the two notifications. To do so would be to give an incentive to possible misuse and perversion of governmental machinery and powers for objects not warranted by law. Such powers carry constitutional obligations with them. They are to be exercised like the powers and obligations of trustees who must not deviate from the purposes of their trusts. Whether a Minister has or his not abused his powers and privileges could be best determined by fair and honest people anywhere only after a just and impartial inquiry has taken place into complaints made against him so that its results as before them. [64 A-C] (d) There is no room for applying the rule Expression Union.v Est Exclusion Alterius to exclude what falls within in expressly provided legislative entry. Before the principle can be applied at all, the Court must find an express mode of doing something that is provided in a statute which, by its necessary implication, could exclude doing of that very thing and not something else in some other way. Far from this being the case here, the constitution-makers intended to cover the making of provisions by Parliament for inquiries for various objects which, may be matters of public importance without any indications of any other limits except that they must relate to subjects found in the List. [64 H] Colquhoun v. Brooks, [1888] Q.B.D 52 @ 65 referred to. (e)The proposition that what is not specifically mentioned in the Constitutionmust be deemed to be deliberately excluded from its purview so that nothingshort of a constitutional amendment could authorise legislation upon it is really to invent a "Casus Omissus" so as to apply the rule that, where there is such a gap in the law, the Court cannot fill it. The rule, however, is equally clear that the Court cannot so interpret a statute as to produce a casus omissus where there is really none. If the Constitution itself provides for legislation to fill what is sought to be construed as a lacuna, legislation seeking to do this cannot be held to be void because it performs its intended function by an exercise of an expressly conferred legislative power. In declaring the purpose of the provisions so made and the authority for making it, Courts do not supply an omission or fill up a gap at all. It is Parliament which can do so and his done it. [65 A-B] The Mersey Docks and Harbour Board v. V. Henderson Brothers, [1888] 13 A.C. 595 @ 602 referred to. 10(a) The written Constitution by its very nature as the embodiment of the 'fundamental law of the land makes it imperative for Courts to determine the meaning of its parts in keeping with its broad and basic purposes and objectives. It must be read as a whole, and construed in keeping with its declared objects and its functions. Although the Courts, acting in exercise of judicial power. may supplement those parts where the letter of the Constitution is silent or may leave room for its development by either ordinary legislation 7 or judicial interpretation, they cannot nullify, defeat, or distort the reasonably clear Meaning of any part of the Constitution in Order to give expression to some theories of their own about the broad 'or basic scheme of the Constitution. This must be done with reference to the express provisions of the Constitution. The dubiousness of expressions used may be cured by Courts by making their meanings clear and definite, if necessary, in the light of the broad and basic purposes set before themselves by the Constitution-makers. The power of judicial interpretation cannot extend to laying down what is in direct conflict with express provisions of the Constitution.- Nor can express provisions be curtailed by importing limits based on a mere theory of limitations on legislative powers. [66 C-G] (b) In the matter of interpretation of. the Constitution, in a long line of decisions, this Court has held that where two constructions are possible, the Court should adopt that which will implement and discard that which will ,stultify the apparent intentions of the Constitution-makers, that the Court should adopt a construction which harmonizes rather than one which produces a conflict between its provisions, the construction which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory that the plenitude of power to legislate, indicated by a legislative entry has to be given as wide and liberal an interpretation as is reasonably possible. If a subject does not fall within a specifically demarcated field found in List II or List III, it would fall in List I, apparently because of the amplitude of the residuary field indicated by Entry 97, List I. Legislative entries only denote fields of operation of legislative power which is actually conferred by one of the articles of the Constitution. This Court has also rejected argument that the wide range given to Entry 97 of List I, read with Art. 248 of the Constitution, would destroy the federal structure of our Republic. On an application of a similar test, the powers given to the Central Government by s. 3 of the Act, could not be held to be invalid on the ground that the federal structure of the State is jeopardized. [68 C; E; 69 C; 70 B & D] A. K. Gopalan v. State of Madras [1950] SCR 88 & 119 to 120. ,State of Bihar v. Kameshwar Singh, [1952] SCR 889 & 980-81, I. C. Golaknath v. State of Punjab [1967] 2 SCR 762 @ 791, K K. Kochuni v. State of Madras & Kerala, [1960] 3 SCR 887 & 905, Mohd. Hanif v. State of Bihar [1959] SCR 629 @ 648, State of M.P. v. Ranojirao Shinde, [1963] 3 SCR 489, Prem Chand Garg v. Excise Commissioner, U.P.[1963] suppl.1 SCR 885 @ 911 Devadasan v. Union of India, [19647] 4 SCR 680 @ 695 Keshvananda Bharati v. State of Kerala, [1973] 4 SCC 225 @ 426, (=1973 Suppl.1 SCR 1) Sakal Papers (P) Ltd. v. Union of India. [1962] 3 SCR 842 Jagannath Baksh Singh v. State of U.P., [1963] 1 SCR 220 @ 228-229 and Union of India v. R. S. Dhillon, [1972] 2 SCR 33 referred to. (c) Whenever the doctrine of basic structure has been expounded or applied it is only as a doctrine of interpretation of the Constitution as it actually exists and not of a Constitution which could exist only subjectively in the minds of different individuals as mere theories about what the Constitution is. The doctrine did not add to the contents of the Constitution. It did not, in theory, deduct anything from what was there. It only purported_to bring out and explain the meaning of what was already there. It was, in fact, used by ill the Judges for this purpose with differing results simply because their assessments or inferences as to what was part of the basic structure in the Constitution differed. This is the correct interpretation of the doctrine of the basic structure of the Constitution. It should only be applied if it is clear, beyond the region of doubt, that what is put forward as a restriction upon otherwise clear and plenary legislative power is there as a Constitutional imperative. [ 86 G-H] (d) If this is the correct view about the basic structure, as a mode of interpreting the Constitution only, the so called federalism as a fetter on legislative power must find expression in some express provision to be recognised by Courts. A majority of Judges who decided the Keshvanand Bharati's case have not treated "federalism" as part of the basic structure of the Constitution and none of them has discussed the extent of the "federal" part of this struc- ture. It is not enough to point out Art. 1 of the Constitution-to emphasise that 8 our Republic is a "Union" of States. The word "Union" was used in the context of the peculiar character of our federal Republic revealed by its express provisions. One has to find from other express provisions what this 'Union' means or what is the extent or nature of "federalism" implied by it. The Constitution itself does not use the word "federation" at all. It is not possible to discover any such fetter which could., by a necessary implication, prevent Parliament from enacting s. 3 of the Act. [87 B-D] Per Chandrachud, J. The preliminary objection to the maintainability of the suit ought to be rejected. The proceeding brought by the State of Karnataka is maintainable under Art. 131 of the Constitution. [100 C] (a) The jurisdiction conferred on the Supreme Court by Art. 131 of the Constitution should not be tested on the anvil of rules which are applied under the Code of Civil Procedure for determining whether a suit is maintainable. A constitutional provision which confers exclusive jurisdiction on this Court to entertain disputes of a certain nature in the exercise of its original jurisdiction, cannot be equated with a provision conferring a right on a civil court to entertain a common suit so as to apply to an original proceeding under Art. 131 the canons of a suit which is ordinarily triable under s. 15 of the C.P.C. by a court of the lowest grade competent to try it. The Constitution does not describe a proceeding under Art. 131 as a suit but uses words and phrases commonly employed for determining the jurisdiction of a court of first instance to entertain and try a suit. It does not speak of a cause of action; instead it employs the word "dispute". Above all, Art. 131 is a self-contained code on matters falling within its purview. By the very terms of the Article, the sole condition required to be satisfied for invoking the original jurisdiction of this Court is that the dispute between the parties referred to in clauses (a) to (c) must involve a question on which the existence or extent of a legal right depends. [97 E-H] (b) The quintessence of Art. 131 is that there has to be a dispute between the parties regarding a question on which the existence or extent of a legal right depends. A challenge by the State Government to the authority of the Central Government to appoint a Commission of Inquiry clearly involves a question on which the existence or extent of the legal right of the Central Government to appoint the Commission of Inquiry depends and that is enough to sustain the proceeding brought by the State under Art. 131 of the Constitution. The Constitution has purposefully conferred on this Court a jurisdiction which is untrammelled by considerations which fetter the jurisdiction of a court of first instance which entertains and tries suits of a civil nature. The very nature of the dispute arising under Art. 131 is different both in form and substance from the nature of claims which require adjudication in ordinary suits. [98 B-D] (c) Part XI of the Constitution is devoted specially to the delineation of relations between the Union and the States. The object of Art. 131 is to provide a high powered machinery for ensuring that the Central Government and the State Governments act within the respective spheres of their authority and do not trespass upon each other's constitutional functions or powers, Therefore, a, challenge to the constitutional capacity of the defendant to act in an intended manner is enough to attract the application of Art. 131 particularly when the plaintiff claims that right "exclusively for itself. [98 F-G] (d) A proceeding under Art. 131 stands in sharp contrast with an ordinary civil suit. While in an ordinary civil suit rejection of a right asserted by the defendant cannot correspondingly and of its own force establish the right claimed by the plaintiff, proceedings under Art. 131 are adjudicatory of the limits of constitutional power vested in the Central or the State Governments. In a civil suit the plaintiff has to succeed on the strength of his own title; the competition in a proceeding under Art. 131 is between two or more Governments. There is no third alternative as in a civil suit wherein the right claimed by the plaintiff may reside neither in him nor in the defendant but In a stranger. A demarcation and definition of constitutional power between the 9 rival claimants and restricted to them and them alone is what a proceeding under Art. 131 necessarily involves. [98 H JUDGMENT:
(e) There is no force in the defendant’s contention that if
a State Government challenges the constitutional rights of
the Central Government to take a particular course of
action, Art. 131 will not be attracted. The contention ,of
the State Government is not only that the Central Government
has no power to appoint the Inquiry Commission for
enquiring into the conduct of State Ministers but that
such right is exclusively vested in the State Government.
There is, therefore, not only a denial of the right claimed
by the Central Government but an assertion that the right
exclusively resides in the State Government. [99 D-E]
State of Rajasthan v. Union of India A.I.R. 1977 S.C.I. 361
referred to.
(f) A writ under Art. 226 is hardly a substitute for a
proceeding under Art. 131. A dispute between one or more
States or between the Government of India and a State on the
one hand and another State or other States on the other,
cannot properly be decided by a High Court under Art. 226.
More,over, disputes of the nature described in Art. 131
being usually of an urgent nature should be decided by this
Court to obviate dilatoriness of a possible appeal. The
original proceeding is decided once and for all by this
Court. [100 A_B]
2. The notification issued by the Central Government is
within the scope of s. 3(1) of the Act. The objection of
the State Government that it offends against cl. (b) of the
proviso to s. 3(1) of the Act is factually unfounded and
theoretically unsound. [114 F; 101 H]
(a) It is wrong to contend that the Central Government has
appointed the Commission of Inquiry for the purpose of
inquiring into the same matter into which the Commission of
Inquiry appointed by the State Government is directed to
inquire. [101 E]
(b) Considering the terms of the notifications issued by
the State Government and the Central Government and the
matters into which the respective Commissions are directed
to inquire, it is obvious that the object and purpose of the
two inquiries is basically different. The primary object of
the State Government in appointing the commission is to
ascertain whether improper or excessive payments were made,
undue favours were shown, irregularities or fraud had
occurred in the conduct of official business etc; and
secondly to find out as to who are ‘the persons responsible
for the lapses, if any, regarding the aforesaid and to what
extent”. On the other hand, the Commission appointed by the
Central Government is specifically directed to inquire
“whether the Chief Minister practiced favouritism and
nepotism” in regard to various matters mentioned in the
notification. (100 G; 101 D-E]
(c) Moreover, it is hardly ever possible that the State
Government will appoint a Commission to inquire into acts of
corruption, favouritism and nepotism on the part of its
Chief Minister. [101 G]
3(a) On a plain reading of s. 3(1) of the Act, it is
impossible to bold that the section cannot be construed as
authorising the Central Government to appoint a Commission
of Inquiry for the purpose of inquiring into the conduct of
a sitting Minister of a State Government. [102 B]
(b) Section 3(1) cannot be given a restricted meaning.
There is no justification for reading down the provisions of
the section to limit the power of the ‘Central Government to
appointing a Commission of Inquiry for inquiring into the
conduct of persons in relation to matters concerning the
affairs of the Union Government only. The section empowers
the Central Government to appoint a Commission for making an
inquiry into any definite matter of public importance. It
is inarguable that the conduct of Ministers of State Govern-
ments in the purported discharge of their official functions
is not a definite matter of public importance. Further, it
cannot be said that the Central Government does not even
possess the power to collect facts in regard to
10
allegations of corruption made by a section of the State
Legislature against sitting Ministers of the State
Government. [102 E-F]
(c) The argument that s. 3(1) will offend against the
principle of collective responsibility unless it is
construed narrowly is without substance. Whatever may the
findings of the Commission of Inquiry, the Council of
Ministers whether at the Centre or in the States, continues
to be collectively answerable or accountable to the House of
the People or the ‘Legislative Assembly. Neither the
appointment of the Commission nor even the rejection by the
Commission of all or any of the allegations referred to it
for its inquiry would make the Council of Ministers any the
less answerable to those bodies. The object of Articles
75(3) and 164(2) of the Constitution is to provide that for
every decision taken by the Cabinet each one of the
Minister- is responsible to the Legislature concerned. It
is difficult to accept that for acts of corruption, nepotism
or favouritism which are alleged by members against an
individual Minister, the entire Council of Ministers can be
held collectively responsible to the Legislature. If an
individual Minister uses his office as an occasion or
pretense for committing acts of corruption, he would be
personally answerable for his unlawful acts and no question
of collective responsibility of the Council of Ministers can
arise in such a case. [105 C; 103 F-H]
(d) The essence of collective responsibility of the Council
of Ministers is that the Cabinet is responsible to the
Legislature for every action taken in any of the ministries.
In other words the principle of collective responsibility
governs only those acts which a Minister performs or can
reasonably be said to have performed in the lawful discharge
of his official functions. [104, B]
A. Sanjeevi Naidu etc. v. State of Madras & Anr., [1970] 3
SCR 505, 512 referred to.
(e) In the absence of a specific provision in the
Constitution the conduct of a member of the Legislature
shall be inquired into by the Legislature only, it is
impossible to hold that the appointment of a Commission of
Inquiry under the Act constitutes interference with the
privileges of the Legislature. English precedents relating
to the privileges of the House of Commons which are relevant
under Art. 194(3) do not support the States contention. [105
D]
(f) The power conferred by Parliament on the Central
Government to a Commission of Inquiry under s. 3 (1 ) of the
Act for the purpose of facts in regard to allegations of
corruption, favouritism and nepotism against a sitting Chief
Minister or Ministers cannot be held to constitute inter-
ference with the executive functions of the State Government
or that it confers on the Central Government the power to
control the functions of the State executive. [109 F-G]
(g) An examination of the provisions and scheme of the Act
shows that a Commission appointed under the Act is purely a
fact finding body with no power to pronounce a binding or a
definitive judgment. The larger interest of the community
requires that sensitive matters of public importance should
be enquired into by a high-powered Commission whose findings
can command the confidence of the people. If, on receipt
of the report, the Central Government decides to take any
action the validity thereof may have to be decided in the
light of the constitutional provisions. But, until that
stage arrives, it is difficult to hold that the Central
Government is exercising any control or supervisory
jurisdiction over the executive functions of the State. 108
B-C]
(h) The impugned Act cannot be held to suffer from want of
legislative competence in the Parliament to enact it. Entry
94 of List I, Entry 45 of List III and failing these, Entry
97 of List I must sustain the Act. [112 B]
(i) In Shri Ram Krishna Dalmia v. Shri Justice S. R.
Tendolkar and others this Court held that Parliament had the
legislative competence to pass the law under Entry 94 of
List I and Entry 45 of List III of the Seventh Schedule.
The word “Inquiries” occurring in the two Entries must be
held to cover the power to paw an Act providing for
appointment of Commissions of Inquiry. Since
11
the power to appoint a Commission of Inquiry into the
conduct of sitting Ministers of State Governments does not
offend against the principle of collective responsibility or
against the privileges of the Legislative Assembly, and,
since it does not also confer on the Central Government the
power of control over the State executive, the provision
must be held to be a valid exercise of the legislative,
competence of the Parliament. [111 B-C]
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar &
Others, [1959] SCR 279, 293 approved.
M. V. Rajwade v. Dr. S. M. Hassan & Ors., AIR 1954 Nag. 71
and Brajnandan Sinha v. Jyoti Narain, [1955] SCR 955, 975
referred to.
(j) Entry 97 is in the nature of a residuary entry and the
words “any other matter” which appear therein, mean “any
matter other than those enumerated in List I”. If entry 94,
List I does not cover the Act, inquiries of the nature
contemplated by the Act will fall within the description
“any other matter” occurring in entry 97 of List I. If entry
45 of List III and ‘,he whole of the State List are to be
kept out of consideration, the Act will relate to “a matter
not enumerated in List II or List III [11 G]
(k) The contention that by empowering the Central
Government to appoint a Commission for inquiring into the
conduct of the sitting Ministers of the State Government,
Parliament has legislated, on the Centre-State relationship
which is a constitutional subject, is without any force.
The Act merely empowers the Central Government to appoint a
Commission of Inquiry for collecting facts with a view to
informing its own mind and the report of the Commission is
not binding on any one. If a law is within the legislative
competence of the legislature, it cannot be invalidated on
the supposed ground that it has added something to, or has
supplemented, a constitutional provision so long as the
addition or supplementation is not inconsistent with any
provision of the Constitution. [113 A; 112 F-G; 114 C-D]
(1) Not only that the pith and substance of the Act is
“inquiries” but it does not even incidentally encroach or
trespass upon the constitutional field occupied by Part XI.
If it does not touch the subject matter of Centre-State
relationship, there is no question of its impinging upon
a subject dealt with by the Constitution. Even assuming
that legislation on the question of Centre State
relationship is impliedly barred, the impugned Act does not
fall within the vice of that rule and cannot, therefore, be
pronounced as unconstitutional. [113 H]
Per Bhagwati, J. concurring
The suit filed under Art. 131 of the Constitution by the
State of Karnataka against the Union of India is
maintainable. [122 B]
1. The State would have locus to challenge
unconstitutional exercise of power by the Central Government
which encroaches upon States exclusive sphere in relation to
the conduct of its Council of Ministers. By reason of
provision (a) to s. 3(1) of the Commissions of Inquiry Act,
1952, it could challenge the impugned action of the Central
Government because it prevents the State from exercising its
power to direct inquiry into matters specified in the
notification issued by the Central Government. [121 H]
2. (a) The claim of the State that its Legislature and
Government alone have power to investigate and control
misuse of governmental power by the Chief Minister and other
Ministers of the State and that Central Government has no
power to enquire into the same or to set up a Commission of
Inquiry for that purpose, clearly raises a dispute as to the
extent of the power of the State and the existence of a
superior or co-ordinate power in the Central Government to
inquire into the conduct of the Chief Minister and other
Ministers of the State in the discharge of their
governmental functions. Such a dispute concerns the content
of the respective powers of the State and the Union of India
and the inter se relationship between the two entities and
the State is vitally interested in it. The State is very
much concerned whether the conduct of its Council of
Ministers in the discharge of governmental functions can be
enquired
12
into only by itself through its own agency or can be
subjected to scrutiny by the Union of India. The State
would have locus to say that the Union has no right to
encroach upon its exclusive power to investigate into misuse
of governmental power by its Council of Ministers. Apart
from the Council of Ministers, the State can also
competently make a claim that the Council of Ministers,
acting on its behalf, is immune from subjection to the power
of the Central Government to enquire into their conduct as
Ministers. This immunity claimed in respect of- the Council
of Ministers can be ascribed to the State and the State can
raise a dispute touching upon the existence of this
immunity. [121 B-E]
Attorney-General for Victoria v. The Commonwealth, 71 C.L.R.
237 and Attorney-General for Victoria v. The Commonwealth,
52 C.L.R. 533 referred to.
(b) The two limitations in regard to a dispute which can be
brought before the Supreme Court under Art. 131 are parties
and subject matter. The object of the Article is that since
in a federal or quasi-federal structure disputes. may arise
between the Government of India and one or more States or
between two or more States, a forum should be provided for
the resolution of such disputes and that forum should be the
highest court in the land. Article 131 is attracted only
when the parties to the dispute are the Government of India
or one or more States arrayed on either side. The
limitation as to subject matter is contained in the words
“if and in so far as the dispute involves any question
whether of law or fact on which the existence or extent of
legal right depends” which indicates that the dispute must
be one affecting the existence or extent of a legal right
and not a dispute on the political plane not involving a
legal aspect. [115 G-H]
State of Rajasthan v. Union of India, A.I.R. 1977 S.C. 1361
referred to.
(c) There are two fallacies in the argument based on the
distinction between State and State Government : one in
drawing a rather rigid, water-tight distinction between
State and State Government and the other in assuming that it
is only where the legal right of the plaintiff is infringed
that the suit can be maintained under Art. 131. (117 B-D]
(d) Although theoretically a distinction exists between
State and State Government (and this finds recognition in s.
3(58) and s. 3(60) of the General Clauses Act, 1897)
constitutional authorities have pointed out that the
distinction is analogous to that between a given human
individual as a moral and intellectual person and his
material physical body. By the term ‘State’ is understood
the political person or entity which possesses the law-
making right and by the term ‘Government’ is understood the
agency through which the will of the State is formulated,
“pressed and executed. The Government thus acts as the
machinery of the State and those who operate this machinery
act as the agents of the State. Again, the State itself is
an ideal person, intangible, invisible and immutable and the
Government is its agent. If the State Government is the
agent through which the State expresses its will, the State
cannot be said to be unconcerned when any right or capacity
or lack of it is attributed to the State Government. It
would be wholly unrealistic to suggest that since the State
Government is distinct from the State, any action or
capacity or lack of it in the State Government would not
affect the State and the State would not be interested in
it. To do this would be to ignore the integral relationship
between the State and the State Government. Any action
which affects the State Government or the Ministers in their
capacity as ministers would raise a matter in which the
State would be concerned. [117 D-H]
(e) When any right or capacity or lack of it is attributed
to any institution or person acting on behalf of the State,
it raises a matter in which the State is involved or
concerned. The State would, in the circumstances, be
affected or, at any rate, interested if the Chief Minister
and other Ministers in their capacity as such that is in the
matter of discharge of their official functions, are
subjected to unconstitutional exercise of power by the
Central Government. If the Central Government were to issue
a direction to the Chief Minister and other Ministers to
exercise the executive power of the State in a particular
manner, the State would be clearly affected if such
direction is unconstitutional and would be entitled to
complain against it. if
13
the Central Government proceeds Without any constitutional
authority to enquire how the executive power of the State is
exercised by the Chief Minister and other Ministers and
whether it is exercised in a proper manner, the State would
clearly have a locus to challenge the unconstitutional
action of the Central Government. [118 E-G]
(f) It is not a sine qua non of the applicability of Art.
131 that there should be infringement of some legal right of
the plaintiff before it can institute a suit under the
Article. What the Article requires is that the dispute must
be one which involves a question “on which the existence or
extent of legal right depends”. The legal right may be that
of the plaintiff or of the defendant. In other words, what
is necessary is that the existence or extent of the legal
right must be in issue in the dispute between the parties.
[118 H]
(g) Article 131 does not lay down any particular mode of
proceeding for exercise of the original jurisdiction
conferred by it. Although the Supreme Court Rules
contemplate that the original jurisdiction of the Court
under this Article shall be invoked by means of a suit that
is not the requirement of the Article. While interpreting
the Article one is perhaps unconsciously influenced to
import the notion of cause of action which is germane in a
suit and read this Article as limited only to cases where
some legal right of the plaintiff is infringed and
consequently it has a cause of action against the defendant.
But there is no reference to a suit or cause of action in
Art. 131. That Article confers jurisdiction on the Supreme
Court with reference to the character of the dispute which
may be brought before it for adjudication. The requirement
of cause of action, which is so necessary in a suit, cannot
be imported while construing the scope and ambit of Art.
131. (115 E & 119 B-C]
(h) The only requirement necessary for attracting the
applicability of Art. 131 is that the dispute must be one
involving any question “on which the existence or extent of
a legal right” depends irrespective of whether the legal
right is claimed by one party or the other and it is not
necessary that some legal right of the plaintiff should be
infringed before a suit can be brought under that Article.
[119 E-F]
(i) The word “right” is used in Art. 131 in a generic sense
and not according to its strict meaning. A right in its
narrow sense constitutes the correlative of duty, but in its
generic sense includes not only right strict to sense but
“any advantage or benefit conferred upon a person by a rule
of law.” The word “right” has four different meanings : (i)
Right stricto sensu; (ii) liberty, (iii) power; and (iv)
immunity. In its strict sense ‘right’ is defined as
interest which the law protects by imposing corresponding
duty (in others. “Liberty” is exemption from the right of
another and its correlative is ” no right”; “power, is
ability to change the legal relations of another and its
correlative is liability. “Immunity” is exemption from the
legal power of another and its correlative is disability.
[119 H & 120 A]
(i) The word ‘right’ is used in Art. 131 in the generic
sense. If the State claims to be entitled to legislate
exclusively on a particular Matter on the ground that it
falls within List II of the Seventh Schedule to the
Constitution and the Union of India questions this right of
the State, the dispute would be one relating, not to any
right of the State in the strict sense of the term. but to
the ‘liberty’ of the State to legislate on such matters and
it would come directly within the terms of Art. 131. Even a
dispute relating to the power of the Union of India to
abolish the legislative assembly of a State or to dissolve
it would fall within the scope and ambit of Article 131.
[120 C-D]
State of Rajasthan v. Union of India, A.I.R. 1977 S.C.
1361, Attorney-General for Victoria v. The Commonwealth.
71 C.L.R. 237 and Attorney-General for Victoria v. The
Commonwealth, 52 C.L.R. 533 referred to.
Untwalia, Shinghal and Jaswant Singh, JJ. (Dissenting)
The suit is not maintainable. [126 D]
14
(a) The State by itself is an ideal person, a legal entity,
unchangeable, invisible and immutable. The Government is
the agency through which the will of the State is
formulated, expressed and executed. [123 E]
(b) In relation to the existence of a dispute between the
Union of India on the one hand and one or more States on the
other, the expression used in Art. 131 for the former is
Government of India signifying that the dispute may be with
the Government of India but the other party to the dispute
must be the State only and not any limb of the State,
namely, the executive, the legislature or the judiciary.
Article 300 of the Constitution which states that the
Government of India may sue or be sued by the name of Union
of India and the Government of a State may sue or be sued by
the. name of the State is only an enabling provision. An
inroad upon the right of the Government may, in certain
circumstances, be an inroad upon the legal right of the
State, and if there is any invasion on the legal right of a
State the agency through which action will be commenced, may
be the Government of the State. Article 300 merely
prescribes the mode of describing a party to the suit. But
the real answer to the maintainability of the suit is to be
found from Art. 131 itself. [123 F-G]
(c) Article 131 does not specifically state whose legal
right the question involved in the dispute must relate to
and in what respect. To say that for the application of the
Article it is sufficient that the plaintiff questions the
legal or constitutional right asserted by the defendant may
not be correct. Ordinarily and generally in any suit the
competition is between the legal right of the plaintiff and
the defendant. But primarily the plaintiff has to establish
his legal right to succeed in the suit. if the defendant
establishes his legal right, the suit fails. If either
party fails to establish the legal right, yet the suit fails
because the plaintiff cannot succeed unless he establishes
his legal right. The expression “the existence or extent of
a legal right used in Art. 131 is meant to bring about this
result. It was neither necessary nor advisable to state
further in the Article that the dispute must involve any
question on which the legal right of the plaintiff must
depend. (124 B; E-F]
(d) It is well-established that a Minister is an officer
subordinate to the Governor. The enquiry set up in this
case is not against the State or the State Government, but
against the Chief Minister and other Ministers to whom it is
open to move the High Court under Art. 226 of the
Constitution and the High Court would then have referred the
question of vires of the Act to the Supreme Court under Art.
131A. But, that in no way entitles the State to invoke the
original jurisdiction of the Supreme Court under Art. 131.
[125 A-B]
State of Rajasthan & Ors. v. Union of India, A.I.R. 1977
S.C. 1361, King Emperor v. Sibnath Banerji & Ors., 72 Indian
Appeals, 241 and A. Sanjeevi Naidu etc. etc. v. State of
Madras and Anr., [1970] 3 S.C.R. 505 referred to.
(e) There is no force in the contention that it is only the
State Government and not the Central Government which has
the right to order an enquiry under s. 3. There may be
competition between the power of one authority. (Central
Government) and another (State Government), but unless the
power exercised by one authority brings about a dispute
impinging upon the legal right of the other party, the
latter cannot come under Art. 131 and say that merely
because it was within its power to do so, its legal right is
affected by the illegal exercise of the power by the other
party. The exercise of power must directly or by necessary
implication affect the legal right of the other party.
Suppose for example, if Parliament passes a law under Entry
8 (intoxicating liquors) in List II and in pursuance of that
law, makes an order against a resident in a State, the order
is bad as having been issued under an invalid law made by
Parliament. The State Government, in such a case, cannot
file a suit under Art. 131 merely because the order had been
made against its resident under a law which encroached upon
the legislative field of the State. In the instant case the
concerned ministers can challenge the impugned notification
but the notification can in no way be said to have affected
or restrained the State Government from giving effect to its
notification. [125 B; D-G]
15
(f) Moreover, if a restricted meaning were not to be given
to the scope of the suit which can be filed under Art. 131
very anomalous results may follow. Any action taken by the
Central Government under the Act or otherwise against any
citizen residing in or an officer of a State, could be
challenged by institution of a suit under Art. 131 by the
State on the ground that the action of the Central
Government is ultra vires and without any legal right. A
Minister, being an officer of the State, the order affecting
him cannot confer a right of suit on the State under Art.
131. [126 B-C]
(Concurring with the majority)
2(a) There is no justification for reading down the
provisions of the Act nor are the provisions
constitutionally invalid on any account. [137 C]
(b) The Indian Constitution is not federal in character,
but has been characterised as quasi-federal in nature. Even
though the executive and legislative functions of the Centre
and States have been defined and distributed, there runs
through it all a thread or rein in the hands of the Centre
in both the fields. Apart from the exclusive legislative
power of the Centre and the States, both have concurrent
powers of legislation in regard to the entries of List III.
The residuary power lies with the Parliament (Art. 248,
Entry 97 of List I). Parliament has a predominant hand in
respect of matters in the concurrent list (Art. 254). In
certain circumstances, Parliament has power to legislate on
matters in the State List (Articles 249, 250, 252 and 253).
Article 256 provides, inter alia, that the executive power
of the Union shall extend to the giving of such directions
to a State as may appear to the Government of India to be
necessary for that purpose. There are also other important
features which demonstrate the weak federal structure and
the controlling hand of the Centre over the States. The
Governor is appointed by the President and holds office at
his pleasure. He reports to the Centre from time to time
about the administration of the State. Entry 45 in List II
empowers the Parliament to legislate on the subject of
inquiries for the purpose of any of the matters specified in
List II. Parliament has power to admit into the Union, or
establish, new States (Art. 2) and can make a law for the
formation of new States and alteration of areas and
boundaries if existing States (Art. 3). [128 A-D; 129 C-E]
State of West, Bengal v. Union of India [1964] 1 S.C.R. 371
referred to.
(c) The law made under Entry 45 of List III can cover an
inquiry in matters like corruption, nepotism or
maladministration in any executive action of the State
Government. Such an enquiry neither interferes with the
legislative power of the State nor with its executive
action. An inquiry under the Act by a Commission appointed
thereunder, which is a fact finding body, is for the purpose
of finding the facts. It cannot be said that a Commission
appointed by the Central Government under the Act cannot be
appointed for finding facts in relation to the allegations
made against a Minister of a State. [131 B-C]
(d) In an enquiry set up under the Act, there is no
prosecution, no framing of a formal charge, no accused
before the Commission of Inquiry and there is no exercise of
any supervisory or disciplinary jurisdiction by the Central
Government against the State Government nor is there any
usurpation of any executive function of the State. The
Centre is concerned with and interested only in knowing and
ascertaining facts as regards the allegations made against a
Chief Minister, Minister or any other officer of the State
Government. [132 A-B; C]
(3) It may be true to say that the Ministers of the State
Government are not under the disciplinary control of the
Central Government. But it would be incongruous and
anomalous to say that it is only the State Government which
is competent to appoint a Commission of Inquiry against
itself or its Ministers. It is not likely that the
Ministers, while remaining in office, would set up
Commissions of Inquiry for enquiring into their alleged
misdeeds even if it is assumed that this is possible, it
does not lead to the conclusion that their power is
exclusive and excludes the power of the Central Government
under the Act. There is nothing in the Constitution to
indicate that the power of the State Legislature or the
State Government is exclusive. It may be co-extensive
16
and such a situation is postulated and provided for in the
proviso to s. 3(1) of the Act. There is nothing in the Act
or the Constitution which excludes the power of the Central
Government to set up a Commission of Inquiry for finding
facts in regard to the alleged maladministration of the
State. After ascertaining the facts, further action may
follow in accordance with the provisions of the Constitution
or the law. The Act does not provide for any kind of
disciplinary action against a Minister. [132 F-H]
(4) The doctrine of collective responsibility does not
grant immunity to the State Ministers from being subjected
to the provisions of the Commissions of Inquiry Act. In
truth, it is little more than a political practice which is
commonplace and inevitable. All that it means is that
Cabinet decisions bind all Cabinet Ministers even if they
argued in the opposite direction in the Cabinet, and that
the team must not be weakened by some of its members making
clear in public that they disapprove of the Government’s
policy. It only means that the Council of Ministers will
have to stand or fall together, every member being
responsible for the action of any other. [134 E]
“Representative and Responsible Government” by A. H. Birch.
“Government and Law” by T.C. Hertley and J. A. C. Griffith.
State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, [1966]
Suppl. S.C.R. 401 referred to.
(5) The power granted to Parliament under Entry 45 of List
III is clear and explicit for passing a law for inquiries in
regard to any of the matters in List II. That being so the
power cannot be curtail by the doctrine of implied
prohibition. The doctrine of implied prohibition was
definitely rejected by Courts in England and Australia and
by an overwhelming majority of this Court in Kesavanda
Bharati’s case. The only way in which the Court could
determine whether the prescribed limits of legislative power
had been exceeded or not is by looking to the terms of the
instrument by which affirmatively the legislative power was
created and by which negatively they are restricted. [136E]
Smt. Indira Nehru Gandhi v. Shri Rai Narain, [1976] 2
S.C.R. 347, Webb v. Outrim [1907] A.C. 81 The Amalgamated
Society of Engineers and The Adelaide Steamship Company
Limited and Others, 28 Commonwealth Law Reports, 129. The
State of Victoria and The Commonwealth of Australia, 122
Commonwealth Law Reports, 353 and His Holiness Kesavananda
‘Bharati Sripadagalavaru v. State of Kerala, [1973] Suppl.
S.C.R. 1 referred to.
(6) There is no substance in the argument that a commission
appointed by the Central Government to inquire into the same
matter for which a commission had already been set up by the
State Government is violative of s. 3(1) (b) of the Act.
The notification of the State Government has not, in terms,
appointed any commission for inquiring into the matter-, of
alleged corruption, nepotism, favouritism and mal-
administration of the Chief Minister or any other Minister
of the Government. The items referred to for inquiry by the
State Commission were “irregularities committed or excess
payments made in certain matters relating to contracts,
grant of loan, allotment of sites, purchase IT of furniture,
disposal of foodgrains, etc.” In none of those clauses, is
it mentioned as to the person responsible for the alleged
irregularities or maladministration. There is no reference
to any alleged misconduct, corruption or maladministration
of the Chief Minister or any other Minister. In contrast,
the terms of reference in the notification issued by the
Centre is to enquire into the specific matters enumerated in
Annexure I, one of which is covered by the notification of
the State Government. In regard to specific matters in
Annexture II, there may be some common matters which are the
subject-matter of enquiry by the State Government. but in
regard to matters in Annexure II, the notification in clear
terms excludes any matter covered by the notification of the
State Government. The Commission appointed by the Central
Government, therefore, would he competent to exclude such
matters from the purview, of its enquiry. [137 E-F]
17
Per Kailasam, J. (concurring)
1(a) The suit is maintainable. When the exercise of the
executive functions of the State through its officers is
interfered with by the Central Government, it cannot be said
that the legal right of the State is not affected. [168 G;
167 Al
(b) The executive powers of the State will be exercised by
the Governor with the aid and advice of the Chief Minister
and other Ministers, The power is exercised either directly
or indirectly through officers subordinate to the Governor
in accordance with the provisions of the Constitution.
According to the impugned notification the Commission of
Inquiry was appointed for the purpose of making an inquiry
into a definite matter of public importance, namely, charges
of corruption, nepotism, favouritism and misuse of govern-
mental power levelled against the Chief Minister and certain
other Ministers ,of the State. Therefore, the scope of the
inquiry- would inevitably involve the functioning of the
executive of the State. The dispute in the instant case
relates to the functioning of the State in exercise of the
powers conferred under the Constitution and so. the States
legal rights are affected. [166 D-F]
State of Rajasthan v. Union of India AIR 1977 SC 1361
referred to.
(c) The Government of India Act, 1858, provided only
absolute imperial control without any popular participation
in the administration. The Government of India Act 1919, for
the first time introduced dyarchy in the Provinces. Under
this Act the Provinces were delegates of the Centre and the
Central legislature retained the power to legislate on any
subject for the whole of India. The Government of India
Act, 1935 changed the unitary nature of the Government under
the 1919 Act into a federal structure and made the Provinces
as units. The 1935 Act divided legislative powers between
the centre and the provinces; the Federal list comprising of
subjects over which the federal legislature had exclusive
powers of legislation, the Provincial List comprising of
subjects over which the Provincial legislatures had
exclusive jurisdiction and the Concurrent List comprising of
subjects over which both the Federal and Provincial
legislatures had power to make laws. Under the Constitution
the States, in several respects, are subordinate to the
Central Government in that the formation of the federation
was not as a result of any treaty between the States and the
Federation. There are various features of the Constitution
which make it strictly not federal. It has variously been
described as quasifederal or federal in structure or federal
system with a strong central bias. In the scheme of
distribution of powers between the Union and the States,
there is a strong tilt in favour of the Union. For the
purpose of settling disputes between the Centre and the
States a machinery is also provided for in the ,Constitution
itself. [140 C; 141 C; 142]
(d) In determining what the respective powers of the Centre
and the States are, one has to look into the Constitution.
Since the States are not the delegates of the Central
Government and the source of power both for the Union as
well as the States being the Constitution itself, the
Central Government cannot exercise any power over the States
which is not provided for in the Constitution. There is no
overriding power with the Union Government. [143 B]
Atiabari Tea Co. Ltd. v. The State of Assam & Ors. [1961] 1
SCR 809, Automobile Transport (Rajasthan) Ltd. v. The State
of Rajasthan [1963] 1 SCR 491. State of West Bengal v.
Union of India [1964] 1 SCR 371 and Kesavanand Bharti [1973]
Sapp. S.C.R. I referred to.
(e) Under Article 254(1) when a law made by the State
Legislature is In conflict with any provision of law made by
Parliament or to any provision of any existing law with
respect to one of the matters enumerated in the Concurrent
List, then the law made by Parliament shall prevail and the
State law shall be void to the extent of repugnancy. [149 C]
(f) Before declaring a law as repugnant an attempt should
be made to see whether the conflict could be avoided by
construction. [149 C]
(g) Article 248(1) and Entry. 97 in List I of the Seventh
Schedule make it clear that the residuary power is with
Parliament and when a matter sought
18
to be legislated is not included in List II or List II
Parliament has power to make laws with respect to that
matter or tax. But the function of the Lists is not to
confer powers on the legislature; they only demarcate the
legislative field. Since there is no provision in the
Constitution conferring on the Union the power to supervise
the governmental functions of the State reference to the
Lists will not solve, the problem raised in this case. [149
C-D]
The Governor General in Council v. The Raleigh Investment
Co. [1944] F.C.R. 229, 261 and Union of India v. H. S.
Dhillon [1972] 2 SCR 33 referred to.
(b) The well accepted basic principles of construction of
the Constitution as laid down by decided cases are that when
a question arises whether the prescribed limit shave been
exceeded, the only way in which it can be done is by looking
into the terms of the instrument by which affirmatively the
legislative powers were created and by which negatively
they are restricted. If what has been done is legislation
within the general scope of the affirmative words which give
the power, and if it violates no express conditioner
restriction by which that power is limited, it is not
for any Court of justice to inquire further or to enlarge
constructively those conditions and restrictions.If the text
is explicit the text is conclusive. When the text is
ambiguous, recourse must be had to the context and scheme of
the Act. Yet another well-accepted aid to construction is
that the history which lies behind an enactment is
admissible because to find out the meaning of the law,
recourse may legitimately be had to the prior state of the
law, the evil sought to be remedied and the process by which
the law was evolved. [150 H; 151 A]
(i)The golden rule of interpretation that in construing
words in a Constitution conferring legislative power, the
most liberal construction should be put upon the words,
admits of certain exceptions. If it is found necessary to
prevent conflict between two exclusive jurisdictions a
restricted meaning may be given to the words. Further, in
interpreting the words of a statute the main object is to
ascertain the intention expressed by the words used, that
is, to ascertain “the intention of them that made it.” [154
F-G]
R.v. Burah [1878] 3 A.C. 889 and Attorney-General for the
Province of Ontario and Others. v. Attorney-General for the
Dominion of Canada and Another [1912] A.C. 571 at 573, The
Amalgamated Society of Engineers v. The Adelaide Steamship
Company Ltd. & Ors. 28 C.L.R. 129, Webb v. Outrim [1907]
A.C. 81. The State of Victoria v. The Common-Wealth of
Australia, 122 C.L.R. 353, Liyange v. R. [1967] A.C. 259 and
The State of West Bengal v. Niripendra Nath Bagchi [1966] 1
SCR 771 referred to.
(j)Articles 256 and 257 list the obligations of the States
and the Union and control of the Union over the States in
certain cases. Article 257(A) (introduced by 42nd Amendment
of the Constitution) empowers the Government of India to
deploy any armed forces of the Union or any other force for
dealing with any grave situation of law and order in any
State. Except in cases referred to in these Articles, the
Constitution does not provide for the Union Government to
give any directions to the State Government. As there is no
specific article in the Constitution enabling the Union
Government to cause an inquiry into the governmental
functions of the State the power cannot be assumed by
ordinary legislation but resort must be had to a
constitutional amendment. [152 C-D; F; H]
(k)The Constitution being the fundamental law, no law
passed under mere legislative power can effect any change in
the Constitution unless there is an express power to that
effect given in he Constitution itself. There are a number
of articles which expressly provide for amendment of the
Constitution by law. But where no power is conferred on the
Parliament to make laws, it cannot add to the Constitution
by ordinary law making process. [153 C]
I.C. Golak Nath & Ors. v. State of Punjab & Anr. [1967] 2
S.C.R. 762 referred to.
(1) Entry 45 in List III (Enquiries…….. for the purposes
of any of the matters specified in List II or List III)
should not be given a wide meaning as,
19
conferring on the Union and the State Government powers to
enact a provision to embark on an inquiry as to the misuse
of the governmental powers by the other. [155 C-D]
River Wear Commissioners v. Adamson [1877] 2 A.C. 743,
R.M.D. Chamarbaugwalla v. The Union of India [1957] SCR 930
and Bengal Immunity Co. Ltd. v. State of Bihar [1955] 2 SCR
603 referred to.
(m)The power conferred under Entry 45 List III cannot be
construed in such a manner as to lead to the conclusion that
if a law enacted by Parliament empowers the Union Government
to conduct an inquiry into the misuse of governmental
functions by a Minister of State Government, the State will
have the power to legislate empowering it to enquire into
the misuse of governmental powers by a Union Minister
relating to matters in List III. Such an interpretation
would not be conducive to the harmonious functioning of the
Union and the States. [155 D-E]
(n)The decisions on which the Union Government relied for
the proposition that the words “definite matter of public
importance” would embrace an inquiry into the misuse of
governmental functions of the State, do not support that
contention. In M. V. Rajwade v. Dr. S. M. Hassan and
Others the commission appointedwas only a fact-finding
body meant to instruct the mind of the Government andthe
scope of the inquiry fell within s. 3 as it related to a
definite matter ofpublic importance and not an inquiry
into the misuse of governmental functions of a Chief
Minister or a State Minister.In Shri Ram Krishna Dalmia
v. Shri Justice S. R. Tendolkar and others,, it was held
that the act and conduct of individuals may assume such
dangerous proportions as may well affect the public well-
being and thus become a definite matter of public
importance. But neither decision concludes the point
arising in ‘this case, namely, whether the words “definite
matter of public importance” should be construed as to
include the right to inquire into the abuse of governmental
functions by a State Government. Again in State of Jammu &
Kashmir v. Bakshi Ghulam Mohammad which is an authority for
the proposition that inquiry into the acts of a person who
had ceased to be a Chief Minister may continue to be a
matter of public importance it was held that the inquiry
into the past acts which have affected the public well-being
would be matters of public importance and it was irrelevant
if the person who committed those acts was still in power to
be able to repeat them. [158 A-H]
Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar &
Others [1959] SCR 279, State of Jammu and Kashmir v. Bakshi
Ghulam Mohammad, [1966] Supp. SCR 401 and M. V. Rajwade v.
Dr. S. M. Hassan & Others I.L.R. [1954] Nag. I held
inapplicable.
(Dissenting)
2.The impugned notification impinges on the right of the
State to function in its limited sphere and is beyond the
powers of the Central Government under s. 3 of the Act. [168
G]
(a)If s. 3 of the Commissions of Inquiry Act, 1952 is
construed as enabling the appointment of a Commission of
Inquiry into the conduct of a Chief Minister in office, it
would result in empowering the Central Government which is a
delegate of the Parliament to exercise the powers which
would never have been contemplated by the Parliament. The
result of such a construction would amount to inviting the
State Government to appoint Commissions of Inquiry into the
conduct of Central Ministers regarding matters in List II
and List III. [161 H]
(b)Section 3(1) read with the proviso makes it clear that
the intention of the Act is to enable the appropriate
Governments that is, the Central or the State Government to
appoint a Commission of Inquiry for the purpose of making an
inquiry into any definite matter of public importance. The
Central Government can appoint a Commission to make an
inquiry into any matter relatable to any of the Entries
enumerated in List I, List II or List III of the Seventh
Schedule of the Constitution while the State Government can
appoint a Commission to inquire into any matter relatable to
any of the Entries enumerated in List II and List III of the
Constitution. As both the Central Govern-
20
ment and the State Government have power to appoint a
Commission of Inquiry relating to Entries in List II and
List III there might arise occasions when there may be
overlapping. In order to avoid such a contingency provisos
(a) and (b) to s. 3(1) enact that when the Central
Government has appointed a Commission of Inquiry, the State
Government shall not appoint another Commission of Inquiry
into the same matter without the approval of the Central
Government so long as the Commission appointed by the
Central Government is functioning and the Central Government
shall not appoint an,other Commission to inquire into the
same matter as long as the Commission appointed by the State
Government is functioning. These provisions are for the
purpose of avoiding any conflict by the two Governments
appointing two separate commissions to inquire into the same
matter. [163 D-F-]
(c)In the instant case the Court is not called upon to go
into the two notifications and determine which item in the
notification of the Central Government is not covered by the
State Government’s notification. [168 G]
&
ORIGINAL JURISDICTION : Original Suit No. 8 of 1977.
L. N. Sinha, R. N. Byra Reddy, Adv. Genl., S. C. Agarwal,
Vinoo Bhagatand Narayan Metter, for the Plaintiff.
S. N. Kacker, Solicitor General, Soli J. Sorabjee, Add1.
Solicitor General, R. N. Sachthey, E. C. Agarwala and Girish
Chandra, for Defendant No. 1.
The following Judgments were delivered by
BEG, C.J.-“India, that is Bharat, shall be union of States’.
The very first mandate of the first article of our
Constitution to which we owe allegiance thus prohibits, by
necessary implication, according to the plaintiff in the
original suit now before us under Article 131 of the
Constitution of India, any constitutionally unjustifiable
trespass by the Union Government upon the domain of the
powers of the States. The State of Karnataka, has,
therefore, sued for a declaration that it notification dated
23-5-1977 (hereinafter referred to as ,rho Central
Notification) constituting a Commission of Inquiry in
purported exercise of its powers under Section 3 of the
Commissions of Inquiry Act, 1952 (hereinafter referred to as
‘the Act’), is illegal and ultravirus. This declaration is
sought on one of two alternative grounds : firstly, that the
Commissions of Inquiry Act, 1952, does not “authorise the
Central Government to constitute a Commission of Inquiry in
regard to matters falling exclusively within the sphere of
the State’s legislative and executive power”, and, secondly,
that if the provisions of the Act do cover the Central
Government Notification, they are ultra-vires for
contravention of “the terms of the Constitution as well as
the federal structure implicit and accepted as an inviolable
basic feature of the Constitution”. Consequentially, the
plaintiff seeks a perpetual injunction to restrain the
respondents, the Union of India and Shri A. N. Grover, the
one-man Commission of Inquiry into ” charges of corruption,
nepotism, favouritism and misuse of Governmental power,
against the Chief Minister and other Ministers of the State
of Karnataka”, from acting under the Central Government’s
notification.
21
The plaintiff State’s case is : that, the Congress Party was
returned by the electors by a majority at an election held
in the State in 1972; that the majority party in the
legislature elected Shri Devraj Urs as its leader who then
formed his Government as required by Article 163 of the
Constitution; that, the Government thus installed, by what
must be deemed to be the will and decision of the State
Legislature, continues to enjoy the confidence of the
legislature and is in office; that, in the recent Lok Sabha
elections, the Congress party headed by Shri Devrai Urs
achieved a resounding success by having won 26 out of 28
seats so that the Janata party, which is in power at the
Centre, must be deemed to have been rejected by the
electorate, but it is indirectly, through the appointment of
a Central Commission of Inquiry trying to discredit the
Congress Party and its leaders in the State of Karnataka,
and, thereby, interfering with the democratic machinery of
control and supervision of the Government of the State
provided by the Constitution itself.
On 26th April, 1977, the Union Home Minister sent a letter
to the Chief Minister of the State communicating the
allegations contained in a Memorandum submitted by certain
members of the opposition party in the Karnataka State
Legislatures and asked him to make his comments. The Chief
Minister gave a reply dated 13th May, 1977 a copy of which
was attached to the plaint.
The Chief Minister, in his reply, complains that “slanderous
propaganda has been unleashed without any verification of
the truth or otherwise of the allegations or past history of
most of the charges”. He points out that broadcasts and
press reports had given him an intimation of the allegations
sent to him even before they were received by him with the
Home Minister’s letter. The Chief Minister said : “It is
reasonable to presume that the object of this campaign of
slander is mainly to tarnish the image of the Congress
party, my colleagues and myself in an effort to gain, if
possible, power for your party in the State immediately
after your party was totally rejected by the electorate of
the State in the recent Lok Sabha elections”. The
insinuation was that the whole object of manipulated charges
against the Chief Minister was to vilify him and his
Government and to bring him down in the estimation of the
public so as to destroy the support which the Congress party
had from the people of the State. it was thus a charge of
malice in fact.
The Chief Minister also admitted, in his letter to the Union
Home said to be embodied in our Constitution and described
them as “the comer-stone of national unity and national
integrity”. He asserted : “the constitution is the source of
all power for the various organs of the Centre and the State
and all actions and exercise of all power under any of the
statutes either by the Centre or by the State must conform
to and be subordinated to the scheme of distribution of
powers, legislative and executive, under the Federal Scheme
of the Constitution”.
The Chief Minister also admitted in his letter to the Union
Home Minister, that the Constitution “in certain exceptional
circumstances pro-
22
vides for the Centre making inroads into the exclusive
domain of the State Legislature or the State executive”.
But, lie denied that the exceptional circumstances,
expressly provided for in the Constitution, for interference
by the Centre, existed in the instant case.
Evidently, the Chief Minister meant that there was no room
for invoking the emergency provisions under Article 356 of
the Constitution which provides for the assumption by the
President of India of any of the functions of the Government
and by the Union Parliament of the functions of the State
Legislature, provided “the President is satisfied on receipt
of a report from the Governor of a State or Otherwise that a
situation has arisen in which the Government of the State
cannot be carried on in terms of the Constitution”.
The Chief Minister also invokes the aid of the principles of
democracy which, according to him, permeate the whole scheme
of the Constitution, so that Chief Ministers and other State
Ministers can be called to account only by the State
Legislature to which they are responsible. He asserted that
“the Cabinet system of Government is a basic feature of the
Indian Constitution”. This implies, according to him, that
all control over ministerial actions vests in the State
Legislatures only and not in the Union Government, subject,
of course, to exceptions expressly provided. With regard to
the actions of the State Government, he complained that the
assumption of inquisitorial or supervisory functions by the
Union Government at the instance of “an extra constitutional
agency, however high, would destroy the basic character of
the Cabinet system of Government and would rob the
legislature of the State and its people, of the
constitutionally guaranteed right of having a Government of
their choice subject to their control”. He claimed that the
State had exclusive right to investigate charges relating to
matters falling “within exclusive domain of the State under
the Constitution”. He warned against the dangers to
national interest by undue interference with the federal
scheme contemplated by the Constitution.
The Chief Minister, after having emphatically asserted what
he conceived to be the object of the proceedings against him
and his constitutional rights, very properly offered to
place all the material having a bearing upon the 36 charges
out of which he admitted that 23 related to him. He offered
to clear himself of these charges. lie pointed out that 4 of
the charges related to his colleagues and had been discussed
in the legislature. He also said that 3 charges had already
been enquired into by the former Prime Minister. He said
that be did not want these to be reopened. He cited the
speech of Shri Om Mehta, a former Minister of State, in the
Lok Sabha, on 5th May 1976, where it was stated that some
memoranda bad been sent, containing allegations of
corruption and misuse of power made against the Chief
Minister and other ministers of Karnataka by some members of
the Legislative Assembly, as long ago as 1973. According to
that statement, there were 99 allegations out of which 16
concerned the Chief Minister personally. Shri Mehta was
said to have declared that the allegations against the Chief
Minister were found to lack substance after the settled
procedure
23
of inviting comments from the Chief Minister Iliad been
observed. The Chief Minister then dealt at considerable
length with the individual charges.
In the plaint before us, it was pointed out that charges of
the nature now referred to the one man Commission by the
Central Government had been made over since 1972 elections
both on the floor of the Legislature and elsewhere. It also
said that they had been explained and answered on the floor
of the Legislature repeatedly. The Chief Minister
complained that the same allegations had been repeated after
a new Government had assumed office at the Centre.
It was also asserted in the plaint that, in order to allay
any suspicion in the ‘minds of the public in-the State, and,
in view of the continued agitation for a judicial probe,
and, in accordance with the highest and best traditions of
Government, the State Government, by a notification, dated 1
8th May, 1977, appointed a Commission of Inquiry under
Section 3(1) of the Commissions of Inquiry Act, 1952. ‘A
copy of the notification of the State Government was
attached to the complaint. It was alleged that a copy of it
had also been sent to the Home Minister ,on 18th May, 1977.
One of the submissions by the plaintiff is that the State
Government notification dated 18th May, 1977, appointing its
own Commission to inquire into all the matters and
irregularities, to which additions could be made and of
which further particulars could be provided, covers all that
could be enquired into by the Grover Commission under the
notification dated 23rd May, 1977, which specifically
excludes matters covered by the Karnataka Government’s
notification dated 18th May, 1977. Reliance is placed on
proviso (b) to Section 3(1) of the Act which prohibits the
Central Government from appointing another Commission ” to
inquire into the same matter for so long as Commission
appointed by the State Government is functioning, unless the
Central Government, is of opinion that the scope of the
inquiry should be extended to two or more States”.
The written statement filed on behalf of the Union of India
raises 2 preliminary objections as follows before_replying
seriatim to the paragraphs in the plaint. The preliminary
objections are :
“1. The suit by the State of Karnataka is not
maintainable inasmuch as the impugned
notification S.O. No. 365(E) dated 23rd May
1977 constituting the Commission of inquiry
does not affect the plaintiff-State. By
impugned notification a Commission of Inquiry
under section 3 of the Commissions of Inquiry
Act, 1952, has been constituted for the
purpose of making an inquiry into the charges
of corruption, nepotism, favouritism and
misuse of Governmental power against the Chief
Minister and certain other Minister’,; of the
State Karnataka specified in the notification.
The inquiry is against the Chief Minister and
certain other Ministers as individuals and not
against the State of Karnataka. The inquiry
is rather
24
in the interest of State that such corruption,
nepotism, favouritism should not exist in the
State. The State of Karnataka is not directly
interested in the inquiry proposed to be held
against the Chief Minister and certain other
Ministers of the State. The individuals
occupying the office of Chief Minister and
Ministers are distinct from the State it”.
2.Article 131 of the Constitution of India
gives original jurisdiction to the Hon’ble,
Supreme Court in any dispute between the
Government of India and one or more States
etc., if the dispute involves any question of
law or fact or which the existence or extent
of a legal right depends. There being no
dispute between the Government of India and
the State, the suit is not maintainable.
There is no legal right of the plaintiff-State
to Me the present suit.”
The Union of India denied that the matters now to be
enquired into by the Grover Commission constituted a
resuscitation of previous charges and allegations which had
been disposed of. Mala fides in the institution of the
Commission of Inquiry is denied. The validity of all
provisions of the Act is staunchly defended. The Inquiry
ordered by the Central Government is, its asserted, quite
competent and not covered by the State Government
notification. It is denied that the federal scheme or
democratic principles embodied in the Constitution are ‘
affected by the institution of a Commission of Inquiry of
the kirict set up. It is submitted that the Central
Government Commission of Inquiry was ordered to enable an
appropriate and completely impartial fact finding process to
take place so that either the Central Government or any
other authority or even members of the public may, in
accordance with democratic principles, act in a manner which
is constitutionally proper and fully justified. In any
case, the conduct of the Chief Minister of a State with
regard to affairs of State and the manner in which he used
his official position were, according to Union Government,
matters of public importance into which the Central
Government was quite competent to order impartial fact
finding inquiries in public interest.
On the above set of pleadings, the following issues were
framed this Court :
“1. Is the suit maintainable ?
2. Is the impugned notification ultra vires the powers of
the Central Government under section 3 of the Commissions of
Inquiry Act ?
3. If Section 3 of the Commission of Inquiry Act autho-
rises the Central Government to issue the impugned
notification, is the Section itself unconstitutional
An important preliminary question to be decided, for the
reasons already indicated, concerns the nature of the two
inquiries, one the State Government and another instituted
by the Central Government. If the two notifications cover
substantially “the same matter”, it may
25
not be necessary to deal with other questions at all. The
parties have very fully argued their cases on this question
even through no separate or specific issue has been framed
on it. Both the parties have raised this issue specifically
in their pleadings. They have argued on the assumption that
a decision on it is implied in the trial of other issues in
the case. We will, therefore, take it up first separately
as a preliminary question which we should decide before
taking up other matters in issue. A determination of this
question has an important bearing on matters argued for
purposes of deciding each of the three issues framed above.
Even if the question was not directly or indirectly involved
in the decision of each of the three issues framed above, a
decision on it seems necessary for clearing the ground for a
correct approach to the whole case. It is certainly not a
question we could abstain from deciding simply because no
specific issue was framed separately on it at the outset.
Although, in view of the fact that the question has been put
in issue and so understood and very fully argued by the
parties, a separate and specific issue need not be framed
upon it, yet, because of the crucial importance of it, we
formulate it now separately and specifically as follows : Do
both the State and the Central Government inquiries relate
to the ‘same matter within the meaning of proviso (b) to
Section 3(1) of the Act so as to bar an inquiry by the
Central or Union Government so long as the State Commission
is functioning? The State Government’s notification dated
18-5-1977, reads as under
“Government of Karnataka”
Karnataka Government Secretariat Vidhana Soudha Bangalore,
May 19, 1977
NOTIFICATION
WHEREAS allegations have been made on the floor of the
Houses of the State Legislature and elsewhere that
irregularities have been committed/excess payments made in
certain matters relating to contracts, grants of land,
allotment of sites, purchase of furniture, disposal of food
grains, etc. :
WHEREAS the State Government is of the opinion that it is
necessary to appoint a Commission of Inquiry to inquire into
the said allegations :
NOW, THEREFORE, in exercise of the powers conferred by sub-
section (1) of Section 3 of the Commissions of Inquiry Act,,
1952 (Central Act 60 of 1952) the Government of Karnataka
hereby appoint Justice Shri Mir Iqbal Hussain, Retired Judge
of the Karnataka High Court to be the Commission of Inquiry
for the purpose of making an inquiry into the said
allegations, particularly specified below and to submit a
report thereon to the State Government within a period of
four months from the date of this Notification :-
26
I.Whether improper or excessive payment was made to M/s.
Nirmala Engineering Construction Company in respect of tile
contracts awarded to them by the Government of Karnataka and
the Karnataka Urban Water Supply and Drainage Board for lift
irrigation or water supply scheme ?
11.Whether any improper or excessive payment was made to
M/s. Balaji Engineering and Construction Works Ltd., in
respect of the contracts awarded to them for-
(1) the construction of the right bank earth dam of the
Hemavathi Project from change No. 7890 to 8510.
(2) the construction of the right bank irrigation sluice of
the Hemavathi Dam;
(3) the construction of the left bank irrigation sluice of
the Hemavathy Dam;
(4) the construction of the masonry dam of the Hemavathy
Project from Chainage No. 4400 to 5740′ including the
overflow section and the protective works;
(5) the construction of the spillway dam of the Hemavathy
Project;
(6) the construction of the masonry dam of the Harangi
Project ?
III. Whether any improper or excessive payment was made
or undue favour shown to M/s. Nechipadam Construction
Company in respect of the contract awarded to them for the
construction of the Hemavathy right Bank Earth Dam from
chainage 2025m. to 2405m. and chainage 1750m. to 2025m ?
IV.Whether any improper or excessive payment was made or
undue favour shown to M/s. Shankaranarayan Construction
Company in respect of the contracts awarded to them for-
0
(1) the construction of the combined Board Administrative
Division Building;
(2) the construction of the right bank earthen portion of
the Hidkal Dam in the two reaches from 10,000 to 11,000 and
11,100 to 14,700 ?
V.Whether any improper or excessive payment was made or
undue favour shown to M/s. EICIL in respect of the
contracts awarded to them for-
(1) the construction of the head race tunnel from the Bom-
manhalli pick up dam to the surge point;
(2) the construction of the surge tank and the pressure
shaft ?
VI. Whether any undue favour was shown to M/s. Ghansham
Commercial Co. Ltd., in the sale of 25,000 tonnes of bajra
at the rate of Rs. 73.50, per quintal in 1972 ?
27
VII. Whether any undue favour was shown to m/s.
Krishna Flour Mills in respect of the lease of the land
next- to its premises, measuring 200×200′ for a period of 30
years ?
VIII. Whether any improper or excessive payment was made
or any undue favour was shown to M/s. Shah Construction
Company in the settlement of their claims for the contract
awarded to them for the construction of the Almatti Dam ?
IX.Whether any undue favour was shown to M/s. Poornima
Electronics in the placing of orders on them for supply of
electronic equipments like Intercome etc. ?
X.Whether there was any disappropriation or fraud in the
dealings of the State Co-operative Marketing Federation
during the period 1971-72 and 1972-73 ?
XI.Whether any undue favour has been shown by the
Government or the KSTRC in leading out the building in the
KSRTC bus stand at Mysore for a Canteen at Mysore ?
XII. Whether any undue favour was shown by Government
or the KSTRC in leasing out resting rooms in the KSRTC in
Mysore to Shri Prem Kumar ?
XIII. Whether the funds of the Agro Industries
Corporation were wrongly diverted to the Gadag Co-operative
Textile Mills, Hulkoti, Gadag, Dharwar district ?
XIV. Whether undue favour was shown to M/s. Navrasa
Fertilizers in purchasing fertilisers and whether payment
was made even without receipt of the stock ?
XV.Whether site on J.C. Road was leased to Shri M. B. Lal
and N. V. Venkatappa contrary to the interests of the City
of Bangalore Municipal-Corporation?
XVI. Whether the grant of land in S. No. 15 of Bommena-
halli Village, Nelamangala Taluk, Bangalore District was
made contrary to rules ?
XVII. Whether sites in Rajmahal Vilas and Palace Orchard’s
layouts were irregularly allotted’?
XVIII. Whether the purchase of one thousand tonnes of
paddy fromTamil Nadu by Shri Atheeq Ahmed, Proprietor
of the MandyaRice Mills, Mandya at the instance of the
State Governmentand the subsequent disposal thereof were
adverse to the interests of the State ?
XIX. Whether the contract for the preparation of models
and designs for the re-modelling of the K. R. Market,
Bangalore was irregularly awarded to M/s. Karekar and
Sundaram ? 3-1042 SCI/77
28
XX.Whether the conversion of land owned by Shri C. M.
Dinshaw and family in Narasipura Village, Bangalore North
Taluk (known as ‘Dinshaw Estate’) as non-agricultural land
was not in accordance with the rules ?
XXI. Whether any irregularities or improprieties have
been committed in the administration of the Karnataka Film
Development Corporation since 1971 ?
XXII. Whether the cement or steel allotted for the
construction of the Government Harijan Hostel building in
Bangalore City was diverted to other purposes ?
XXIII. Whether orders for the purchase of furniture for
the Health Department for the years 1972-73, 1973-74 were
placed at exorbitant rates with firms who were neither
furniture dealers nor approved PWD contractors/suppliers ?
XXIV. Whether essentiality certificates for stainless
steel were issued to bogus firms or fictitious persons
during the period 1st March 1974 to 30th June 1974 ?
XXV. Whether the purchase of Fargo and Bedford Chassis
by the KSRTC in August 1972 was against the Corporation’s
interests ?
XXVI. Whether the appointments of agents, sub-agents and
dealers during the years 1967-77 by the Visvesvaraya Iron
and Steel Ltd., Bhadravathi for the distribution of Steel
and cement were adverse to the Company’s interests ?
XXVII. Whether the appointments of agents, sub-agents and
dealers for the years 1967-77 by the Mysore Paper Mills
Ltd., Bhadravathi for the distribution of paper were adverse
to the Company’s interests ?
XXVIII. Whether improper or excessive payment was made to
Shri M. S. Ramaiah, contractor, in respect of the contract
awarded to him for the construction of the Talakalele dam
and its appurtenant works, which form part of the Sharavathi
Valley
Project.
XXIX. Whether there were any defects in the construction
of Talakalele Dam owing to bad design, use of sub-standard
materials caused by negligence or wilful commission of the
contractor or any individual ?
XXX. Whether unjust or excessive payment was made to
M/s. Tarapore & Co., in respect of the contract awarded to
them for the rock fill work both up and down stream, in the
Lingannamakki earthen dam?
XXXI. Whether there was any irregularity or impropriety
in the grant of 3000 acres of land in Periyapatna Taluk to
M/s. Oriental Aromatics ?
29
XXXII. Whether any favour was shown to Shri Bhooma Reddy
in thematter of award of the right to retail vend of
liquors in the year1968 ?
XXXIII. Who are the persons responsible for the lapses, if
any regarding the aforesaid and to what extent ?
By order and in the name of the
Governor of Karnataka.
Sd./- G. V. K. RAO,
Chief Secretary to the Government
To
The Compilor, Karnataka Gazette, for publication of this
Notification in a Gazette Extraordinary and supply of 200
copies.
COPY to:
All Secretaries to Government,
The Registrar, High Court of Karnataka with a covering
letter.”
The Central Government Notification dt. 23-5-1977 reads as
follows :-
“THE GAZETTE OF INDIA
EXTRAORDINARY
PART II-SECTION 3-SUB-SECTION (ii)
MINISTRY OF HOME AFFAIRS
DEPARTMENT OF PERSONNEL & A.R.
NOTIFICATION
New Delhi, the 23rd May, 1977
S.C.365(E)-Whereas the Central Government is of opinion that
it is necessary to appoint a Commission of Inquiry for the
purpose of making an inquiry into a definite matter of
public importance, namely’ charges of corruption, nepotism,
favouritism or misuse of Government power against the Chief
Minister and certain other Ministers of the State of
Karnataka, hereinafter specified;
Now, therefore in exercise of the powers conferred by
section 3 of the Commissions of Inquiry Act, 1952 (60 of
1952), the Central Government hereby appoints a Commission
of Inquiry consisting of a single member, namely, Shri A. N.
Grover, retired Judge of the Supreme Court of India.
30
2. The terms of reference of the Commission shall be as,.
follows :-
(a) to inquire into the following allegations, namely:–
(i) such of the allegations contained in the
memorandum; dated 11th April, 1977, received
from some Members of the Karnataka State
Legislature and addressed to the Prime
Minister as are specified in Annexure 1;.
(ii)such of the allegations contained in the
memoranda aforesaid as are specified in
Annexure II, but excluding any matter covered
by the notification of the Government of
Karnataka in the Chief Secretariat No. DPAR 7
GAM 77, dated the 18th May, 1977;
(b) to inquire into any irregularity,
impropriety or contravention of law other than
those specified in the said notification of
the Government of the State of Karnataka, on
the part of any person in relation to any
matter referred to in the allegations
aforesaid;
(c) to inquire into any other matter which
arises from, or is connected with or
incidental to, any act, omission or
transaction referred to in the allegations
aforesaid;
Explanation-In the Annexures to this
notification, “Chief Minister” means Shri
Devraj Urs, the Chief Minister of the State of
Karnataka.
3. The headquarters of the Commission will
be at New Delhi.
4.The Commission will complete its inquiries and report
to the Central Government on or before the 1st day of
December, 1977.
5.And whereas the Central Government is of opinion having
regard to the nature of the inquiry to be made by the
Commission and other circumstances of the case, that all the
provisions of sub-section (2), sub-section (3), sub-section
(4) and sub-section (5), of section 5 of the Commissions of
Inquiry Act, 1952 (60 of 1952) should be made applicable to
the Commission, the Central Government hereby directs, in
exercise of the powers conferred by subsection (1) of the
said section 5, that all the provisions of the said sub-sec-
tion (2), (3), (4) and (5) of that section shall apply to
the Commission.
ANNEXURE I
1.Whether the Chief Minister practiced favouritism and
nepotism by appointing his own brother, Shri D Kamparaj Urs,
as a Director of the Karnataka State film Industries
Development Corporation in place of Shri R. J. Rebello,
Chief Secretary to the Government, in 1974, and later as
Director-in-charge with the powers to exercise all the
powers of the Managing Director.
2.Whether the Chief Minister had directed auction of
excise shops out of turn in five districts on the eve of the
recent Lok Sabha
31
Elections in the month of February, 1977, With corrupt
motives although the auctions were due in the month of May,
1977, and whether this was done with the object of
collecting funds for the Elections.
3.Whether the Chief Minister had released Rs. 50.60 lakhs
to buy “Understanding Science” from I.B.H. overruling the
decision of the Sub-Committee constituted for the purpose
under the Chairmanship of the Chief Minister and also over-
ruling the orders of the concerned Minister.
4.Whether the Chief Minister was guilty of shielding
corrupt, officers, in particular, two, officers of the
public Works Department, namely, Shri Seshagiri Rao,
Assistant Engineer, and Shri Shivanna, a Clerk, against whom
prosecution orders were passed by the Government on the
basis of the recommendations of the Vigilance Commission.
Whether the Chief Minister on his own revised the order and
withdrew the prosecution for any consideration.
5.Whether Shri Hanumantha Reddy, Superintending Engineer,
was promoted as Chief Engineer by the Chief Minister against
the recommendation of the Vigilance Commission that he
should be demoted and certain amounts should be recovered
from him and whether the Chief Minister also over-ruled the
orders of the concerned Minister and whether such action,of
the Chief Minister was for any Consideration.
6.Whether the following payments were made to M/s.
Shankaranarayana Construction Co. :-
(i) an ex-gratia payment of Rs. 6.37 lakhs in Malaprabha
Project;
(ii) excess payment to the tune of Rs. 12.00 lakhs in Ghata-
prabha Project with an intention to favour the contractors.
7.Whether any misappropriation of funds and fabrication
of accounts of the Social Welfare Department was made with
the connivance of the then Minister Shri N. Rachaih to the
extent of Rs. 30.00 lakh- and whether any fraud was
practised in connection with the said matter.
8.Whether appointment was made of fictitious persons as
dealers in sandal soap by Mysore Sales International under
the orders of the Chief Minister and the Minister for
Industry and payment was made of hugs amounts by way of
commission.
9. Whether gross misuse of powers and position was made by
Shri H.M. Channa Bassappa, formerly Minister-in-charge of
Public works Department and Electricity (now Minister of
Health) in converting The residential site which he got
allotted to him by the Trust Board into a commercial site
and starting a company with his family members as directors.
32
10.Whether any favouritism was shown or whether there was.
any corruption in the purchase of new types and in body
building contract for the new chassis by Karnataka State
Road Transport Corporation under the undue influence of the
Chief Minister and the Minister for Transport Shri Aziz
Sait.
11.Whether there was any nepotism and favouritism and
misuse of power by the Chief Minister and the Minister of
Transport in the matter of nationalisation of contract
carriages and wilfully benefiting certain parties with whom
the Chief Minister’s second son-in-law was a partner.
12.Whether any favouritism was shown in the nomination of
Shri K. V. Rao as a member of the Karnataka State Road
Transport Corporation Board against the provisions of the
Act.
13.Whether an undue favour was shown to M/s. Balaji
EngineeringConstruction Company by accepting the tender
for construction ofhouses under Housing and Urban
Development Corporation’s Low Income Group Scheme in Dumlur
Lay-out by the Bangalore Development Authority, which is
under the administrative control of the Chief Minister.
14.Whether allotment of 20 acres of land was made to the
three sons ofthe Finance Minister, Shri M. V. Ghorpade, in
contravention of landgrant rules and the provisions of
the Land Reforms Act and the Land Revenue Acts.
15. Whether any misuse of power was committed, or any
corruption committed by Shri D. K. Naikar, Minister for
Municipal Administration, with regard to the grant of land
to Boroda Textile Milles in Hubli-Dharwar Corporation Area.
ANNEXURE II
Whether the Chief Minister or any other Minister of the
State of Karnataka was guilty of corruption, nepotism,
favouritism or misuse of governmental power in connection
with all or any of the following matters, namely :-
(1) Grant of 20 acres of Government land,
reserved for grazing of cattle
in Hommanahalli, Nelamangala taluk, Bangalore
District, to the son-in-law of the Chief
Minister, Shri M. D. Nataraj, in violation of
the provisions of the Land Revenue Code and
disregarding the claims of local Scheduled
Caste applicants;
(2) Allotment of 4 large valuable house
sites in the most posh locality of Bangalore,
Raj Mahal Vilas Extension, to Shri Devaraj Urs
and his family members in supersession of the
rightful claims of other applicants;
(3) Undue favours shown to Messrs Nirmala
Engineering Construction Company, by releasing
Government funds.
33
in spite of the fact that the concerned
Minister has taken a decision to prosecute the
firm on the basis of the recommendations of
the Vigilance Commissions.
(4) Excess payment of Rs. 98.88 lakhs to
Messrs Balaji Engineering Company, in
Hemavathi Project, in contravention of the
terms of the contract with a view to favouring
the contractor;
(5) Under favour shown to Messrs Nechipadam
Construction Company in Hemavathi Project, by
accepting the highest tender with an intent to
benefit the contractors and involving excess
payment to the extent of Rs. 3.5 lakhs;
(6) Excess payment of Rs. 1 crore to Messrs
TICIL Contractors, in Kali Hydel Project, for
the benefit of the contractors;
(7) Whether about 5,000 tons of rice,
purchased by the Government of Karnataka from
the Tamil Nadu Government on government-to-
government basis, was allowed to be marketed
by a private party, Shri H. R. Athu Ahmed,
without the knowledge of the Food Department
instead of the Mysore State Co-operative
Marketing Federation as was earlier agreed,
with the sole intent of benefiting the private
party;
(8) Undue favour shown to a fictitious
cooperative society in regard to conversion of
270 acres of agricultural land called Dinshaw
Estate into ;non-agricultural purpose in
violation of the mandatory provisions of the
Land Reforms Act and the Land Revenue Act;
(9) Whether undue favour was shown to one
Ghanshyam in the sale of 2500 tons of Bajra at
the rate of Rs. 73.50 p. per quintal without
calling for tenders and allowing Shri
Ghanshyam to sell the Bajra in the State of
Maharashtra at the rate of Rs. 125.00 per
quintal during the time of drought in
Karnataka.
(10) Whether undue favour was shown or
concession was made to M/s.
Karakar and Sundaram, Architects, in regard to
the preparation of designs for remodelling the
K. R. Market in supersession of the order of
the concerned Minister.
(11) Whether undue favour was shown, or
concession was made to M/s. Shah Construction
Co., Contractors, in Upper Krishna Project at
Alamatti.
(12) Whether undue favour was shown to M/s.
Krishna flour Mills in granting valuable land
in Bangalore City, which land was meant for
children’s park, at a nominal rent by over-
ruling the orders of the concerned Minister.
34
(13) Whether there was any misappropriation
of funds of the Karnataka State Film
Industries Development Corporation to the tune
of Rs. 10.00 lakhs, when the Chief Minister
himself was the Chairman of that Corporation
and whether the business of the Corporation,
its members, creditors or any other person or
otherwise for a fraudulent or unlawful
purpose.
(14) Whether any undue favour was shown to
M/s. Poornima Electronics, Bangalore, in the
purchase of electronic equipment (intercom) by
superseding the recommendation of the Head of
the Department and orders of the concerned
Minister.
(15) Whether any misappropriation of the
funds of the Karnataka State Co-operative
Marketing Federation to the extent of several
crores of rupees was made by Shri H. S.
Srikantiah, Minister of State for Home, when
he was the President of that Federation and
whether the business of the Federation was
conducted with intent to defraud that
Federation, its members, creditors, or any
other person or otherwise for a fraudulent or
unlawful purpose.
(16) Whether any undue favour was shown by
Shri Satya Pal by the Minister of Transport
Shri Mohamed Ali, by accepting the once
rejected tender of Shri Satya Pal in leasing
out its building for canteen in Karnataka
State Road Transport Corporation Bus Stand,
Mysore, and whether any undue favour was shown
by the same Minister to Shri Satya Pal’s son
Shri Prem Kumar, in leasing out its retiring
rooms of the Karnataka State Road Transport
Corporation in Mysore.
(17) Whether any undue favour was shown to
four firms, namely, All India Agencies, Vidyut
Engineering Co., Trishul Enterprises and
Mysore Woods, in purchasing furniture valued
at Rs. 29.00 Lakhs in 1973-74 under I.P.
Project by the Minister for Health, Shri H.
Siddaveerappa.
(18) Whether any undue favour was shown by
the Minister of State for Small-scale
Industries, Shri Koulajgi in 1974, in the
issue of Essentiality Certificate to parties
many of which are fictitious and bogus.
(19) Whether undue favour was shown by the
Chief Minister and the Minister of Transport,
Shri Aziz Sait in 1973-74, to M/s. Fargo in
buying 150 chassis against the advice of the
Chief Mechanical Engineer of the Karnataka
State Road Transport Corporation.
(20) Whether any undue favour was shown by
the Minister of Industries, Shri S. M.
Krishna, in allotting of paper, cement and
steel of the, State-owned Industries to Non-
traditional dealers/agents including his kith
and kin.
35
(21) Whether an excess payment of Rs. 30.00
lakhs was made to M/s. Shankaranarayana
Construction Company in regard to the
construction of combined Board Administrative
Building Complex at Bangalore over and above
the contract rates.
(22) Whether any excess payment was made to
M/s. Balaji Engineering Company to the tune
of Rs. 80.00 lakhs in Harangi Project with an
intent to favour the contractor.
(23) Whether Shri K. H. Patil, the then
Minister for Agriculture and Forest, was
guilty of any misuse of power or undue
favouritism in relation to Hukkeri Textile
Mills or Gadage Co-operative Textile Mills, or
both.
(24) Whether any undue favour was shown or
any corruption committed by Shri Chikke Cowda,
the then Minister for Animal Husbandry and
Agriculture in relation to the payment of a
sum of Rs. 3.00 lakhs to M/s. Navarasa Ferti-
lizers.
(25) Whether there was any misuse of power
and corruption committed by Shri D. K. Maikar.
Minister for Municipal Administration in
connection with the allotment of land on J.C.
Road to Shri M. B. Lal and Shri M. V.
Venkatappa.
(No. 375/16/77-AVD-III) R. K. TRIVEDI Secretary
The first thing that strikes one, on a bare reading of the
two notifications is that, whereas the State Notification
seems scrupulously to avoid any mention of any particular
act or part of any individual whatsoever, the whole object
of the Central Government notification seems to be to
inquire into the correctness of the allegations made against
the Chief Minister of the State principally and into
allegations against other specified individuals
incidentally. The objects and subject matter of the Central
Government notification become clearer by looking at
Annexures 1 and 2 of it giving particulars of transactions
:to be investigated. The first five items of Annexure 1 and
separate transactions in each of which the Chief Minister of
the State is himself alleged to have played the principal
role in such a way as to indicate his exclusive
responsibility. In other transactions, such as in items
,10, 1 1 and 13, the Chief Minister is shown as having
participated with ,Others. And, in the remaining
transactions mentioned, the allegations do not place the
responsibility on any particular individual, but they seem
designed to elicit the truth of allegations of favouritism,
nepotism, and misuse of power against whoever may be
responsible. Annexure 2 of the Central Government
notification begins by a statement which shows that its
object is to determine whether the Chief Minister or ,any
other Minister of the Government of the State of Karnataka,
36
indulged in nepotism, favouritism, or misuse of Governmental
powers in a number of transactions which are listed as items
1 to 25 there. On the other hand, the State Government
notification, without mentioning the persons who might be
responsible for any excessive or improper payments, or
favouritism, or misappropriation, or irregularity, mentions
certain contracts in favour of various companies, or parties
under 32 heads. It then states, as a separate item of
inquiry, the question as to who were the persons responsible
in the lapses, if any, mentioned earlier. In other words,
apart from their parts in certain lapses the responsibility
of the Chief Minister or any other Minister of the
Government of Karnataka could not be inquired into by the
Commission appointed under the State notification. And, all
that the State notification seems to empower its Commission
to enquire into, with regard to transactions mentioned there
is whether there was any excessive payment or irregularity
involved. Hence, it speaks of responsibility for “lapses”
as though one could assume that there was no dishonest
motive. The emphasis, in the State notification, is on the
question of observance or non-observance of rules coupled
with the question whether certain payments were proper.
And, the question of affixation of responsibility is
confined to “lapses” in the course of these transactions
only.
Even if a transaction has been made completely in accordance
with the rules, it may, nevertheless, be an act of
favouritism tainted with corruption or dishonesty. Less
deserving parties could be deliberately preferred over more
deserving parties in much transactions. It is not difficult
to make out compliance with the rules or to show on paper
that the most deserving party has received the benefit of a
contract. Indeed, even the post deserving party may receive
a contract or a benefit under a decision taken by a
Government or its Ministers who may have received an illegal
gratification for it without anything what so ‘,ever
appearing on the records of the Government about the bribe
received by the Minister, concerned. Hence, in addition to
the fact that the items mentioned in the two notifications
mostly do not tally with each other, it appears to us that
the objects of the State notification do not go beyond
investigation into the illegality or irregularity of any
transaction and “responsibility” only of persons concerned
to point out what they were. If one may so put it, the
State notification is meant to set up a Commission which has
to inquire whether the veil worn by certain transactions is
correct in form and covers it fully, but the Central
Government notification is clearly meant to enable the
Commission appointed to tear down even the veil of apparent
legality and regularity which may be worn by some
transactions. It authorises the Grover Commission to
inquire into and discover the reality or substance, if any,
behind certain (mostly other) transactions. The object of
the Central Government notification seems clearly not only
to affix responsibility for transactions mentioned there on
individuals who may be really guilty even if a few of them
could be said to have been mentioned in both notifications.
We do not think that such notifications would justly or
fairly be spoken of as covering “the same matter”, as
contemplated by proviso (b) to Section 3(1) of the Act,
because the
3 7
State Commission is there to examine the appearance or the
surface whereas the Central Commission is expected to delve
deeper into what could only lie behind or below it.
It is certainly a matter for concern to a State if some
irregularity or illegality has been committed in a
particular transaction by its Government or a Minister.
But, it would obviously be more helpful to determine why it
has been committed. And, it should be still more important
for it to find out who, however highly placed, is really
responsible for the commission of that irregularity and
whether any dishonesty or corruption has operated at the
highest levels in the State even if the form is proper and
regular. If the State notification shows no concern for
what seem to us to be the much more important objects of the
Central Government notification, one could perhaps guess
that the indifference of the State towards the more serious
matters is not without some object or significance.
Nevertheless, we do not propose to pass any judgment on the
motives of the State Government or the fact that the most
important or significant features of what has been alleged
against the Chief Minister and members of his Government
have been left out by the State Government notification even
if the object of that notification was quite bonafide and
proper so far as it went. We think, however, that the
State notification does not go far enough. But, the
Central Government notification does proceed further. It
squarely levels charges against persons who, according to
the allegations made, may have acted in a manner which makes
them not only theoretically responsible but actually guilty
of corruption.
For the success of the policies of any State or Government
in it, in any part of the country over which its authority
runs, it should be shown to be capable of carrying out the
constitutional mandates contained in Part IV of the
Directive Principles of State Policy so as to make the basic
human rights guaranteed by our Constitution a reality and
Dot a mirage. That, for the masses of our people, is the
basic purpose of the whole Constitution which cannot be
allowed to be frustrated. If the basic rights of the people
are not to be stultified and to appear chimerical, those in
charge of the affairs of the State, at the highest levels,
must be above suspicion. This is only possible if their own
bona fides and utterly unquestionable integrity are assured
and apparent in the context of the high purposes of our
Constitution and the dire needs of our poverty strike
masses. We cannot view allegations of corruption lightly.
We think that the interests of the States and of the Union
are not antithetical when there are charges of corruption
and misuse of power against those in authority anywhere. To
serve the common interests of the whole people, on whose
behalf our Constitution speaks, the States and the Union
cannot stand apart. They must stand together united in
purpose and action. It is as important that unjustified and
malicious attacks and charges against individuals in high
places should be unmasked and the reality behind them
exposed for what it is worth, as it is that justified
complaints must find adequate means of redress so that the
interests of the dumb millions of our country men are duly
safeguarded against unscrupulousness wherever found. If, as
we find in this case, the State notification is meant only
to superficially scratch the surface of the allegations
made,
38
whereas the Central Government notification is meant to
probe into the crux or the heart of what may or may not have
gone wrong with the body politic in the State of Karnataka,
we could not be too technical or astute in finding reasons
to hold that the subject matter of the two enquiries is
substantially the same. Obviously, this could not really be
so. A bare reading of the two notifications, set out in
full above, shows that.
In the circumstances of this case, it may be more graceful
for the Chief Minister of the State of Karnataka to waive
his technical objections, as he seems to do in undertaking
to place all the material before whichever commission may be
found to have jurisdiction to inquire into the allegations
made against him. He could take the opportunity to
honourably face and repel the charges which, according to
him, have been repeatedly but Unjustifiably and maliciously
made against him over a sufficiently long period. He could
thus be able to establish that he is serving the interests
of his State, its inhabitants, and, indeed, of the country
as a whole, if his assertions are correct.
The plaintiff has not suggested anywhere that the Grover
Commission is not presided ever by an individual of
unquestionable integrity and independence who has been a
Judge of this Court., Mr. Lal Narain Sinha, appearing for
the plaintiff, has, very frankly and properly, conceded that
he cannot successfully press want of bona fides on the part
of the Central Government in issuing its notification. This
means that the question whether the Commission is either
unnecessary, except as a weapon of political warfare, as
well as any doubts about whether it could be or was to be
misused in this case, must be dismissed as unsustainable.
The State Government must itself be deemed to admit that
circumstances necessitated the appointment of a Commission,
by appointing its own, to inquire into analogous matters
which deserved investigation due to their public importance.
We find that the Central Government notification itself
excludes from its purview those charges which may be fairly
said to fall within the scope of the Commission set up by
the State Government. We are not concerned with matters
which may be subsequently added so as to expand the scope of
inquiry by the State Commission. We think that the
provisions of proviso (b) to Section 3(1) of the Act will
prevent the State Government from adding such matters as are
already covered by the Central Government notification. We,
however, leave it to the Grover Commission itself to
determine, whenever it is faced with such an objection,
whether a particular matter is already being properly
enquired into by the State Commission.
In view of what we have observed above, it would perhaps be
proper for the Government of Karnataka itself to withdraw it
sown notification if it thinks that certain members of the
State Government will be unduly embarrassed by having to
face inquiries by two Commissions on matters which may have
some connections or even some common areas. Indeed, to get
to the heart of a transaction, its surrounding or
superficial shell, which is all that the State Commission
39
can inquire into with regard to some transactions, may have
to, be pierced, or, to some degree, traversed before the
core of these transactions can be reached. As we hold that
the two notifications authorise inquiries into matters which
are substantially different in nature and object, the
enquiry by the Grover Commission cannot be said to be barred
by reason of the State Government notification under proviso
(b) to Section 3 (1) of the Act, even if, in order to deal
with the substantially different subject matter, in view of
the divergence in objects certain areas of fact or rules
governing transaction may be common. If the objectives are
different the examination of common areas of fact and law
for different purposes will still be permissible.
Without doubting the motives of the State Government in
appointing its own Commission perhaps we may observe that,
in a case involving charges of the kind made against the
Chief Minister and other Ministers of the State, it would be
better if the State’s own Commission did not even remotely
appear to have been set up merely in anticipation of a
thorough investigation by an outside Central authority which
would, presumably, appear more impartial and objective, or,
to impede or embarrass the proceedings of the Central
Government Commission. Such doubts as could arise on these
grounds will be dispelled by the, withdrawal of the State
notification. Although the prompt action toy the State
Government may seem quite commendable and bonafide, in
appointing its own Commission in the context and
circumstances disclosed above, its continued existence may
not give exactly that impression after what we have held
above on an analysis of the apparent objects of the two
Commissions judged by the contents of the two notifications.
In any case, the subject matter, not being substantially
same, the Central Government Commission could proceed with
its investigations if other objections, which we now proceed
to examine, are not really fatal to the validity of the
Central Government’s notification.
Those other objections to the validity of the Central
Government’s notification may be summarised as follows :
Firstly, it is submitted that express provisions of the
Constitution relating to the federal structure, distribution
of executive and legislative powers between the State and
the Union, joint responsibility of a State’s Council of
Ministers, conditions under which they can bold office or
may be dismissed, the State Legislatures exclusive control
over their actions and conduct of affairs of the State
Government, are infringed by it, so that, if all this could
be done, under the clock of the powers conferred by Section
3 of the Act, by the Central Government, this provision of
the Act is, pro tanto, invalid. Secondly, and following
logically and naturally from the set of propositions, as
their necessary consequence, the notification constitutes
violations by the Central Government of what must be held to
be parts of the basic features or the basic structure of the
Constitution which do not permit the destruction of either
federalism or democracy by issuing executive fiats. Third-
ly, carrying the logic of the last mentioned set of
submissions a step further, it is urged that, as the basic
features of the Constitution have been ‘held by this Court
to be outside the procedure for amendment
40
contained in Article 368 of the Constitution, it must, a
fortiori, be held to be outside the legislative competence
of Parliament as contemplated by Articles 245-255 in Part XI
of the Constitution read with provisions of the Legislative
Lists in Schedule 7. Fourthly, it is suggested, in the
alternative, that, in any case, a necessary implication of
the express provisions of the Constitution is that a control
by the Union Government. over the day-to-day working of the
Governments in the States by the adoption of the legislative
procedure found in Part Xi of the Constitution must have a
result which can only be achieved by a Constitutional
amendment under Article 368 of the Constitution’ Fifthly, it
is submitted that even if interference with the day to day
working of the Governmental machinery in the States is not
barred by the basic structure of the Constitution, yet, the
situations in which such interference is warranted having
been specifically laid down in the emergency provisions
contained in Articles 352-360 found in Part XVIII of the
Constitution, any other mode of interference, with the
operations of State Governments, not expressly provided by
the Constitution itself, must be deemed to be outside the
ordinary legislative competence of Parliament. Sixthly, the
plaintiff’s counsel submitted that, in any event, the
provisions of the Act must be so construed or interpreted,
by reading them down if necessary, as to preclude
interference by the Union Government with the operations of
the State Government or the conduct of its Ministers keeping
in view all the submissions mentioned above.
It is true that learned counsel for the plaintiff kept
reverting to what he really meant to put forward as the
basic or inviolable features of the Constitution, yet, he
felt reluctant to unequivocally commit himself to the view
that the Act contained provisions which constituted a
violation of the basic structure of the Constitution which
has been held to include both Democracy and Federalism.
Apparently, this somewhat shifting position arose from a
realisation that the Act may, have very little, if anything
at all, to do with provisions meant to ensure Democratic
Government, and that our Constitution has, despite whatever
federalism may be found in its structure, so strongly
unitary features also in it that, when the totality of these
provisions is examined, it becomes difficult to assert
confidently how much federalism such a Constitution
contains, whether those parts of it which seem to override
the federal elements of our Constitution are not more basic
or significant than what is described as its federalism, and
whether possible actions under the Act, intended to
authorise investigation, presumably with a view to finding
remedies, into whatever dishonesty or corruption may be
discovered in the conduct of governmental affairs by
Ministers, are not really meant to safeguard or help rather
than to destroy or hinder democratic government.
It is interesting to note what Sir Gyril Salmon, Lord
Justice of Appeal. said in a lecture on Tribunals of
Inquiry”.
“In all countries, certainly in those which
enjoy freedom of speech and a free Press,
moments occur when allegations and rumours
circulate causing a nation-wide crisis of
confidence in the integrity of public life or
about other matters
41
of vital public importance. No doubt this
rarely happens, but when it does it is
essential that public confidence should be
restored, for without it no democracy can long
survive. This confidence can be effectively
restored only by thoroughly investigating and
probing the rumours and allegations so as to
search out and establish the truth. The truth
may show that the evil exists, thus enabling
it to be rooted out, or that there is no
foundation in the rumours and allegations by
which the public has been disturbed. In
either case, confidence is restored”.
In the lecture mentioned above, it was pointed out that the
Tribunal of Inquiry (Evidence) Act, 1921, was passed in
England to displace the procedure by which Select
Parliamentary Committees were used “to investigate alleged
wrongdoing in high places”. About the Select Committee
procedure he said : “Such a method of investigation by a
political tribunal was wholly unsatisfactory. Being a
progressive people it took us only little more than about
300 years to do anything about it. In the United States of
America, however, which is still more progressive than we
are, they still use virtually the same method.
Congressional Committees of investigation, like our
Parliamentary committees, consist of members representing
the relative strength of the majority and minority parties.
Clearly such bodies can never be free from party political
influences. This is a very real defect in any tribunal
investigating allegations of public misconduct-particularly
as the subject matter of the inquiry often has highly
charged political overtones.” He observed : “The history of
such investigations in England by Parliamentary committees
is, to say the least, unfortunate. Let me give you but one
example. Early in the present century there occurred what
became known as the Marconi Scandal. In 1912 the Post
Master General in a Liberal Government accepted a tender by
the English Marconi Company for the construction of State-
owned wireless telegraph stations throughout the Empire.
There followed widespread rumours that the Government had
corruptly favoured the Marconi Company and that certain
prominent members of the Government had improperly profited
by the transaction. The Select Parliamentary Committee
appointed to investigate these rumours represented the
respective strengths of the Liberal and Conservative
Parties. The majority report of the Liberal members of the
Committee exonerated the members of the Government concerned
whereas a minority report by the Conservative members of the
Committee found that these members of the Government had
been guilty of gross impropriety. When the reports came to
be debated in the House of Commons, the House divided on
strictly party lines and by a majority exonerated the
Ministers from all blame. This is the last instance of a
matter of this kind being investigated by a Select Committee
of Parliament”. In other words, “it was because in England
investigation by a political tribunal of matters causing
grave public disquiet had been discredited that the Tribunal
of Inquiry (Evidence) Act, 1921, was passed, with a view to
setting up some permanent investigating machinery to be
available for use when required” Furthermore, he pointed
out that even in America ad hoc
42
tribunals are not infrequently appointed to avoid a matter
being referred to a Congressional Committee, as, for
example, the Warren Commission to investigate the murder of
President Kennedy.
It is thus clear that in democratic countries not only
modern practice but statute can provide for Inquiries of the
kind which are meant to be conducted under our Act of 1952.
The Preamble of our Act shows that it was meant to “provide
for appointment of the Commissions of Inquiry and for
vesting such Commissions with certain powers”. Section 1,
sub-section (2) of the Act indicates that it extends to the
whole of India; but, a proviso to it puts certain limi-
tations to which its operation is subjected so far as the
State of Jammu & Kashmir is concerned inasmuch as, for this
State, Inquiries set up must relate to matters appertaining
to such entries in List II or List III of the Seventh
Schedule as may be applicable to the State. There is
nothing in the Act to show any such limitations with regard.
to any other State.
Section 2 of the Act provides:
“2. In this Act, unless the context otherwise
requires-
(a) .”appropriate Government” means-
(i) the Central Government, in relation to a
Commission appointed by it to make an inquiry
into any matter relatable to any of the
entries enumerated in List I or List II or
List III in the Seventh Schedule to the
Constitution; and
(ii)The State Government, in relation to a
Commission appointed by it to make an inquiry
into any matter relatable to any of the
entries enumerated in List II or List III in
the Seventh Schedule to the Constitution :
Provided that in relation to the State of
Jammu & Kashmir, these clauses shall have
effect subject to the modification that-
(a) in sub-clause (i) thereof,for the words
and figures “List I or List II or List III in
the Seventh Schedule to the Constitution” the
words and figures “List I or List III in the
Seventh Schedule to the Constitution as
applicable to the State, of Jammu and Kashmir”
shall be substituted;
(b) in sub-clause (ii) thereof, for the
words and figures “List II or List III in the
Seventh Schedule to the Constitution”, the
words and figures “List III in the Seventh
Schedule to the Constitution as applicable to
the State of Jammu and Kashmir” shall be
substituted;
(b) “Commission” means a Commission of
Inquiry appointed under section 3;
43
(c) “Prescribed” means prescribed by rules
made under
Act.”
Section 3 of the Act reads as follows:
“3. (1) The appropriate Government may. if it
is of opinion that It is necessary so to do,
and shall, if a resolution in this behalf is
passed by the House of the people, or, as the
case may be, the Legislative Assembly of the
State, by notification in the Official Gazette
appoint a Commission of Inquiry for the
purpose of making an inquiry into any definite
matter of public importance and Performing
such functions and within such time as may be
specified in the notification, and the
Commission so appointed shall make the inquiry
and Perform the functions accordingly :
Provided that where any such Commission has
been appointed to inquire into any matter-
(a) by the Central Government. no state
Government shall. except with the approval of
the Central Government, appoint another
Commission to inquire into the same matter for
so long as the Commission appointed by the
Central Government is functioning;
(b) by a State Government, the Central
Government shall not appoint another
Commission to inquire into the same matter for
so long as the Commission appointed by the
State Government is functioning, unless the
Central Government is of Opinion that the
scope of the inquiry should be extended to two
or more States.
(2) The Commission may consist of one or
more members appointed by the appropriate
Government, and where the commission consist
of more than one member, one of them may be
appointed as the chairman thereof.
(3) The appropriate Government may, at any
stage of an inquiry by the Commission fill any
vacancy which may have arisen in the office of
a member of the Commission (whether consisting
of one or more than one member).
(4) The appropriate Government shall cause
to be laid before the House of the People or,
as the case may be, the Legislative Assembly
of the State, the report, if any of the
Commission on the-inquiry made by the
Commission under sub-section (1) together with
a memorandum of the action taken thereon,
within a period of six months of the, submis-
sion of the report by the Commission to the
appropriate Government”.
4-1042 SCI/77
44
After the two sections, set out above, which disclose the
apparently very wide and undefined scope of inquiries to be
conducted under the Act, the only limit being that they must
relate to matters of “definite public importance”, follow
sections conferring upon Commissions under the Act powers of
a civil court for the purpose of eliciting evidence, both
oral and documentary, and power to punish those guilty of
its contempt. Section 6 of the Act, however, makes it clear
that statements made by a person in the course of his
evidence before the Commission “will not subject him to or
be used against him in any civil or criminal proceeding
except in a prosecution for giving false evidence by making
such statements”. But; this protection is not extended to
statements made in reply to questions not required by the
Commission to be answered, or, those made on matters which
are not relevant to the subject-matter of the inquiry. The
Act, however, contains no provisions for giving any effect
to the findings of the Commission or for enforcing any order
which could be made by the Commission against any person as
a result of an inquiry. In fact, the only orders a
Commission under the Act is empowered to make against
anybody are those relating to abduction of evidence, whether
oral or documentary, and those which may be required to
protect the Commission against “acts calculated to bring the
Commission or any member thereof into disrepute”. The
proceedings of a Commission could only result in a Report
which is to be laid before the Legislature concerned under
the provisions of s. 3 (4) of the Act. Hence, the obvious
intention behind the Act is to enable the machinery of
democratic government to function more efficiently and
effectively. it could hardly be construed as an Act meant to
thwart democratic methods of government.
Even in countries with undiluted unitary systems of Govt.
there is devolution of powers of local self-Government for
restricted purposes. In ‘our country, there is, at the top,
a Central or the Union Government responsible to Parliament,
and there are, below, it State Governments, responsible to
the State Legislatures, each functioning within the sphere
of its own powers which are divided into two categories; the
exclusive and the concurrent. Within the exclusive sphere
of the powers of the State legislature is local Government.
And, in all States there is a system of local Government in
both Urban and Rural areas, functioning under State
enactments. Thus, we can speak of a three tier system of
Government in our country in which the Central or the Union
Govt. comes at the apex with certain subjects which are
exclusively left to the States concerned ordinarily or in
normal times. But, even problems which arise within the
territories of States may fall within the sphere of
overriding Central power in emergencies. And, if a subject
is considered important enough to be regarded as the concern
of the whole nation, the Constitution makers have themselves
placed it either in the exclusively Central Legislative List
I or in the concurrent Legislative List III of items
mentioned in Schedule VII.
Our Parliament consists of the President and the two Houses
of Parliament. The House of, the People is not meant to
represent the States as independent units of a federation
,’Article 79). It has to
45
have a strength of members not exceeding 525 in number
chosen by direct election by the people from various
territorial constituencies in the States and not more than
twenty representatives of people living in the Union
territories (Article 81). There, the people of In” living
in the States and of the Union territories are directly
represented so that their interests and rights could be
presumed to be well looked after and protected by their
direct representatives. The Council of States has 12
members in it nominated by the President for their special
knowledge or experience in matters of art, science, or
social service, and not more than 238 representatives of the
States and elected by members of the legislative assembly of
each State in accordance with the system of proportional
representation by means of single transferable vote and from
the Union territories in the manner prescribed by law made
by the Parliament (Article 80). The representation of the
Legislative bodies of the States and of the Union
territories is certainly a recognition of the, federal
principle. But, this does not mean that the Central
Government is precluded from all interference in matters
concerning individual States. For determining the extent of
that interference and the circumstances in which it is
,possible we have to turn to other provisions of our
Constitution.
Article 245(1) of our Constitution gives the territorial
operations of the laws made by Parliament and the State
legislatures. Article 246(1) enacts that items in List I of
the Seventh Schedule fall exclusively within the domain of
Parliament and those in List II come exclusively within the
legislative power of the State legislatures, but those in
List III are to be concurrent. Article 248, however, vests
Parliament with exclusive power to legislate with respect to
matters not enumerated in either the concurrent or State
list. This is what is spoken of generally as the “residuary
power”. In addition, Parliament has over-riding powers of
legislating even for matters in the State list for limited
durations if the Council of States by resolution supported
by not less than two thirds of its members declared that it
is necessary to do so in national interest or during the
continuance of a proclamation of emergency (Articles 249 and
250). Inconsistency between laws made by the Parliament and
a State legislature on an item found in a concurrent list,
is to be resolved in favour of the law made by Parliament
(Article 254). And, far-reaching powers, contained in
Articles 352-360 in Part XVIII of the Constitution, enable
the President to suspend not only the enforcement of
fundamental rights of citizens, and their operation as
fetters on legislative powers but also the functions of the
State legislature which can be assumed by Parliament and of
State Governments which can be taken over by the President.
It is true that the emergency powers are so drastic that
they can be abused. We have not, however, got before us a
case of the exercise of emergency powers or of abuse of
powers. We are only considering here the extents of what
are put forward as federal and democratic features of Govt.
which may or may not be capable of suspension. As the
Constitution stands at present, the exercise of the
emergency powers, whose validity is not questioned before us
by any party in this case, can completely remove even the
semblance of a federal structure in our Constitution for the
duration of an emergency.
46
A look at Chapter 11 of Part XI on administrative, relations
between the Union and the States, shows us provisions for
directions which can be given to the, State Governments even
in normal times by the Central Govt. described in Articles
25-6-257, as “the Govt. of India., Article 256 enacts :
“256. The executive power of every State
shall be so exercised as to ensure compliance
with the laws made by Parliament and any
existing laws which apply in that State, and
the executive power of the Union shall extend
to the giving of such directions to a State as
may appear to the Government of India to be
necessary for that purpose”.
Article 257(1) may also be quoted to illustrate the extent
of Executive powers of the State and Union Govt. :
“257(1) The executive power of every State
shall be so exercised as not to impede or
prejudice the exercise of the executive power
of the Union, and the executive power of the
Union shall extend to the giving of such
directions to a State as may appear to the
Government of India to be necessary for that
purpose”.
The extent of the normal executive powers of the Union are
indicated as follows by Article 73(1) of the Constitution :
“73(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; and
(b) to the exercise of such rights,
authority and jurisdiction as are exercisable
by the Government of India by virtue of any
treaty or agreement;
Provided that the executive power referred to in subclause
(a) shall not, save as expressly provided in this
Constitution or in any law made by Parliament, extend in any
State to matters with respect to which the Legislature of
the State has also power to make laws”.
And, the extent and limitations of the executive power of a
State given in Article 162 as follows:
“162. 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’.
47
The wide scope of executive powers of the Union Government
was considered by this Court not long ago in State of
Rajasthan v. Union of India(1), where, after examining the
relevant Constitutional provisions, one of us observed in
the context of what was sought to be construed as a
“direction” to the State Government, given by the Home
Minister in the Union Government, to dissolve a State Assem-
bly :
“I may point out that there are various
aspects of relations between the Union and the
States governed by different provisions of the
Constitution. I may here refer to those which
relate to giving of ‘directions’ by the Union
Government to the State Governments because
Art. 365 provides
‘365. Where any State has failed to comply
with or to give effect to any directions given
in the exercise of the executive power of the
Union under any of the provisions of this
Constitution, it shall be lawful for the
President to hold that a situation has arisen
in which the government of the State cannot be
carried on in accordance with the provisions
of this Constitution’
Articles 256 and 257 mention a wide range of
subjects ,on which the Union Government may
give executive directions to State
Governments. Article 73(1) (a) of the
Constitution tells us that the Executive power
of the Union extends to all matters on which
‘Parliament has power to make laws’. Article
248 of the Constitution vests exclusively in
the Parliament residuary powers of making laws
on any matter not enumerated in the Concurrent
or State Lists. Article 256 of the
Constitution covers cases where the President
may want to give directions in exercise of the
executive power of the Union to a State
Government in relation to a matter covered by
an existing law made by Parliament which
applies to that State. But, Art. 257(1)
imposes a wider obligation upon a State to
exercise its powers in such a way as not to
impede the exercise of executive power of the
Union which, as would appear from Art. 73 of
the Constitution, read with Art. 248 may cover
even a subject on which there is no existing
law but on which some legislation by
Parliament is possible. It could, therefore,
be argued that although, the. Constitution
itself does not lay down specifically when the
power of dissolution should be exercised by
the Governor on the advice of a Council of
Ministers in the State, yet if a direction on
that matter was properly given by the Union
Government to a State Government, there is a
duty to carry it out. The time for the
dissolution of a State Assembly is not covered
by
(1) A.I.R. 1977 S.C. p. 1361,1383-84.
48
any specific provision of the Constitution or
any law made on the subject. It is possible,
however, for the Union Government, in exercise
of its residuary executive power to consider
it a fit subject for the issue of an
appropriate direction when it considers that
the political situation in the country is such
that a fresh election is necessary in the in-
terest of political stability or to establish
the confidence of the people in the Govt. of a
State”. (p. 1383-84).
In that case, after considering the extent of
federalism in (our constitution it was also
observed (p. 1383) :
“If then our Constitution creates a Central
Government which is ‘amphibian’ in the sense
that it can move- either on the federal or
unitary plane, according to the needs of the
situation and circumstances of a case, the,
question which we are driven back to consider
is whether an assessment of the ‘situation’ in
which the Union Government should move either
on the federal or unitary plane are matters
for the Union Government itself or for this
Court to consider and determine. Each organ of
the Republic is expected to know the limits of
its own powers. The judiciary comes in generally
only when any question of ultra vires action
is involved, because questions relating to
vires appertain to its domain”.
In the first quotation given above, what was spoken of as a
,’residuary executive power” of the Central Government,
analogous to the “residuary” legislative powers of
Parliament, was relied upon in support of the alleged
“direction” from the Centre’ In the case before us it could
certainly be urged that a consideration of the question
whether a State Govt. or its Chief Minister is or is not
carrying out the trust which Constitutional power places in
the hands of a State Government and its head, so as to
determine whether any exercise of extraordinary powers under
Article 356 of the Constitution is called for or not, is
certainly a matter which lay within the powers of the
Central Government. Article 356 speaks of the satisfaction”
of the President from a report of the Governor “or
otherwise” whether a particular situation has arisen in
which the Govt. of the State cannot be carried on in
accordance with the provisions of the Constitution. Such a
matter would certainly be a matter of public importance. If
the President deems it necessary to give the State Govt. or
its Chief Minister an opportunity of being heard before an
impartial Commission of Inquiry constituted under the Act,
it could certainly not be said that such a mode of exercise
of power under Article 356 is not fully covered by what is
necessarily implied by this article of the Constitution.
Indeed, such a procedure would be a very fair and reasonable
one. And, in judging the-validity of provisions even
hypothetical situations to which they could apply could be
taken into account and not merely those present in the Pi
case before the Court. We do not think that an examination
of the express provisions of the Constitution advances the
case of the plaintiff-
49
On the other hand, the Central Government can place reliance
on, interalia, provisions of Article 356 of the Constitution
for powers which could be held to be necessarily implied in
the provisions of the Constitution-that is to say, a power
to order an inquiry for the purposes of the satisfaction
required by article 356. And the machinery provided by the
Act could, it seems to us, be utilised to decide whether
action under article 356 is really called for.
Reliance was, however, placed strongly on provisions of the
Constitution setting up what, in the words of Dr. Ambedkar,
one of the prime architects of our Constitution, is “a Dual
Polity” by which, as was explained in the case of State of
Rajasthan (supra), he meant a Republic “both unitary as well
as federal” according to the needs of the time and
circumstances. This “Dual Polity” of ours is a product of
historical accidents, or, at any rate, of circumstances
other than those which result in genuine federations in
which the desire for a separate identity and governmental
independence of the federating units is so strong that
nothing more than a union with a strictly demarcated field
of Central Government’s powers is possible. A nonfederal
polity carries the attenuation of Central authority to the
extent of confining combined or concerted action to the more
strictly limited field of collaboration only to matters such
as foreign affairs and defence so that it sets up a
mechanism of cooperative action in limited areas which can
hardly be spoken of as a Government. A genuine federation
is a combination of political units which adhere rather
tenaciously to the exclusion of the Central authority from
strictly demarcated spheres of State action, but there is a
Central or Federal “Government”. The extent of Federalism
set up depends upon the extent of demarcation in the
executive, legislative and judicial spheres. In a truly
Federal Constitution this demarcation is carried out in a
very carefully comprehensive and detailed manner. The
limits are clearly specified. We will thus have to examine
our Constitution to determine how much of it is found here.
No doubt, throughout the long course of our history, our
successive rulers bad been trying to build up a unity of
India by establishing their imperial sway Politically and
administratively over the whole country, but, it was really
the British who succeeded in giving reality to such an
objective. And, even they preserved a duality of systems of
Government. There was a British India under the Governor
General presiding over the destinies of the various
provinces under Governors as Imperial sub-agents, but all
acting on behalf of an Emperor whose governments ruled from
Westminster and Whitehall. And, there were other parts of
the country, ruled by Indian Prince.,; owing allegiance to a
foreign Emperor to whose authority they paid homage by
acknowledging his sovereignty or the paramountly exercised
through his Viceroy. These two parts were sought to be
knitted together into a federal polity by the Government of
India Act of 1935. Federal principles, including a Federal
Court, were embodied in it so as to bring together and co-
ordinate two different types of political systems and sets
of authorities. But, after the Constitution
50
of our Republic, came the gradual disappearance of Princely
States and a unification of India in a single polity with
duality of agencies of Government only for the purposes of
their more effective and efficient operations under a
Central direction. It was, more or less, an application of
the principle of division of labour under at least Central
supervision. In other words the duality or duplication of
organs of government on the Central and State levels did not
reflect a truly federal demarcation of powers based on any
separatist sentiments which could threaten the sovereignty
and integrity of the Indian Republic to which members of our
Constituent Assembly seemed ardently devoted, particularly
after an unfortunate division of the country with certain
obviously disastrous results.
However, we may examine the express provisions of our
Constitution relating to the organs of Government in the
States which, no doubt, give the appearance of full-fledged
separate States for certain purposes. Each State has its
own Governor exercising the executive power of that State.
But, all Governors, although undertaking to devote
themselves to the service and well-being of the people of
their respective States, owe an undivided allegiance to “the
Constitution and the law”. Each of them is appointed by the
President and holds office during the pleasure of the
President to whom he sends his reports with a view to any
proposed action under Article 356 of the Constitution. The
Governor’s authority, under the Warrant of his appointment,
is traceable to the President to whom he is to submit his
resignation if he resigns.
Article 163 speaks of the, Council of Ministers “with the
Chief Minister at the head to. aid and advise the Governor
in the exercise of his functions, except in so far as he is
by or under this Constitution required to exercise his
functions or any of them in his discretion.” Now, the
Council of Ministers, theoretically appointed by the Gover-
nor, is certainly “collectively responsible to the
Legislative Assembly of the State” (see : Article 164(2).
But, this “collective responsibility” does not, as has been
erroneously attempted to be argued before us, abridge or
truncate the power of the Central Government to appoint a
Commission under s. 3 of the Act. In fact, this “collective
responsibility” has a scope and mode of operation which are
very different from those of an inquiry under s. 3 of the
Act even though the same or similar matters may, sometimes,
give rise to both. “Collective Responsibility” is basically
political in origin and mode of operation. It may arise
even in cases which may not call for any inquiry under
Section 3 of the Act. And, matters investigated under
Section 3 of the Act may have no bearing on any “collective
responsibility”.
The object of collective responsibility is to make the whole
body of persons holding Ministerial office collectively, or,
if one may so put it, “vicariously” responsible for such
acts of the others as are referable to their collective
volition so that, even if an individual may not be
personally responsible for it, yet, he will be deemed to
share
51
the responsibility with those who may have actually
committed some wrong. On the other hand, in the case before
us, the enquiry under Section 3 of the Act by the Grover
Commission has been ordered by the Central Government so as
to determine who is actually responsible for certain actions
and what could be the motive behind them. The sphere of
this enquiry is very different from that in which
“collective responsibility” functions. Explaining
“collective responsibility”, as understood in England, two
writers on Constitutional matters (see : “Some Problems of
the Constitution’ by Geoffrey Marshall and Graeme C. Moodie)
say: (at p. 71)
“If responsibility is taken in the formal
constitutional sense, there would seem,
granted collective governmental res-
ponsibility, to be no clear distinction to
be drawn between Ministers inside and those
outside the Cabinet. To be responsible in
this sense simply is to share the consequences
of- responsibility-namely to be subject to the
rule that no member of the Government may
properly remain a member and dissociate
himself from its policies (except on occasions
when the Government permits a free vote in the
House)”.
‘They add :
“The substance of the Government’s collective
responsibility could be defined as its duty to
submit its policy to and defend its policy
before the House of Commons, and to resign if
defeated on an issue of confidence”.
Each Minister can be and is separately responsible for his
own ,decisions and acts and omissions also. But, inasmuch
as the Council of Ministers is able to stay in office only
so long as it commands the support and confidence of a
majority of Members of the Legislature of the State, the
whole Council of Ministers must be held to be politically
responsible, for the decisions’ and policies of each of the
Ministers and of his department which could be presumed to
have the support of the whole Ministry. Hence, the whole
Ministry will, at least on issues involving matters of
policy, have to be treated as one entity so far as its
answerability to the Legislative Assembly representing the
electors is concerned. This is the meaning of the principle
underlying article, 164(2) of the Constitution. The purpose
of this provision is not to find out facts or to establish
the actual responsibility of a Chief Minister or any other
Minister or Ministers for particular decisions or
Governmental acts. That can be more suitably done, when
wrongful acts or decisions are complained of, by means of
inquiries under the Act. As already indicated above, ,the
procedure of Parliamentary Committees to inquire into every
legally or ethically wrong act was found to be
unsatisfactory and unsound. The principle of individual as
well as collective ministerial responsibility can work most
efficiently only when cases requiring proper sifting and
evaluation of evidence and discussion of questions involved
have taken place, where this is required, in proceedings be-
fore a Commission appointed under, s. 3 of the Act.-
52
Text-books writers on Constitutional Law have indicated how
collective ministerial responsibility to Parliament, which
has essentially a political purpose and effects, developed
later than individual responsibility of Ministers to
Parliament which was also political in origin and operation.
It is true that an. individual Minister could, in England,
where the principle of individual and collective respon-
sibility of Ministers was evolved, be responsible either for
wrongful acts done by him without the authority of the whole
cabinet or of the monarch to support them, or under orders
of the King who could, in the eye of law, do no wrong. But,
apart from an impeachment, which has become obsolete, or
punishment for contempt of a House, which constitute only a
limited kind of offences, the Parliament does not punish the
offender. For establishing his legal liability recourse to
ordinary courts of law is indispensable.
Responsibility to Parliament only means that the Minister
may be compelled by convention to resign. Out of this
liability arose the principle of collective responsibility.
Thus, in Wade and Phillips on “Constitutional Law”, 8th
Edn., p. 87, we find; “Just as it became recognised that a
single Minister could not retain office against the will of
Parliament, so later it became clear that all Ministers must
stand or fall together in Parliament, if the Government was
to be carried on as a unity rather than by a number of
advisers of the Sovereign acting separately”. This
development of collective responsibility was thus described
in 1878 by Lord Salisbury:
“For all that passes in Cabinet every member
of it who does not resign is absolutely and
irretrievably responsible and has no right
afterwards to say that he agreed in one case
to a compromise, while in another he was
persuaded by his colleagues…. It is only on
the principle that absolute responsibility is
undertaken by every member of the Cabinet,
who, after a decision is arrived at, remains
member of it, that the joint responsibility of
Ministers to Parliament can be upheld and one
of the most essential principles of
parliamentary responsibility established.”
The whole question of responsibility is related to the
continuance of a Minister or a Government in office. A
Minister’s own acts or omissions or those of others in the
Department in his charge, for which he may feel morally
responsible, or, for which others may hold him morally
responsible, may compel him to resign. By an extension of
this logic, applied to individual Ministers at first, emerg-
ed the principle of “collective responsibility” which we
find enacted in Articles 75(2) and 164(2) of our
Constitution. The only sanction for its enforcement is the
pressure of public opinion expressed particularly in terms
of withdrawal of political support by members of Parliament
or the State Legislature as the case may be.
As Prof. S. A. de Smith points out in his Constitutional
and Administrative Law, 1971, at p. 170 to 179, the
principle operates in, a nebulous moral-cum-political
sphere, sometimes forcing an individual Minister to resign,
as in the, case of Mr. Profumo, and, on
53
other occasions, involving the fate of the whole Ministry,
depending upon the extent to which the Cabinet as a whole
could be, in the circumstances of a particular case, deemed
to be responsible for a particular decision or action or
inaction. In England, the principle operates as a matter of
convention backed by political judgment, as reflected in
Parliament whereas, for us, the principle is stated in our
Constitution itself, but it, nevertheless, depends upon
convention and upon public opinion, particularly as
reflected in Parliament or in the State Legislature, as the
case may be, for its effectiveness. The principle thus
exists separately and independently from the legal liability
of a Minister, holding an office in the Union or a State
Government.
An investigation by a Commission of Inquiry should
facilitate or help the formation of sound public opinion.
That was the object of the Commission of Inquiry presided
over by Lord Denninig on the Profumo affair. The fact that
the Minister concerned was considered individually
responsible to the House for a wrong statement made to it
did not prevent an inquiry by a Commission into matters on
which he had made the statement. His individual actions,
however, did not bring into operation the principle of
collective responsible because his colleagues in the
Government could not reasonably be held guilty of
dereliction or breach of any duty.
A Commission of Inquiry could not properly be meant, as is
sometimes suspected, to merely white-wash ministerial or
departmental action rather than to explore and discover, if
possible, real facts. It is also not meant to serve as a
mode of prosecution and much less of persecution.
Proceedings before it cannot serve as substitutes for
proceedings which should take place before a Court of law
invested with powers of adjudication as well as of awarding
punishments or affording reliefs. Its report or findings
cannot relieve Courts which may have to determine for
themselves matters dealt with by a Commission. Indeed, the
legal relevance or evidentiary value of a Commission’s
report or findings on issues which a Court may have to
decide for itself, is very questionable. The appointment of
a Commission of Inquiry to investigate a matter which
should, in the ordinary course, have gone to a Court of law
is generally a confession of want, of sufficient evidence-as
in the case of the appointment of the Warren Commission in
the U.S.A. to inquire into facts concerning the murder of
the late President Kennedy-to take it to Court combined with
an attempt to satisfy the public need and desire to discover
what had really gone wrong and how and where if possible. A
Commission of Inquiry has, therefore, a function of its own
to fulfill. It has an orbit of action of its own within
which it can move so as not to conflict with or impede other
forms of action or modes of redress. Its report or findings
are not immune from criticism if they are either not fair
and impartial or are unsatisfactory for other reasons as was
said to be the case with the Warren Commission’s report.
Provisions of either Article 75(2) or Article 164(2) could
not operate as bars against the institution of inquiries by
Commissions
54
set up wider the Act. To infer such bars as their necessary
consequences would be to misunderstand the object as well as
the mode and sphere of operation of the principles found in
both articles 75(2) and 164(2) of the Constitution and also
the. purpose,, scope, and function of Commissions of Inquiry
set up under the Act.
In a somewhat desperate attempt to find some constitutional
prohibition against the inquiries on which the Grover
Commission has embarked, learned Counsel for the plaintiff
relied on Article 194(3) of the Constitution. The
particular clause (3) of Article 194 has to be read in the
context of other clauses of Article 194 as well as the
remaining provisions of the Constitution as indicated by
Article 194(1). We may here set out the whole of Article
194 which reads as follows :-
“194 (1). Subject to the provisions of this
Constitution and to the rules and standing
orders regulating the procedure of the
Legislature, there shall be freedom of speech
in the Legislature of every State.
(2) No member of the Legislature of a State
shall be liable. to any proceedings in any
Court in respect of anything said or any vote
given by him in the Legislature or any
committee thereof, and no person shall be so
liable in respect of the publication by or
under the authority of a House of such a
Legislature of any report, paper, votes or
proceedings.
(3) In other respects, the powers,
privileges and immunities of a House of the
Legislature of a State, and of the Members and
the committees of a House of such Legislature,
shall be such as may from time to time be
defined by the Legislature by law, and, until
so defined, shall be those of the House of
Commons of the Parliament of the United
Kingdom, and of its members and committees, at
the commencement of this Constitution.
(4) The, provisions of clauses (1), (2) and
(3) shall apply in relation to persons who by
virtue of this Constitution have the right to
speak in, and otherwise to take part in the
proceedings of, a House of the Legislature of
a State or any committee thereof as they apply
in relation to members of that Legislature”.
Article 194. reproduces the terms of article 105 with this
evident difference that, whereas article 194, is applicable
to Houses of a State Legislature,, article 105 applies to
the two Houses of Parliament. Each of these two articles
subjects “the powers, privileges and immunities” of each
House as well as all its Members and its Committees not only
to the laws made by the appropriate legislature but also to
all the other provisions of the Constitution. It is clear,
from these articles, that they do not apply to legislative
powers of Parliament or of the
55
State Legislatures which are specifically dealt with by
articles 245 to 255 of the Constitution. Articles 105 and
194, far from dealing with the legislative powers of Houses
of Parliament or of State Legislatures respectively, are
confined in scope to such powers of each House as it may
exercise separately functioning as a House. It also covers
immunities and privileges of each House as a House as well
as of its members The correct principle of interpretation to
apply is “no scitur a sociis”, or, in other words, the word
“powers” gets its meaning and colour not only from its
context but also from the other words used in association
with it.
It is evident, from the Chapter in which article 194 occurs
as well as the heading and its marginal note that the
“powers” meant to be indicated here are not independent.
They are powers which depend upon and are necessary for the
conduct-of the- business of each House. They cannot also be
expanded into those of the House of Commons in England for
all purposes. For example, it could not be contended that
each House of a State Legislature has the same share of
legislative power as the House of Commons has, as a consti-
tuent part of a completely sovereign legislature. Under our
law it is the Constitution which is sovereign or supreme.
The Parliament as well as each Legislature of a State in
India enjoys only such legislative powers as the
Constitution confers upon it. Similarly, each House of
Parliament or State Legislature has such share in
Legislative power as is assigned to it by the Constitution
itself. The powers conferred on a House of a State
Legislature are distinct from the legislative powers of
either Parliament or of a State legislature for which, as
already observed, there are separate provisions in our
Constitution. We need not travel beyond the words of
article 194 itself, read with other provisions of the
Constitution, to clearly reach such a conclusion.
There is, if we may say so, considerable confusion still in
the minds of some people as to the scope of the undefined
“powers, privileges and immunities” of a House of a State
Legislature so much so that it has sometimes been imagined
that a House of a State legislature has some judicial or
quasi-judicial powers also. quite apart from its recognised
powers of punishment for its contempt or the power of
investigations it may carry out by the appointment of its
own committees. Arguments of the kind which have been
sometimes advanced in this country could not have been
advanced if it was clearly understood that, even in England,
where the Constitution is largely conventional, the exercise
of judicial powers directly by Houses of the legislature,
including powers such as those of impeachment, are
practically obsolete. Whatever remained of the power en-
joyed once by the High Court of Parliament, when the King
could himself sit, as a part of Parliament, with the Houses
of Parliament, to administer justice is now concentrated in
the House of Lords, exercised through a Committee of Law
Lords.
Every power of the House of Parliament in England is subject
to an act of Parliament. The Act with which we are
concerned is an
56
Act of our Parliament. We have to, satisfy ourselves by
reference to our Constitution and not the British
Constitution that the provisions of the Act before us are
within the legislative competence of Parliament. But, if we
could ignore the provisions of our Constitution relating to
distribution of legislative powers, which is what the
arguments based on Article 194(3) seem to imply, we would be
left with no yard-stick for determining the legislative
competence of our Parliament. It would be absurd to take
that view simply because that is the position in England.
Nobody could, in England, question the validity of an Act of
Parliament on the ground that it is in excess of the power
vested in a sovereign Parliament to legislate. If we could
apply that principle here the Act before us would be a
sufficient answer to all argument against its validity.
If that principle does not apply in our country because of
the provisions of our Constitution, which constitute courts
judges of constitutionality of even Acts of Parliament, we
have to test the provisions of the Act on the anvil of
express provisions of our own Constitution and not on the
erroneously supposed powers of a House of Commons in England
which could never ignore or invalidate the provisions of any
Act made by the Parliament there although it could play a
decisive role in its repeal if it so desired.
A source of confusion about the “powers” and “privileges” of
the House of Commons even in England was sought to be
removed long ago by Sir Erskine May when he pointed out in
his “Parliamentary Procedure and Practice’, in 1844, that
Coke’s dictum and Blackstones views, according to which the
ordinary law courts could not judge matters relating to “Lex
Parliament”, on the ground that “the High Court of
Parliament hath no higher”, were out of date even in 17th
Century England. He said about such views :
“The views belonged to a time when the
distinction between the judicial and
legislative functions of Parliament was
undrawn or only beginning to be drawn and when
the separation of the Lords from the Commons
was much less complete than it was in the
seventeenth century. Views about the High
Court of Parliament and its powers which were
becoming antiquated in the time of Coke,
continued to be repeated far into the
eighteenth century, although after the
Restoration Principles began to be laid down
which were more in accord with the facts of
the modern Constitution. But much confusion
remained which was not dismissed by the use of
the phrase “privileges of Parliament”.
Sir Erskine May went on to indicate the three notions
resulting from this “confusion of thought” in the course of
English Constitutional history. He wrote :
“Three notions arise from this confusion of
thought
(1) That the courts, being inferior to the
High Court of Parliament, cannot call in
question, the decision of either House on a
matter of privilege.
57
(2) That the lex et conseutudo parliament is
a separate law, and, therefore, unknown to the
Courts.
(3) That a Resolution of either House
declaratory of privilege is a judicial
precedent binding on the courts.”
Now, what learned counsel for the plaintiff seemed to
suggest was that Ministers, answerable to a Legislature were
governed by a separate law which exempted them from
liabilities under the ordinary law. This was never the law
in England. And, it is not so here. Our Constitution
leaves no scope for such arguments, based on a confusion
concerning the “powers” and “privileges” of the House of
Commons mentioned in articles 105(3) and 194(3). Our
Constitution vests only legislative power in Parliament as
well as in the State Legislatures. A House of Parliament or
State Legislature cannot try anyone or any case directly, as
a Court of Justice can, but it can proceed quasi-judicially
in cases of contempt of its authority and take up motions
concerning its “privileges” and “immunities” because, in
doing so, it only seeks removal of obstructions to the due
performance of its legislative functions. But, if any
question of jurisdiction arises as to whether a matter falls
here or not, it has to be decided by the ordinary courts in
appropriate proceedings. For example, the jurisdiction to
try a criminal offence, such as murder committed even within
a House vests in ordinary criminal courts and not in a House
of Parliament or in a State legislature. In Smt. Indira
Nehru Gandhi v. Shri Rai Narain(1), this Court held that a
House of Parliament cannot, in exercise of any supposed
“powers” under article 105, decide election disputes for
which special authorities have been constituted under the
Representation of People Act, 1961, enacted in compliance
with article 329. Similarly, appropriate provisions for.
appointments of suitable persons, invested with power to
determine, in accordance with a procedure which is fair and
just and regular and efficient, for ascertainment of facts
on matters of public importance, is provided by the Act. If
such provisions are covered by specific provisions relating
to legislative competence of Parliament and on(– of the
items in Central List I or the concurrent List III of the
Seventh Schedule of the Constitution, we-need not go to
other provisions which would, strictly speaking, not be
relevant unless they could be relied upon to clearly carve
out some exception ,operating against such legislative
competence.
Learned Counsel for the plaintiff has relied also upon the
provisions of Chapter 11, Part XI, containing Articles 256
to 263 of the Constitution. Here, we find Articles 256 and
257(1) of the Constitution which we have already examined
above to bring out the extent of Government of India’s power
to give necessary directions to every State. The term
“State” used there could not possibly be held to apply
merely to a geographical entity or territory. Article-1,
sub-article (2) and Article-3 of our Constitution make a
distinction between “the State” and its territory. Article
300, in the context of legal proceedings, makes the
Government of a State the legal representative of the
(1) [1976] 2 S.C.R. 347.
58
State. A direction can only be given to a legal entity and
not to a geographical or a territorial entity. Hence,
“directions” to the “State”, as these terms are used in
Articles 256 and 257, must necessarily mean directions to
States as legal entities which must have legal representa-
tives. There need be no difficulty in treating State
Governments as representatives of their respective
individual States. Can we, with such a constitution as
ours, say that the Union Government must take no interest,
and, consequently, no action whatsoever which savours of
interference with governmental functions of a State
Government ? in, the dissolution of State Assemblies case we
have already stated the views of this Court on such a
subject at some length indicating there the ]dud of
federation we have in this country with what has been
characterised as “a strong unitary bias”, or, at any rate,
with powers given to the Union Government of.supervision and
even supersession, in certain circumstances, of State
Governments temporarily to restore normalcy or to inject
honesty, integrity, and efficiency into State admi-
nistrations where these essentials of good government may be
wanting.
Neither Chapter 11, part XI of the- Constitution, dealing
with the administrative relations between the Union and the
States, nor any other part of the Constitution could be held
to imply a prohibition against the exercise of any
legislative power of Parliament. Indeed, a glance through
Chapter 11 in part XI shows that, apart from articles 25 6
and 25 7 (1 ), it deals only with some special matters, such
as maintenance of national highways, water ways, and
railways, constructions to be undertaken for objects of
national or military importance, delegation of certain
powers, some arbitrations, recognition throughout the
territory of India of certain public acts and judicial
proceedings of the Union and of every State, determination
of disputes relating to waters, and certain other matters
involving co-ordination between the States. It could not be
said to exhaust all matters which may involve the interests
of particular States as well as of the Union. There is
nothing in any of the provisions here or elsewhere in our
Constitution which could, by a necessary implication, be
said to impose conditions on the exercise of legislative
powers distributed by Chapter I of Part XI of the
Constitution read with the three lists in the Seventh
Schedule. Such a question must, therefore, be determined
exclusively by the provisions of Chapter I of Part XI which
refer us to the legislative lists in the Seventh Schedule.
We cannot forget that we are really concerned here with
legislative powers and not with administrative relations or
directions. It is true that those powers cannot be so
exercised as to displace or amend the Constitution. But,
unless they have that effect, provisions meant to supplement
and facilitate due discharge of Constitutional powers cannot
be deemed to be in excess of ordinary legislative power.
Entry 94 in List I of exclusively Central subjects of
legislation reads as follows :
“94. Inquiries, surveys and statistics for the purpose of
any of the matters in this list”.
It is true that matters affecting relations between the
Union Government and the State Government are not found
mentioned specifically
59
anywhere in the Union List. It was, therefore, urged that
“inquiries”” mentioned here, even if they extend beyond
surveys and statistics, must, nevertheless, be confined to
“matters in this list”. It was submitted that such
“inquiries” could not embrace the conduct of Ministers exer-
cising governmental powers as such conduct does not fall
under any item in the list but should, properly speaking,
have found a place in the Chapter on “administrative
relations”. It was suggested that the Union Government war,
really trying to exercise a kind of unwarranted disciplinary
authority and control over the conduct of Ministers in the
States in the performance of governmental functions by
setting up a Commission of Inquiry a subject, it is
submitted, that could properly be dealt with only as a part
of “Constitutional law” and should have found a mention
explicitly in some part of our Constitution so as to ‘be
unmistakably identifiable there as such control exercisable
through the means adopted for it.
We do not think that the term “Constitutional law” can be
either ,clearly or exhaustively defined although its nature
can be roughly indicated in the way in which text-book
writers have attempted to do it. For example, Professors
E.C.S. Wade and Godfrey Phillips (See Constitutional Law,
8th Ed. page 4) say :
“There is no hard and fast definition of
constitutional law. In the generally accepted
use of the term it means the rules which
regulate the structure of the principal organs
of government and their relationship to each
other, and determine their principal
functions.”
In other words, it could be expected to contain only the
basic framework. It is not part of its nature to
exhaustively deal with all governmental matters.
As there is no written Constitution in Britain, the authors
quoted above said “the Constitution has no separate
existence since it is the ordinary law of the land”. They
added : “There is a common body of law which forms the
constitution, partly statutory, partly common law, and
partly conventions”. It is not possible in England to
equate all that passes as “constitutional law” With rules
enforceable through Courts of law because conventions, which
cannot be so enforced, are also, apparently, treated as
parts of it since they also contain rules of conduct. Thus,
not all “constitutional law” need be written or be even
“law” in the commonly accepted sense of this term. In any
case, there can be no clear-cut distinction between what
could or should and what could not or should not be
comprehended within the body of rules called “constitutional
law”. In practice, it will be found that what is embodied
even in a written constitution depends sometimes on the
peculiar notions for the time being of people who make it.
It reflects their views about what should be considered so
basic or fundamental as to find a place in the
Constitutional document. For example, one of the provisions
of the Swiss Constitution of 1893 prohibits “sticking of
animals for butchers” meat unless they have previously been
stunned”. According to normal notions of “Constitutional
law”, such a subject should not have found a place in it.
Others think that a 5-1042SCI/77
60
constitution should contain nothing more than the barest
possible outlines of the structure of the Government of a
country. The rest, whether “constitutional law” or not,
could be done by the exercise of ordinary legislative
powers.
Prof. K. C. Where, in his “modern Constitutions”, wrote a
Chapter on “What a constitution should contain”, where he
observes :
“A glance at the Constitutions of different
countries shows at one,,- that people differ
very much in what they think it necessary for
a Constitution to contain. The Norwegians
were able to say all that they wanted to say
in about twenty five pages; the Indians occupy
about two hundred and fifty pages in their
Constitution of 1950. A principal line of
division is found between those who regard a
Constitution as primarily and almost
exclusively a legal document in which,
therefore, there is a place for rules of law
but for practically nothing else, and those
who think of a Constitution as a sort of
manifesto, a confession of faith, a statement
of ideals, a ‘charter of the land’, as Mr.
Podsnap called it”.
He opined that “the one essential characteristic of the
ideal or the best form of constitution is that it should be
the shortest possible”. And, Chief Justice John Marshall of
the United States said in 1819 in McCulloch v. Maryland(1) :
“A Constitution to contain an accurate detail
of all the subdivisions of which its great
powers will admit, and of all the means by
which they may be carried into execution,
would partake of the prolixity of a legal
code, and could scarcely be embraced by the
human mind. It would probably never be
understood by the public. Its nature, there-
fore, requires that only its great outlines
should be marked, its important’ objects
designated, and the minor ingredients ,which
compose those objects be deduced from the
nature of the objects themselves.”
It is true that our Constitution-makers did not try to
conform to the standards indicated above. This was due
largely to the historical background and the manner of our
Constitution making. We did not start with a clean slate.
We accepted as our starting point the scheme embodied in the
Government of India Act, 1935, enacted by the British
Parliament, evidently in an attempt to provide quite a com-
prehensive and foolproof set of legal rules for the
governance of. our country. On it, were engrafted a set of
provisions containing principles, sometimes conflicting,
culled from the Constitutions of various countries,
including Japan, and results of judicial wisdom and ex-
perience gathered from all comers of the earth, so that we
have a Constitution which, as Mr. Granville Austin suggests
in his book on “The Indian Constitution : The cornerstone of
a Nation”, resembles a coat of various colours.
(1) 4, LEd. 579.
61
Our Constitution may be lengthy and considerably more
comprehensive and elaborate than Constitutions of other
countries. Nevertheless, to expect its contents to be so all
embracing as to necessarily specify and deal with every
conceivable topic of legislation on all constitutional
matters exhaustively, with sufficient particulars, so as to
leave no room for doubt as to what could be meant by
it…… as though a topic of legislation had to be stated,
with necessary particulars, like a charge to an accused
person …. is to expect the humanly impracticable if not
the impossible. And, to build an argument founded on the
supposed reasonableness of such an expectation and some
loosely drafted comprehensive definition of either
“Constitutional law” or a “Constitution”, to convince us
that what is not so specified and identifiable as a subject
of legislation, given in the Constitution must be
necessarily prohibited at least as a topic of ordinary
legislation, although it may become permissible by an
amendment of the Constitution, by an addition to it, appears
very unrealistic to us. At any rate, our Constitution does
not inhibit the growth or development of supplementary
constitutional law through channels other than Article 368.
Excessive particularity is not consistent, as already
indicated above, with the generally accepted notions of a
basic or what may be characterised as the “structural” law
of the State delineating its broad basic features only. The
most that could be expected from the human foresight of
Constitution makers is that they should provide for that
residual power of legislation which could cover topics on
which, consistently with the constitutional framework,
Parliament or State legislatures could depending on the
constitutional pattern, legislate even though the
legislation may not be easily assignable to any specific
entry. Such a provision our Constitution makers did make.
Item 97 corresponds to the residuary legislative powers of
Parliament under Article 248. It reads as follows :
“97. Any other matter not enumerated in List II or List III
including any tax not mentioned in either of those lists.”
It gives effect to Article 248. No doubt, resort to Article
248, read with item 97 of List I, could not overcome any
specific constitutional bar against legislation on
investigation of conduct of Ministers of any State
Government in the discharge of their duties had there been
one. There is certainly no such express and specific bar in
our Constitution. And, it is difficult to see how one can
arise by some necessary implication of provisions dealing
with entirely different topics. There is no indication
anywhere in our Constitution that, while enacting the
provisions from which we are asked to infer a bar against or
limitation upon legislation on such a topic as inquiries,
that our Constitution-makers had any such bar or limitation
even remotely in their minds. There seems no legal or
rational nexus between such a supposed bar or limitation and
the subjects dealt with in the articles relied upon. As
already indicated above, the Constitution makers cannot
always mention and exhaust every conceivable topic. We
think that it is in order to meet precisely such a situation
that article 248 read with Entry 97 was inserted. Hence, we
think that article 248 read
62
with Entry 97 of list I will fully cover Section 3 of the
Act even if item 94 of List I does not.
Alternatively, Entry 45 of the Concurrent List III of the
Seventh Schedule was relied upon on behalf of the Union.
This item reads as follows
45.Inquiries and statistics for the purposes of any of the
matters ‘specified in List II or List III”.
To fall under item 45 of List III the topic of inquiry must
relate to one of the specified items in List II or List III.
If neither items 94 and 97 of List I nor item 45 of List
III which refers to inquiries relating to topics in List II
as well could cover Section 3 of the Act, it would
necessarily follow that such an enactment, assuming that
Section 3 was meant to cover an inquiry against a State
Minister’s conduct in the exercise of powers enjoyed by him
by virtue of his office was not contemplated at all by our
Constitution makers. If such an argument was correct,
Section 3 would, on the assumption made, fall entirely
outside the legislative competence of both Parliament and
State Legislatures because there would be no legislative
power conferred upon any Legislature to deal with such
subject as it could not be covered by any entry in any list.
Indeed, if we have correctly understood the argument of
learned Counsel for the plaintiff in the form it finally
took, this is precisely what is submitted to us for
acceptance. It was contended that this was so because the
conduct of governmental affairs by State Governments and
their Ministers is subject exclusively to the control by
State Legislature and those of the Union Government by
Parliament alone by reason of the Constitutional provisions
we have already examined and explained.
To accept such contentions of the learned Counsel for the
plaintiff is to place Ministers, both in the States and in
the Union Governments, completely outside the scope of legal
answerability on the ground that they were only politically
responsible to and controllable by appropriate legislatures
even when they, in the course of purported exercise of
official powers, act dishonestly and corruptly and even
commit criminal offences. This would mean that even if a
Minister receives bribes, as we genuinely hope that none in
the whole country does, he could not be made answerable in
ordinary courts or be subjected to criminal proceedings. If
no inquiry under any law into his conduct was possible
simply because the act complained of was done by a Minister
in purported exercise of a power vested in him by virtue of
his ministerial office, he would be placed in a privileged
position above the ordinary processes of law applicable to
other citizens. Mere holding of Ministerial office would
confer immunity from any inquiry. He would thus become a
legally irresponsible despot above the ordinary law.
The determine whether there is a prima facie, case for a
criminal offence facts have to be necessarily investigated
or inquired into. But, of every type of inquiry and
investigation except one by the House of the Legislature of
which he is a member is burred, the very first stop
63
towards aprosecution for any serious crime would be shut
out in limine. No question of any further legal proceedings
would arise under any enactment. Such a consequence of the
constitutional provisions relied upon by learned counsel for
the plaintiff could not, in our opinion, be possible within
the contemplation of our Constitution makers. Indeed, such
a view would clearly violate the express and very salutary
provisions of Article 14.
We prefer to infer and hold that the term ‘inquiries’, as
used in item 94 of List I and Item 45 of List III, without
any limitations upon their nature or specification of their
character or objects, is wide enough to embrace every kind
of inquiry, whether a criminal offence by anyone is
disclosed or not by facts alleged. Entry 45 in List III
must include inquiries to cover allegations against all
persons which bring them within the sphere of Entry I of
List II relating to criminal law. All that “Inquiries”
covered by Item 45 require is that they must be “for the
purpose of any of the matters specified in List II or List
III.” The language used-“any of the matters specified”-
is broad enough to cover anything reasonably related to
any of the enumerated items even if done by holders of
ministerial offices in the States.Other subjects will be
found in State List II. And, even assuming that neither
Entry 94 of List I nor Entry 45 of List III, would cover
inquiries against ministers in the States, relating to acts
connected with the exercise of ministerial powers, we think
that Article 248, read with Entry 97 of List I, must
necessarily cover an inquiry against Ministers on matters of
public importance whether the allegations include violations
of criminal law or not. A contrary view would, in my
opinion have the wholly unacceptable consequence of placing
Ministers in State Governments practically above the law.
We must lean against an interpretation which has
consequences which, had they flowed from an express
enactment of Parliament or of a State Legislature, would
have invalidated the provision for conflict with Article,
14.
It would not be out of place to mention that even for the
purposes of an inquiry into the conduct of Judges of the
Supreme Court or of High Courts an Act of Parliament was
passed for the specific purposes of Article 124 to provide,
through appropriate investigation and inquiry, “proof of the
misbehaviour or incapacity of a Judge” before proceedings
under Article 124(4) could be initiated for their removal.
(See : The Judges’ (Inquiry) Act 51 of 1968). Hence, even
Judges, who have to be protected against unfounded or
malicious charges, as they have to give decisions which must
necessarily displease at least one out of two or more
parties to a case, are not in a more privileged position.
It is true that, as somebody has observed, reckless charges
are perhaps hurled against those holding public offices in
our country with the abundance of confetti at a wedding,
yet, we cannot do away with inquiries under the Act for this
reason. The liability to face such inquiries before a duly
appointed impartial Commission is one of those hazards which
individuals holding ministerial office have to face. They
can perhaps find solace in the thought that inquiries which
are thorough and impartial, conducted by competent persons
who have held high judicial office, are the best means of
clearing them of charges which are really unfounded and
malicious.
64
As we think that the powers conferred by Section 3 upon the
Central and State Governments, including the power to
institute inquiries of the kind set up under each of the two
Notifications, are covered by the express constitutional
provisions mentioned above, no question of any exclusion,
either by necessary implication or by any principle supposed
to form a part of or to flow from the basic structure of the
Constitution, can arise here. Nor can we, upon the view we
take, read down and so interpret Section 3 of the Act as to
exclude from its purview inquiries of the kind instituted
under the two Notifications. To do so would be to give an
incentive to possible misuse and perversion of governmental
machinery and powers for objects not warranted by law. Such
powers carry constitutional obligations with them. They are
to be exercised like the powers and obligations of trustees
who must not deviate from the purposes of their trusts.
Whether a Minister has or has not abused his powers and
privileges could be best determined by fair and honest
people anywhere only after a just and impartial inquiry has
taken place into complaints made against him so that its
results are before them.
It is evident from the foregoing discussion that the
principle relied upon by the plaintiff’s learned Counsel
repeatedly, in support of which a passage from Crawford’s
“Statutory Construction” (1940 Edn. paragraph 195 at p. 334-
335) was also cited, as the basis of the submissions of the
learned Counsel, was that what is expressly provided for by
the Constitution must necessarily exclude what is not so
provided for. This reasoning is an attempted misapplication
of the principle of construction “Expression Unius Est
Exclusio Alterius.” Before, the principle can be applied at
all the Court must find an express mode of doing something
that is provided in a statute, which, by its necessary
implication, could exclude the doing of that very thing and
not something else in some other way. Far from this being
the case here, as the discussion above has shewn, the
Constitution makers intended to cover the making of
provisions by Parliament for inquiries for various objects
which may be matters of public importance without any
indications of any other limits except that they must relate
to subjects found in the Lists. I have also indicated why a
provision like section of the Act would, in any case, fall
under entry 97 of List I of Schedule VII read with Articles
248 and 356 of the Constitution even if all subjects to
which it may relate are not found specified in the lists.
Thus, there is express provision in our Constitution to
cover an enactment such as Section 3 of the Act. Hence,
there is no room whatsoever for applying the “Expressio
Unius” rule to exclude what falls within an expressly
provided legislative entry. That maxim has been aptly des-
cribed as a “useful servant but a dangerous master (per
Lopes L.J. in Colquhoun v. Brooks(1). The limitations or
conditions under which this principle of construction
operates are frequently overlooked by those who attempt to
apply it.
(1) [1888] 21 Q.B.D. p. 52 @ 65.
65
To advance the balder and broader proposition that what is
not specifically mentioned in the Constitution must be
deemed to be deliberately excluded from its purview, so that
nothing short of a Constitutional amendment could authorise
legislation upon it, is really to invent a “Casus Omissus”
so as to apply the rule that, where ‘,.here is such a gap in
the law, the Court cannot fill it. The rule, however, is
equally clear that the Court cannot so interpret a statute
as “to produce a casus omissus” where there is really none
(see : The Mersey Docks and Harbour Board v. Penderson
Brothers(1). If our Constitution ‘itself provides for
legislation to fill what is sought to be construed as a
‘lacuna how can legislation seeking to do this be held to be
void because it performs its intended function by an
exercise of an expressly conferred legislative power ? In
declaring the purpose of the provisions so made and the
authority for making it, Courts do not supply an omission or
fill up a gap at all. It is Parliament which can do so
and has done it. To hold that parliament is incompetent to
do this is to substitute an indefensible theory or a figment
of one’s imagination that the Constitution stands in the way
somehow-for that which only a clear Constitutional bar could
achieve.
This brings me to the next question to be considered : Are
there any special rules relating to the construction of
Constitutions in general or of our Constitution in
particular ? And, if there be any such rules, would their
application support the restrictive construction, ,submitted
on behalf of the plaintiff for our acceptance, on the
Parliament’s power to enact section 3 of the Act? These
seem to be important questions which need answers with some
clarity if possible.
A writtenConstitution, like any other enactment, is
embodied in a document. There are certain general rules of
interpretation and constructionof all documents which,
no doubt, apply to the Constitution as well.Nevertheless,
the nature of a Constitution of a Sovereign Republic, which
is meant to endure and stand the test of time, the strains
and stresses of changing circumstances, to govern the
exercise of all Governmental powers, continuously, and to
determine the destiny of a nation could be said to require a
special approach so that judicial intervention does not
unduly thwart the march of the nation towards the goals it
has set before itself.
Napoleon Bonaparte once said that the best Constitution for
any country is one which is both short and vague.
Obviously, be meant that a Constitution must have the
capacity to develop and to be easily adapted to the changing
needs of the nation, to the vicissitudes of its fortunes, to
the growth and expansion of various spheres of its life-
social economic, political, legal, cultural, and
psychological. If the Constitution is unable to perform
this function it fails. Prof. Willis, whose work on
“Constitutional Law of the United States” has been cited
before this Court, has said (at p. 19):
“Our original Constitution was not an anchor
but a rudder. The Constitution of one period
has not been the
(1) [1888] 13A.C.595@ 602
66
Constitution of another period. As one period
has succeeded another, the Constitution has
become larger and larger.”
This elasticity or adaptability of the American Constitution
may account for its durability.
Although, a written Constitution, which is always embodied
in a document, must necessarily be subject to the basic
cannons of construction of documents, yet, its very nature
as the embodiment of the fundamental law of the land, which
has to be adapted to the changing needs of a nation, makes
it imperative for Courts to determine the meanings of its
parts in keeping with its broad and basic purposes and
objectives This approach seems to flow from what may be
called a basic principle of construction of documents of
this type : that the paramount or predominant objects and
purposes, evident from the contents, must prevail over
lesser terms ones obscurely embedded here and there. The
Constitutional document, in other words, must be read as a
whole and construed in keeping with its declared objects and
its functions. The dynamic needs of the nation, which a
Constitution must fulfill, leave no room for merely pedantic
hairsplitting play with words or semantic quibblings. This,
however, does not mean that the Courts, acting under the
guise of a judicial power, which certainly extends to even
making the Constitution, in the sense that they may
supplement it in those parts of it where the letter of the
Constitution is silent or may leave room for its development
by either ordinary legislation or judicial interpretation,
can actually nullify, defeat, or distort the reasonably
clear meaning of any part of the Constitution in order to
give expression to some theories of their own about the
broad or basic scheme of the Constitution.
The theory behind the Constitution which can be taken into
account for purposes of interpretation, by going even so far
as to fill what have been called the “interstices” or spaces
left unfilled, due perhaps to some deliberate vagueness or
indefiniteness in the letter of the Constitution, must
itself be gathered from express provisions of the
Constitution. The dubiousness of expressions used may
be scured by Court by making their meanings clear and
definite if necessary in the light of the broad and basic
purposes set before themselves by the Constitution makers.
And, these meanings may, in keeping with the objectives or
ends which the Constitution of every nation must serve,
change with changing requirements of the times. The power
of judicial interpretation, even if it includes what may be
termed as “interstitial” law making, cannot extend to direct
conflict with express provisions of the Constitution or to
ruling them out of existence. What the express provisions
authorise cannot be curtailed by importing limits based on a
mere theory of limitations on legislative powers.
The statement of general principles of construction set out
above, is home out by earlier pronouncements of this Court-
some emphasizing the clearly expressed meanings of words
used in the Constitution., which cannot be deviated from,
others laying stress on the paramount purposes and
objectives of the Constitution makers, some asserting the
67
undoubted power of Courts to declare void legislation in
conflict with the Constitutional provisions, others pointing
out the plenitude of legislative powers conferred by the
Constitution upon Parliament and the State Legislatures,
presumed to know best the needs of the people, so that
Courts could not lightly invalidate statutes. I will
briefly refer to some of the past pronouncements of this
Court where, emphasis would naturally differ from case to
case according to the particular context in which some rule
of construction arose for consideration.
Kania, C. J., quite clearly laid down a basically sound
approach, if I may so characterise it with great respect, to
the interpretation of the Constitution in A. K. Gopalan v.
State of Madras(1), when he said :
“In respect of the construction of a
Constitution Lord Wright in James v. The
Commonwealth of Australia (1936 A.C. 578 at
614) observed that “a Constitution must not be
construed in any narrow and pedantic sense.”
Mr. Justice Higgins in Attorney-General of New
South Wales v. Brewery Employees’ Union (1908
6) Corn. L.R. 469 @ 611-12, observed :
‘Although we are to interpret words of the
Constitution on the same principles of
interpretation as we apply to any ordinary
law, these very principles of interpretation
compel us to take into account the nature and
scope of the Act that we are interpreting-to
remember that it is a Constitution, a
mechanism under which laws are to be made and
not a mere Act which declares what the law is
to be’. In In re the Central Provinces and
Berar Act XIV of 1938 (1939 FCR 18 (1937), Sir
Maurice Gwyer, C.J., after adopting these ob-
servations said : ‘especially is this true of
a federal Constitution with its nice balance
of jurisdictions. I conceive that a broad and
liberal spirit should inspire those whose duty
it is to interpret it; but I do not imply by
this that they are free to stretch or pervert
legal or constitutional theory or even for the
purpose of supplying omissions or of
correcting supposed errors’. There is
considerable authority for the statement that
the Courts are not at liberty to declare an
Act void because in their opinion it is
opposed to a spirit supposed to pervade, the
Constitution but not expressed in words.
Where the fundamental law has not limited,
either in terms or by necessary implication,
the general powers conferred upon the
legislature we cannot declare a limitation
under the notion of having discovered
something in the spirit of the Constitution
which is not even mentioned in the instrument.
It is difficult upon any general principles to
limit the omnipotence of the sovereign
legislative power by judicial interposition,
except so far as the express words of a
written Constitution-give that authority. It
is also stated, if the words be positive and
without ambiguity, there is no authority for a
Court to vacate or repeal a Statute on that
ground alone. But, it is only in express
constitutional provisions limiting legislative
power and controlling the temporary will of a
[1950]1S.C.R. 88 @ 119 to 120.
68
majority by a permanent and paramount law
settled by the deliberate wisdom of the nation
that one can find a safe and solid ground for
the authority of Courts of justice to declare
void any legislative enactment. Any
assumption of authority beyond this would be
to place in the hands of the judiciary powers
too great and too indefinite either for its
own security or the protection of private
rights.”
In State of Bihar v. Kameshwar Singh(1), this Court held
that where two constructions are possible, “the Court should
adopt that which will implement and discard that which will
stultify the apparent intention of the makers of the
Constitution”.
Another principle which this Court has repeatedly laid down,
for cases in which two constructions may be reasonably
possible, is that it should adopt one which harmonizes
rather than one which produces a conflict between
Constitutional provisions (See : 1. C. Golaknath v. State of
Punjab(2) ; K. K. Kochuni v. State of Madras & Kerala(3);
Mohd. Hanit v. State Bihar(4); State of M.P. v. Ranojirao
Shinde(5);
Prem Chand Garg v. Excise Commissioner, U.P.(6), Devadasan
v. Union of India(7).
Courts have been advised to adopt the construction “which
will ensure smooth and harmonious working of the
Constitution and eschew the other which will lead to
absurdity or give rise to practical inconvenience or make
well-established provisions of existing law nugatory (See :
Kesavananda Bharati v. State of Kerala(8).
In Kesavananda Bharati’s case (supra) Sikri C.J., said about
the mode of construing the Constitution :
“One must not construe it as an ordinary
statute. The Constitution, apart from setting
up a machinery for Government, has a noble and
grand vision in the Preamble.”
In the very case Khanna J. observed
“A Constitution cannot be regarded as a mere
legal document to be read as a will or an
agreement nor is constitution like a plaint or
a written statement filed in a suit between
two litigants.
xx xx xx xx
xx
(1)[1952] S.C.R. 889 at 980-81.
(2)[1967] 2 S.C.R. 762 at 791.
(3)[1960] 3 S.C.R. 887 at 905.
(4)[1959] S.C.R. 629 at 648.
(5)[1968] 3 S.C.R. 489.
(6)[1963] Suppl. (1) S.C.R. 88 5 at 91 1.
(7)[1964] 4 S.C.R. 680 at 695.
(8)11973] 4 S.C.C. 225 at 426 (1973 Suppl
S.C.R.1).
69
It provides for the framework of the different
organs of the State, viz the executive, the
legislature and the judiciary. A Constitution
also reflects the hopes and aspirations of a
people”.
Repeatedly, this Court has declared that a broad and liberal
construction in keeping with the purposes of a Constitution
must be given preference over adherence to too literal an
interpretation (see : e.g. Sakal Papers (P) Ltd. v. Union of
India,(1), of the Constitution.
In particular, the plenitude of power to legislate,
indicated by a legislative entry, has to be given as wide
and liberal an interpretation as is reasonably possible.
Thus, in Jagannath Baksh Singh v. State of U.P.,(2) this
Court said :
“….it is an elementary cardinal rule of
interpretation that the words used in the
Constitution which confer legislative power
must receive the most liberal construction and
if they are words of wide amplitude, they must
be interpreted so as to give effect to that
amplitude. It would be out of place to put a
narrow or restricted construction on words of
wide amplitude in a Constitution. A general
word used in an entry like the present one
must be construed to extend to all ancillary
or subsidiary matters which can fairly and
reasonably be held to be included in it”.
In Union of India v. H. S. Dhillon,(3) Sikri, C.J., after
discussing :the tests adopted both in India and in Canada
for determining whether a particular subject falls within
the Union or the State List observed p. 5 1 ) :
“It seems to us that the function of Art.
246(1), read with entries 1-96 List I is to
give positive power to Parliament to legislate
in respect of these entries. Object is not to
debar Parliament from legislating on a matter,
even if other provisions of the Constitution
enable it to do so. Accordingly, we donot
interpret the words ‘any other matter’
occurring in entry97 List I to mean a topic
mentioned by way of exclusion. These
words really refer to the matters contained in
each of the entries 1 to 96. The words ‘any
other matter had to be used because entry 97
List I follows entries 1-96 List I. It is true
that the field of legislation is demarcated by
entries 1-96 List I, but demarcation does not
mean that if entry 97 List I confers
additional powers we should refuse to give
effect to it. At any rate, whatever doubt
there may be on the interpretation of entry 97
List I is removed by the wide terms of Art.
248. It is framed in the widest possible
terms. On its terms the only question to be
asked is : Is the matter sought to be
legislated on included in List II or in List
III or is the tax sought to be levied
mentioned in List II or in List
(1) [1962] 3 S.C.R. 842;
(2) [1963] 1 S.C.R. 220 @ 228-229.
(3) [1972] 2 S.C.R. 33,
70
III ? No question has to be asked about List
I. If the answer is in the negative, then it
follows that Parliament has power to make laws
with respect to that matter of tax”.
It will be seen that the test adopted in Dhillon’s case
(supra) was, that if a subject does not fall within a
specifically demarcated field found in List II or List III
it would fall in List I apparently because, of the amplitude
of the residuary field indicated by entry 97, List I,
Legislative entries only denote fields of operation of
legislative power which is actually conferred by one of the
articles of the Constitution. It was, pointed out that
Article 248 of the Constitution conferring legislative power
is “framed in the widest possible terms”. The validity of
the Wealth Tax Act was upheld in that case. The argument
that a wide range given to entry 97 of List I, read with
Article 248 of the Constitution, would destroy the “federal
structure” of our Republic was rejected there. On an
application of a similar test here, the powers given to the
Central Government by Section 3 of the Act, now before us,
could not be held to be invalid on the ground that the
federal structure of the State is jeopardized by the view we
are adopting in conformity with the previous decisions of
this Court.
I may next refer to what may be regarded as certain special
features of our Constitution so as to indicate its broad
purposes and objectives.
Our Constitution has, in it, not only an elevating preamble
setting forth the presumed will of the whole people of
India, conceived of as one entity, but a set of Fundamental
Rights in Part III. Directive Principles of State Policy in
Part IV of the Constitution, a rough separation of powers
between the Executive, the Legislative, and the Judicial
branches of Government, a pragmatic federalism which, while
distributing legislative powers between the Parliament and
State Legislatures, with a concurrent field also, and
indicating the spheres of Governmental powers of State and
Central Governments, is overlaid, as already indicated
above, ‘by strongly ‘unitary’ features, particularly
exhibited by lodging in Parliament the residuary legislative
powers, and in the Central Govt, the executive power of
appointing State Governors, and Chief Justices and Judges of
High Courts, powers of giving appropriate directions to the
State Governments, and of even displacing the State Legis-
latures and Governments in exceptional circumstances or
emergencies of not very clearly defined ambits or
characters. No other “federation” in the world has exactly
similar unitary features. One wonders whether such a system
is entitled to be dubbed “federal” in a sense denoting
anything more than a merely convenient division of functions
operative in ordinary times. The function of “supervision”
is certainly that of the Central Government with all that it
implies.
It may be noticed that the basic allegiance contemplated by
the Constitution is, legally speaking, to the Constitution
itself about whose advent this Court once said (in Virendra
Singh & Ors. v. the State of U.P. (1) ).
“…….. at one moment of time the new order
was born with the new allegiance springing
from the same source for
(1) [1955] S.C.R. 415 at 436.
71
all, grounded on the same basis : the
sovereign will of the people of India with no
class, no caste, no race, no creed, no
distinction, no reservation”.
The Constitution, as its Preamble makes it clear, is of a
sovereign republic. The legal sovereignty which it
represents includes legal legislative sovereignty which must
embrace the power of making any law on any subject. Such
legislative power to enact any law must, therefore, vest
somewhere in a legislative organ of the Republic. It cannot
be placed anywhere outside these organs. To apply the test
formulated in Dhillon’s case, (supra) the Parliament alone,
would have the power to enact by a simple majority, by
reason of Article 248 read with entry 97 of List I, if it
falls neither in List II nor in List III. As indicated
above, the contention on behalf of the plaintiff, if accep-
ted, would expel the power of legislation itself on any
matter involving an inquiry into the conduct of Governmental
affairs by a minister in a State Government from the
legislative Lists and place it under Article 368. This
means that, although the express provisions of the
Constitution, broadly interpreted, as they should be, would
prima facie authorse a provision.. such as Section 3 of the
Act, yet, we should imply a Constitutional prohibition
against such an enactment by Parliament even if its wide
terms could as they prima facie do, include inquiries
against State Ministers exercising Governmental powers.
As indicated above, the first step of the argument mentioned
above is a theory of what the Constitution must necessarily
contain as contrasted with ordinary law. To support this
submission, a passage was cited from the judgment of Wanchoo
J, in I. C. Golak Nath & Ors. v. State of Punjab and Anr.(1)
which contains the following question front Ivor Jennings on
“The Law and the Constitution” (1933 Edn. at p. 51 onwards)
:
“A written constitution is thus the
fundamental law of a country, the express
embodiment of the doctrine of the reign of
law. AR public authorities-legislative,
administrative and judicial …. take their
powers directly or indirectly from it……
whatever the nature of the written
constitution it is clear that there is a
fundamental distinction between constitutional
law and the rest of the law,. There is a clear
separation, therefore, between the
constitutional law and the rest of the law”.
The learned Judge then went on to observe
“It is because of this difference between the
fundamental law (namely, the Constitution) and
the law passed under the legislative
provisions of the Constitution that it is not
possible in the absence of an express
provision to that effect in the fundamental
law to change the fundamental law by ordinary
legislation passed thereunder, for such
ordinary legislation must always conform to
the fundamental law (i.e. the Constitution).”
(1) [1967] 2 S.C.R. 762 @ 828.
72
in Golaknath’s case, Wanchoo J. had also pointed out at page
827
“The Constitution is the fundamental law and
no law passed under mere legislative power
conferred by the Constitution can affect any
change in the Constitution unless there is an
express power to that effect given in the
Constitution itself. But subject to such
express power given by the Constitution
itself, the fundamental law, namely the
Constitution, cannot be changed by a law
passed under the legislative provisions
contained in the Constitution as all
legislative acts passed under the power
conferred by the Constitution must conform to
the Constitution can make no change therein.
There are a number of Articles in the
Constitution which expressly provide for
amendment by law, as, for example, 3, 4, 1 0,
59(3), 65(3), 73(2), 97, 98(3), 106, 120(2),
135, 137, 142(1) 146(2), 148(3), 149, 169,
171(2), 186, 187(3), 189(3), 194(3), 195,
210(2), 221(2), 225 , 229(2), 239(1), 241(3),
283(1) and (2), 285(2), 287, 300(1), 313, 345,
373, Sch. V. cl. 7 and Sch. VI cl. 21; and
so far as these Articles are concerned they
can be amended by Parliament by ordinary law-
making process. But so far as the other
Articles are concerned they can only be
amended by amendment of the Constitution under
Art. 368. Now Art. 245 which gives Dower to
make law for the whole or any part of the
territory of India by Parliament is “subject
to the provisions of this Constitution” and
any law made by Parliament whether under Art.
246 read with List I or under Art. 248 read
with item 97 of List I must be subject to the
provisions of the Constitution. If therefore
the power to amend the Constitution is
contained in Art. 248 read with item 97 of
List I, that power has to be exercised subject
to the provisions of Constitution and cannot
be used to change the fundamental law (namely,
the Constitution) itself.”
The passages cited above cannot provide a foundation for the
theory that “constitutional Law” and the rest of the law
can, in respect of their contents or subject matter be
placed in two sharply divided or distinct and water-tight
compartments with no overlapping or uncertain fields between
them. It must not be forgotten that Wanchoo, J. repeatedly
explained, by putting in the words namely, the
“Constitution” within brackets, that he ‘was really
concerned with indicating the special features of a very
detailed or comprehensive Constitution such as ours. Indeed
as regards the subject matter of the laws contained in the
Constitution and these which may be introduced by the
ordinary law making procedure, the above mentioned judgment
of Wanchoo J. itself indicates how even certain parts of the
law found in our written Constitution may be amended by the
ordinary law making procedure. This passage was used by the
learned Counsel for the plaintiff to urge that additions or
changes in
73
“Constitutional Law” cannot be made by ordinary law making
procedure but must take place only in accordance with the
provisions found in Article 368 unless the Constitution
expressly provides otherwise. This contention, however,
overlooks the fact that Article 368 of the Constitution only
provides the procedure for an amendment of “the
Constitution”, and says nothing about any amendment of other
laws by the introduction of or changes in laws which may
conceivably be classed or construed as “constitutional laws”
because of their subject matter. This passage should not be
torn out of its context, in which the difference in
procedure, between the one for an amendment of “the
,Constitution”, provided by article 368, and that for
ordinary legislation, contemplated by Articles 245 to 248,
was under consideration. It was in that connection that the
observation was rightly made that, unless there is specific
authority given by constitutional provisions for changing
the law laid down by “the Constitution” itself, by adopting
only the ordinary law making procedure, a change in the law
contained in express provisions of the constitution” itself
could not be brought about without complying with Article
368 of the Constitution. follows obviously from the very
notion of a Constitution as an embodiment of a “fundamental
law” which serves as a touchstone for all other “laws”. The
“fundamental distinction” between “the Constitutional law”
or “the fundamental law” and the ordinary laws, referred to
there, was meant to bring out only this difference- in the
uses made of laws which, being “fundamental”, can test the
validity of all other laws on a lower normative level and
these other laws which are so tested. In that very special
or restricted sense, the law not found in “the Constitution”
could not be “constitutional” or “fundamental” law. Other
parts of the law, even though they may appertain to
important constitutional matters, are not parts of “the
Constitution”, and, therefore, could not test the validity
of laws made by Parliament. What was said with reference to
the actual provisions of the Constitution could not,
however, be used to infer some bar on legislative power
which is not there in the Constitution at all for reasons
repeatedly indicated above.
In an earlier part of this judgment, it is held that
legislative power to enact a provision such as Section 3 of
the Act could be found, in any event, in Article 248 read
with entry 97 of List I, even if it could possibly be urged
that it is not covered by entries 94 of List I and 45 of
List III, which seem to exhaust the three Lists in so farms
the subject matters of enquiries are concerned. Learned
Counsel for the plaintiff tried to introduce some doubts on
the ground that there is no specific entry in any of the
lists to cover the conduct of Ministers in St-ate
Governments in relation to governmental functions. And, it
was submitted, reference to subjects specified in the Lists
would exclude those which are unspecified. It could be
urged in reply that, as indicated in Dhillon’s case (supra),
a legislative entry only indicates the field of operation of
the power, but the sources of ordinary legislative power are
to be found in one of the Articles 245, 246, 247, 248, 249,
250, 252, or 253 of the Constitution, and, so far as the
field of operation of the legislative power is concerned,
both entry 94 of List I and entry 45 of List III are so
widely worded as to embrace inquiries
74
touching any of the fields indicated by any of the entries
in the lists. A Minister must necessarily exercise
governmental powers in relation to one of these fields. It
is not necessary to specify which that field is. The field
of power to legislate about inquiries is indicated in wide
enough terms to make it unnecessary to specify the field, in
the law made itself, to which the inquiry must relate,. It
is enough if the enquiry set up relates to a matter of
“public importance.” Again, it is not a necessary part of an
entry ill a legislative list, which only roughly indicates a
field of legislation, that it must also specify the classes
of persons who may be affected by the legislation. That is
neither a constitutional nor a reasonable requirement.
This Court has already held that overlapping of fields of
operation of legislative power does not take away the
legislative power. Indeed, ,as we have said, both entries
94 of List I and 45 of List III must necessarily be related
to a variety of fields of operation of legislative power.
And, in any case, even if an inquiry on a matter of “public
importance” relates to an unspecified field, it should be
covered by entry 97 of List I itself. Therefore, it is
immaterial whether we hold that entry 97 of List I by itself
singly or that entry, read with entry 94 of List I, could be
deemed to cover the field of operation of such legislation,
what is material and important is that the three entries-
Nos. 94 and 97 of List I and 45 of List III are bound to
cover, between them, legislation authorising inquiries such
as the one entrusted to the Grover Commission. If the
subject of inquiries against Ministers in State Governments
is not mentioned specifically either in any of the articles
of the Constitution or in the legislative lists it does not
follow from it that legislation covering such inquiries is
incompetent except by means of a constitutional amendment.
‘On the contrary, such a subject would be prima facie
covered by the wide terms of article 248 for the very reason
that the Constitution contains no express or implied bar
which could curtail the presumably plenary powers of
legislation of our Parliament.
Once we have located the legislative power in one of the
articles of the Constitution, authorising ordinary
legislation by Parliament for inquiries covered by section 3
of the Act, and we find also the appropriate entries in
legislative Lists I and III indicating the fields of opera-
tion of that legislative power of Parliament, the well
recognised principle which would apply and exclude an
implied bar against the exercise of that plenary power has
been stated by this Court and also by other Courts in
Commonwealth countries on several occasions. That principle
follows logically from R. v. Burah (1878) (3 A. C. 889)
which is the locus classics on the subject. The general
principle laid down in Burah’s case was that once what is
conferred upon a Parliament or other Legislature is
legislative power, its plenary character must be presumed so
that, unless the instrument conferring the power to
legislate itself contains some express limitation on the
exercise of legislative power, the ambit of that power
cannot be indirectly cut down by supposed implications. The
cases on this subject were comprehensively considered by
this Court in Kesavananda Bharati’s case (supra) where the
majority view was that there can be no merely implied
limitations on expressly conferred legislative powers. This
Court
75
there referred to and adopted the principles laid down in
Burah’s case’ (supra). Palekar J. quoted the following
passage from it (in Kesavananda Bharati’s case’ at p. 607) :
“The established Courts of Justice, when a
question arises whether the prescribed limits
have been exceeded, must of necessity
determine that question; and the only way in
which they can properly do so, is by looking
to the terms of the
instrument by which, affirmatively, the
legislative powers were created, and by which
, negatively , they are restricted. if what
has been done id legislation, within the
general scope of the affirmative words which
give the power, and if it violates no express
condition or restriction on by which that
power is limited if is not for any Court
Justice to inquire further, or to enlarge
constructively those conditions and
restrictions.”
in that case, Judges of this Court also relied upon Attorney
General for the Province of Ontario’ v. Attorney. General
for the Dominion of Canada(1) where Earl Loreburn had said
(at p. 583)
“In the interpretation of a completely self-
governing Constitution founded upon a written
organic instrument such as the British North
America Act, if the text is explicit the text
is conclusive, alike in what it directs and
what it forbids. When the text is ambiguous,
as for example, when the words establishing
two mutually exclusive jurisdictions are wide
enough to bring a particular power within
either, recourse must be had to the context
and scheme of the Act.”
The learned Additional Solicitor General has strongly relied
upon the State of Victoria v. The Commonwealth (2) where
earlier cases applying the reasoning contained in Burah’s
case (supra) were surveyed and Barwick C. J. cited the two
passages set out above by us, one from Lord Selbome’s
judgment in Burah’s case (supra) and the other from the
judgment of Earl Loreburn in the Province of Ontario’s case
(supra) from Canada. Barwick. C.J. also cited the
following passage from the Amalgamated Society of Engineers
v. Adelaide Steamship Co. Ltd.
“The nature and principles of legislation’ (to
employ the words of Lord Selborne in Burah’s
case), the nature of dominion self-government
and the decisions just cited entirely pre-
clude, in our opinion, an a priori contention
that the grant of legislative power to the
Commonwealth Parliament as representing the
will of the whole of the people of all the
State,,, of Australia should not bind within
the geographical area of the Commonwealth and
within the limits of the enumerated powers,
ascertained by the ordinary process. of
construction, the States and their agencies as
representing separate sections of the
territory.”
(1) [1912] App. Cas. 571.
(2) 45 Australian Law Journal Reports 251-22 C.L.R. 353.
(3) [1920] 28 C.L.R. 129 @ 152-153.
76
In Victoria’s case (supra), Barwick C.J., although not in
entire agreement with the way in which Sir Owen Dixon, C.J.,
had expressed himself in West v. Commissioner of Taxation
(N.S.W.(1) opined that it was only- another way of putting
what had been consistently. laid down as the principle of
interpretation of Constitutions of British self governing
Dominions since Burah’s case (supra). The passage thus
explained was :
“…….. the principle is that whenever the
Constitution confers a power to make laws in
respect of a specific subject matter prima
facie it is to be understood as enabling
the Parliament to make laws affecting the
operations of the States and their agencies.
The prima facie meaning may be displaced by
considerations based on the nature or the
subject matter of the power or the language in
which it is conferred on some other provision
in the Constitution.”
Learned Counsel for the plaintiff, conscious of the basic
principles of construction of the plenary constitutional
power to legislate, fried to sustain his very gallant
attacks upon the validity of section 3 of the Act by
referring to express provisions of the Constitution where,,
as we have explained above, we could discover no such bar by
a necessary implication. However, the theory of the basic
structure of the Constitution kept “popping up”, if Nyc may
so put it, like the “jack in the box”, from behind the
constitutional provisions, from time to time. It was said
to “underlie” constitutional provisions.
Thus, the plaintiff’s learned Counsel did not entirely give
up reliance on what has been described as “the basic
structure of the Constitution” although he, very ;astutely
and rightly, tried to put the express provisions of the
Constitution in the fore-front. Whatever may be said about
the strategic value for the plaintiff of this mode of using
the doctrine of “the basic structure of the Constitution”,
it does not relieve us from the necessity of considering
whether an application of such a doctrine could be involved
in the case before us. We cannot overlook that Kesavananda
Bharati’s case (supra) where although a majority of learned
Judges of this Court which rejected the theory of “implied
limitations” upon express plenary legislative powers of
constitutional amendment, yet, we accepted, I say so with
the utmost respect, again by a majority, limitations which
appeared to be not easily distinguishable from implied
limitations upon plenary legislative powers even though they
were classed as parts of “the basic structure of the
Constitution.” We are bound by the majority view in
Kesavananda Bharati’s case (supra) which we have followed in
other cases. We have, however, to make it clear and
explicit enough to be able to determine, without
inconsistency and with some confidence, the type of cases to
which it could and others to which it could not apply as
specific cases come up before us for consideration.
(1) (1 937) 56 C.L.R. 657 @ 682.
77
What, therefore, is this doctrine of “the basic structure of
our ,Constitution” of which, according to some learned
Judges of this Court, expressing the majority views on this
doctrine, “federalism” is a part ? We can only answer this
question by quoting from certain passages from the opinions
of the learned Judges who were parties to the decision of
this Court in Kesavananda Bharati’s case (supra).
Sikri C. J., who accepted the doctrine of implied
limitations, and, consistently with its logic, found that
the basic structure of the Constitution forms an orbit of
exercise of power which is outside the purview of Article
368, relied on the observations and dicta found in Melbourne
Corporation v. The Conzmonwealth(1) and Australian National
Airways Pvt. Ltd. v. The Commonwealth (2).
The learned Chief Justice cited Starke J.’s views expressed
in Melbourne Corporation’s case (supra) :
“The federal character of the Australian
Constitution carries implications of its
own…………………
xx xx xx xx
“The position that I take is this The several
subject matters with respect to which the
Commonwealth is empowered by the Constitution
to make laws for the peace, order and good
government of the Commonwealth are not to be
narrowed or limited by implications. Their
scope and amplitude depend simply on the words
by which they are expressed. But implications
arising from the existence of the States as
parts of the Commonwealth and as constituents
of the federation may restrict the manner in
which the Parliament can lawfully exercise its
power to make laws with respect to a
particular subject-matter. These
implications, or perhaps it were better to say
underlying assumptions of the Constitution,
relate to the use of a power not to the
inherent nature of the subject matter of the
law. of course whether or not a law promotes
peace, order and good government is for the
Parliament, not for a court, to decide. But a
law although it be with respect to a
designated subject matter, cannot be for the
peace, order and good government of the
Commonwealth if it be directed to the States
to prevent their carrying out their function
s
as parts of the Commonwealth.”
Again Gibbs J was quoted "The ordinary principles of statutory
construction do not preclude the making of
implications when these are necessary to give
effect to the intention of the legislature as
revealed in the statute as a
whole” ……………. .
(1) (1947) 74 C.L.R. 31.
(2) (1945) 71 C.L.R. 29.
78
“Thus, the purpose of the Constitution, and
the scheme by which it is intended to be given
effect, necessarily give rise to implications
as to the manner in which the Commonwealth and
the States respectively may exercise their
powers, vis-a-vis each other.”
After considering a number of cases the Chief
Justice stated conclusion on implied
limitations as follows (at p. 163-164) :
“What is the necessary implication from all
the provisions of the Constitution ?
It seems to me that reading the Preamble, the
fundamental importance of the, freedom of the
individual, indeed its inalienability, and the
importance of the economic, social and
political justice mentioned in the Preamble,
the importance of directive principles, the
non-inclusion in art. 368 of provisions like
arts. 52, 53 and various other provisions to
which reference has already been made an
irresistible conclusion emerges that it was
not the intention to use the word amendment’
in the widest sense.
It was the common understanding that
fundamental rights would remain in substance
as they are and they would not be amended out
of existence. It seems also to have been a
common understanding that the fundamental
features of the constitution, namely,
secularism, democracy and the freedom of the
individual would always subsist in the welfare
state.
In view of the above reasons, a necessary
implication arises that- there are implied
limitations on the power of Parliament that
the expression ‘amendment of this Consti-
tution’ has consequently a limited meaning in
our Constitution and not the meaning suggested
by the respondents”.
Sikri C.J. recorded his finding on the basic
structure in Kesavananda Bharti’s case (supra)
as follows (at pp. 165-166) :
” The true position is that every Provision of
the Constitution can be amended provided in
the result the basic foundation and structure
of the constitution remains the same. The
basic structure may be said to consist of the
following features:
(1) Supremacy of the Constitution;
(2) Republican and Democratic form of
Government;
(3) Secular character of the Constitution;
(4) Separation of powers between the
Legislature, the executive and the judiciary;
79
(5) Federal character of the Constitution.
The above structure is built on the basic
foundation, i.e. the dignity and freedom of
the individual. This is of supreme
importance. This cannot by any form of amend-
ment be destroyed.
The above foundation and the above basic
features are easily discernible not only from
the preamble but the whole scheme of the
Constitution, which I have already discussed”.
Similarly, Shelat and Grover JJ, after surveying principles
of interpretation and construction of the Constitution,
accepted the theory of implied limitations on the power of
Parliament as well as the doctrine of basic structure. They
recorded their conclusion as follows (at ;pp. 280-281)
“The basic structure of the constitution is
not a vague concept and the apprehensions
expressed on behalf of the respondents that
neither the citizen nor the Parliament would
be able to understand it are unfounded. If
the historical background, the Preamble, the
entire scheme of the Constitution, the
relevant provisions thereof including Art. 368
are kept in mind there can be no difficulty in
discerning that the following can be regarded
as the basic elements of the Constitutional
structure. (These cannot be cataloged but can
only be illustrated).
1. The Supremacy of the, Constitution.
2. Republican and Democratic form of
Government and sovereignty of the country.
3. Secular and federal character of the
Constitution.
4. Demarcation of power between the
legislature, the
executive and the judiciary.
5. The dignity of the individual secured by
the various
freedoms and basic rights in Part III and the
mandate to, build a welfare State contained in
Part IV.
6. The unity and the integrity of the
nation”.
Hegde and Mukherjea, JJ. also considered at length
principles of interpretation and construction in this
country and in the Commonwealth countries. They
distinguished earlier cases of this Court. They purported
to apply well established principles of interpretation and
construction such as the Mischief Rule in Heydon’s case, the
need to ‘view the Constitution as a whole, and its history
and objects. They ,said (at p. 307) :
“While interpreting a provision in a statute,
or, Constitution the primary duty, of the
Court is to find out the legislative intent.
In the present case our duty is to find out
the
80
intention of the founding fathers in enacting
article 368. Ordinarily the legislative
intent is gathered from the language used. If
the language employed is plain and
unambiguous, the game must be given effect to
irrespective of the consequences that may
arise. But if the language employed is
reasonably capable of more meanings than one,
then the Court will have to call into aid
various well settled rules of construction and
in particular, the history of the legislation
to find out the evil that was sought to be
remedied and also in some cases the underlying
purpose of the legislation-the legislative
scheme and the consequences that may possible
flow from accepting one or the other of the
interpretations because no legislative body is
presumed to confer a power which is capable of
misuse’.
They cited the Preamble and the objectives
underlying the Constitution, and found (at p.
316) :
“Implied limitations on the powers conferred
under a statute constitute a general feature
of all statutes. The position cannot be
different in the case of powers conferred
under a Constitution. A grant of power in
general terms or even in absolute terms may be
qualified by other express provisions in the
same enactment or may be qualified by the
implications of the context or even by
considerations arising out of what appears to
be the general scheme of the statute”.
They did not enumerate all the basic features
of the Constitution but recorded their
conclusion as follows (at p. 356) :
“Though the power to amend the Constitution
under Article 368 is a very wide power, it
does not yet include the power to destroy or
emasculate the basic elements or the
fundamental features of the Constitution”.
Jaganmohan Reddy, J, in the course of a detailed
consideration of Constitutional provisions, dwelt on the
Preamble largely and on the needs of the nation for
stability of its values and gave a narrower connotation to
the word “amendment” than one which could destroy the very
identity of the Constitution. He said (at p. 517):
“There is nothing, vague or unascertainable in
+,he preamble and if what is stated therein is
subject to this criticism it would be equally
true of what is stated in Article 39(b) and
(c) as these are also objectives fundamental
in the governance of the country which the
State is enjoined to achieve for the
amelioration and happiness of its people. The
elements of the basic structure are indicated
in the preamble and translated in the various
provisions of the Constitution. The edifice
of our Constitution is built upon and stands
on several props,-remove any of them, the
Constitution collapses. These are: (1)
Sovereign Democratic Republic; (2) Justice,
social, economic and political; (3)
81
Liberty of thought, expression, belief, faith
and worship; (4) Equality of status and of
opportunity. Each one of these is important
and collectively they assure a way of life to
the people of India which the Constitution
guarantees. To withdraw any of the above
elements the structure will not survive and it
will not be the same Constitution, or this
Constitution nor can it maintain its identity,
if something quite different is substituted in
its place, which the sovereign Will of the
people alone can do.”
Khanna, J., while definitely rejecting the theory of implied
limitations on plenary powers of legislation, nevertheless,
thought that the need. to reconcile the urge for change with
the need for continuity imposed even upon the wide power of
amendment of the Constitution the limitation that it must
move within the orbit defined by its basic structure. He
did not, and I say so with great respect, explicitly attempt
a reconciliation between his views on implied limitations
with those on the basic structure, which at least resembled
implied limits on the plenary power of legislation. He also
relied heavily on the preamble to the Constitution. He
explained later, in Shrimati Indira Nehru Gandhi v. Raj
Narain(1), that he did not exclude such amendments in the
chapter on Fundamental Rights as may form parts of the
“basic structure” from the purview of what could not be
touched by the power of amendment contained in Article 368
of the Constitution. The judgment of Khanna J. tilted the
balance, by a narrow majority of one, in favour of the “the
basic structure” of the Constitution as a limitation on the
expressly conferred legislative power of amendment.
I need not set out similarly the views of Ray, Palekar
Mathew, Beg, Dwivedi, and Chandrachud, JJ, as they, while
accepting the undeniable proposition that the Constitution
contained what was basic, held the, view, supported also by
reference, to the history of our Constitution-making and to
its express provisions, that the power to amend or change
the Constitution in any manner and in any respect desired by
the representatives of the people was also a part of that
basic structure or the urges of the people which had to it
round expression ill Article 368 of the Constitution and
which had to be fully recognised by giving it the widest
possible amplitude. They too, therefore, recognised that
there was “a basic structure” of the Constitution in the
light of its history and contents and by an application of
well established rules of construction. The difference
between the majority and minority views was only on the
question whether a wide scope of powers of amendment given
to the representatives of the people was or was not a part
of this basic structure or its functioning as evidenced by
the express declarations and provisions of the Constitution.
I do not think that what those learned Judges who, in
Kesavananda Bharti’s case (supra), found a narrower orbit
for the legislative power of amendment of the Constitution
itself to move in cant to
(1) [1976] 2 S.C.R. 347.
82
lay down some theory of a vague basic structure floating,
like a cloud in the skies, above the surface of the
Constitution and outside it or one that lies buried beneath
the surface for which we have to dig in order to discover
it. I prefer to think That the doctrine of “a basic
structure” was nothing more than a set of obvious inferences
relating to the intents of the Constitution makers arrived
at by applying the established canons of construction rather
broadly, as they should be so far as an organic
Constitutional document, meant to govern the fate of a
nation, is concerned. But, in every case where reliance is
placed upon it, in the course of an attack upon legislation,
whether ordinary or constituent (in the sense that it is an
amendment of the Constitution), what is put forward as part
of “a basic structure” must be justified by references to
the express provisions of the Constitution. That structure
does not exist in vacuo. Inferences from it must be shown
to be embedded in and to flow logically and naturally from
the, bases of that structure. In other words, it must be
related to the provisions of the Constitution and to the
manner in which they could indubitably be presumed to
naturally and reasonably function.. So viewed, the doctrine
is nothing more than a way of advancing a well recognised
mode of construing the Constitution. It should be used with
due care and caution. No exposition of it which could make
it appear as a figment of judicial imagination or as capable
of ‘such subjective interpretations that it may become im-
possible to decipher or fix its meaning with reasonable
certainty could be accepted by us because that would amount
to declaring its futility. In Kesavananda Bharti’s case
(supra), this Court had not worked out the implications of
the basic structure doctrine in all its applications. It
could, therefore, be said, with utmost respect, that it was
perhaps left there in an amorphous state which could give
rise to possible misunderstandings as to whether it is
not too vaguely stated or too loosely and variously
formulated without attempting a basic uniformity of its
meanings or implications. The one principle, however, which
is deducible I in all the applications of the basic
structure doctrine, which has been used by this Court to
limit even the power of Constitutional amendment, is that
whatever is put forward as a basic limitation upon
legislative power must be correlated to one or more of the
express provisions of the Constitution from which the
limitation should naturally and necessarily spring forth.
The doctrine of basic structure, as explained above,
requires that any limitation on legislative power must be so
definitely discernible from the provisions of the
Constitution itself that there could be no doubt or mistake
that the prohibition is a part of the basic structure
imposing a limit on even the power of Constitutional
amendment. And, whenever we construe any document, by
reading its provisions as a whole, trying to eliminate or
resolve its disharmonies, do we not attempt to interpret it
in accordance with what we find in its “basic structure” or
purposes ? The doctrine is neither unique nor new.
I may here point out that in Smt. Indira Nehru Gandhi v.
Rai Narain (supra), when the doctrine of the basic structure
of the Constitution was invoked to assail the provisions of
Representation of People Act, Ray C.J., seemed to reject the
theory of basic structure
83
altogether in its application either to the construction of
the Constitution or of ordinary legislation. He said (at
pp. 436-437) :
“To accept the basic features or basic
structures theory with regard to ordinary
legislation would mean that there would be two
kinds of limitations for legislative measures.
One will pertain to legislative power under
Articles 245 and 246 and the legislative
entries and the provision in Article 13. The
other would be that no legislation can be made
as to damage or destroy basic features or
basic structures. This will mean rewriting
the Constitution and robbing the legislature
of acting within the framework of the
Constitution. No legislation can be free from
challenge on this ground even though the
legislative measure is within the plenary
powers of the legislature”.
He went on to observe (at p. 437):
“The theory of basic structures or basic
features is an exercise in imponderable.
Basic structures or basic features are
indefinable. The legislative entries are the
fields of legislation. The pith and
substance doctrine has been applied in order
to find out legislative competency.
and eliminate encroachment on legislative
entries. If the theory of basic structures or
basic features will be applied to legislative
measures it will denude Parliament and State
Legislatures of the power of legislation and
deprive them of laying down legislative
policies. This will be encroachment on the
separation of powers”.
Mathew, J., observed : in Smt. Indira
Gandhi’s case (supra) (at pp. 525-526)
“I think the inhibition Lo destroy or damage
the basic structure by an amendment of the
Constitution flows from the limitation on the,
power of amendment under Article 368 read into
it by the majority in Bharati’s case because
of their assumption that there are certain
fundamental features in the- Constitution
which its makers intended to remain there in
perpetuity. But I do not find any such in-
hibition so far as the power of Parliament or
State Legislatures to pass laws is concerned.
Articles 245 and 246 give the power and also
provide the limitation upon the power of these
organs to pass laws. It is only the specific
provisions enacted in the Constitution which
could operate as limitation upon the power.
The Preamble, though a part of the
Constitution, is neither a source of power nor
a limitation upon the power. The preamble
sets out the ideological aspirations of the
people. The essential features of the great
Concepts set out in the preamble are
delineated in the various provisions of the
Constitution. It is these specific provisions
in the body of the Constitution which
determine the type of democracy which the
founders of
84
that instrument established; the quality and
nature of justice, political, social and
economic which was their desideratum, the
content of liberty of thought and expression
which they entrenched in that document, the
scope of equality of status and of opportunity
which they enshrined in it. These specific
provisions enacted in the Constitution alone
can determine the basic structure of the
Constitution as’ established. These specific
provisions, either separately or in
combination determine the content of the great
concepts set out in the preamble. It is
impossible to spin out any concrete concept of
basic structure out of the gossamer concepts
set out in the preamble. The specific
provisions of the Constitution are the stuff
from which the basic structure has to be
woven”.
In Smt. Indira Gandhi’s case (supra), Chandrachud, J.,
after making similar observations on the nature of the
Preamble and pointing out that there was no agreed list of
basic features of the Constitution given by learned Judges
constituting the majority in Kesavananda. Bharati’s
(supra), said, on the applicability of the basic structure
doctrine to the power of ordinary legislation. (at pp. 669-
670)
“The Constitutional amendments may, on the
ratio of the Fundamental Rights case, be,
tested on the anvil of basic structure. But
apart from the principle that a case is only
an authority for-what it decides, it does not
logically follow from the majority judgment in
the Fundamental Rights case that ordinary
legislation must also answer the same test as
a constitutional amendment. Ordinary laws
have to answer two tests for their validity :
(1) The law must be within the legislative
competence of legislature as defined and
specified in Chapter 1, part XI, of the
Constitution and (2) it must not offend
against the ions of Article 13(1) and (2) of
the Constitution Basic Structure, by the
majority judgment. is not a part of the funda-
mental rights nor indeed a provision of the
Constitution. The theory of basic structure
is woven out of the conspectus of the
Constitution, and the amending power is
subject to it because it is a constituent
power. ‘The power to amend the fundamental
instrument cannot carry with it the power to
destroy its essential features’-this, in
brief, is the arch of the theory of basic
structure. It is wholly out of place in
matters relating to the validity of ordinary
laws made under the Constitution”.
Both Khanna J., and I, however, expressed views there
showing that aspirations of the people of India, set out in
the Preamble as well as other parts of the Constitution,
provided general guidance in judging the Constitutionality
of all laws whether constitutional or ordinary. I
specifically said there that the doctrine of the basic
structure of the Constitution could be used to test the
validity of laws made by Parliament either in its
constituent or ordinary law making capacities
85
because “ordinary law making cannot go beyond the range of
constituent power”.
No doubt, as a set of inferences from a document (i.e. the
Constitution), the doctrine of “the basic structure” arose
out of and relates to the Constitution only’ and does not,
in that sense, appertain to the sphere of ordinary statutes
or arise for application to them in the same way. But,
if, as a result of the doctrine, certain imperatives are
inherent in or logically and necessarily flow from the
Constitution’s ‘basic structure”, just as though they are
its express mandates, they can be and have to be used to
test the, validity of ordinary laws just as other parts of
the Constitution are so used.
In Smt. Indira Gandhi’s case (supra), the differences of
approach between the learned Judges, were not so much on the
question whether “the basic structure” was to be deemed to
be really an additional part of the Constitution (on this
there is agreement that it could not) or only a principle of
its construction, but on the question whether, once it, was
found to be a permissible mode of construction, what
followed from it was applicable to test the validity of both
constitutional as well as ordinary law-making. The majority
view of learned Judges of this Court seemed to be that, it
was not available to test the validity of the impugned
provisions of the Representation of People Act because the
expressly laid down ordinary law making powers of Parliament
are clear enough. In other words, it was held to be in-
applicable here on the view that there was no ambiguity to
be resolved about the ordinary law making powers of
Parliament. It was applied to interpret the ambit of, the
Constituent power as there was some uncertainty about its
scope. It, however, seems to me that the test of “free and
fair elections” and of “equality before the law” were used
by this Court in judging the validity of the impugned
provisions of the Representation of People Act in Smt.
Indira Nehru Gandhi’s case (supra) although the majority of
learned judges of the bench preferred to do so without
characterising these features as parts of a basic structure
of the, Constitution. But, when deciding the question
whether the purported constitutional amendment could take
away the powers of this Court to hear and decide on merits
the election appeals pending before it, all the learned
Judges who participated in the decision of that case seemed
to rely, in varying degrees, either expressly or impliedly,
upon the “basic structure” of the Constitution itself, as
revealed by its express provisions, to hold that, under the
guise of exercising a legislative power, the Parliament
could not, in effect, adjudicate on the merits of in
individual case under the Constitution as it stood.
It is important to note that majority opinions of Judges who
participated in the decision in Kesavananda Bharati’s case
(supra)and those who took part in the decision in Smt.
Indira Gandhi’scase (supra), invalidating certain
constitutional amendments, makeout limitations founded
on the basic structure of the Constitution by very detailed
references to the express provisions of the Constitution.In
Smt. Indira Nehru Gandhi’s case (supra), parts of the
Constitution
86
(Thirty-Ninth Amendment) Act of 1975 were struck down
primarily because specific provisions of Article 368 of the
Constitution left no room for doubt that what was conferred
by the Constitution upon a majority of not less than two
thirds of the members of the two Houses of Parliament
present and voting, supported by resolutions of legislatures
of not less than one half of the States, was a legislative
power and not a judicial power judged both by its contents
and procedure. Hence, it was held that, on the very terms
of the specific power conferred, an exercise of judicial
power, in purported exercise of legislative powers contained
in Article 368 of the Constitution, was prima facie ultra
vires. Such exercise of power contravenes the basic
structure of the Constitution of which the legislative orbit
of power indicated by Article 368 of the Constitution is
also a necessary part. The principle asserted there was
stated by me as follows :
“Neither of the three constitutionally
separate organs of State can, according to the
basic scheme of our Constitution today, leap
outside the boundaries of its own
constitutionally assigned sphere or orbit of
authority into that of the other”.
These orbits were expressly chalked out by the law found in
the Constitution. There could be no doubt, whatsoever upon
reading the provisions of the Constitution as a whole, that
the orbits of legislative and judicial power are not the
same. But, so far as the orbits of legislative power are
concerned, it is clear that those of Parliament and ofthe
State legislatures are not mutually exclusive in every
respect. There is also a concurrent field of legislation.
And, there is nothingthere which could come in the way
of the plenary legislative power conferred upon our
Parliament in fields assigned to it. These can be limited,
at the most, by a necessary or unavoidable implication, such
as the one which must flow from the conferment of judicial
and legislative and executive powers separately, with
unmistakably different characteristics, upon different
authorities. The basic scheme of the Constitution could
certainly be invoked to invalidate legislation by
Parliament, acting in its ordinary law making capacity, on a
subject which falls either exclusively within the orbit of
an amendment of “the Constitution” or in List II of the
Seventh Schedule of exclusively State subjects. But, as I
have indicated above, this is not so here.
Thus, it is clear that whenever the doctrine of the basic
structure has been expounded or applied it is only as a
doctrine of interpretation of the Constitution as it
actually exists and not of a Constitution which could exist
only subjectively in the minds of different individuals as
mere theories about what the Constitution is. The doctrine
did not add to the contents of the Constitution. It did
not, in theory, deduct anything from what was there. It
only purported to bring out and explain the meaning of what
was already there. It was, in fact, used by all the judges
for only this purpose with differing results simply because
their assessments or inferences as to what was part of the
basic structure in our Constitution differed. This, I
think, is the ‘Correct interpretation of the doctrine of the
basic structure of the
87
Constitution. It should only be applied if it is clear,
beyond the region of doubt, that What is put forward as a
restriction upon otherwise clear and plenary legislative
power is there as a Constitutional imperative.
If this be the correct view about the basic structure, as a
mode of interpreting the Constitution only, the so-called
federalism as a fetter on legislative power must find
expression in some express provision to be recognised by
Courts. It may be mentioned here that a majority of Judges
who decided the Kesavananda Bharati’s case (supra) have not
treated “Federalism” as part of the basic structure of the
Constitution. And, none of them has discussed the extent of
the “federal” part of this structure. It is not enough to
point to Article I of the Constitution to emphasize that our
Republic is a “Union” of States. That, no doubt is true.
But, the word “union” was used in the context of the
peculiar character of our federal Republic revealed by its
express provisions. We have still to find, from other
express provisions, what this “Union” means or what is the
extent or nature of “federalism” implied by it. The
Constitution itself does not use the word “federation” at
all. In any case, after examining all the express
provisions of the Constitution, relied upon by the learned
Counsel for the plaintiff, I am unable to discover there any
such fetter which could, by a necessary implication, prevent
Parliament from enacting Section 3 of the Act.
Indeed, if the theory of necessary implications is to be
applied here, the, entrenched provisions of our
Constitution, for which a special procedure for amendment is
prescribed within Article 368 itself, together with the
other provisions discussed above, give the express limits to
which the operations of the federal principles is confined
in our Constitution. None of the expressly mentioned
features could, by any necessary implication, impinge upon
the expressly given and distributed legislative powers. The
doctrine that express mention excludes that which is not so
mentioned applies also to express limitations. If the
scheme of distribution of legislative powers is basic and
express, with its own express limitations, “implied” or
unspecified alleged limitations going beyond that scheme are
eliminated by the very force of the express provisions.
In Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar &
Ors(1). I find that the validity of the Act and of a
notification under Section 3 of the Act was challenged but
upheld by this Court, although a part of clause 10 of the
notification which, in addition to requiring it to recommend
measures to prevent similar future cases, also directed it
to report on “the action which in the opinion of the
Commission should be taken as and by way of securing redress
or punishment”, was held to be outside the purview of the
Act in so far as the latter part went beyond the purely
investigatory character of the inquiry authorised by the
Act. In that case the Commission was required to inquire
into and report on the administration of affairs of certain
(1)[1955] S.C.R. 279.
88
companies specified in a schedule annexed to the
notification. It was held there inter-alia that mere
possibility of misuse of powers given by the Act could not
vitiate the power conferred by the Act. It was also held
there that the Act was made by Parliament acting in fields
indicated by entries 94 of List I and 45 of List III of the
Seventh Schdule so that the inquiries could be ordered “for
the purposes of any of the matters in List I, List II and
List III.” Incompetence of Parliament to legislate on
matters in List II could not, it was held, vitiate power to
order inquiries relating to subjects in that list in view of
the express terms of entry 45 in List II. It was held that
the scope of inquiry may also cover matters ancillary to the
inquiries themselves. Furthermore, relying on Kathi Raning
Rawat v. State of Saurashtra, (1) it was pointed out (at p.
293):
” The Commission has no power of adjudication
in the sense of passing an order which can be
enforced proprio vigore. A clear distinction
must, on the authorities, be drawn between a
decision which, by itself, has no force and no
penal effect and a decision which becomes
enforceable immediately or which may become
enforceable by some action being taken.”
It is true that in R. K. Dalmia’s case (supra) the
provisions ‘of the Act were not assailed on all the
extensive grounds on which they have now been questioned
before us. Nevertheless, the objects of the Act were
considered and indicated there.
The purposes for which a Commission can be set up under the
Act was considered long ago by a Division Bench of the
Nagpur High Court in M. V. Rajwade v. Dr. S. M. Hasan & Ors
(2), which was cited with approval by this Court in
Brajnandan Sinha v. Jyoti Narain(3) and the following
passage was quoted from the judgment:
“The Commission in question was obviously
appointed by the State Government ‘for the
information of its own mind’, in order that it
should not act, in exercise of its executive
power, ‘otherwise than in accordance with the
dictates of justice and equity’ in ordering a
departmental enquiry against its officers. It
was, therefore, a fact finding body meant only
to instruct the mind of the Government without
producing any document of a judicial nature”.
It may be mentioned here that in A. Sanjeevi Naidu etc. etc.
v. State of Madras & Anr. (4) this Court examined the
position of an individual Minister who determines matters of
policy and programmes of his Ministry, within the framework
of major policies of the Government, vis-a-vis the officials
in the Department in his charge who act on behalf of the
Government subject to the directions given orally
(1) [1952] S.C.R. 435.
(2) [1954] I.L.R. Nagpur p. I @ 13.
(3) [1955] 2 S.C.R. 955.
(4) [1970] 3 S.C.R. 505 @ 512.
89
or in writing by the Minister concerned. Hence, it may
become a matter of considerable difficulty, delicacy, and
importance, in a particular case, to apportion the blame or
responsibility for any act or decision, alleged to be
wrongful, between the Minister concerned and the officials
who work under his directions. Such apportionments could be
safely entrusted only to experts who have had considerable
judicial experience and can deal with complete impartiality
and dexterity with issues raised. The moral or collective
responsibility which is political is a different matter
which may no doubt be affected by the reports of a
Commission of Inquiry. Individual liability may have even
more serious consequences for the Minister concerned than
the collective responsibility which carries only political
implications.
In State of Jammu & Kashmir v. Bakshi Ghulam Mohammad(1)
this Court pointed out that even if Bakshi Ghulam Mohammad
had ceased to be the Chief Minister of the State of Jammu &
Kashmir his past actions would not cease to be matters of
public importance. It definitely disapproved the view of
the High Court when it said (at p. 407) :
“These learned Judges of the High Court
expressed the view that the acts of Bakshi
Ghulam Mohammad would have been acts of
public, importance if he was in office but
they ceased to be so as he was out of office
when the Notification was issued. In taking
this view, they appear to have based
themselves on the observation made by this
Court in Ram Krishna Dalmia v. Sri Justice S.
R. Tendolkar that “the conduct of an
individual may assume such a dangerous pro-
portion and may so prejudicially affect or
threaten to affect the public well-being as to
make such conduct a definite matter of public
importance, urgently calling for a full
enquiry”. The learned Judges felt that since
Bakshi Ghulam Mohammad was out of office, he
had become innocuous; apparently, it was felt
that he could not long threaten the public
well-being by his acts and so was outside the
observation in Dalmia’s case. We are clear in
our mind that this is a misreading of this
Court’s observation. this Court, as the
learned Judges themselves noticed, was not
laying down an exhaustive definition of
matters of public importance. What is to be
inquired into in any case are necessarily past
acts and it is because they have already
affected the public well-being or their effect
might do so, that they became matters of
public importance. It is irrelevant whether
the person who committed those acts is still
in power to be able to repeat them.”
The clear implication of the last mentioned pronouncement,
with which I find myself in complete and respectful
agreement, was that even if a Minister in the exercise of
his official power does acts which may amount to criminal
offences, yet, inquiry into them may be made as a matter of
public importance and not of just Private importance.
(1) [1966] Supp. S.C.R. 401.
90
And, what can be done when he is out of office may, a
fortiori, be ordered when he is in office. This Court also
said there as follows, with which also I entirely agree (p.
406) :
” …. it is difficult to imagine how a
Commission can be set up by a Council of
Ministers to inquire into the acts of its
head, the Prime Minister, while he is in
office. It certainly would be a most unusual
thing to happen. If the rest of the Council
of Ministers resolves to have any inquiry, the
Prime Minister can be expected to ask for
their resignation. In any case he would
himself go out. If he takes the first
course,then no Commission would be set up for
the Ministers wanting the inquiry would have
gone. If he went out himself, then the
Commission would be set up to inquire into the
acts of a person who was no longer in office
and for that reason, if the learned Judges of
the High Court were right, into matters which
were not of public importance. The result
would be that the acts of a Prime Minister
could never be inquired into under the Act.
We find it extremely difficult to accept that
view. ”
In P. V. Jagannath Rao & Ors. v. State of Orissa & Ors. was
held by a Constitution Bench of this Court that the
appointment of a Commission of Inquiry under section 3 of
the Act with the object of enabling the Government to frame
“appropriate legislative or administrative measures to
maintain the purity and integrity of the political
administration in the State?’ was valid.
Again in Krishna Ballabh Sahay & Ors. v. Commission of
Enquiry & Ors. (2) a similar view was taken and it was
observed by this. Court with reference to the charges of
corruption into the conduct of Ministers (at p. 394)
“It cannot be stated sufficiently strongly
that the public life of persons in authority
must never admit of such charges being even
framed against them. If they can be made then
an inquiry whether to establish them or to
clear the name of the person charged is called
for.
A perusal of the grounds assures us that the
charges are specific, and that records rather
than oral testimony will be used, to establish
them.”
I may also say that I fully agree with the views expressed
by Kailasam C.J., of the Madras High Court, in M.
Karunanidhi v. The Union of India & Anr.(3)
I may mention that the considerations placed before us for
assailing the legislative competence of Parliament, having
been rejected by us as quite insubstantial, could not be
utilised for “reading down” the provisions of section 3 of
the Act a procedure which may be some-
(1) [1968] 3 S.C.R. 789.
(2) [1969] 1 S.C.R. 387.
(3) A.I.R. 1977 Mad. 192.
91
times available for saving a provision from partial or total
invalidity. “Reading down” is, after all, only a logical
outcome of the principle of constitution Res Magis Valeat
Quam Pereat (See : Craies on “Statute Law” 6th. ed. p. 103).
The last question I propose to advert to relates to the
preliminary objection to the maintainability of the suit
under Article 131 of the Constitution on which I share the
conclusions of Chandrachud J. and of Bhagwati J. and
Kailasam J. as against those, with due respect, of our
learned brethren who have held that the plaintiff should be
non-suited on the ground that a suit such as the one now
before us does not lie at all under Article 131 of the
Constitution.
I have dealt at length with all the arguments which were
advanced on behalf of the State of Karnataka because I
accept as correct the submission of the learned Counsel for
the plaintiff that the case involves consideration of the
exercise of governmental powers which vest in the Government
of the State and its Ministers as such vis a vis those of
the Central Government. and its Ministers. They also raise
questions relating to the meaning and the ambit and the
applicability of the particular provisions of the
Constitution whose operations are of vital interest to every
State. Indeed, the interpretations given to these
provisions must necessarily be of great concern to the Union
as well. They are matters which involve the interests of
the whole of the people of India who gave unto themselves
the Constitution whose provisions we have interpreted.
The Union of India, acting through the Central Government,
could be said to represent the whole of the people of India.
The individual States, acting through their Governments and
Ministers, could be said to represent the people of each
individual State and their interests. When differences
arise between the representatives of the State and those of
the whole people of India on questions of interpretation of
the Constitution, which must affect the welfare of the whole
people, and particularly that of the people of the State
concerned, it appears to me, with great respect, to be too
technical an argument to be accepted by us that a suit does
not lie in such a case under Article 131 of the
Constitution.
According to both sides to the case before us an exercise of
powers under section 3 of the Act is called for. They
differ only on the question whether the Government of the
State concerned or the Central Government also, on the facts
of this case, can exercise those powers. Their claims
conflict. There is a lies. The parties to the dispute are
before us. We had to decide it and we have done so. It
seems to me that a distinction between the State and its
Government is, at the most, one between the whole and an
inseparable part of the whole. It would be immaterial as
regards claims on behalf of either the State or its
Government whether the two are distinct jurists entities.
Even if they could be distinctly separate, which is
doubtful, the claim of the Government would be that of the
State.
92
In State of Rajasthan v. Union of India (1) this Court has
recently considered the scope of Article 131. There, I
said, inter alia, on this question (at p. 1393) :
“I do not think that we need take a too
restrictive or a hyper-techincal view of the
State’s rights to sue for any rights, actual
or fancied which the State Government chooses
to take up on behalf of the State concerned in
a suit under Art. 131.”
It may be, explained here that this observation was not
meant to lay down more than that there would be presumed to
be a nexus between the interests of the State and of the
people it represents when the Government of the State, takes
up an issue relating to the interpretation of the
Constitution against an action taken, or, even, as was the
case there, one contemplated by the Central Government. I
would like to remove the impression that no such nexus is
needed if the use of the words “actual or fancied”, in the
observations quoted above, create it. I however, think
that, in the case before us, the nexus between the rival
claims advancedand the interests of the public of the
State is reasonably made out. It is a different matter
that I do not accept the view put forward onbehalf of the
State of Karnataka that it alone and not the Union
Government also has the power to set up a Commission under
section 3 of the, Act on a matter of public importance
primarily concerning the State.
It has to be remembered that Article 131 is traceable to
section 204 of the Government of India Act. The
jurisdiction conferred by it thus originated in what was
part of the federal structure set up by the Government of
India Act, 1935. It is a remnant of the Federalism found in
that Act. It should, therefore, be widely and
generously interpreted for thatreason too so as to
advance the intended remedy. It can be invoked,in my
opinion, whenever a State and other States or the Union
differ on a question of interpretation of the Constitution
so that a decision of it will affect the scope or exercise
of governmental powers which are attributes of a State. It
makes no difference to the maintainability of the action if
the powers of the State, which are Executive, Legislative,
and Judicial, are exercised through particular individuals
as they necessarily must be. It is true that a criminal act
committed by a Minister,, is no part of his official duties.
But, if any of the organs of the State claim exclusive power
to take cognizance of it, the State, as such, becomes
interested in the dispute about the legal competence or
extent of powers of one of its organs which may emerge.
I do not think that the fact that the State acts through its
Ministers or officials can affectthe maintainability of a
suit under Article 131 of the Constitution. Both Article
166(3) of our Constitution as well as Section 59(3)of
the Government of India Act of 1935 provided for allocation
of the business of the Government among the Ministers for
“the more convenient transaction of the business.” This
implies that the State can act not merely through its
Government as a whole
(1) A.I.R. 1977 S.C. 1361.
93
but also through its individual Ministers as provided by the
rules. Section 49(1) of the Government of India Act made
this position absolutely clear by enacting :
“The executive authority of a Province shall
be exercised on behalf of His Majesty by the
Governor, either directly or through officers
subordinate to him.”
The equivalent to that is Article 154(1) of
our Constitution which reads as follows :
“154. Executive power of State-.(1) The
executive power of the State shall be vested
in the Governor and shall be exercised by him
either directly or through officers
subordinate to him in accordance with this
Constitution.”
In King-Emperor v. Sibnath Banerji & Ors.(1) the Privy
Council had held that “a Minister is an officer subordinate
to the Governor” for the purposes of Section 49 of the
Government of India Act only. This observation was no doubt
relied upon by this Court in A. Sanjeevi Naidu ,etc. etc. v.
State of Madras & Anr.(2) with regard to the position of our
Ministers for the purposes of Article 154(1) of the
Constitution.These provisions, far from establishing any
antithesis between the official capacity of a Minister and
the State for which he acts, only show that, as a Minister,
he is an agent or a limb of the Government of the State,
and, therefore, he can be treated as an “officer” for pur-
poses of Article 154(1) which corresponds to Section 49 of
the Government of India Act. The result is that a
Minister’s official acts cannot be distinguished from those
of the State on whose behalf he ;acts. With great respect
for the view of my learned brethren who seem to hold
otherwise, this feature cannot make a suit by the State
tinder Article 131 of the Constitution incompetent merely
because it relates to the exercise of a Minister’s powers
enjoyed by Virtue of his office. There is nothing in
Article 131 of the Constitution itself to debar the State,
which must always necessarily act through its officers or
agents or Ministers, from suing the Central Government not
only to protect one of its agents, officers, or Ministers
from being proceeded against, in any way, by the Central
Government, but to prefer its own claim to exclusive power
to deal with him; and, this is what the plaintiff has done
by means of the suit before us.
It is evident that a Minister has been treated, in the two
cases cited before us as an “officer” for the very limited
purpose of indicating that the State itself can act through
him as he holds an office which enabled him to act for it.
They do not equate or assimilate his status or position with
that of a Government servant. In my opinion, the Minister
of a State, as the holder of an office provided for by the
Constitution is, like a Judge of a High Court, a “dignitary
of State” to use the expression employed by Sir William
Holdsworth the eminent British Constitutional lawyer and
jurist, for a High Court Judge. His dignity and position is
bound up with that of the State he represents. Hence, his
State is entitled to sue to assert it.
(1) L.R. 72 I.A. 241 @ 266.
(2) [1970] 3 S.C.R. 505 @ 512.
94
It may be possible sometimes to distinguish a purely
individual wrongful or criminal act, committed by a
Minister, falling entirely outside the scope of his legal
authority, as disconnected with his office. But, even this
cannot, in my opinion, disable the State itself from suing
for theprotection of its own authority to deal with the
Minister concerned. It is, as I have already indicated,
a different matter if we, hold, aswe have held here,
that the claim of the State to have exclusive power to deal
with its Minister is not sustainable for some reason. The
right to advance a claim, which is all that Article 131
providesfor, is to be distinguished from the strength of
that claim in law.So long as the claim is of the State,
the fact that a Minister, in exercisinggovernmental powers,
represents the State, can make no difference whatsoever to
the maintainability of the suit by the State.
I think that the State concerned, which challenges the
validity of the action of the Central Government against one
or more of its Ministers in respect of acts involving
exercise of its governmental powers, would have sufficient
interest to maintain a suit under Article 131 because it
involves claims to what appertains to the State as a
“State.” It may be that, if the effect upon the rights or
interests of a State, as the legal entity which constitutes
the legally set up and recognised governmental Organisation
of the people residing within certain territorial limits is
tooremote, indirect, or infinitesimal, upon the facts of a
particular case, wemay hold that it is not entitled to
maintain a suit under Article 131. But, I do not think
that we can say that here.
The following cases were cited by the plaintiff’s Counsel :
The Governor-General in Council v. The Province of
Madras,(1) United Provinces v. Governor-General in Council;
(2) Attorney-General for Victoria at the Relation of Dale
and Ors. v. The Commonwealth & Ors.(3) Attorney-General for
Victoria (at the Relation of the Victorian Chamber of
Manufacturers) v. The Commonwealth(4). State of Rajasthan v.
Union of India (supra). Except for the last mentioned case
they are not directly helpful on the scope of Article 131 or
on the right of a State to sue under it. They, however
indicate the kind of questions on which and the persons
through whom the units and the Central authorities in a
Federation may litigate.
My answers to the three issues framed are
1. The suit is maintainable.
2. The Central Government’s notification is valid.
3. Section 3 of the Act is valid.
On a fourth supplementary question framed on facts placed
and arguments advanced before us, my answer is that the
State and Central Government notifications do not relate
substantially to “the same
(1) [1943] F.C.R. p. 1.
(2) A.I.R. 1939 F.C. 58.
(3) 71 C.L.P.. 237.
(4) 1943-1934 (2) C.L.R.533.
95
matter” within the meaning of proviso (b) to Section 3(1) of
the Act. It is, however, made clear that this question is
answered by me on the assumption that there is no legal
defect in the appointment of its own Commission by the State
Government. The validity of the State Government’s
notification was not challenged before us on any ground
whatsoever. The views expressed here will not, therefore,
be deemed to have anybearing on questions relating to
the validity of the State Government’s notification which
were not canvassed before us. This clarification seems
necessary because the validity of the State Government’s
notification has also been, I understand, challenged in some
other proceedings on grounds which can only be considered by
us if aid when they come up before us. Consequently, this
suit must be dismissed with costs.
CHANDRACHUD, J.-Consequent upon the result of the elections
held to the Karnataka Legislative Assembly in 1972, the
Congress formed the government with Shri D. Devaraj Urs as
the Chief Minister of the State. That party was then in
power at the centre too, but it lost its long held majority
in the 1977 Lok Sabha elections after which the Janata Party
formed the Government at the centre. However in those
elections to the Lok Sabha, 26 out of 28 seats allotted to
the State of Karnataka were won by the Congress.
Certain opposition members of the Karnataka Legislative,
Assembly submitted to the Union Home Minister a memorandum
containing allegations of corruption, favouritism and
nepotism against the Chief Minister, Shri Devaraj Urs. In
response to a request of the Union Home Minister, the Chief
Minister offered his comments on the allegations but, while
repelling the accusations as frivolous and politically
motivated, the Chief Minister raised a point which forms the
nucleus of the arguments advanced in the suit before us. He
contended that the, federal structure enshrined in the
Constitution is the corner-stone of national integrity; that
the Constitution is the source of the power of the Centre
and the States; that the exercise of all powers, whether by
the Central Government or by the State Governments, must
conform to the scheme of distribution of powers devised
under the federal scheme of our Constitution that the erring
ministers of State Governments are accountable to the State
legislature only; and that, the Central Government has no
authority or control over the government of a State in
respect of matters which are within the State’s exclusive
domain, save in exceptional times when an emergency is in
operation. The Chief Minister asserted that an enquiry into
the charges levelled against him could only be held by or at
the instance of the State Government.
By a notification dated May 18, 1977 issued under section
3(1) of the Commissions of Inquiry Act, 60 of 1952 the
Governmentof Karnataka appointed a Commission of
Inquiry consisting ofShri Mir lqbal Hussain, a retired
Judge of the Karnataka High Court,for the purpose of
conducting an inquiry into the allegations specified in the
notification. Within a few days thereafter, on May, 23, the
Government of India issued a notification under the same
Act, appoint-
96
ing a Commission of Inquiry consisting of Shri A. N. Grover,
retired ,Judge of the Supreme Court, for inquiring into the
charges made against the Chief Minister, as described in the
notification.The validity of this notification is
challenged by the State of Karnatakaby the present suit
brought under article 131 of the Constitution. The Union of
India and Shri A. N. Grover are impleaded to the suit as
defendants 1 and 2 respectively.
The State, of Karnataka contends by its plaint that the
Central Government has no jurisdiction or authority to
constitute the Commission in the purported exercise of its
powers under the Commissionsof Inquiry Act, 1952; that the
appointment of the Commission ofInquiry by the Central
Government of or inquiring into allegations against
ministers of the State Government while they continue to be
inoffice and enjoy the confidence of the State
legislature is destructiveof the federal structure of
the Constitution and the scheme of distribution of powers
provided for under it, that the cabinet system of government
under which the Council of Ministers is responsible to the
legislature of the State would fail of its purpose if the
Union executive were to assume to itself_ the power to
direct an inquiry into allegations made against State
ministers while they are in office; that the provisions con-
tained in section 3 of the Act of 1952 cannot be interpreted
so as to clothe the Central Government with the power to
appoint a Commission for inquiring into matters relatable to
any of the entries in List II of the Seventh Schedule to the
Constitution, in respect of which Parliament has no power to
make a law and the Union executive no power to take
executive action; that such an interpretation would render
section 3 of the Act ultra vires the provisions of Part XI
of the Constitution which deals exhaustively with the
relations between the Union and the States; and that, the
report of the Inquiry Commission appointed by the Union
Government cannot serve any useful purpose as the Central
Government is incompetent to take any remedial executive or
legislative action against the ministers of the State
Government or the State Government itself.
These contentions are traversed by the Union of India by
its written statement. It has, in the first instance,
raised a preliminary objection ,,hat thesuit itself is
not maintainable as the appointment of the Commission to
inquire into the personal conduct of the Chief Minister and
other ministers does not affect any legal right of the State
of Karnataka. It further contends that the notification
issued by the State Government neither covers the questions
comprised in the notification of the Central Government nor
does it cover ail of the matters mentioned in the latter
notification; that the Central Government is competent to
constitute a Commission to inquire into a definite matter of
public importance, namely, the conduct of a minister of
State Government; and that, the appointment of the
Commission is neither destructive of the federal structure
of the Constitution nor of any other basic feature thereof.
Three issues were framed by this Court on these pleadings.
The first relates to the maintainability of the suit, the
second to the question whether the notification issued by
the Central Government is
97
ultra vires the powers possessed by it under section 3 of
the Act of 1952 and the third to the contention whether, if
section 3 authorises the Central Government to issue the
impugned notification, the section itself is at all
constitutional.
On the preliminary objection as to the maintainability of
the suit, I prefer to adhere to the view which I took in
State of Rejasthan v. Union of India, where a similar
objection was raised by the Union Government to the suits
filed by the State of Rajasthan and certain other States
under article 131 of the Constitution, challenging a
directive of the Union Home Minister advising the
dissolution of State Assemblies. I have had the benefit of
perusing the Judgment prepared by brother Untwalia on behalf
of himself and Brethren Shinghal and JaswantSingh in which
they have taken the view that the Commission of Inquiry set-
up by the Central Government is not against the State or the
State Government but is against an individual minister or
ministers and since the setting up of the Commission does
not involve any invasion of the legal rights of the State or
the State Government, the suit is not maintainable under
article 131 at the instance of the State of Karnataka. I am
free to confess that I have considerably profited by the
judgment of my learned Brethren because their point of view,
with, respect, is not to be overlooked simply because I have
already expressed a contrary opinion in an earlier decision.
But having given a fresh and closer thought to the problem
in the light of the view expressed by them and a fuller
argument advanced in this case by the learned Additional
Solicitor-General, I am inclined to the opinion that even
taking a strictly legalistic view of the matter, the
preliminary objection to the maintainability of the suit
ought to be rejected.
The jurisdiction conferred on the Supreme Court by article
131 of the Constitution should not be tested on the anvil of
banal rules which are applied under the Code of Civil
Procedure for determining whether a suit is maintainable.
Article 131 undoubtedly confers ‘original jurisdiction’ on
the Supreme Court and the commonest form of a legal
proceeding which is tried by a court in the exercise of its
original jurisdiction is a suit. But a constitutional
provision, which confers exclusive jurisdiction on this
Court to entertain disputes of a certain nature in the
exercise of its original jurisdiction, cannot be equated
with a provision conferring a right on a civil court to
entertain a common suit so as to apply to an original
proceeding under article 131 the canons of a suit which is
ordinarily triable under section 15 of the Code ofCivil
Procedure by a court of the lowest grade competent to try
it. Advisedly, the Constitution does not describe the
proceeding whichmay be brought under article 131 as a
‘suit’ and significantly, article 131 uses words and phrases
not commonly employee, for determining the jurisdiction of a
court of first instance to entertain and try a suit. It
does not speak of a ’cause of action, an expression of known
and definite legal import in the world of witness actions.
Instead,, it employs the word ‘dispute,’ which is no part of
the elliptical jargon of law. But above all, article 131
which in a manner of speaking is a self-contained code on
matters falling within its purview, provides expressly for
the condition subject to which an action can lie
98
under it. That condition is expressed by the clause : “if
and in so far as the dispute involves any question (whether
of law or fact) on which the existence or extent of a legal
right depends”. By the very terms of the article,
therefore, the sole condition which is required to be
satisfied for invoking the original jurisdiction of this
Court-is that the dispute between the par-ties referred to
in clauses (a) to (c) must involve a question on which the
existence or extent of a legal right depends.
The quintessence of article 131 is that there has to be a
dispute between the parties regarding a question on which
the existence or extent of a legal right depends. A
challenge by the State Government to the authority of the
Central Government to appoint a Commission of Inquiry
clearly involves a question on which the existence or extent
of the legal right of the Central Government to appoint the
Commission of Inquiry depends and that is enough to sustain
the proceeding brought by the State under article 131 of the
Constitution. Far from its being a case of the “omission of
the obvious”, justifying the reading of words into article
131 which are not there, I consider that the Constitution
has purposefully conferred on this Court a jurisdiction
which is untrammeled by considerations which fetter the
jurisdiction of a court of first instance, which entertains
and tries suits of a civil nature. The very nature of the
disputes arising under article 131 is different, both in
form and substance, from the nature of claims which require
adjudication in ordinary suits.
The Constitution aims at maintaining a fine balance not only
between the three organs of power, the legislature, the
executive and the judiciary, but it is designed to secure a
similar balance between the powers of the Central Government
and those of the State, Governments. The legislative lists
in the Seventh Schedule contain a demarcation of legislative
powers between the Central and State Governments. The
executive power of the Central Government extends to matters
with respect to which Parliament has the power to make Laws
while that of the State extends to matters with respect to
which the State legislature has the power to make laws.
Part XI of the Constitution is devoted specially to the
delineation of relations between the Union and the States.
That is a delicate relationship, particularly if different
political parties are in power at the Centre and in the
States. The object of article 131 is to provide a high
powered machinery for ensuring that the Central Government
and the State Governments act within the respective spheres
of their authority and do not trespass upon each other’s
constitutional functions or powers. Therefore, a challenge
to the constitutional capacity of the ‘defendant’ to act in
an intended manner is enough to attract the application of
article 131, particularly when the ‘plaintiff’ claims that
right exclusively for itself. If it fails to establish that
right, its challenge may fail on merits but the proceeding
cannot be thrown out on the ground that the impugned order
is not calculated to affect or impair a legal right of the
plaintiff.
In an ordinary civil suit, the rejection of a right asserted
by the defendant cannot correspondingly and of its own force
establish the right claimed by the plaintiff. But
proceedings under article 131 are adjudicatory of the limits
of constitutional power vested in the
99
Central and State Governments. The claim that the defendant
(the Central Government here) does not possess the requisite
power involves the assertion that the power to appoint the
Commission of Inquiry is vested exclusively in the plaintiff
(the State Government here). In a civil suit the plaintiff
has to succeed on the strength of his own title, not on the
weakness of his adversary’s because the defendant may be a
rank trespasser and yet he can lawfully hold on to his
possession against the whole world except the true owner.
If,, the plaintiff is not the true owner, his suit must
fail. A proceeding under article 131 stands in sharp
contrast with an ordinary civil suit. The competition in
such a proceeding is between two or more governments–either
the one or the other possesses the constitutional power to
act. There is no third alternative as in a civil suit
wherein the right claimed by the plaintiff may reside
neither in him nor in the defendant but in a stranger. A
demarcation and definition of constitutional power between
the rival claimants and restricted to them and them alone is
what a proceeding under article 131 necessarily involves.
That is how in such a proceeding, a denial of the
defendant’s right carries with it an assertion of the
plaintiff’s.
Firstly, therefore, 1. am unable to appreciate that if a
State Government chaLlenges the constitutional rights of the
Central Government to take a particular course of action,
article 131 will still not be attracted. Secondly, the
contention of the State Government in the present proceeding
is not only that the Central Government has no power to
appoint the Inquiry Commission for inquiring into the
conduct of State Ministers but that such a right is exclusi-
vely vested in the State Government. There is, therefore,
not only a denial of the right claimed by the Central
Government but an assertion that the right exclusively
resides in the State Government. In a sense, the instant
case stands on a stronger footing than the Rajasthan Case
because there the challenge made by the State Governments
could perhaps be characterised as purely negative in nature
since the basic contention was that the Central Government
had no power to dissolve the State Assemblies. There is,
therefore, an the greater reason here for rejecting the
preliminary objection.
The State of Karnataka has claimed an alternative relief
that if section 3 of the Commissions of Inquiry Act is
construed as authorising the Central Government to issue the
impugned notification, it is ultra vires as being in
violation of article 164(2) and the ‘federal scheme’
embodied in the Constitution. Whether this contention is
well founded or not is another matter but it seems to me
difficult to hold that the State of Karnataka does not even
have the legal right to contend that the provision of a
parliamentary statute authorising the Central Government to
act in a particular manner is unconstitutional.
The palliative of a writ petition under article 226 which is
suggested on behalf of the Union Government as a sovereign
remedy in such matters is hardly any substitute for a
proceeding under article 131. It is notorious that writ
petition has its own limitations and indeed many a petition
under article 226 is rejected with the familiar quip : “Why
don’t you file a suit ?” Apart from disputes between the
Government of India and a State Government, article 131
contemplates other per-
100
mutations and combinations in the matter of array of
parties. A dispute between one or more States or between
the Government of India and a State on one hand and another
State or other States on the other hand cannot appropriately
be decided by a High Court under article 226 and that could
not have been the intendment of the constitution. Disputes
of the nature described in article 131 are usually of an
urgent nature and their decision can brook no delay. It is
therefore expedient in the interest of justice that they
should, as far as possible,, be brought before and decided
by this Court so as to obviate the dilatoriness of a
possible appeal. An original proceeding decided by this.
Court is decided once and for all.
For these reasons I reject the preliminary objection raised
by the Union Government and hold that the proceeding brought
by the State of Karnataka is maintainable under article 131
of the Constitution.
Another point, also of a preliminary nature, may now be
disposed of Section 3(1) of the Commissions of Inquiry Act
authorises the ‘appropriate Government’ to appoint a
Commission of Inquiry for the purpose of making an inquiry
into any definite matter of public importance and perform
such functions and within such time as may be specified in
the notification. Clauses (a) and (b) of the proviso to,
section 3 (1) cut down the width of that power with a view
to ensuring that the Central Government and the State
Governments do not appoint parallel Commissions which will
simultaneously inquire into the ‘ same matter’. Since, in
the instant case, the State of Karnataka had’ appointeda
Commission of Inquiry before the Union Government issued the
impugned notification, clause (b) of the proviso will be
attracted. That clause says that if a Commission has
been appointed to inquire into any matter :
“(b) by a State Government, the Central
Government shall not appoint another
Commission to inquire into the same matter for
so long as the Commission appointed by the
State Government is functioning, unless
the Central Government is of opinion that the
scope of the inquiry should be extended to two
or more states.”
The question for consideration is whether the appointment of
the commission of inquiry by the Central Government violates
the injunction contained in this clause.
Considering the terms of the notifications issued by the
State Government and the Central Government and the matters
into which the respective Commissions are directed to
inquire, it seems obvious that the object and purpose of the
two inquiries is basically of different character. The very
preambles to the two notifications highlight this difference
and show that they are directed to different ends.
The preamble of the Karnataka notification recites :
“WHEREAS allegations have been made on the
floor of the Houses of the State Legislature
and elsewhere that irregularities have been
committed/excess payments made in certain
matters relating to contracts, grants of land,
allotments of sites, purchase of furniture,
disposal of food grains etc.
101
NOW THEREFORE The Government of Karnataka
hereby appoint the Commission of inquiry for
the purpose of making an inquiry into the said
allegations, particularly specified below
The preamble of the Central Government
notification on the other hand recites :
“Whereas the Central Government is of opinion
that it is necessary to appoint a Commission
of Inquiry for the purpose of making an
inquiry into a definite matter of public
importance, namely, charges of corruption,
nepotism, favouritism or misuse of
Governmental power against the Chief Minister
and certain other Ministers of the State of
Karnataka, hereinafter specified……….”
The terms of reference of the two commissions disclose the
same fundamental difference. The primary object of the
State Government in appointing the Commission is to
ascertain whether improper or excessive payments were made,
undue favours were shown, irregularity or fraud had occurred
in the conduct of official business etc; and secondarily to
find out as to “who are the persons responsible for the
lapses, if any, regarding the aforesaid and to what extent.”
On the other hand, the commission appointed by the Central
Government is specifically directed to inquire “whether the
Chief Minister practised favouritism and nepotism” in regard
to various matters mentioned in the notification. It is,
there-fore, wrong for the State Government to contend that
the Central Government has appointed the Commission of
Inquiry forthe purpose of inquiring into the ‘same
matter’ into which the Commission of Inquiry appointed by
the State Govt. is directed to inquire. In fact, the
Central Government notification provides expressly by clause
2 (a) (ii) that the Commission will inquire into the
allegation contained in the memoranda submitted by certain
members of the Karnataka State legislature, “excluding any
matter covered by the notification of the Government of
Karnataka.”
The argument that the two notifications cover the same
matter suffers from a lack of recognition of ordinary
political realities. It is hardly ever possible, except in
utopian conditions, that the State Government will appoint a
Commission to inquire into acts of corruption, favouritism
and nepotism on the part of its Chief Minister. It is
interesting that Sir Thomas More coined the name ‘Utopia’
from the Greek (not) and topos (place) which together mean
“No place.” It is inconceivable that a Commission of Inquiry
will be appointed by a State Government without the
concurrence of the Chief Minister and if the political
climate is so hostile that he is obliged to submit to an
inquiry into his own conduct, he will quit rather than
concur. Indeed, a Council of Ministers which, considers
that the conduct of its Chief Minister and some of the
Ministers requires examination in a public inquiry, shall
have forfeited the confidence of the legislature and would
ordinarily have to tender its resignation. Thus, the
objection of the State Government that the notification of
the Central Government offends against clause (b) of the
proviso to section 3(1) of the Act is factually unfounded
and theoretically unsound.
102
Having disposed of the objections which were of a
preliminary nature, it is necessary now to consider the
merits of the rival contentions on issues 2 and 3.
Shri Lal Narayan Sinha who appears on behalf of the State of
Karnataka, contends that section 3(1) of the Commissions of
Inquiry Act should not be construed as authorising the
Central Government to appoint a Commission of Inquiry for
the purpose of inquiring into the conduct of a sitting
minister of a State Government. It is impossible, on a
plain reading of the section, to accept this contention.
Section 2(a) (i) and (ii) of the Act define ‘appropriate
Government’ to mean :
(i)the Central Government, in relation to a Commission
appointed by it to make an inquiry into, any matter
relatable to any of the entries enumerated in List I or List
II or List III in the Seventh Schedule to the Constitution;
and
(ii)the State Government, in relation to a commission
appointed by it to make an inquiry into any matter relatable
to any of the entries enumerated in List II or List III in
the Seventh Schedule to the Constitution. Section 3(1)
empowers the ‘appropriate Government’ if it is of opinion
that it is necessary so to do, and obliges it if a
resolution in that behalf is passed by the House of the
People or the Legislative Assembly of the State as the case
may be, to appoint a Commission of Inquiry for the purpose
of making an inquiry into any definite matter of public
importance. The constitutional considerations for which,
the learned counsel contends that section 3(1) should be
given a restricted meaning and the minute niceties of his
submission will be considered later. But, keeping those
considerations apart for the moment, I see no justification
for reading down the provisions of section 3(1) so as to
limit the power of the Central Government to appointing
Commissions of Inquiry for inquiring into the conduct of
persons in relation to matters concerning the affairs of the
Union Government only. Section 3(1) empowers the Central
Government to appoint a commission for making an inquiry
into any definite matter of public importance. It is
inarguable that-the conduct of ministers of State
Governments in the purported discharge of their official
functions is not a definite matter of public importance
within the meaning of section 3(1). To what extent the
principle of federalism will be impaired by such a
construction will of course have to be examined with care
but I see no substance in the contention that the Central
Government does not even possess the power to collect facts
in regard to allegations of corruption made by a section of
the State legislature against sitting ministers of the State
Government. That power must undoubtedly be exercised
sparingly and with restraint because under the guise of
directing an inquiry under section 3(1), tile Central
Government cannot interfere with the day-to-day working of
the, State Government. One cannot also contradict that what
appears to be a proper use of power may sometimes contain a
veiled abuse of power. howsoever infinitesimally. But
statutory, construction cannot proceed on distrust and
suspicion of those who are charged with the duty of
administering laws. Section 3(1) must, therefore, receive
its proper construction with the reservation that mala fides
vitiate all acts.
103
Lack of bona fides was alleged but was not pressed in this
case. In my opinion, therefore, section 3(1) cannot be
given a restricted meaning, as canvassed by the State
Government.
On this view, the contention that section 3(1) should be
read down and the impugned notification should be set aside
as falling outside the scope of that section has to be
rejected. But then it is urged by the State that if the
section cannot be given a restricted meaning and has to be
construed widely so as to authorise the Central Government
to direct the holding of inquiries into the conduct of
sitting State ministers, the provision would be rendered
unconstitutional for a variety of reasons. Those reasons
must now be considered.
It is said in the first place that if the language of
section 3 (1) is construed widely, it will not only enable
the Central Government to appoint a Commission of Inquiry to
inquire into the conduct of sitting Ministers of State
Governments but it will, applying the same rule of
construction, also enable the State Government to appoint
similar Commissions of Inquiry to inquire into the conduct
of the Central Ministers. This, according to the State’s
counsel, would offend against the provisions of articles
75(3) and 164(2) of the Constitution. These articles
provide respectively that the Central Council of Ministers
shall be collectively responsible to the House of the People
and the State Council of Ministers shall be collectively
responsible to the Legislative Assembly of the State. The
argument is that the power to appoint a Commission of
Inquiry for the purpose of inquiring into the conduct of
sitting ministers of another Government is destructive of
the principle of collective responsibility enunciated in
these articles. This argument is said to receive support
from the circumstance that by virtue of article 194 (3), it
is the privilege of the Legislative Assembly of the State to
appoint a committee for inquiring into the conduct of any of
its members, including a minister. That privilege,
according to the learned counsel, is as inviolable as the
principle of collective responsibility.
I find it impossible to accept this contention. Articles
75(3) and 164 (2) speak of the collective responsibility of
the Council of Ministers as a body, to the House of the
People or the Legislative Assembly of the State. Whatever
may be the findings of a Commission of Inquiry, the Council
of Ministers, whether at the Centre or in the States,
continues to be collectively answerable or accountable to
the House of the People or the Legislative Assembly.
Indeed, neither the appointment of the Commission nor even
the rejection by the Commission of all or any of the
allegations referred to it for its inquiry would make the
Council of Ministers any the less answerable to those
bodies. The object of the two articles of the constitution
on which the State of Karnataka relies is to provide that
for every decision taken by the cabinet, each one of the
ministers is responsible to the legislature concerned. It
is difficult to accept that for acts of corruption, nepotism
or favouritism which are alleged or proved against an
individual minister, the entire Council of Ministers can be
hold collectively responsible to the legislature. If an
individual minister uses his office’ as an occasion of
pretense for committing acts of corruption, he would be
104
personally answerable for his unlawful acts and no, question
of Collective, responsibility of the Council of Ministers
can arise in such a case. As observed by Hegde J. while
speaking for a constitution Bench of this Court in A.
Sanjeevi Naidu etc. v. State of Madras & Anr.,(1) the
essence of collective responsibility of the Council of
Ministers is that the cabinet is responsible to the
legislature for every action taken in any of the ministries.
In other words, the principle of collective responsibility
governs only those acts which a minister performs or can
reasonably be said to have performed in the lawful discharge
of his official functions.
The history of the principle, of collective responsibility
in England shows that it was originally developed as against
the King. The ministers maintained a common front against
the king, accepted joint and several responsibility for
their decisions whether they agreed with them or not, and
resigned in a body if the king refused to accept their
advice. In relation to, the British Parliament, collective
responsibility means that the cabinet presents a common
front. In Melbourne’s famous phrase, ‘the cabinet ministers
must all say the same thing’. The principle of collective,
responsibility perhaps compels ministers to compromise with
their conscience. but in matters of policy they have to
speak with one voice, each one of them being responsible for
the decision taken by the cabinet.(2)
In his book on “Constitutional and Administrative Law” (Ed.
1971, page 175), S.A. de Smith says that the collective
responsibility of the cabinet to the House of Commons is
sometimes spoken of as a democratic bulwark of the British
Constitution. According to the learned author, collective
responsibility implies that all cabinet ministers assume
responsibility for cabinet decisions and action taken to
implement those decisions. A minister may disagree with a
decision or with the manner of its implementation, but if he
wishes to express a dissent in public he should first tender
his resignation.
While explaining the principle of collective responsibility,
Sir Ivor Jennings in his book “Cabinet Government” (Third
Ed., 1959 p. 277) says
“For all that passes in Cabinet (said Lord
Salisbury in 1878) each member of it who does
not resign is absolutely and irretrievably
responsible, and has no right afterwards to
say that he agreed in one case to a
compromise, while in another he was persuaded
by his colleagues. . . It is only on the
principle that absolute responsibility is
undertaken by every member of the Cabinet who,
after a decision is arrived at, remains a
member of it, that the joint responsibility of
Ministers to Parliament can be upheld, and one
of the most essential principles of
parliamentary responsibility established.”
(1) [1970] 3 SCR 505, 512
(2)Chamber’s Encyclopaedia, 1973 Ed. Vol. 2, page 736
under the heading Cabinet…. Collective Responsibility’.
105
The learned author says that perhaps Mr. Joseph
Chamberlain’s definition of collective responsibility was
better since he had occasion to study the matter both as
enfant terrible under Mr. Gladstone and in his middle age
under Lord Salisbury. According to Mr. Chamberlain.
“Absolute frankness in our private relations
and full discussion of all matters of common
interest… the decisions freely arrived at
should be loyally supported and considered as
the decisions of the whole of the Government.
of course there may be occasions in which the
difference is of so vital a character that it
is impossible for the minority …. to
continue their support, and in this case the
Ministry breaks up or the minority member or
members resign.”
Thus the argument that section 3(1) of the Act will offend
against the principle of collective responsibility unless it
is construed narrowly is without any substance. As regards
the suggested involvement of article 194(3), in the absence
of a specific provision in the Constitution that the conduct
of a member of the legislature shall be inquired into by the
legislature only, it is impossible to hold that the
appointment of a Commission of Inquiry under the Act
constitutes an interference with the privilege of the
legislature. English precedents relating to the privileges
of the House of Commons, which are relevant under article
194(3), do not support the State’s contention.
That disposes of an important limb of the State’s
submission. The other contentions of the State Government
directed towards showing that the impugned notification is
unconstitutional are these :
(a) the charges contained in the impugned
notification relate to corruption, nepotism,
favouritism and misuse of governmental power
by the Chief Minister and other ministers in
relation to the executive powers exercisable
directly or through subordinate officers find
neither the Central Executive nor the
Parliament can exercise any control, over the
State executive, except during an emergency;
(b) India being a Union of States one must,
while interpreting the Constitution, have
regard to the essential features and general
scheme of our federal or quasi-federal
Constitution in which the powers of the Union
of India’ and the States are clearly defined
and demarcated. “To hold otherwise would mean
that the Union executive would effectively
control the State executive which is opposed
to the basic scheme of our Federal
Constitution;
(c) Neither article 248 of the Constitution
which confers exclusive residuary powers of
legislation on Parliament with respect to any
matters not enumerated in the Concurrent List
or the State List nor the residuary entry 97
in List I can include the power to make a law
vesting in the Central Government a
supervisory control over the State, Govern-
ment;
106
(d) Entry 94 in List I is manifestly
irrelevant on Parliament’s powers to pass the
impugned law. It confers power on Parliament
to legislate on the topic; “Inquiries, surveys
and statistics for the purpose of any of the
matters” in List I. Misuse of power by
ministers of State Governments, which is
stated to be one of the matters of public
importance dealt with in sect ion 3(1) of the
Commissions of Inquiry Act, does not fall
within the scope of any of the matters
enumerated in List I;
(e) Entry 45 of List III : “Inquiries and
statistics for the purpose of any of the
matters specified in List II or List III”
cannot also empower Parliament to pass the
impugned legislation. The reason is that if,
as contended by the Union Government, the
essence of the notification issued by the
Central Government is not the transactions
described therein but the misuse of power by
the Chief Minister or ministers of the
Government of Karnataka, there is no entry in
List II or List III relating to the misuse of
governmental power by ministers of a State
Government;
(f) A law conferring power on Parliament or
the Central executive to inquire into the
conduct of a sitting minister of a State
Government in regard to alleged misuse of
governmental powers, by an agency chosen by
the Central executive, is beyond the
“Legislative” competence of Parliament because
in reality, such a law is supplemental to the
provisions of Part XI, Chapter 11 of the
Constitution which deals with the adminis-
trative part of the relations between the
Union and the States and would fall in the
category of Constitutional law. Parliament
has no power to add to or vary or supplement
the provisions of the Constitution by means of
an ordinary legislation except when the
Constitution provides to that effect
specifically;
(g) To confer upon the Union executive the
power to call upon the State executive to
render explanation of its executive actions
and the further power to compel the State
executive to submit to the jurisdiction of an
authority chosen by the Union executive for
investigating charges against the State
executive brings into existence a new
relationship between the Central executive and
the State executive which is not a permissible
exercise of legislative power. Such an em-
powerment can be made in the exercise of
constituent power only after following the
procedure prescribed by article 368 of the
Constitution; and
(h) Legislative and administrative relations
between the Union and the States having been
defined in the Constitution, the provisions
relating thereto are exhaustive of that
subject and therefore legislation in
107
regard to Centre-State relationship is
prohibited by necessary implication. By
providing by article 164(2) that the Council
of Ministers shall be collectively responsible
to the Legislative Assembly of the State, by
conferring on the Legislative Assembly by
article 194(3) the necessary powers to
effectuate that responsibility, by enumerating
the situations in Part XI, Chapter II as to
when the Central executive can control the
State executive, and finally by providing for
emergencies in articles 355 and 356, the
Constitution has impliedly prohibited the
imposition of the control of the Central
executive over the State executive in any
other manner. If an instrument enumerates the
things upon which it has to operate,
everything else is necessarily and by
implication excluded from its operation and
effect.
The dominant note of these submissions is one and one only :
that the Central executive cannot, save by a constitutional
amendment, be given power to control the functions of the
State executive through the medium of a Commission of
Inquiry. Whether Parliament has the competence to pass the
impugned legislation in the exercise of its legislative, as
distinguished from constituent power is a separate matter,
but before considering the validity of the State’s
contention in that behalf, it is necessary to examine
whether the assumption underlying that contention is at all
justified, namely that by the impugned legislation,
Parliament has conferred on the Central Government the power
to control the executive functions of the State Government.
For that purpose it is necessary to have a proper
understanding of the scheme and purpose of the Commissions
of Inquiry Act and the true effect of its more important
provisions.
The Commissions of Inquiry Act was passed by the Parliament
in 1952 in order to provide for the appointment of
Commissions of Inquiry and for vesting them with certain
powers. Section 3(1) read with section 2 (a) of that Act
empowers, in so far as is relevant, the Central Government
to appoint by notification a Commission of Inquiry for the
purpose of making an inquiry into any definite matter of
public importance and perform such functions as may be
specified in the notification. The Commission has thereupon
to make the inquiry and perform its functions, one of which
of course is to submit its report to the Government.
Section 3(4) requires that the Central Government shall
cause to be laid before the House of the People the report
of the Commission of Inquiry together with a memorandum of
the action taken thereon, within a period of six months of
the submission of the report by the commission. Section 4
confers on the Commission some of the powers possessed by a
civil court while trying a suit, like enforcing the
attendance of witnesses, examining them on oath, discovery
and production of documents, receiving evidence on
affidavits requisitioning any public record, etc. Having
regard to the nature of the inquiry and the other
circumstances of the case, the Government can under section
5(1) direct that all or any of the provisions contained in
sub-sections (2), (3) (4) and (5) of section 5
108
shall apply to the Commission. Some of these sub-sections
empower the Commission to require any person to furnish
information to the Commission and to enter into any building
or place where any document relating to the subject matter
of the inquiry may be found. For the purpose of conducting
any investigation pertaining to the inquiry, the.
Commission by section 5A can utilise the services in the
case of a Commission appointed by the Central Government, of
any officer or investigation agency of the Central
Government.
It is clear from these provisions and the general scheme of
the Act that a Commission of Inquiry appointed under the Act
is a purely fact-finding body which has no power to
pronounce, a binding or definitive judgment. It has to
collect facts through the evidence led before it and on a
consideration thereof it is required to submit its report
which the appointing authority may or may not accept. There
are sensitive matters of public importance which, if left to
the normal investigational agencies, can create needless
controversies and generate an atmosphere of suspicion. The
larger interests of the community require that such matters
should be inquired into by high-powered commissions
consisting of persons whose findings can command the
confidence of the people. In his address in the Lionel
Cohen Lectures, Sir Cyril Salmon speaking on “Tribunals of
Inquiry” said :
“In all countries, certainly in those which
enjoy freedom of speech and a free Press,
moments occur when allegations and rumours
circulate causing a nation-wide crisis of
confidence in the integrity of public life or
about other matters of vital public
importance. No doubt this rarely happens, but
when it does it is essential that public
confidence should be restored, for without it
no democracy can long survive. This
confidence can be effectively restored only by
thoroughly investigating and probing the
rumours and allegations so as to search out
and establish the truth. The truth may show
that the evil exists, thus enabling it to be
noted out, or that there is no foundation in
the rumours and allegations by which the pubic
has been disturbed. In either case, confi-
dence is restored.”
A police investigation is, at its very best, a unilateral
inquiry into an accusation since the person whose conduct is
the subject-matter of inquiry has no right or opportunity to
cross-examine the witness whose statements are being
recorded by the police. Section 8C of the Act, on the other
band, confers the right of cross-.examination, the right of
audience and the right of representation through a legal
practitioner on the appropriate Government, on every person
referred to in Section 8B and with the permission of the
Commission, on any other person whose evidence is recorded
by the Commission. Clauses (a) and (b) of Section 8B refer
respectively to persons whose conduct the Commission
considers it necessary to inquire into and persons whose
reputation, in the opinion of the Commission, is likely to
be prejudicially affected by the Inquiry. It is undeniable
that the person whose conduct is being inquired into and if
the be a Chief Minister or a Minister, the doings of the
government itself, are exposed to the fierce light of
publicity. But that is a risk which is inherent in every
inquiry directed
109
at finding out the truth. It does not, however, justify the
specious submission that the inquiry constitutes an
interference with the executive functions of the State
Government or that it confers on the ,Central Government the
power to control the functions of the State executive.
After all, it is in the interest of those against whom open
allegations of corruption and nepotism are made that they
should have an opportunity of repelling those allegations
before a trained and independent Commission of Inquiry which
is not hide-bound by the technical rules of evidence. “It
is only by establishing the truth that the purity and
integrity of public life can be preserved” and that is the
object which the Commissions of Inquiry Act seeks to
achieve.
In M. V. Rajwade v. Dr. S. M. Hassan & Ors.,(1) it was held
by the Nagpur High Court that section 4 of the Act merely
clothes the Commission with certain powers of a civil court
but does not confer on it the status of a court and that the
Commission is only fictionally a civil court for the limited
purposes enumerated in section 5(4). The Court observed
that there is no accuser, no accused and no specific charges
for trial before the Commission, nor is the Government,
under the law, required to pronounce one way or the other on
the findings of the Commission.. In other words,
“The Commission governed by the Commissions of
Inquiry Act, 1952 is appointed by the State
Government ‘for the information of its own
mind……… it is, therefore, a fact finding
body meant only to instruct the mind of the
Government without producing any document of a
judicial nature.”
These observations were extracted and quoted with approval
by this Court in Brajnandan Sinha v. Jyoti Narain.(2)
It is, therefore, clear that the power conferred by
Parliament on the Central Government to appoint a Commission
of Inquiry under section 3 (1) of the Act for the purpose of
finding facts in regard to the allegations of corruption,
favouritism and nepotism against a sitting Chief Minister or
ministers cannot be held to constitute interference with the
executive functions of the State Government. On receipt of
the Commission’s report, the Central Government may or may
not take any action, depending upon the nature of the
findings recorded by the Commission. If it decides to take
any action. the validity thereof may have to be tested in
the light of the-constitutional provisions. But until that
stage arrives, it is difficult to hold that the Central
Government is exercising any control or supervisory juris-
diction over the executive functions of the State
Government. As observed by this Court in Shri Ram Krishna
Dalmia v. Shri Justice S. R. Tendolkar & Others, (a) “the
Commission has no power of adjudication in the sense of
passing an order which can be enforced proprio vigore”.
(1) AIR 1954 Nag. 71.
(2) [1955] S.C.R. 955, 975.
(3) [1959] S.C.R. 279, 293.
110
Thus, the very assumption on which the State’s counsel, has
built up the edifice of his argument seems to me to be
fallacious. The, rejection of that assumption furnishes at
once an answer to most of his other submissions but, since
the matter has been argued on both sides fully and
earnestly, it is desirable to consider all the rival con-
tentions and set the dispute at rest.
The next limb of Shri Sinha’s argument is that India is a
Union of States and that one must, while interpreting the
Constitution, have regard to the essential features and the
general scheme of our federal or quasi-federal Constitution
by which, the powers of the Union’ of India and the States
are clearly defined and demarcated. Quoting a learned
author on “Constitutional Law of India” Vol. 1, page 1074,
counsel contends that to hold otherwise would mean that the
Union executive would effectively control the State
executive, which is opposed to the basic scheme of our
federal Constitution.
The statement from the “Constitutional Law of India” on
which counsel relies is out of context because it occurs in
relation to the question whether in dismissing the ministry
or in dissolving the legislature, the Governor acts as an
agent of the President or under his directions. While
expressing the opinion that a responsible Union ministry
would not be justified in advising the removal of a Governor
merely because he takes action which does not fall in line
with the policy of the Union ministry, the learned author
says that any other view would vest in the Union executive
effective control over the State executive, which is opposed
to the basic scheme of our federal Constitution. Apart from
the consideration that the statement relied upon is out of
context, I have already rejected the submission that the
appointment by the Central Government of a fact-finding
Commission of Inquiry for inquiring into the conduct of
sitting State Ministers can be deemed to vest effective
control over the State executive in the Central executive.
Counsel’s submission shall, therefore have to be examined
keeping aside this aspect of the matter.
India, undoubtedly, is a Union of States and that is what
article 1(1) of our Constitution expressly provides.
Whether we describe our Constitution as federal or quasi-
federal, one cannot ever blind ones vision to the stark
reality that India is a Union of States. The Constitution
contains a carefully conceived demarcation of powers,
legislative and executive, between the Central Government on
the ons hand and the State Governments on the other. The
balance of that power ought never to be disturbed, but that
is a different thing from saying that inherent or implied
limitations should be read into legislative powers or that
because India is a Union of States, one must read into the
Constitution powers and provisions which are not to be found
therein but which may seem to follow logically from what the
Constitution provides for expressly.
111
The first question which one must tackle is whether
Parliament has the legislative competence to enact the
Commissions of Inquiry Act, 1952. This question, in my
opinion, is concluded by a judgment of a Constitution ]Bench
of this Court in Shri Ram Krishna Dalmia (supra) in which
the validity of the very Act was challenged in a matter in
which a notification was issued by the Central Government
under section 3 of the Act for inquiring into the affairs of
certain companies. It was held by this Court that
Parliament had the legislative competence to pass the law
under entry 94 of List I and entry 45 of List III of the
Seventh Schedule of the Constitution. Entry 94 of List I
relates to “Inquiries, surveys and statistics for the
purpose of any of the matters” in List I, while entry 45 of
List III relates to “Inquiries and statistics for the
purposes of any of the matters specified in List II or List
III”. It is well-established that entries in the
legislative lists must receivenot a narrow or pedantic
but a wide and liberal construction and,considered from
that point of view, the word ‘inquiries’ which occurs in the
two entries must be held to cover the power to pass an Act
providing for appointment of Commissions of Inquiry. It is
in the exercise of this power that the Parliament has passed
the Commissions of Inquiry Act, 1952. Since the power to
appoint a Commission to Inquire into the conduct of sitting
ministers of State Governments which is comprehended within
section 3(1) of the Act does not offend against the
principle of collective responsibility ,of the State’s
Council of Ministers or against the privileges of the Legis-
lative Assembly and since it does not also confer on the
Central Government the power of control over the State
executive, the provision must be held to be a valid exercise
of the legislative competence of the Parliament.
Shri Ram Krishna Dalmia (supra) in so far as it decides that
the Commissions of Inquiry Act, 1952 falls within the
legislative competence of the Parliament in view of entry 94
of List I and entry 45 of List Ill must, with respect, be`
affirmed and accepted as good law. I may, however, add that
if for any reason it were to appear, which it does not, that
these entries do not justify the passing of the Act, the
residuary entry 97 of List I will in any- event support the
legislative validity of the Act. That entry confers on
Parliament the power to legislate on ‘Any other matter not
enumerated in List II or List Ill…….. Entry 97 is in the
nature of a residuary entry and the words ‘Any other matter’
which appear therein mean ‘Any matter other than those
enumerated in List I’. If entry 94 does not cover the
impugned Act, ‘Inquiries’ of the nature contemplated by the
Act will fall within the description ‘Any other matter’; and
if entry 45 of List III and, admittedly, the whole of the
State List are to be kept out of consideration, the Act will
relate to ‘a matter not enumerated in List II or List III’.
Shri Sinha objected to recourse being had to entry 97 of
List I on the ground that it cannot, any more than other
entries in Lists I and II, confer on Parliament the power
to make a law vesting in the Central executive supervisory
control over the State executive. That contention having
been rejected, entry 97 will in any event sustain the
legislative validity of the Act.
It is unnecessary to consider the implications of article
248 because that may require an examination of the question,
which is
112
needless here in view of the decision in Shri Ram Krishna
Dalmia, (supra) whether that article confers power which is
not to be found in article 246(1) read with entry 97 of List
I and whether an affirmative answer to this question will
render entries 1 to 96 of List I otiose. One may sum up the
discussion on the question of Parliament’s legislative
competence by saying that adopting “the construction most
beneficial to the widest possible amplitude” of powers
conferred by the Constitution and interpreting the
legislative entries in “a broad and liberal spirit”, the
impugned Act cannot be held to suffer from want of
legislative competence, in the Parliament to enact it.
Entry 94 of List I, entry 45 of List III and failing these,
entry 97 of List I must sustain the Act.
That disposes of points (a) to (e) set out above, leaving
for consideration points (f), (g) and (h). For the sake of
easy reference, these points may be summarised thus (i)
Administrative relations between the Union and the States
are dealt with in Chapter 11 of Part XI of the Constitution;
(ii) The Commissions of Inquiry Act, as interpreted above,
purports to supplement the provisions contained in Chapter
II, Part XI; (iii) Parliament cannot supplement any
provision of the Constitution except by an amendment of the
Constitution; (iv) The Commissions of Inquiry Act creates a
new Centre,-State relationship by vesting in the Central
executive an added control over the State executive not
provided for in the Constitution, and (v) Since the provi-
sions contained in Chapter 11 of Part XI are exhaustive of
matters, governing the administrative relations between the
Union and the States, any legislative addition thereto or
supplementing thereof must be held to be impliedly
prohibited.
The short answer to the first four points, (i) to (iv)
above, is that though it is true that administrative
relations between the Union and the States are dealt with by
Chapter II Part XI of the Constitution and though the
provisions contained therein cannot be altered save by a
constitutional amendment, the Commissions of Inquiry Act
does not bring about any change in the Centre-State
relationship as envisaged by Part XI. The Act merely
empowers the Central Government to appoint a Commission of
Inquiry for the purpose of collecting facts with a view to
informing its own mind; and the report of the Commission,
not being binding on any one, has no force of its own.
Revelations before the Commission may conceivably produce an
impact on the credibility of the State Government, but the
inquiry is directed not to the manner in which the State
Government or the State executive conducts itself in the
discharge of its constitutional functions but to the manner
in which, if at all, its ministers have used their office as
a cloak for committing acts of corruption and favouritism.
It is possible that a Commission may accept the accusations
against the minister and in fairness emphasise that the
private doings of the minister have nothing to do with the
public administration of the States’ executive affairs.
Indeed, the Commission may reject the allegations as totally
baseless and frivolous. These are all imponderable and they
cannot influence the decision of the basic question as to
the nature of the Commission’s functions. Therefore, the
contention that by empowering the Central
113
Government to appoint a Commission for inquiring into the
conduct of the sitting ministers of State Government,
Parliament has legislated on the Centre-State relationship
which is a constitutional subject, is without any force.
However, it is necessary to say a word about the somewhat
novel argument of the State Government that, by ordinary
legislation, the Parliament cannot even supplement a
constitutional provision, unless the Constitution expressly
authorises it to do so. Ordinary legislation, as contended
by the learned Additional Solicitor-General, has to answer
only two tests : Firstly, the law must be within the legis-
lative competence of the legislature, and secondly, the law
must not offend against the provisions of Part III or
infringe any other specific provision of the Constitution.
Once the legislative competence is established and no
violation of any specific constitutional provision is made
out, the validity of the Act cannot be assailed on the
ground that it ‘supplements’ a constitutional provision.
The fallacy of the State’s argument consists in the,
assumption that every law “in respect of” a subject-matter
dealt with by the Constitution amounts necessarily to an
amendment of the Constitution. An illustration or two may
help clarify the true position. Article 297 of the Consti-
tution provides that all lands , minerals and other things
of value underlying the ocean within the territorial waters
or the continental shelf of India shall vest in the Union
and be held for the purposes of the Union. It is inarguable
that since “lands, minerals and other things of value
underlying the ocean within the territorial waters or the
continental shelf of India” is the subject matter of article
297, no legislature, even if it possesses legislative
competence to do so, can legislate on that subject-matter.
It is elementary that the legislature cannot, while
legislating on a topic enumerated in the relevant list,
violate or infringe any provision of the Constitution. But
so long as there is no such infringement, legislation on the
subject dealt with by article 297 cannot be declared
unconstitutional on the ground that it supplements the
provisions of that article. Article 299 of the Constitution
deals with contracts. It seems to me equally inarguable
that a legislation dealing with the subject-matter of
contracts, even though not lacking in legislative
competence, becomes unconstitutional for the reason that it
deals with the subject-matter of contracts. The argument of
the State in this behalf is therefore wholly devoid of
substance, apart from the consideration that the impugned
legislation does not bear on the Centre-State relationship.
The fifth and the last contention is also capable of being
disposed of with the answer that the Commissions of Inquiry
Act does not deal with the subject of Centre-State
relationship, directly or indirectly. There is, therefore,
no question of its creating a new relationship between the
Union and the States not known to the Constitution or
inconsistent with that provided for in Chapter II, Part XI
of the Constitution. Not only that the pith and substance
of the Act is “Inquiries”, but it does not even incidentally
encroach or trespass upon a constitutional field occupied by
Part XI. If it does not touch the subject-matter of Centre-
State relationship, there is no question of its impinging
upon a subject dealt with by the Consti-
114
tution. Therefore, even assuming that legislation on the
question of Centre-State relationship is impliedly barred,
the impugned Act does not fall within the vice of that rule
and cannot, therefore, be pronounced as unconstitutional.
All the same, it is necessary to examine briefly the
validity of the State’s contention that since the provisions
in Chapter II, Part Xi are exhaustive, of matters governing
the administrative relations between the Union and the
States, any legislative addition thereto, or supplementing
thereof, if impliedly prohibited. As already observed, _if
a law is within the legislative-competence of the
legislature, it cannot be invalidated on ‘the supposed
ground that it. has added something to, or has supplemented,
a constitutional provision so long as the addition or
supplementation is not inconsistent with any provision of
the Constitution. I am, therefore, unable to appreciate the
relevance of the State’s reliance on the passage from
Crawford’s Statutory Construction (Ed. 1940 pages 334-335)
to the effect that if a statute enumerates the things upon
which it has to operate, everything else is necessarily and
by implication excluded from its operation and its effect.
As I have said more than once in my judgment, the one common
thread which runs through the argument of the State is that
the Constitution must be deemed to have impliedly prohibited
the imposition of the control of the Central executive over
the State executive except in emergencies, and since the
Commissions of Inquiry Act transgresses that constitutional
prohibition, it is void. The very assumption being
unfounded, the supposed consequence has to be rejected.
Besides, the doctrine of implied prohibition which is
necessarily based on the principle of inherent limitations
has been rejected by this Court in the Fundamental rights
case(1) and in Shrimati Indira Nehru Gandhi v. Shri Rai
Narain(2).
I am, therefore, of the opinion that though the suit filed
by the State of Karnataka is maintainable under Article 131
of the Constitution, the notification issued by the
Government of India on May 23, 1977 is within the scope of
section 3(1) of the Commissions of Inquiry Act, 1952 and
that the Act is not unconstitutional for any of the reasons
mentioned on behalf of the State Government. Accordingly, I
agree respectfully with the conclusions reached by my .Lord
the Chief Justice in the case.
BHAGWATI, J.-I entirely agree with the judgment just
delivered by my learned brother Chandrachud so, far as the
merits of the claim in the suit are concerned, but on the
question of maintainability of the suit under Article 131 of
the Constitution, I would like to express my opinion in a
separate judgment, not only because the constitutional issue
it raises is one of some importance, but also because I find
that though there was some discussion in regard to the scope
and ambit of this article in the judgment delivered by me on
behalf of my learned brother Gupta and myself in the State
of Rajasthan
(1)[1973] Supp. S.C.R. 1,608, 916-917, 977-78.
(2)[1976] 2 S.C.R. 347.
115
v. Union of India(1) it did not take into account certain
aspects of the, question and a fuller consideration appeared
to be clearly necessary. The facts giving rise to the suit
are set out in detail in the judgment pronounced by my Lord
the Chief Justice and hence it is not necessary to
reiterate-them. Suffice it to state that the Suit has been
filed by the State of Karnataka against the Union of India
to quash a notification issued by the Central Government
setting up a Commission to inquire into certain charges of
corruption and nepotism against the Chief Minister and some
other ministers of the State of Karnataka. The question is
whether the suit is maintainable under Art. 131, for a
preliminary objection against the maintainability of the
suit has been raised by the _ learned Additional Solicitor
General on behalf of the Union of India.
The answer to the question depends primarily on the true
interpretation of Art. 131. This article confers on the
Supreme Court, subject to the other provisions of the
Constitution, exclusive original jurisdiction in any
dispute-(a) between the Government of India and one or more
States, or (b) between the Government of India and any
State or States on one side and one or more other States on
the other, or (c) between two or more States, if and in so
far as the dispute involves any question (whether of law
or fact) on which the existence or extent of a legal
right depends. It is clear on a plain reading of this
article that it does not lay down any particular mode of
proceeding for exercise of the original jurisdiction
conferred by it. No doubt, Part III of the Supreme Court
Rules contemplates that the Original jurisdiction of the
Supreme Court under this article shall be invoked by means
of a suit, but that is not the requirement of the article
and in interpreting it, we should be careful not to allow
,our approach to be influenced by considerations of ’cause
of action’ which are germane in a suit. The scope and ambit
of the original jurisdiction must be determined on the plain
terms of the article without being inhibited by any a priori
considerations.
Now, plainly there are two limitations in regard to the
dispute which can be brought before the Supreme Court under
Article 131. One is in regard to parties and the other is
in regard to the subject-matter. The article provides in so
many terms that the dispute must be between the Government
of India and one or more States or between two or more
States. The object of the article seems to be that since in
a federal or quaasi-federal structure, which the
Constitution seeks to set up, disputes may arise between the
Government of India; and one or more States, or between two
or more States, a forum should be provided for the
resolution of such disputes and that forum should be the
highest Court in the land, so that final adjudication of
such disputes could be achieved speedily and expeditiously
without either party having to embark on a long, tortuous
and time consuming journey through a hierarchy of Courts.
The article is a necessary concomitant of a federal or a
quasi-federal form of Government and it is attracted only
when the parties to the dispute are the Government of India
or one or more States arrayed on either side. This is the
limitation as to parties. The other limitation as to
subject-matter flows from the
(1)A.T.R. 1977 S.C. 1361.
116
words “if and in so far as the dispute involves any question
(whether of law or fact) on which the existence or extent of
a legal right depends”. These words clearly indicate that
the dispute on affecting the existence or extent of a legal
right and not a dispute on the political plane not involving
a legal aspect. It was put by Chandrachud, J., very aptly
in his judgment in the State of Rajasthan v. Union of India
(supra) when he said : “Mere wrangles between governments
have no place under the scheme of that article. It is only
when a legal, as distinguished from a mere political, issue
arises touching upon the existence or extent of a legal
right that the article is attracted. Hence the suit in the
present case would obviously not be maintainable unless it
complies with both these limitations.
The contention of the learned Additional Solicitor General
on behalf of the Union of India was that the test for
determining the maintainability of the suit was not whether
the right of the Central Government to set up a Commission
of Inquiry against the, Chief Minister and other ministers
of the State of Karnataka was questioned in the suit, but
whether the impugned action of the Central Government
infringed any legal right of the State. Even if the
impugned action of the Central Government were invalid and I
must assume it to be so in order to determine the
maintainability of the suit the question is as to whose
legal right would be infringed : who would have a cause of
action ? Can the State say that its legal right is infringed
and is therefore, entitled to maintain the suit ? The
learned Additional Solicitor General submitted that since
the impugned action of the Central Government was directed
against the Chief Minister and other ministers of the State,
the legal right infringed would be that of the Chief
Minister and the concerned ministers and they would have a
cause of action against the Union of India since they would
be prejudicially affected by the executive action of the
Central Government which is alleged to be in contravention
of the Constitution and the law. They have a legal right to
immunity from subjection to the unconstitutional exercise of
power by the Central Government and this right can certainly
be enforced by them. But that would be by way of a petition
under Article 226 or Article 32, if a fundamental right is
involved, and not under Art. 131. Even the State Government
may be said to have a cause of action on the ground that the
impugned action of the Central Government affects its
personnel, namely, the Chief Minister and other ministers
and the State Government may legitimately claim to have
sufficient interest to maintain a petition under Art. 226 to
challenge the impugned action. But it cannot file a suit
under Article 131 because it is only the State which can
maintain such a suit and not the State Government. The
learned Additional Solicitor General contended that the
expression used in Article 131 is ‘State’ and not “State
Government” and there is a fundamental distinction between
‘State’ and ‘State Government’ and it is, therefore, not
enough to attract the applicability of Article 131 that the
State Government should have a cause of action. It is the
State whose legal right must be infringed and who must have
a cause of action in order to invoke the jurisdiction under
Article 131. The impugned action of the Central Government
in the present case, argued the learned Additional Solicitor
General, affects the legal right of the Chief Minister
117
and the concerned Ministers and also possibly of the State
Government, but it does not infringe the legal right-of the
State as a legal entity as distinct from the legal right of
its executive agent, namely, the State Government and the
State is, therefore, not entitled to maintain the suit under
Article 131. This contention of the learned Additional
Solicitor General is, in my opinion, not well founded and
cannot be sustained.
There are two fallacies underlying the contention of the
learned Additional Solicitor General. One is in drawing a
rather rigid, watertight distinction between ‘State’ and
‘State Government’ in the context of Article 131 and the
other, in assuming that it is only where a legal right of
the plaintiff is infringed that the suit can be maintained
by the plaintiff under that article. Turning first to the
distinction between ‘State’ and ‘State Government, it is
true that theoretically this distinction does exist and it
finds recognition in sub-.sections (58) and (60) of section
3 of the General Clauses Act, 1897. The majority judges in
the State of Rajasthan v. Union of India (supra) also
accepted that there is a distinction between ‘State’ and
‘State Government’. Willoughby points out in “The
Fundamental Concepts of Public Law” at page 49: “The
distinction between the State and its Government is
analogous to that between a given human individual, as a
moral and intellectual person, and his material physical
body. By the term ‘State’ is understood the political
person or entity which possesses the law making right. By
the term ‘Government’ is understood the agency through which
the will of the State is formulated, expressed and executed.
The Government thus acts as the machinery of the State, and
those who operate this machinery-act as the agents of the
State’. And to the same effect are the observations, of the
United States Supreme Court in Poindexter v. Greenhow : (1)
“The State itself is an ideal person, intangible, invisible
and immutable. The Government is an agent. . . . “. It
would thus be seen that the State Government is the agent
through which the State exercises its executive power. Now,
if the State Government is the agent through which the-
State expresses its will, it is difficult to see how the
State can be said to be unconcerned when any right or
capacity or lack of it is attributed to the State
Government. It would be wholly unrealistic to suggest that
since the State Government is distinct from the State, any
action or capacity or lack of it in the State Government
would not affect the State and the State would not be
interested in it. This is to ignore the integral rela-
tionship between the ‘State’ and the ‘State Government’.
Any action which affects the State Government or the
ministers in their capacity as ministers-for in that
capacity they would be acting on behalf of the State-would
raise a matter in which the State would be concerned. It is
true that analogies and metaphors are apt to mislead and it
would be unsafe to base an argument upon them, but to
reinforce what I have said, I may take the analogy given by
Willoughby in the above quoted passage and ask the question
: if any action or capacity or lack of it is attributed to
the “material physical body”, would it not be ascribable to
the individual whose body it is and would he not be affected
by it ? I agree with Dr. Rajeev Dhavan and Prof. Alice
(1) 29 Law. Ed., 185.
118
Jacob when they say in their forthcoming article on the
Assembly dissolution case namely, the State of Rajasthan v.
Union of India that: “Any communication that is made to a
Chief Minister in his capacity as Chief Minister” and
equally to a minister in his capacity as minister, ” must
create a matter which involves the State”. S. Murtaza Fazal
Ali, J., in the State of Rajasthan v. Union of India sought
to make a distinction between permanent institutions of the
State and their changing personnel and observed : “The
question as to the personnel to run these institutions is
wholly unrelatable to the existence of a dispute between the
‘State’ and the ‘Government of India’. It is only when
there is a complete abolition of any of the permanent
institutions of a State that a real dispute may arise.” I do
not think that this is a valid distinction for determining
when a dispute can be said to be one with the State as
distinct from the per-sons constituting the State
Government. To quote again from the forth-coming article of
DR. Rajeev Dhawan and Prof. Alice Jacob: “The hair
splitting distinction cannot be between the, permanent
institutions of the State and the nonpermanent institutions
of the, State; nor can it be between actions which limit the
powers of the officials of the Government of a State and
those that abolish the institutions of the State. The hair
splitting distinction is between those actions which can be
attributed to the State or any official thereof and those
actions which are personal and not ascribed to the officials
in their capacity as officials of the State-A letter sent to
the Chief Minister questioning his- capacity or power to
rule as Chief Minister may not allege lack of confidence in
the Chief Minister as person, wife, husband, father or
friend. It alleges lack of confidence in the Chief Minister
in his capacity as Chief Minister.” I find myself in
agreement with this opinion and I wholly endorse it. I
would, therefore, hold that when any right or capacity or
lack of it is attributed to any institution or person acting
on behalf of the State, it raises a matter in which the
State is involved or concerned. The State would, in the
circumstances, be affected or at any rate interested, if the
Chief Minister and other ministers in their capacity as
such, or to put it differently, in the matter of discharge
of their official functions, are subjected to
unconstitutional exercise of power by the Central
Government. If the Central Government were to issue a
direction to the Chief Minister and other ministers to
exercise the executive power of the State in a particular
manner, the State would be clearly affected if such
direction is unconstitutional and would be entitled to
complain against it. Then is the position any different, if
the Central Government, instead, proceeds, without any
constitutional authority, to inquire how the executive power
of the State is exercised by the Chief Minister and other
ministers and whether it is exercised in a proper manner.
The State would clearly in such a case have locus to
challenge the unconstitutional action of the Central
Government-
It may also be noted that, on a proper construction of
Article 131, it is not necessary that the plaintiff should
have some legal right of its own to enforce, before it can
institute a suit under that article. It is not a sine qua
non of the applicability of article 131 that there should be
infringement of some legal right of the plaintiff. What
article 131 requires is that the dispute must be one which
involves a
119
question “on which the existence or extent of legal right
depends”. The article does not say that the legal right
must be of the plaintiff. It may be of the plaintiff or of
the defendant. What is necessary is that the existence or
extent of the legal right must be in issue in the dispute
between the parties. We cannot construe Article 131 as con-
fined to cases where the dispute relates to the existence or
extent of the legal right of the plaintiff for to do so,
would be to read words in the article which are not there.
It seems that because the mode of proceeding provided in
Part III of the Supreme Court Rules for bringing a dispute
before the Supreme Court under Article 131 is a suit, that
we are unconsciously influenced to import the notion of
’cause of action, which is germane in a suit, in the
interpretation of Article 131 and to read this article as
limited only to cases where some legal right of the
plaintiff is infringed and consequently, it has a ’cause of
action’ against the defendant. But it must be remembered
that there is no reference to a suit or ’cause of action’ in
Article 131 and that article confers jurisdiction on the
Supreme Court with reference to the character of the dispute
which may be brought before it for adjudication. The
requirement of ’cause of action’, which is so necessary in a
suit, cannot, therefore, be imported while construing the
scope and ambit of Art 131. It is no doubt true, that the
judgment delivered by me in the State of Rajasthan v. Union
of India proceeds on the assumption that a suit under
Article 131 can be Instituted only if some right of the
plaintiff is infringed, but there was no proper discussion
of this question in the course of the arguments in that case
and on fuller consideration, I think that no such
restriction can be imported in the construction of Article
131 so as to narrow down the ambit and coverage of that
article. The only requirement necessary for attracting the
applicability of Article 131 is that the dispute must be one
involving any question “on which the existence or extent of
a legal right” depends, irrespective whether the legal right
is claimed by one party or the other and it is not necessary
that some legal right of the plaintiff should be infringed
before a suit can be brought under that article. The
plaintiff must of course be a party to the dispute and
obviously it cannot be a party to the dispute unless it is
affected by it. The plaintiff cannot raise a dispute in
regard to a matter which does not affect it or in which it
is not concerned. It cannot act as a mere busybody
interfering with things which do not concern it. But if the
plaintiff has interest in raising the dispute in the sense
that it is affected by the action taken, it can bring the
dispute before the Supreme Court under Article 131, even if
no legal right of its is infringed, provided of course the
dispute is relatable to the-existence or extent of a legal
right.
It would also be convenient at this stage to consider what
is the meaning of the expression ‘legal right’ as used in
Article 131. It is obvious that the word ‘right’ is used
here in a generic sense and not according to its- strict
meaning. ‘Right’ in its narrow sense constitutes the
correlative of duty, but in its generic sense it includes
not only right strict to sensu, but “any advantage or
benefit conferred upon a person by a rule of law”. Dias in
his jurisprudence, 1976 ed., pages 33-34, says that the word
‘right’ has undergone successive shifts in meaning and
Hohfeld in his “Fundamental Legal Concepts as Applied
120
to Legal Reasoning” gives four different meanings of the
word right,. One is right strict to sensu, the other is
liberty, the third is power and the fourth is immunity. In
its strict sense ‘right’ is defined-as interest which the
law protects by imposing corresponding duty on others.
‘Liberty’ is exemption from the right of another and its
correlative is no-right’ and in the same way ‘power’ is
ability to change the legal relations of another and its
correlative is liability. Similarly, ‘immunity’ is
exemption from the legal power of another and the
correlative of immunity is disability. To illustrate, where
there is a right stricto sensu in A, there is a correlative
duty in B to do X. Similarly, where A has liberty to do X,
there is a correlative no-right in B to interfere in regard
to it. The correlative of, power in A is liability in B as
regards X and similarly, where there is immunity in A from
the legal power of B, its correlative is disability in B as
regards X. These are the four different jural relationships
recognised by law and they are comprehended within the
generic term ‘right’. Now, there can be no doubt that the
word ‘right’ is used in Article 131 in this generic sense.
If, for example, the State claims to be entitled to
legislate exclusively on a particular matter on the ground
that it falls within List III of the VII Schedule to the
Constitution and the Union of India questions this right of
the State, the dispute would be one relating, not to any
right of the State in the strict sense of the term, but to
the ‘liberty’ of the State to legislate on such matter and
it would come directly within the terms of Art. 131. Even a
dispute relating to the power of the Union of India to
abolish the legislative assembly of a State or to dissolve
it would fall within the scope and ambit of Art. 131 as held
expressly by Chandrachud, J., Gupta, J., and myself and
impliedly by Beg, C.J., in the State of Rajasthan v. Union
of India. What has, therefore, to be seen in order to
determine the applicability of Art. 131 is whether there is,
any relational legal matter involving a right, liberty,
power or immunity qua the parties to the dispute. If there
is, the suit would be maintainable, but not otherwise.
The question which arises for consideration on this
interpretation of Art. 131 is whether there is any dispute
between the State of Karnataka and the Union of India
involving a question as to the existence or extent of a
relational legal pattern within the generic sense of the
term ‘right. It is true that it may not be possible to say
that by reason of the impugned action of the Central
Government in setting up a Commission of Inquiry against the
Chief Minister and other ministers who constitute the State
Government, any legal right of the State is infringed, but,
as already pointed out above, it is not necessary, in order
to invoke the jurisdiction of the Supreme Court under Art.
131, that the State should be able to show that some legal
right of ots ps breacheds. That is enough to show that the
averments in the led, not as a busy body or as a meddlesome
interloper, but in a real sense in questioning the power of
the Central Government to set Up such Commission of Inquiry.
If we look at the averments in the plaint, and for the
purpose of determining the question of jurisdiction we must
proceed on the assumption that the averments are correct, it
is clear that according to the claim made by the State, the
legislature of the State and the State Government alone have
power to investigate and control misuse of governmental
power by the Chief Minister
121
other ministers of the State and the Central Government has
no power to inquire into the same or to set up a Commission
of Inquiry or that purpose. This claim of the State clearly
raises a dispute as to the extent of the power of the State
and the existence of a superior or coordinate power in the
Central Government to inquire into the conduct of the Chief
Minister and other ministers of the State in the. discharge
of their governmental functions. Such a dispute concerns
the content of the respective powers of the State and the
Union of India and the inter se relationship between the two
entities :and the State is vitally interested in it. The
State is very much concerned whether the conduct of its
council of ministers in the discharge of governmental
functions can be inquired into only by itself through its
own agency or it can also be subjected to scrutiny by the
Union of India. The State would certainly have locus to say
that the Union of India has no right to encroach upon its
exclusive power to investigate into misuse of governmental
power by its council of ,ministers. There can be no doubt
that, apart from its council of ministers the State can also
competently make a claim that the council of ministers
acting on its behalf is immune from subjection to the power
of the Central Government to inquire into their conduct as
ministers. This immunity claimed in respect of the council
of ministers can be ascribed to the State and it can
certainly raise a dispute touching upon the existence of
this immunity. So far as dispute as to the scope of
respective legislative fields between the Commonwealth and
the States in Australia is concerned, it is now well settled
as a result of the decision in Attorney General for Victoria
v. The Commonwealth(1) that the Attorney-General of a State
,can sue for a declaration of the invalidity of Federal
legislation as an invasion of a purely State field of
legislative power and similarly the Attorney-General for the
Commonwealth can sue a State in order to obtain a
declaration of the invalidity of State legislation where it
encroaches upon the legislative Dower entrusted to the
,Commonwealth. The High Court of Australia pointed out in
this case that the position was correctly summarised by
Gaven Duffy, C.J., Evatt and Me Tiernan, JJ. in Attorney-
General for Victoria v. The Commonwealth (2) in the
following words : “It must now be taken as established that
the Attorney-General of a State of the Commonwealth has a
sufficient title to invoke the provisions of the
Constitution for the purpose of challenging the validity of
Commonwealth legislation which extends to, and operates
within. the State whose interests be represents”. Now, if a
State has sufficient title to challenge the validity of
Union legislation on the ground that it interferes with the
exercise of State legislative power, it must follow a
fortiori that the State would have locus to challenge
unconstitutional exercise of power by the Central Government
which encroaches upon its exclusive sphere in relation to
the conduct of its Council of ministers. The State would
also be entitled to challenge the impugned action of the
Central Government as unconstitutional, because it prevents
the State from exercising its power to direct inquiry into
matters which are specified in the notification issued by
the Central Govern-
(1) 71 C.L.R. 237
(2) 52 C.L.R. 533.
122
ment, by reason of proviso (a) to sub-section (1) of section
the Commissions of Inquiry Act, 1952. The suit filed by the
State against the Union of India must, in the circumstances,
be held to be maintainable under Article 131.
Since, however, the claim made by the State in the suit is
not sustainable on merits as pointed out by my learned
brother Chandrachud in his judgment, I agree with him that
the suit should be dismissed with costs.
UNTWALIA J.-We agree that this suit should be dismissed with
costs. We however regret our inability to concur in the
view expressed by Bhagwati J., in regard to the
maintainability of the, suit under, Article 131 of the
Constitution. For the reasons stated hereinafter we have
come to the conclusion that the, suit is not maintainable.
We have also briefly discussed and decided the other issues
in the suit on merits. While generally agreeing
respectfully with the leading judgment of the learned Chief
Justice, we think it advisable. to add a few pages by way of
our concurring note.
The first issue in this suit is
“Is the suit maintainable ?”
Although the decision of this issue is interlined with other
issues settled for adjudication, it can be dealt with
separately also.
What, in substance, is this suit filed under Article 131 of
the Constitution of India ? Certain allegations of
corruption, nepotism and favouritism in relation to the
administrative actions of the Chief Minister and some other
Ministers of the State of Karnataka were made by some
legislators of that State. A memorandum signed by 46
legislators of the State containing the allegations was
forwarded to the Central Government. Its Home Minister in
his letter dated April 26, 1977, requested the Chief
Minister to give information and his comments apropos the
allegations made. The Chief Minister, in his reply letter
dated May, 13, 1977, inter alia, challenged the authority of
the Central Government to call for an explanation and make
any inquiry in the matter. He claimed that it was the
exclusive right of the State to do so. It seems, to
forestall the appointment of any Commission of Inquiry by
the Central Government, the State Government hastened to
issue a notification on May 18, 1977 to set up some kind of
inquiry in respect of the allegations made, although, in
terms the inquiry was not specifically in relation to the
various charges of misconduct and maladministration made
against the Chief Minister and the other Ministers. The
notification was issued by the State Government under
section 3 of the Commissions of Inquiry Act, 1952 (Central
Act 60 of 1952) (hereinafter to be referred to as the Act).
Shri Justice Mir lqbal Hussain, a retired Judge of the
Karnataka High Court, was appointed as the sole member of
the Commission of Inquiry by the State Government. Five
days later, on May 23, 1977, the Central Government, in
exercise of their power under section 3 of the Act,
appointed another Commission consisting of a single Member,
namely, Shri Justice A. N. Grover,,
123
Judge of the Supreme court of India, to inquire into,- the
allegations in Annexures ‘I’ and ‘II’ to the notification
excluding, however, from the latter-“any matter covered by
the notification of the Government of Karnataka in the Chief
Secretariat DPAR 7 GAN 77, dated the 18th May, 1977”.
Thereupon the of Karnataka filed the present suit claiming
certain- relief mainly on two grounds : (1) On a proper
interpretation of the Act the State Government is the
appropriate Government and not the Central Government to set
up a Commission of Inquiry; and (2) in the alternative the
provisions in the Act in so far as they authorise the
Central Government to issue the impugned notification- are
ultravires the Constitution. The first defendant in the
suit is the Union of India, the second being Shri A. N.
Grover. The contest is by the first defendant only and
hereinafter in this judgment it will be referred to as the
defendant. In substance and effect the claim of the
defendant is that it has got the legal right to issue the
impugned notification; the right conferred by Section 3 of
the Act is not ultravires the Constitution. The right of
the State of Karnataka to institute the suit under Article
131 is challenged mainly on the ground that the nature of
the dispute, in the suit is such that it does not affect any
legal right of the State.
Under Article I of the Constitution, India is a Union of
States. The State of Karnataka is one of the constituent
units of the Union of India. The concept of State is that
by itself it is an ideal person, a legal entity. It is
intangible, invisible and immutable. The Government, in a
sense, is an agency through which the will of the State is
formulated, expressed and executed. Both the expressions
have been separately defined in the General Clauses Act,
1917. In relation to the existence of a dispute between the
Union of India on the one hand and one or more States on the
other, the expression used in Article 131 for the former is
the Government of India, signifying that the dispute may be
with the Government of India but the other party to the
dispute must be the State only and not any limb of the
State-the Government, this Legislature or- the Judiciary.
Article 300 is an enabling provision to describe the
Government of India in a suit as the Union of India and to
enable the Government of a State to sue or. be sued in the
name of the State. If there is an invasion an the legal
right of a State the agency through which the action will be
commenced may well be the Government of the State. An
inroad upon the right of the Government may, in certain
circumstances, be an inroad upon the legal right of the
State. Article 300, therefore, merely prescribes the mode
of describing a party to the suit. The real answer to the
question of maintainability, however, has got to be found
from the words of Article 131 itself. The following
conditions must exist for invoking the original jurisdiction
of the Supreme Court under the said Article
(1) The dispute must be between the
Government of India and one or more States or
between two or more States; and
124
(2) The dispute must involve any question
whet law or of fact on which the existence or
extent the legal-right depends.
There is some departure in this regard from the correspond
provision of Section 204 of the Government of India Act, 19
which is not necessary to be pin-pointed here. In specific
terms has not been stated in the Article as to whose legal
right the question involved in the dispute must relate and
in what respect. Chandrachud J., in this regard has
expressed his opinion in the case of State of Rajasthan &
Ors. v. Union of India( 1) at page 1396 as follows
“It is sufficient in order that its provisions
may apply that the plaintiff, questions the
legal or constitutional right asserted by the
defendant, be it the Government of India or
any other State”.
The learned Chief Justice in his leading judgment did not
decide this question. The other five Judges including one
of us (Untwalia J.) took a contrary view. Yet, Bhagwati and
Gupta JJ. on the facts of that case held that the legal
right of the State, the plaintiff, had been infringed. The
other three, even on merits, expressed an opposite view. If
we may say so with great respect, we are unable to agree
with the view aforesaid, expressed by Chandrachud J.
Ordinarily and generally, in any suit including the one
under Article 131 the competition is between the legal right
of the plaintiff and the defendant. But primarily, and
almost invariably, the plaintiff has to establish his legal
right in order to succeed in the suit. As against the claim
of the plaintiff, if the legal right of the defendant is
established, the suit is bound to fail. But on failure of
either to establish his own legal right, the suit will still
fail because the plaintiff cannot succeed unless he
establishes his legal right. This proposition of law is so
clear and axiomatic that the expression-“the existence or
extent of a legal right” used in Article 131 undoubtedly is
meant to bring about this result. It was neither necessary,
nor perhaps advisable, to state further in the article that
the dispute must involve any question on which the legal
right of the plaintiff must depend. It is matter of common
experience that more often than not absence of a legal right
in one party helps the other party to establish its legal
right and vice versa.
In the case of King-Emperor v. Sibnath Banerji & Ors.(2)
Lord Thankerton opined at page 266 that “a Minister is an
officer subordinate to the Governor within the meaning of
the Government of India Act, 1935.” The same view was
expressed by Hegde J., in the case of A. Sanjeevi Naidu etc.
etc. v. State of Madras and Anr.(3), with reference to the
provisions of the Constitution.
In the present case the inquiry set- up by the Central
Government is not against the State or the State Government.
It is against the Chief Minister and some other Ministers.
who are officers of the State.
(1) A.I.R. 1977 S.C. 1361.
(2) 72 Indian Appeals, 241.
(3) [1970] 3 S.C.R., 505.
125
It may be open to them to, take the plea in an appropriate
proceeding, such as a writ petition under Article 226 of the
Constitution, ,that the action of the Central Government is
legal and ultra vires. Under Article 131A (introduced by
the 42nd Amendment), the question of vires of section 3 of
the Act may then have to be referred for the decision of the
Supreme Court by the High Court. But that in no way
entitled the State to invoke the original jurisdiction of
the Supreme Court under Article 131. The submission made by
Mr. Lal Narayan Sinha on behalf of the plaintiff-State that
the legal right of the State has been invaded by the
impugned notification, is not correct. Counsel submitted
that it is only the States right to order an inquiry under
section 3 of the Act against its Ministers acting through
its Government, that the Central Government has no right,
that it has put an impediment in the right of the State,
Government to modify or issue a subsequent notification for
the purpose of enlarging or clarifying the scope of the
inquiry and that it has, thus affected the legal right of
the State. We find no substance in this argument. There
may be a competition between the power of one authority and
the other, here in this case between the Central Government
and the State Government. But unless the power exercised by
one authority brings about a dispute impinging upon the
legal right of the other authority, the latter cannot come
under Article 131 and say that merely because it was within
its power to do so its legal right is affected by the
illegal exercise of the power by the other authority. The
said exercise of the power must directly or by necessary
implication affected the legal right of the other authority.
We may support the proposition by an illustration. Suppose,
the Central Government, in pursuance of a law made by the
Parliament in respect of an: Entry in List II,, say, Entry
8, relating to, intoxicating liquors, makes an order against
a person residing in or an officer of any State. The order
will be obviously bad, as having been issued under an
invalid law made by the Parliament. Who can challenge this
order ? Obviously the person affected or aggrieved by the
order. If the order does not affect the legal right of the
State or the State Government (for the purpose of testing
the argument, the two may be equated), can the State file a
suit under Article 131 merely because the order has been
made against its resident in accordance with a law which
encroached upon the exclusive legislative field of the State
? The answer, in our ,opinion, must be in the negative. In
the instant case if the stand on merits taken on behalf of
the State Ministers in correct, then the impugned
notification is an invasion on their legal right. They can’
press into service the power of the State Government to
order an
inquiry and challenge the impugned notification, but the
said notification can in no way be said to have affected or
restrained the State Government from giving effect to its
notification.
Some help may be derived from the definition
of the word “State’ given at page 856-57 of
Vol. 81 Corpus, Juris Secundum. It says :
“The word ‘State’ has various meanings, but as
used in the federal Constitution, acts of
congress, and State statutes,
126
it has a definite, fixed, and certain legal
meaning as designating a member of the Union
in contradistinction to the United States as a
nation…………………………..
The State is a legal entity, and is entitled
to the fundamental rights, privileges, and
immunities belonging to every legal entity.”
If a restricted meaning were not to be given to the scope of
the suit which can be filed under Article 131, very
anomalous, and sometimes absurd, results may follow and it
will be difficult to put a dividing line and a stop to the
very wide scope of the suit resulting from such an
interpretation. Any action taken by the Central Government
either under the Act or otherwise. against any citizen
residing in, or an officer of the State could be challenged
by institution of a suit under Article 131 by the State on’
the ground that the action of the Central Government is
ultra vires and Without any legal right. The argument that
the State is interested in protecting its people and
officers when their legal right has been illegally invaded
by the Central Government and, therefore, it has a locus to
invoke Article 131, in our opinion, is too obviously wrong
to be accepted.
As we have said above, a Minister is an Officer of the
State. An order affecting him cannot confer a right of suit
on the State under Article 131. So the present suit, in our
opinion, is not maintainable. We, however, do not propose
to non-suit the plaintiff on that ground alone, and proceed
to discuss the other issues.
The other two issues framed for consideration in this suit
are in the following terms :
“2. Is the impugned notification ultra vires
the powers of the Central Government under
Sec. 3 of the Commissions of Inquiry Act ?
3. If section 3 of the Commissions of
Inquiry Act authorises the Central Government
to issue the impugned notification, is the
Section itself unconstitutional ?”
Both these issues may conveniently be dealt with together.
Several points of view were canvassed by Mr. Lal Narayan
Sinha for the plaintiff with his usual clarity and precision
but, at times, because of the inherent difficulties of the
points involved and the case being one of first impression,
he was obliged to change and modify his line of argument.
Mr. Soli Sorabjee, the learned Additional Solicitor General,
combated the arguments of the plaintiff very ably and
succinctly. Eventually, the main points of attack of the
plaintiff were crystallized in the following terms
1. Our Constitution is of a Federal
character clearly defining and dividing the
legislative and the executive functions of the
Centre and the States and their inter-se
relationship.- The judicial functions of the
Judiciary are in a well-defined and demarcated
separate compartment..
127
2. Except to the extent permitted by the,
Constitution the Centre cannot encroach upon
the legislative or executive field of the
State.
3. The Act does not and cannot authorise
the Centre to set up a, Commission of Inquiry
against the State Executive; Section 3 must be
read down to save it from ‘being
constitutionally invalid.
4. If it be not possible to read down the
Act in the manner suggested then the Act is
invalid in so far as it authorises the Centre
to set up a Commission of Inquiry against the
State Executive.
5. Such a law is beyond the legislative
competence of the Union Parliament as in
substance and in effect it violates either
expressly or by necessary implication certain
provisions of the Constitution, its basic
scheme, or the fundamental back-bone of the
Centre-State relationship as enshrined in the
Constitution.
6. The law having the effect as aforesaid
will really be a constitutional law bringing
about an amendment in the Constitution which
is obviously not permissible; an ordinary
legislation unless expressly permitted by the
provision of the Constitution cannot in any
way amend the Constitution.
7. The Act is beyond the legislative
competence of the Central Parliament if it
means authorisation by the Central Government
of any machinery for making inquiries in the
executive actions of the State Government or
the Chief Minister or any other Minister
either collectively or individually.
8. Strictly speaking the subject-matter of
the present inquiry is not covered by the Act
if it be held that it has been enacted in
exercise of the power of the Parliament under
Entry 94 of List I, Entry 45 of List III or
the Residuary Entry 97 of List I read with
Article 248 of the Constitution.
9. Lastly it was also submitted that the
scope, of the two inquiries one set up by the
State Govt. & the other by the Central Govt.
are more or less the same. Almost all matters
of inquiry are over-lapping and, therefore,
the, impugned notification is bad on that
account too.
We proceed to discuss and consider briefly, as far as
possible, the propositions aforesaid, but not strictly in
the order we have set out above.
128
Strictly speaking, our Constitution is not of a federal
character where separate, independent and sovereign States
could be said to have joined to form a nation us in the
United States of America or as may be the position in some
other countries of the World. It is because of. that reason
that sometimes it has been characterised as quasi-federal in
nature. Leaving the functions of the Judiciary apart, by
and large the legislative and the executive functions of the
Centre and the States have been defined and distributed,
but, even so, through it all runs an overall thread or rein
in the hands of the Centre in both the fields. The
Parliament has the exclusive authority to legislate on
matters enumerated in List I. So has the State Legislature
the exclusive legislative power with respect to the various
entries in List II. Both have concurrent powers in regard
to the entries of List III. The residuary power in
accordance with Article 248 and Entry 97 of List I, lies
with the Central Parliament. It has got a predominant hand
in respect of the matters in the concurrent list as is
apparent from Article 254. Article 249 confers power on
Parliament to legislate with respect to a matter in the
State List, in the national interest. When a proclamation
of emergency is in operation as provided for in Article 250,
the Parliament has got the power to legislate with respect
to any matter in the State List. Some inroad in the State
legislative field by the Centre is permissible under
circumstances mentioned in Articles 252 and 253. As
provided for in Article 254 in some situations, the State is
under an obligation to reserve a Bill for the consideration
of the President and receive his assent before it is made
into a law.
“It shall be the duty of the Union to protect every State
against external aggression and internal disturbance and to
ensure that the Government of every State is carried on in
accordance with the provisions of this Constitution”. (vide
Art. 355, emphasis supplied). In case of failure of the
constitutional machinery in States, provision has been made
in Article 356 for the Centre to assume legislative and exe-
cutive powers but not the powers vested in or exercisable by
a High Court of a State. The effect of proclamation of
emergency under Article 352 is to enlarge the executive
power of the Union and extend it to the giving of direction
to any State as to the manner in which the executive power
thereof is to be exercised as provided for in Article 353.
There could not have been, for obvious reasons, any such
provision in regard to the administration of the Centre.
The administrative relations between the Centre and the
States are by and large governed by the provisions of
Chapter II of Part XI of the Constitution. While providing
in Article 256 that “two executive power of every State
shall be so exercised as to ensure compliance with the laws
made by Parliament and any existing laws which apply in that
State”, it is significant to note that it has further been
engrafted therein that “executive power of the Union shall
extend to the giving of such directions to a State as may
appear to the Government of India to be necessary for that
purpose.” The control of the Union over the States in
certain cases has been provided for in Article 257. Mr.
Sinha pointedly referred to Article 258A introduced in the
Constitution by the Constitution (Seventh Amendment) Act,
1956, to lend support to his
129
argument. But, in our opinion, instead of strengthening the
point as urged, it weakens it because the said Article
provides:
“258A. Power of the States to entrust
functions to the Union.-Notwithstanding
anything in the Constitution, the Governor of
a State may, with the consent of the
Government of India, entrust either
conditionally or unconditionally to that
Government or to its officers functions in
relation to any matter to which the executive
power of the State extends.”
of course, the Governor of a State would mean the State
Government or the Council of Ministers and it is not meant
to authorise the Governor to act in his discretion in this
regard.
We may now refer to some other characteristics and features
of our Constitution to demonstrate the weak character of our
federal structure and the controlling hand of the Centre on
States in certain matters. Some of the salient ones are the
following :
1. The Governor of a State is appointed by
the President and holds office at his
pleasure. Only in some matters he has got a
discretionary power but in all others the
State administration is carried on by him or
in his name by or with the aid and advice of
the Ministers. Every action, even of an
individual Minister, is the action of the
whole Council and is governed by the theory of
joint and collective responsibility. But the
Governor is there, as the head of the State,
the Executive and the Legislature, to, report
to the Centre about the administration of the
State.
2. Making a departure from the
corresponding provision in the Government of
India Act, Entry 45 in List III of the Seventh
Schedule empowers the Parliament to legislate
on the subject of “inquiries…… for the
purpose of any of the matters specified in
List II” also besides List III, and List I as
mentioned in Entry 94 of that List. The
constituent power of amendment of the
Constitution lies with the Parliament under
Article 368 providing for concurrence by half
the number of the States in certain matters.
3. Article 2 empowers the Parliament by law
to admit into the Union, or establish, new
States on such terms and conditions as it
thinks fit.
4. Parliament is also empowered by Article
3 to make law for the formation of new States
and alteration of areas, boundaries of names
of existing States.
Such is the nature of our federal structure.
In State of West Bengal v. Union of India(1) in the majority
judgment delivered by B. P. Sinha, C.J., the character and
nature of
(1)[1964] 1 S.C.R. 371.
130
our federal structure, has been discussed from pages 396
onwards. The learned Chief Justice observed at page 397
that in our Constitution the supreme authority of the Courts
to interpret the Constitution and to invalidate action
violative of the Constitution is to be found in full force.
“The exercise of powers legislative and executive in the
allotted fields is hedged in by numerous restrictions, so
that the powers of the States are not coordinate with the
Union and are not in many respects independent”. At page
398 it is observed : “The political sovereignty is
distributed between, as we will presently demonstrate, the
Union of India and the States with greater weight-age In
favour of the Union”.
If any Article of the, Constitution in terms permits the
Centre to encroach upon the legislative and the executive
field of the State, as some of the Articles do, then there
could be no doubt that the encroachment is perfectly legal
and valid. If, however, either the law or the action taken
under it makes an inroad on the executive power of the State
in express violation of any provision of the Constitution
or, even assuming, as was argued by Mr. Sinha, violating the
provisions of the Constitution by necessary implication,
then such a law or the action taken thereunder would be
invalid. The Constitution does not permit the Centre to
violate it in any matter.
But in order to appreciate as to whether the Act or the
action taken by the Centre under Section 3 thereof has gone
against the Constitution either expressly or by necessary
implication, one has to appreciate the nature of. the
provisions made and the scope and functions.of the
Commission in question. The extent of the executive power
of the Union is co-extensive with the legislative Power of
the Parliament. The position in respect of the executive
power of the State is identical (‘vide’ Articles 73 and 162
respectively). Entry 94 in the Union List empowers the
Parliament to legislate concerning inquiries for the purpose
of any of the matters in that list, that is to say, if any
kind of inquiry is necessary for any kind of purpose con-
nected with any of the matters in List I then the Parliament
is empowered to make a law for the setting up of a machinery
or a Tribunal for the purpose of the said inquiry. List II
does not contain any such entry. Then comes Entry 45 in
List III which has already been alluded to. This authorises
both the Central and the State Legislatures, of course
subject to the other provisions of the Constitution e.g.
Article 254, to enact law for the purpose of providing for
the machinery of inquiry for the purposes of any of the
matters specified in List II and List III. It has been so
held in the case of Shri Ram Krishna Dalmia v. Shri Justice
S. R. Tendolkar & Ors.(1) where Das C.J. has lucidly
discussed the matter, if we say so with great respect at
pages 289-291.
Empowering the Central Legislature to make a law for the
purpose of inquiry in regard to the matters specified in
List II is in no sense empowering it to legislate vis-a-vis
such matters. It is only for the purpose of achieving the
object of the inquiry to be set up in regard
(1) [1959] S.C.R. 279.
131
to the matters enumerated in List III. The purpose may be
as a matter of policy in relation to the legislation
proposed to be passed by the various States or may be with
regard to their executive actions taken apropos such
matters. We may just. illustrate our view by referring to
Entry 6 of List II., The. State Legislature has the
exclusive authority to legislate on “public health and
sanitation; hospitals and dispensaries”; of course, within
the territory of that State. The executive power being co-
extensive, the hospitals may be established and doctors
appointed therein by the State Government either in accord-
ance with the law made in that regard or even in pure
exercise of the executive power. If there has been
corruption, nepotism, favouritism or maladministration in
connection with the said executive action of the State
Government, the law made under Entry 45 of the Concurrent
List can undoubtedly cover an inquiry in such matters. It
neither interferes with the legislative power of the State
nor with its executive action. A mere inquiry under the Act
by a Commission appointed thereunder which is a fact-finding
body, is for the purpose of finding the facts. No body is a
prosecutor; no body is an accused; all are invited and
welcomed by the Commission to assist it to find the
necessary facts within the scope of the inquiry set up.
In passing we may also refer to Entry 8 of List I in the
Seventh Schedule to the Constitution. It is in respect of
“Central Bureau. of Intelligence and Investigation.” The
Central Parliament is therefore ,competent to legislate on
this topic and the Central Government can make an executive
order asking the Central Bureau of Intelligence and
Investigation to make any enquiry in relation to the acts of
commission and omission whether amounting to an offence or
not of any person including any officer or Minister of any
State. It that be so, will it be reasonable to say that the
Commission appointed by the Central Government under the Act
cannot be appointed for finding facts in relation to the
allegations made against the Minister of a State ? Obviously
not.
It was strenuously submitted on behalf of the plaintiff that
no such fact-finding Inquiry Commission could be set up
against the Judiciary either Subordinate or Higher.
Reference was made to the cases of The State of West Bengal
v. Nripendra Nath Bagchi,(1) and Shamsher Singh & Anr. v.
State of Punjab (2) in support of this proposition. But the
exclusion of the inquiry under the Act against the Judiciary
is based on entirely different principles. So far as the
Subordinate Judiciary is concerned, inquiry of this nature
will be impermissible on the. basis of the express language
of Article 235 as interpreted by this Court in the two cases
referred to above and in various others. The setting up of
such an inquiry against a High Court Judge or a Supreme
Court Judge will be barred because of the constitutional
provisions contained in clauses (4) and (5) of Article 124
read with Article 218. As a matter of fact in accordance
with clause (5) of Article 124 the Parliament has enacted
the Judges Inquiry Act, 1968 (Act 51 at 1968).
(1)[1966] 1 S.C.R. 771.
(2)[1975] 1 S.C.R. 841,
132
As already pointed out, in an inquiry set up under the Act
there is no prosecution, no framing of a formal charge, no
accused before the Commission of Inquiry. There is no
exercise of any supervisory or disciplinary jurisdiction by
the Central Government against the State Government by the
appointment of a Commission, nor is there any usurpation of
any executive function of the State. Reference in this
connection may be made to the following cases
M. V. Rajwade v. Dr. S. M. Hasan & Ors, (1) Brajnandan
Sinha v. Jyoti Narayan(2) Shri Ram Krishna Dalmia v. Shri
Justice S. R. Tendolkar & Ors, (3) State of Jammu & Kashmir
v. Bakshi Ghulam Mohammad; (4) P. V. Jagannath Rao & Ors.
v. State of Orissa & Ors;(5) and Krishna Ballabh Sahay and
Ors. v. Commission of Enquiry & Ors.(6) The Centre, however,
must be and is concerned with and interested in knowing and
ascertaining facts as regards the allegations made against
any Chief Minister, Minister or any other Officer of the.
State Government.
Now let us proceed to examine the matter a bit more
carefully with reference to the other arguments of Mr. Lal
Narayan Sinha. Counsel submitted that neither the Council
of Ministers nor any individual Minister is under the
disciplinary control of the Central Government, Setting up
of a Commission of Inquiry to find facts in relation to the
alleged misconduct or maladministration of the Ministers is,
in substance and effect, an exercise of disciplinary control
over them. He further submitted that the State Legislature
to whom the Ministers are responsible is competent to set up
an inquiry against them in accordance with the powers and
privileges as provided for in Article 194. It may be so.
It may well be, as further argued by Mr. Sinha, that not
only the State Legislature but the State Government itself
is competent to appoint a Commission of Inquiry against
itself or its Ministers and officers. But it sounds
incongruous and highly anomalous that the State Government
would think of instituting an inquiry against itself. It is
equally strange to think that the Ministers in power, while
remaining in office, would set up a Commission of Inquiry
for inquiring into their alleged misdeeds in the matter of
administration of the State. We shall assume for the
purpose of argument that legally and technically the
position is correct. Even so, how does it lead to the
conclusion that their power is exclusive and excludes the
power of the Central Government under the Act? We fail to
find any words in any of the Articles of the Constitution to
indicate that the power of the State Legislature or the
State Government in this matter is exclusive. It may be co-
extensive. and such a situation is undoubtedly postulated
and provided for in the proviso appended to sub-section (1)
of section 3 of the Act. Although technically and literally
the Ministers are appointed by the Governor and hold office
at his pleasure, in reality, in the constitutional set up of
our parliamentary democracy, the Governor in his discretion
cannot by
(1) [I.L.R.] 1954, Nagpur 1.(2) [1955] 2 S.C.R. 955.
(3) [1959] S.C.R. 279. (4) [1066] 1 Suppl. S.C.R. 401.
(5) [1968] 3 S C.R 789. (6) [1969] 1 1 S.C.R. 387.
133
himself set up a Commission of Inquiry against the sitting
Ministers, nor can the President direct him to do so-
emergency provisions in Part XVIII apart. What then
excludes the power of the Central Government to set up a
Commission of Inquiry for finding facts in regard to the
alleged maladministration of the Ministers or officers of a
particular State. Government? After ascertainment of
facts, further action may follow or be taken in accordance
with the provisions of the Constitution or the law. But
surely the Act does not, nor could it, provide for any kind
of disciplinary action such as removal or suspension of a
Minister in office by the Centre on ascertainment of the
truth of the alleged facts- against him-provisions in the
Emergency Chapter apart. If it were otherwise undoubtedly
it will be encroaching upon he power of the State Government
or the State Legislature. India is a single country as a
whole. The nation is one and one alone. Leaving also the
special provisions of Article 370 in relation to the State
of Jammu & Kashmir, there is no dual citizenship; there are
no. different nationalities.
While assailing the impugned notification Mr. Lal Narayan
Sinha has strenuously contended that Article 164(2) of the
Constitution which makes the Council of Ministers
collectively responsible to the Legislative Assembly of the
State indicates that a Minister is in no other way
responsible, answerable or accountable for anything that he
does while in office and he cannot be subjected to an
inquiry under the Commissions of Inquiry Act. This
contention is based on a misconception of the true import
and meaning of the doctrine of collective responsibility and
as such cannot be countenanced. The following discussion on
the subject in “Representative and Responsible Government”
by A. H. Birch will be found useful in this connection :-
“Ministerial accountability to Parliament has
two aspects : the collective responsibility of
Ministers for the policies of the Government
and their individual responsibility for the
work of their departments. Both forms of
responsibility are embodied in conventions
which cannot be legally enforced. Both
conventions were developed during the nine-
teenth century, and in both cases the practice
was established before the doctrine was
announced (page 131).”
In “Government and Law” by T. C. Hartlay and J. A. C.
Griffith, the position in regard to the collective
responsibility of Ministers to the Legislature is tersely
stated as under
“Ministers are said to be collectively
responsible. This is off-en elevated by
writers to the level of a ‘doctrine’ but is in
truth little more than a political practice
which is commonplace and inevitable.
Ordinarily, Ministers form the governmental
team, all being appointed by the Prime
Minister from one political party. A Cabinet
Minister deals with his own area of policy and
does not normally have much to do with the
area of other Ministers. Certainly no Cabinet
Minister would be likely to make public
statements which impugned
134
on the work of another Minister’s department.
On a few important issues, policy is
determined by the Cabinet after discussion.
Collective responsibility means that Cabinet
decisions bind all Cabinet Ministers, even if
they argued in the opposite direction in
Cabinet. But this is to say no more than a
Cabinet Minister who finds himself in a
minority must either accept the majority view
or resign. The team must not be weakened by
some of its members making clear in public
that they disapprove of the Government’s
policy. And obviously what is true for
Cabinet Ministers is even more true for other
Ministers. If they do not like what the team
is doing, they must either keep quiet or
leave” (page 60).
Dealing with the collective responsibility of the Council of
Ministers to the Legislative Assembly of the State, Sarkar
C. J., speaking for the Court said at page 405 as follows in
State of Jammu and Kashmir v. Bakshi Ghulam Mohammad(1) :
“Section 37 talks of collective responsibility
of Ministers to the Legislative Assembly.
That only means that the Council of Ministers
will have to stand or fall together, every
member being responsible for the action of
any other.”
From the above, it is crystal clear- that the doctrine of
collective responsibility on which Mr. Lal Narayan Sinha has
so heavily leaned does not grant immunity to the State
Ministers from being subjected to the provisions of the
Commissions of Inquiry Act and the plaintiff can derive no
help from it.
If the Act is really a constitutional law as understood and
explained by eminent scholars, surely the Parliament has
transgressed its limits in enacting such a law. It is
axiomatic that the amendment of the Constitution cannot be
allowed except as provided for in Article 368. There are
certain exceptions to it. Examples of exceptions are very
few. Numerous such examples given by Wanchoo J., as he then
was, in Golak Nath(2) case, at page 827, if we may say so
with great respect, are not quite accurate. The powers
given to a particular Legislature under any of the Entries
in the respective Lists of the Seventh Schedule or by any
particular Article of the Constitution are ,of the same kind
and quality; as for example, when Articles 10, 59(3) and
65(3) speak about a law to be made by the Parliament then it
is not conferring a power in the Parliament to amend the
Constitution. The power is an ordinary legislative one.
But there are a few Articles in the catalogue given by
Wanchoo J., which empower the Parliament, in substance and
in effect, to amend a particular provision of the
Constitution by an ordinary legislative procedure and that
necessitated an express provision to say that no such law as
aforesaid shall
(1) [1966] Suppl. S.C.R. 401.
Section 37 or the Constitution of Jammu and Kashmir
corresponds to Article 164 of the Constitution of India,
(2) [1967] 2 S.C.R. 762.
135
be deemed to be an amendment of the Constitution for the
purposes of Article 368 vide, for example, Articles 4(2) and
169(3). Although the law made under clause (1) of Article 4
and clauses (1) and (2) of Article 169 will be tantamount to
an amendment of the Constitution, by a legal fiction clauses
(2) and (3) of the said Articles respectively provide that
such law shall not be deemed to be an amendment of the
Constitution and the procedure prescribed by Article 368
will not be necessary to be followed.
A quotation from Hood Phillips’ Constitutional Law was given
to us by Mr. Sinha to say:
“The Constitutional Law of a State is the law
relating to the constitution of that State
(Page 1). The Constitution of a State is the
system of laws, customs and convention which
define the composition and powers of organs of
the State and regulate the relations of the
various State organs to one another and to the
private citizen.” (p. 4)
It is not necessary to multiply the quotations. In no sense
the impugned law is a constitutional, law.
Mr. Sinha also contended that an ordinary law cannot go
against the basic scheme or the fundamental back-bone of the
Centre-State relationship as enshrined in the Constitution.
He put his argument in this respect in a very ingenious way
because he felt difficulty in placing it in a direct manner
by saying that an ordinary law cannot violate the basic
structure of the Constitution. In the case of Smt. Indira
Nehru Gandhi v. Shri Rai Narain(1) such an argument
expressly rejected by this Court. We may rest content by
referring to a passage from the judgment of our learned
brother Chandrachud J., at pages 669-670 which runs thus :
“The Constitutional amendments may, on the
ratio of the Fundamental Rights case, be
tested on the anvil of basic structure. But
apart from the principle that a case is only
an authority for what it decides, it does not
logically follow from the majority judgment in
the Fundamental Rights case that ordinary
legislation must also answer the same test as
a constitutional amendment. Ordinary laws
have to answer two tests for their validity :
(1 ) The law must be within the legislative
competence of the legislature as defined and
specified in Chapter 1, Part XI of the
Constitution and (2) it must not offend
against the provisions of Articles 13 (1 ) and
(2) of the Constitution. ‘Basic structure’,
by the majority judgment, is not a part of the
fundamental rights nor indeed a provision of
the Constitution. The theory of basic struc-
ture is woven out of the conspectus of the
Constitution and the amending power is
subjected to it because it is a constituent
power. ‘The power to a mend the fundamental
instrument cannot carry with it the power to
destroy its essential features this, in brief,
is the arch of the theory
(1) [1976] 2 S.C.R. 347.
136
of basic structure. It is wholly out of place
in matters relating to the validity of
ordinary laws made under the Constitution.”
The doctrine of “implied prohibition”, relied upon by Mr.
Sinha, lids repeatedly been rejected by the Courts in
England, Australia and by this Court. There is a veritable
roll call of such cases. We may just refer to a few : Webb
and Outrim, (1) followed in The Amalgamated Society of
Engineers and The Adelaide Steamship Company Limited and
others(2) wherein at page 150 it has been stated :
“The doctrine of “implied prohibition” against
the exercise of a power once ascertained in
accordance with ordinary rules of
construction, was definitely rejected by the
Privy Council in Webb v. Outrim, (1907) A.C.,
81″.
Reference may also be made to The State of Victoria and The
Commonwealth of Australia. (8) These and many earlier cases
of this Court were all considered and the doctrine of
“implied prohibition’ was definitely rejected by
overwhelming majority in the case of His Holiness
Kesavananda Bharati Sripadagalavaru v. State of Kerala,(4)
popularly known as Fundamental Rights case. We may just
refer to the observations of Palekar J., at page 608,
Dwivedi J., at page 916 and Chandrachud J., at page 977. To
the same effect is the view expressed by Ray J., as, he then
was, Khanna J., and others. The power granted to the
Central Legislature under Entry 45 of the Concurrent List is
clear and explicit I for passing a law of inquiry in regard
to any of the matters in List II. That being so, the power
cannot be curtailed on the doctrine of “implied
prohibition”. As a matter of fact one had to search in vain
the basis for even applying this doctrine in this, case.
Wynes in his book “Legislative, Executive and Judicial
Powers in Australia,” Fourth Edition has said at pages 12
and 13:
“The only way in which the Court could
determine whether the prescribed limits of
legislative power had been exceeded or not was
“by looking to the terms of the instrument by
which, affirmatively, the legislative powers
were created, and by which negatively, they
are restricted.”
……………………………………..
“The effects of the Engineers’ case upon
Commonwealth State relations are considered in
Chap. IX. What is important for present
purposes are the principles of interpretation
there laid down and acted upon ever since.
The rejection of the doctrines of mutual non-
interference and State reserved powers has had
a profound effect upon the Constitution
(1) (1907)A.C. 81.
(2) 28 Commonwealth Law Reports, 129.
(3) 122 Commonwealth Law Reports 353.
(4) [1973] Suppl. S.C.R. 1.
137
inevitably leading to what Professor Sawer has
described as an “expansive” interpretation of
federal powers. For it followed from the
principle that Dominion and Colonial
Legislative powers are plenary (a principle
from which the High Court has never deviated)
and an interpretation of specific grants of
power read in their entirety without regard to
a reservation of all non-specified powers,
that the enumerated powers of the Commonwealth
were to be read in their full sense subject
only to the prohibitions expressly or by
implication set upon them in the Constitution
itself. And the express provision for
supremacy of Commonwealth over State laws in-
the event of conflict completed the process;
as Dixon C. J. remarked in 1947, the
Commonwealth is bound to be in the better
position, because it is a Government of
enumerated powers.”
There is, in our opinion, no justification for reading down
the provisions of the Act, viz. Sections 2 and 3, nor are
the said provisions ,constitutionally invalid on any
account.
It is not necessary for us to discuss or deal with any
detail the last submission made on behalf of the plaintiff.
It was a faint, weak and hesitant argument to escape the
Commission of Inquiry appointed by the Centre. The grounds
of mala tides, somewhat vaguely and faintly alleged in the
plaint, could not be and were not, pressed at the time of
the hearing of the suit. What was, however, argued for our
consideration was that the two inquiries-one set up by the
State earlier and the other appointed by the Centre later-
are almost one and the same; they cannot be allowed to go
side by side. However the fact that the Commission of
Inquiry appointed by the Centre is for the purpose of making
an inquiry into the definite matter of public importance
within the meaning of Section 3(1) of the Act could not be
and was not disputed. The only point debated was whether
another Commission appointed by the Central Government to
inquire into the same matter for which a Commission had
already been set up by the State Government is violative of
proviso (b) to section 3(1). But there is no substance in
this argument. Firstly, the notification of the State
Government has not in terms appointed any Commission for
inquiry into the matters of alleged corruption, nepotism,
favouritism and maladministration of the Chief Minister or
any other Minister of the Government of Karnataka. The
items specified in clauses (I) to (XXXII) are said to be
“irregularities committed or excess payments made in certain
matters relating to contracts, grant of land, allotment of
sites, purchase of furniture, disposal of food-grains etc.’
In none of those clauses it is mentioned as to who is said
to be responsible for the alleged irregularities or
maladministration. There is no reference to any alleged
misconduct, corruption or maladministration of the Chief
Minister or of any other Minister. The last clause (XXXIII)
is very vaguely and conveniently worded. It says-
“Who are the persons responsible for the lapses, if any,
regarding the aforesaid and to what extent ?”
138
The terms of reference in the Notification issued by the
Centre is to inquire into the specific matters enumerated in
Annexure 1, none of Which is covered by the notification of
the State Government, as for example, item I of Annexure I
reads thus
“Whether the Chief Minister practised
favouritism and nepotism by appointing his own
brother, Shri D. Komparaj Urs, as a Director
of the’ Karnataka State Film Industries
Development Corporation in place of Shri R. J.
Rebello, Chiet Secretary to the Government, in
1974, and later as Director-in-Charge with the
powers to exercise all the powers of the
Managing Director.’
In regard to the specific matters in Annexure II there may
be found some common matters which are the subject-matter of
inquiry by the State Government but then, as we have already
stated, in regard to the matters in Annexure II the
notification in clear terms excludes ,any matter covered by
the notification of the Government of Karnataka dated 18th
May, 1977. The Grover Commission, therefore, would be
competent to exclude such matters from the purview of its
inquiry.
KAILASAM, J.-This suit is filed by the State of Karnataka
against the Union of India through the Secretary to the
Government of India, and Shri A. N. Grover, Commission of
Inquiry to inquire into charges of corruption, nepotism,
favouritism and misuse of governmental power against the
Chief Minister and other Ministers of the State of Karnataka
under Article 131 of the Constitution of India. The,
reliefs prayed for in the suit are :
(a) to declare that ‘the notification No.
SO. No. 365(E) dated May 23, 1977
constituting the Commission of Inquiry in
purported exercise of powers under Section 3
of the Commissions of Inquiry Act as illegal,
ultra vires; and unconstitutional and not
authorised by law;
(b) to declare that the provisions of the
Commissions of Inquiry Act, 1952 do not
authorise the Central Government to constitute
a Commission of Inquiry in regard to matters
falling exclusively within the sphere of the
State’s legislative and executive power; or
(c) in the alternative, declare the said
provisions of the Commissions of Inquiry Act
as ultra vires both the terms of the
Constitution as well as the federal structure
implicit and accepted as inviolable basic
feature of the Constitution;
(d) for a perpetual injunction restraining
the respondents from acting or taking any
further steps in furtherance of the noti-
fication No. S.O. No. 365(E) dated 23rd May,
1977.
The facts of the case briefly are : The Union Home Minister
addressed a communication dated April 26, 1977 to the Chief
Minister of the State of Karnataka enclosing a copy of a
memorandum of allegations purporting to be submitted by
certain members of the opposition party in the Karnataka
State Legislature seeking his comments thereon.
139
The Chief Minister of the State of Karnataka replied to the
Union Home Minister on May 13, 1977 answering the various
allegations and charges. The Chief Minister of Karnataka
also questioned the powers of the Central Government to ask
for the comments of the State Government. On May 18, 1977
the State Government by a notification appointed a
Commission of Inquiry under section 3(1) of the Commissions
of Inquiry Act, 1952 to inquire into various allegations and
irregularities specified in the notification. The Chief
Minister also addressed a letter on May 18, 1977 to the
Union Home Minister informing him on the appointment of the
Commission. On May 23, 1977 by a notification the Union of
India appointed another Commission of Inquiry for the
purpose of inquiring into charges of corruption, favouritism
and misuse of governmental power against the Chief Minister
and other Ministers of the State of Karnataka.
In this suit the action of the Union Government in
constituting a Commission of Inquiry under section 3(1) is
challenged as illegal, ultra vires and unconstitutional.
The contention of the State Government is that the Central
Government has no jurisdiction or authority to constitute
the Commission of Inquiry in the exercise of its powers
under the Commissions of Inquiry Act, 1952. The plaintiff
contended that the impugned notification is destructive of
the federal structure of the Constitution and scheme of
distribution of powers that the Constitution does not confer
any supervisory or disciplinary control by the Union
executive over the State Government or its Ministers and
that the Constitution does not vest the Central Government
with any general supervisory or inquisitorial power over the
functioning of the State Governments within the respective
fields. As the matter in dispute affects the legal right of
the State it was submitted that a suit under Article 131 of
the Constitution is maintainable in the Supreme Court.
On behalf of the 1st defendant, the Union of India, it was
averred that the suit by the State of Karnataka is not
maintainable in as much as the impugned notification dated
May 23, 1977 does not affect the plaintiff State. The
inquiry against the Chief Minister and the other Ministers
is against individuals and not against the State of
Karnataka. There being no dispute between the Government of
India and the State, a preliminary objection was taken that
the suit was not maintainable under Article 131 of the
Constitution. The various pleas put forward by the
plaintiff were denied and it was submitted that the impugned
notification was well within the powers of the Central
Government and that there had been no infringement or
interference with the State’s executive functions.
On the pleadings the following issues were framed
1. Is the suit maintainable?
2. Is the impugned notification ultra vires the powers’ of
the Central Government under section 3 of the Commissions of
Inquiry Act ?
3. If section 3 of the Commissions of Inquiry Act
authorises the Central Government to issue the impugned
notification. is the section itself unconstitutional?
140
The main question involved in the suit is one of Centre-
State relationship and whether the impugned notification is
within the powers of the Central Government under section 3
of the Commissions of Inquiry Act. Though certain
allegations are made in the plaint that the impugned order
was mala fide it was not pressed during arguments. So also
the power of the State Government to appoint a commission of
inquiry is not challenged. It is therefore not necessary to
go into the reasons which induced the State Government to
appoint a commission of inquiry. Before dealing with the
various contentions of the counsel on behalf of the State
and the Central Government it is necessary to set out the
background and the relevant provisions of the Constitution
dealing with the Centre-State relationship and the scope of
the Commissions of Inquiry Act, 1952.
The British Crown assumed sovereignty over India from East
India Company in 1858 and the British Parliament enacted the
first statute for the governance of India Act, 1858 (21 & 22
Vict., 106). The Act provided absolute imperial control
without any popular participation in the administration of
the country. The powers of the Crown were exercised by the
Secretary of State for India assisted by a Council of
Members. Subsequently the Indian Councils Act, 1861, 1892
and 1909 were passed. Later on the Government of India Acts
1912 and 1915 were passed by the British Parliament.
The Government of India Act, 1919, was the first step taken
by the British Government for, increasing the association of
Indians in every branch of administration and the gradual
development of self governing institutions with a view to
progressive realisation of responsible government in British
India. The Government of India Act, 1919 introduced for the
first time dyarchy in the provinces. The central subjects
were exclusively kept under the control of the Central
Government. The provincial subjects were divided into
‘transferred’ and ‘reserved’ subjects. Transferred
subjects were administered by the Governor with the aid of
Ministers while reserved subjects were administered by the
Governor and his Executive Council without any
responsibility to the Legislature. By Devolution Rules made
under the Government of India Act, 1919 a separation of the
subjects of administration into Central and Provincial was
made. To some extent the relation of central control over
the provinces was relaxed. Under the Act of 1919 the
provinces were delegates of the centre and the central
legislature retained the power to legislate for the whole of
India relating to any subject. The passing of the
Government of India Act, 1935 introduced for the first time
a change in the from of the Government i.e. the Government
which was unitary under the Government of India Act, 1919
gave way to a federation with the provinces and the Indian
State as the units. Under the unitary system the provinces
were under the administrative as well as the legislative
control of the Central Government. The Governor-General in
Council was the keystone of the whole constitutional edifice
and the, British Parliament discharged its responsibility
through the Secretary of State and the Governor-General in
Council.
The intention of the Government of India Act. 1 35 was to
unite the provinces and the Indian States into a federation
under the Crown.
141
The unitary State was to be broken into a number of
autonomour, provinces deriving their authority directly from
the Crown instead of from the Central Government and then
building them up into a federal structure in which both the
federal and provincial governments Would get Powers directly
from the Crown. The basis of the change is the resumption
into the hands of the Crown all rights, authority and juris-
diction in or over the territories of the British India and
redistribution of the powers between the Central Government
and the provinces. Though the federal structure
contemplated under the Government of India Act, 1935 did not
come into existence as the Indian States ,refused to, join
the federation, so far as the provinces were concerned it
took effect. The Government of India Act, 1935 divided
legislative powers between the Central and the provincial
Legislatures and within ‘its defined sphere, the Provinces
were no longer delegates of the Central Government but were
autonomous units of administration. The Government of India
assumed the role of the federal government. With regard, to
provincial governments the executive authority of the
provinces was exercised by the Governor on behalf of the
Crown and not ,is a subordinate of the Governor-General,
with the advice of Ministers responsible to the Legislature.
In the centre the executive authority was vested with the
Governor General and with regard to reserved subjects,
defence, external affairs, etc., the Governor General was to
act in his discretion, with the help of counsellors
appointed by him without being responsible to the
Legislature. Governor-General was to act on the advice of
the Council of Ministers who were responsible, to the
Legislature with regard to subjects other than reserved
subjects. The Governor General was to act under the control
and directions of the Secretary of State regarding his
special responsibilities. The Government of India Act, 1935
distributed the powers between the federal legislature and
the provincial governments by having (i) Federal List over
which the Federal Legislature had exclusive powers of legis-
lation; (ii) A Provincial List over which the Provincial
Legislature had exclusive jurisdiction; and (iii) A
Concurrent List over which both the Federal and Provincial
Legislatures bad competence. The ‘Federal law prevailed
over a Provincial law if there was any repugnancy and the
residuary power of legislation under the 1935 Act vested
with the Governor-General. Under the scheme, the
legislative powers of both the central and provincial
legislatures were subject to various limitations and either
of them was not a sovereign legislature. Another feature of
the 1935 Act was that the Federal Court was set lip mainly
for determining the disputes between the units and the
federation. The separation of legislative powers as
Federal. Provincial and Concurrent Lists and the division
of powers between the centre and the provinces and the
setting up of the Federal Court under the 1935 Act were all
adopted in the Constitution of India.
The Indian Independence Act 1947 was passed as an interim
measure before the coming into force of the Constitution.
The ,object of the Indian Independence Act, 1947 as amended
by Adaptation Orders was to make provisions for an interim
Constitution until the Constituent Assembly could draw up a
future Constitution. Indian Independence Act. 1947 altered
the constitutional position by declaring that with effect
from August 15, 1947 the suzerainty of the
142
British Crown over the Indian States would lapse and from
that date United Kingdom would cease to have any
responsibility in respect of the Government of the
territories included in British India. The Central
Legislature of India ceased to exist from August 14, 1947.
The Constituent Assembly came into existence for framing of
the Constitution and also functioned as the Central
Legislature of the Dominion. The new Constitution adopted
the bulk of the provisions of the Government of India Act,
1935. The provisions relating to distribution of powers
between the units and the centre were adopted and in fact
extended. The. constitution-makers gave up the unitary bias
and adopted detailed provisions regarding the distribution
of powers and functions between the Union and the States in
all aspects of their administrative and other activities.
Inter-state relations, co-ordination and adjudication of
disputes amongst the States were also provided for.
The Indian Constitution cannot be described as a federal
Constitution as the Indian Federation is not a result of an
agreement by various States and the territorial integrity of
the States is not guaranteed as the territories of the
States can be changed or a State completely abolished under
Article 4 of the Constitution. But it has to be borne in
mind that after the lapse of paramountly of the British
Crown, the Indian States which acceded to the Dominion of
India were brought within the union envisaged by the
Constitution. The Indian States which acceded to the
Dominion were brought under the federal system on the same
footing as other Units of the Federation, namely the
Provinces. The position of the States in the Constitution
is in several respects subordinate to the Central Government
in that the formation of the federation was not as a result
of any treaty between the States and the federation, and
that the State may be reformed or altogether eliminated
under Art. 4 of the Constitution. Though the Constitution
divides executive power between the Union and the States,
the States, are bound to execute certain directions of the
Union. The executive power regarding the laws made by the
Union hi the Concurrent subjects will be exercised by the
States unless the Parliament direct% otherwise and as
regards the Union subjects the Union may delegate its
executive functions to a State either by legislation by
Parliament or by consent of the State Government. It is a
duty of the State to execute the Union law and the executive
power of the State must be exercised in such manner as not
to interfere with the executive power of the union and the
State shall be under the direction of the union regarding
the Union laws. The failure of the State to carry out the
directions of the Union would empower the Union to supersede
the State Government by assuming to itself the powers of the
State Government. These features make the Constitution
strictly not a federal constitution. It has been variously
called as quasi-federal or federal in structure or federal
system with a strong central bias. But whether the
Constitution is recognised as federal or not the position of
the States is distinctly recognised. Under Art. I of the
Constitution of India, India shall be a Union of States.
Without States there can be no Union. Historically as the
Princely Indian States joined the Union and for other
reasons the State as an entity was recognised. The,
,Constitution is the source of power for the Union as well
as the States.
143
While under the Government of India Act, 1935 the source of
power for the Federal and the Provincial Government was the
Crown, under the Constitution of India, the source of power
for the States as well as the Union is the Constitution. In
its own field i.e. as regards the power conferred on the
State, it is supreme so also the Central, Government. But
in determining what are the powers of the Union and the
State one has to look into the Constitution and nowhere
else. The States are not the delegates of the Central
Government and the ,Central Government cannot exercise any
power over the State which is not provided for in the
Constitution.
Part V of the Constitution deals with the Union. Chapter
deals with the Executive, Chapter 11 with Parliament,
Chapter III with Legislative Powers of the President,
Chapter IV the Union Judiciary :and Chapter V with the
Comptroller and Auditor-General of India. Part VI of the
Constitution deals with the States. Chapter I is General,
Chapter 11 deals with the Executive, Ch. III with the State
Legislature. Ch. IV with legislative Power of the
Governor, Ch. V with the High Courts in the States and Ch.
VI with Subordinate Courts. Part XI deals with the
Relations between the Union and the States. ,Ch. I of Part
XI deals with Legislative Relations and distribution of
Legislative Powers while Ch. II deals with Administrative
Relations ‘between the Union and the States. A few of the
Articles in these ,Chapters will be referred to in detail
later. But it is sufficient at this stage to note that
while Part V is assigned to the Union executive and Part VI
to the, States, Part XI deals with the Relations between the
Union and the States. The distribution of powers between
the Union and the States can be discerned from the various
provisions of the Constitution. A machinery is also
provided for, for settling their disputes in the
Constitution. In the distribution of powers it is clear
there is strong tilt in favour of the Union. According to
the Constitution, the Union can assume powers of the State
Government by taking over the State Administration under
certain contingencies provided for in the Constitution. But
the Union Government cannot claim any power which is not
vested in it under the provisions of the Constitution.
There is no overriding power with the Union Government. It
cannot deal with the State Government as its delegate, for
the source of power for the Union as well as the State, is
the Constitution and the Union Government cannot claim any
powers over the State which are not found in the
Constitution.
The nature of our Constitution has been discussed by the
Supreme Court in a few decisions which may be referred to at
this stage. In Atiabari Tea Co. Ltd. v. The State of Assam
& Others,(1) Gajendragadkar J. as he then was, in construing
Art. 301 observed : “We must adopt a realistic approach and
bear in mind the essential features of the separation of
powers on which our Constitution rests. It is a federal
constitution which we are interpreting, and so that impact
of Art. 301 must be judged accordingly”. The matter was
dealt with by S. K. Das J. in the Automobile Transport
(Rajasthan) Ltd v. The
(1) [1961] 1 S.C.R. 809.
(2) [1963] 1 S.C.R. 491.
144
State of Rajasthan and Others.(2) The learned Judge after
tracing the history of the’ Indian Constitution observed :
“The evolution of afederal structure or a quasi-federal
structure necessarily involved, in the context of the
conditions then prevailing, a distribution of powers and a
basic part of our Constitution relates to that distribution
with the three legislative lists in the Seventh Schedule.
The Constitution itself says by Art. I that India is a
Union of States and in interpreting. the Constitution one
must keep in view the essential structure of a federal or
quasi-federal Constitution, namely, that the units of the
Union have also certain powers as has the Union itself.” The
learned’ Judge further observed : “In evolving an integrated
policy on this subject our Constitution-makers seem to have
kept in mind three main, considerations which may be broadly
stated thus : first, in the larger interests of India there
must be free flow of trade, commerce and intercourse, both
inter-State and intra-State; second, the regional interests.
must not be ignored altogether; and third, there must be a
power of’ intervention by the Union in any case of crisis to
deal with particular problems that may arise in any part of
India.” rhe learned Judge concluded : “Therefore, in
interpreting the relevant articles in PartXIII we must have
regard to the general scheme of the Constitution of India
with special reference to Part III (Fundamental Rights),
PartXII (Finance, Property etc. containing Arts. 276 and
286) and their inter-relation to Part XIII in the context of
a federal or quasi-federal constitution in which the States
have certain powers including the power to raise revenues
for their purposes by taxation.” The decision, is clear
authority for the proposition that the essential structure
of Indian Government is of federal or quasi-federal
character, the units havingalso certain powers as the Union
itself.
On this aspect the learned Solicitor-General very strongly
relied on certain passages in State of West Bengal v. Union
of India,, (1) in the Majority judgment delivered by Sinha
C. J. Referring to Art. 4of the Constitution which empowers
the Parliament by legislation to alter the territory of the
State or abolish it altogether Sinha C. J. observed : “When
the Parliament is invested with authority to alter the
boundaries of any State and to diminish its areas so as to
even destroy a State with all its power and authority, it
would be difficult to hold that the Parliament which is
competent to destroy a State is, on account of some
assumption as to absolute sovereignty of the State,
incompetent effectively to acquire by legislation designed
for that purpose the property owned by the State for
Governmental purposes.” The learned Chief Justice, further
observed that “Even if the, Constitution were heldto be
a federal and the States regarded qua the Unionas sovereign
the power of the Union to legislate in respect of the
property Situate in the State would remain
unrestricted.” The Court was, considering an Act passed by
the, Parliament, the Coal Bearing Areas (Acquisition and
Development) Act, 1957, enabling the Union of India to
acquire certain coal bearing areas in the State of West
Bengal. The State filed a suit contending that the Act did
not apply to lands vested in or owned by the State and that
if it applied to such lands the-
(1) (1964] 1 S.C.R. 371.
145
Act was beyond the legislative competence of the Parliament.
The, decision as far as it holds that even if the
Constitution were held to be a federal Constitution and the
States regarded qua the Union as sovereign, the power of the
Union to legislate in respect of the property would remain
unrestricted, may be right as falling within power of the
Parliament under Entry 42, List III aid Entries 52 and 54 of
List I. But with very great respect the observation that
“the Constitution of India is not truly Federal in
character …. that only those powers which are concerned
with the regulation of local Problems are vested in the
States” is not in accordance with the decisions of this
Court in Atiabari Tea Co. Ltd. v. The State of Assam &
Others (supra) and the Automobile Transport (Rajasthan) Ltd.
vs. the State of Rajasthan and Others (supra) which is a
decision of a Bench of seven Judges of this Court. The
observation of the Court that from the powers conferred on
the Parliament under Art. 4 it cannot be held that it is
incompetent for the Parliament to acquire by legislation
the, property owned by the States on the theory of the
absolute sovereignty of the, States, cannot be understood as
having laid down that the States have no sovereignty even in
their own sphere or that Parliament has any overriding or
supervening powers. The observation of Subba Rao
J. as he then was in the dissenting judgment that the
Indian Constitution accepts the federal concept and
distributes the sovereign powers between the coordinate
constitutional entities, namely, the Union and the States
and that this concept implies that one cannot encroach upon
the Governmental functions or instrumentalities of the
other, unless the Constitution expressly provides for such
interference, is in accordance with the. accepted view of
this Court. It is unfortunate that the earlier decisions of
this Court in Atiabari Tea Co. Ltd. v. The State of Assam
and Others and the Automobile Transport (Rajasthan) Ltd. v.
The State of Rajasthan and Others were not brought to the
notice of the Court. In Special Reference No. 1 of 1964(1),
dealing with the Centre-State relationship this Court
observed:
“Our Legislatures have undoubtedly plenary
powers, but these powers are controlled by the
basic concepts of the written Constitution
itself and can be exercised within the
legislative fields allotted to their
jurisdiction by the three Lists under the
Seventh Schedule; but beyond the Lists, the
Legislatures cannot travel. They can no doubt
exercise their plenary legislative authority
and discharge
their legislative functions by virtue of the
powers conferred on them by the relevant
provisions of the Constitution; but the basis
of the power is the Constitution itself.
Besides, the legislative supremacy of our
Legislatures including the Parliament is
normally controlled by the provisions con-
tained in part III of the Constitution. If
the Legislatures step beyond the legislative
fields assigned to them, or acting within
their respective fields, they trespass on the
fundamental rights of the citizens in a manner
not justified by the, relevant articles
dealing with the said fundamental rights,
their legislative actions are, liable to be
struck down by courts
(1) [1965] 1 S.C.R. 413.
146
in India. Therefore, it is necessary to
remember that though our Legislatures have
plenary powers, they function within the
limits prescribed by the material and relevant
provisions of the Constitution.”
It was further observed:
“In a democratic country governed by a written
Constitution, it is the Constitution which is
supreme and sovereign. It is no doubt true
that the Constitution itself can be, amended
by the Parliament, but that is possible
because Art. 368 of the Constitution itself
makes a provision in that behalf and the
amendments of the Constitution can be validly
made only by following the procedure
prescribed by the said article. That shows
that even when the Parliament purports to
amend the Constitution, it has to comply with
the relevant mandate of the Constitution
itself.”
The political _development of British India took the form of
dismantling a unitary Constitution and introducing a federal
scheme through Devolution Rules and the Government of India
Act, 1935. Our Constitution accepted a federal scheme though
limited in extent having regard to the regional interests,
resources, language and other diversities existing in the
vast subcontinent. These facts have been taken into account
by the Constitution-makers and a limited federalism was made
a part of the Constitution by Art. 1 itself providing that
India shall be a Union of States. Effect is given to this
intention by separation of the Lists and by providing
legislative and executive power to the Union and the States
in separate chapters of the Constitution. This principle
has been accepted by the- Supreme Court in the decisions in
Atiabari Tea Co. Ltd. V. The State of Assam & Others and
‘the Automobile Transport (Rajasthan) Ltd. v. The State of
Rajasthan and Others cited earlier. The observations made
in the West Bengal case (supra) which have been referred to
already are not in conformity with the otherwise consistent
view of the Supreme Court that the Constitution is supreme
and that the Union as well as the States will have to trace
their powers from the provisions of the Constitution and
that the Union is not supreme and the States are not acting
as delegates of the Union.
It may be useful to refer to the views expressed by the
Supreme Court in the Kesavananda (1) and Election (2) cases
on this subject. The question that arose in those cases was
how far the Constitution could be amended. In Kesavananda
case, the majority was of the view that the basic structure
of the Constitution cannot be amended. The Election case
proceeded on the basis of Kesavananda’s case that the basic
structure could not be amended. The learned counsel for the
plaintiff Mr. Lal Narain Sinha made it very clear that he is
not inviting the Court to find any undefined basic structure
but is confining his arguments to point out that the federal
structure in the limited sense is an integral part of the
Constitution and that the Union Government is not supreme
and it has no power apart from what is found
(1) [1973] Supp. S.C.R. 1.
(2) [1976] 2 S.C.R. 347.
147
in the Constitution. In Kesavananda case it was held by the
majority that Art. 368 does not enable the Parliament to
alter the basic structure or the framework of the
Constitution. Chief Justice Sikri in discussing as to what
is the basic structure of the Constitution held that it
consisted of (1) Supremacy of the Constitution, (2) Repub-
lican and democratic form of Government, (3) Secular
character of the Constitution, (4) Separation of powers
between legislatures, executive and judiciary’, and (5)
Federal character of the Constitution. For the purposes of
the present discussion it is unnecessary to go into the
question as. to whether the federal structure as found in
the Constitution could be amended or not as it is sufficient
to note that it is recognised that the States do constitute
an integral part of the Constitution having their
legislative and executive powers and that these powers
cannot be interfered with by the Union Government unless in
accordance with the provisions of the Constitution.
Before dealing with the position of the States in the
Constitution, it has to be borne in mind that in the
distribution of powers between the Union and the States
there is a strong bias in favour of the Union. In the event
of an Emergency the federal Government can convert itself
into a unitary one. The Union Government can supersede the
state Government which refused to carry out its directions
as are authorised under Art. 365 of the Constitution. While
the Union Government is given powers to give directions in
certain specified matters under Articles 256 and 257, when a
Proclamation of Emergency is made under Art. 352, the power
of the Union executive to give directions to the State
Government will extend to any matter and the legislative
power of the Union Parliament. will extend to matters, in
the State List under Art. 250. There are provisions in the
Constitution conferring wider powers on the Union in case of
Financial Emergency. The executive authority of the Union
becomes enlarged enabling the Union to give directions to
the State requiring financial discipline. The Union
Parliament can assume the legislative powers over any
subject included in the State List by a Resolution under
Art.249 if such legislation is necessary in the national
interest. Whenever the State Government cannot be, carried
out in accordance with the provisions of the Constitution
the President is empowered to take over and the Union can
assume the executive and. Legislative powers of the State
under Art. 356. Though there is a division of powers
between the Union and the States there is provision for
control by the Union Government both over the administration
and legislation of the State. These are provided for under
Art. 201 which empowers the President to disallow any State
Legislation which is reserved for his consent. A duty is
cast upon the States by the Constitution under Arts. 256 and
257 to execute the Union laws. The executive power of every
State shall be so exercised as not to interfere with the
executive power of the Union and that in these matters the
States shall be under the directions of the Union. These
powers are specifically mentioned in the Constitution and it
is not disputed that the Union Government can exercise them.
The question that arises for consideration is whether the
Union Government can order an inquiry into the Governmental
functions of the State which is not specifically conferred
on the Union by the
148
Constitution. Ile preliminary objection of the Union
Government that it is not the State but only the Government
of the State or the Ministers that are aggrieved will be
dealt with in due course. The position of the States is
indicated in Art. I which declares that India shall be a
Union of States and the States and the territories thereof
shall be as specified in the First Schedule and the
territory of India shall comprise the territories of the
States, the Union territories and such other territories as
may be acquired. Part VI of the Constitution deals with the
States. Art. 154(1) vests the executive power of the State
in the Governor and provides that it shall be exercised by
him either directly or through officers subordinate to him
in accordancewith the Constitution. Art. 162 provides that
subject to the provisions of the Constitution the executive
power of the State shall extendto the matters with respect
to which the Legislature of the State has power to make
laws. There is a proviso to Art. 162 which provides that in
any matter with respect to which the Legislature of a State-
and Parliament have power to make laws, the executive powers
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. Art. 163 provides that the-re-, shall be a Council
of Ministers with the Chief Minister at the head to aid and
advise the Governor in the exercise of his functions.
except. in so far as he is by or under this Constitution
required to exercisehis functions or any of them in his
discretion under Art. 164 the Chief Minister shall be
appointed by the Governor and the other Ministers shall be
appointed by the Governor on the advice of the Chief Minis-
ter. It further provides that the Ministers shall hold
office during the pleasure of the Governor and the Council
of Ministers shall. be collectively responsible to the
Legislative Assembly of the StateChapter III deals with the
State Legislature. Art. 168 relates to constitution of
legislatures in the States. This Chapter confers executive
powers of the State in the Governor who shall exercise it
with the aid and advice of the Council of Ministers with the
Chief Minister at the head. It is also provided that the
executive power of the State shall extend to matters with
respect to which the legislature of the State has power to
make laws. So far as the executive and legislative power of
the State is concerned it is absolute subject only to the
other provisions of the Constitution Part XI of the
Constitution deals with relations between the Union and the
states : Ch. I with legislative relations and Ch. II with
administrative relations between the Union and’ the States.
The scheme for the distribution of legislative power between
the Union and the States has been taken over from the
Government of India Act, 1935 and Arts. 245 and 246 more or
less reproduce sections 99 and 100 of the 1935 Act. Article
245 (1) provides “Subject to the provisions of this
Constitution, Parliament may make laws ?or the whole or any
part of the territory of India, and the Legislature of a
State may make laws for the whole or any part of the State”.
Art. 246 confers on the Parliament the exclusive power to
make laws with respect to, any of the matters enumerated in
List I of the Seventh Schedule. The Legislature of the
State has exclusive power to, make laws for the State in
respect of any matters enumerated in List II i.e. State
List. The Parliament and the Legislature of the State shall
have power tomake laws with respect to any matter enumerated
in List III i.e. Con–
149
current List. It is important to note that the, powers
conferred under Articles 245 and 246 are subject to the
provisions of the Constitution. Therefore the laws made by
a Legislature may not be valid for either lack of
jurisdiction in respect of the subject matter or on the
ground that they violate the provisions of the Constitution.
The residuary power of legislation is conferred on the
Parliament under Art. 248 which provides that the Parliament
has exclusive power to make any law with respect to any
matter not enumerated in the concurrent List or in the State
List. Under Art. 246 (1) and (2) and Art. 254 (1) when a
State law is in conflict with the State law or repugnant to
Union law which Parliament is competent to enact the Union
law shall prevail and the State law shall be void to the
extent of repugnancy. But an attempt should be made to see
whether the conflict could be avoided by construction. If a
reconciliation is impossible only then the federal power
should prevail. Article 248(1) and Entry 97 in List I of
the Seventh Schedule make it clear that the residuary power
is with the Parliament and when a matter sought to be
legislated is not included in List II or List III the
Parliament has power to make laws with respect to that
matter or tax. But function of the Lists is not to confer
powers on the Legislature. They only demarcate the
legislative field. The Federal Court, in The Governor-
General in Council v. The Raleigh Investment Co.(1) observed
that “the purpose of the List was not to create or confer
power but only to distribute to federal and provincial
legislatures the powers which had been conferred by ss. 99
and 1 00 of the Act”.While approving the observations of
the Federal Court in Union ofIndia v. ff. S. Dhillon
(2) the majority for whom Chief Justice Sikrispoke held
that “It (Art. 248) is framed in the widest possible
terms.On its terms the only question to be asked’ is
is the matter soughtto be legislated included in List
II or in List III or is the tax sought to be levied
mentioned in List II or in List III No question has to be
asked about List I. If the answer is in the negative, then
it follows that Parliament has power to make laws with
respect to that matter or tax.” But this observation does
not decide the question whether the residuary legislative
power of the Union includes a right to direct inquiry into
the governmental functions of the State for as laid down by
the Federal Court in the Governor-General in Council v. The
Raleigh Investment Co. the purpose of the Lists is not to
create or confer powers and the powers conferred under
Articles 245 and 246 are subject to the provisions of the
Constitution. As there is no provision in the Constitution
conferring on the Union the power to supervise the
governmental functions of the State the reference to the
Lists will not solve the problem.
The crux of the, controversy is while the, Karnataka State
would contend that relation between the Union and the States
is a subject matter of the Constitution and is not a subject
covered by any of the three Lists, the contention on behalf
of the Union Government is that the notification does not
contravene any of the specific provisions of the
Constitution and as such the legislative competence of the
Union cannot be questioned. While on behalf of the State of
Karnataka it is submitted that the power to inquire into the
conduct of a Minister
(1) [1944] I .C R. 229, 26 1.
(2) [1972] 2 S.C.R. 33.
150
who is responsible to the Legislature is only with the
Legislature of the, State, the submission on behalf of the
Union is that the power of the Union is not specifically
taken away by any of the provisions of the Constitution and
therefore the contemplated inquiry is within the competence
of the powers, of the Union. According to the Solicitor
General, the right question to ask is “Does the legislation
provide for some matter which runs counter to or is
inconsistent with or brings about a change in the existing
provisions of the Constitution in such manner that the
original and the amended provisions are different and
inconsistent ?” If it does so then it can be regarded as
amendment howsoever it may be brought about i.e. by
addition, variation or repeal. At the, same time mare
enactment of provisions which are not in any manner
qualitatively inconsistent with the existing provisions of
the Constitution but deal with certain aspects of
legislative topics or a Constitutional subject, does not
postulate exercise of constituent power for amendment of the
Constitution. In support of his contention that unless an
express provision of the Constitution is contravened the law
can not be questioned on the ground of implied prohibition
the learned counsel relied on Webb v. Outrim.(1) The
question that arose for decision by the Privy Council in
that case was whether the respondent, an officer of the
Australian Commonwealth, resident in Victoria and receiving
his official salary in that State, is liable to be assessed
in respect thereof for income tax imposed by an Act of the
Victorian Legislature. It was not contended before the
Court that the restriction on the powersof the Victoria
Constitution is enacted by any express provision of the
Commonwealth Constitution Act but was argued that inasmuch
as the imposition of an income-tax might interfere with the
free exercise of the legislative or executive power of the
Commonwealth, Such interference must be impliedly forbidden
by the Constitution of the Commonwealth, although no such
express prohibition can be found therein. The Court held :
“The enactments to which attention has been directed do not
seem to leave any room for implied prohibition.” It was
further held that “It is impossible to suppose that the
question now in debate was left to be decided upon an
implied prohibition when the power to enact laws upon any
subject whatsoever was before the Legislature.” The basic
principles of construction of the Constitution are laid down
by Lord Selbourne in R v. Burah (2) which is accepted and
applied by Earl Lorebum L. C. in Attorney-General for the
Province of Ontario and Others v. Attorney General for the
Dominion of ‘Canada and another. (3) The rule laid down in R
v. Burah is that “when a question arises whether the
prescribed limits have been exceeded the only way in which
it can be done is by looking into the terms of the
instrument by which affirmatively the legislative powers
were created and by which negatively they are restricted.
If what has been done is legislation within the general
scope ,of the affirmative words which give the power and if
it violates no express, condition or restriction by which
that power is limited, it is not for any court of justice to
inquire, further, or to enlarge constructively
(1) [1907] A.C. 81.
(2) [1878] 3 A.C. 889.
(3) [1912] A.C. 571 at 583.
151
those conditions and restrictions”. In 1912 A. C. 571 it
was held that “if the text is explicit the text is
conclusive, alike in what it directs and what it forbids.
When the text is ambigious, as, for example. when the words
establishing two mutually exclusive jurisdictions are, wide
enough to bring a particular power within either, recourse
must be had to the context and scheme of the Act.” The
decision of the Australian High Court in The Amalgamated
Society of Engineers v. The Adelaide Steamship Company Ltd.
and Others, (1) in which it was held that the doctrine of
implied prohibition against, the exercise of power once
ascertained in accordance with ordinary rules of cons-
truction was rejected by the Privy Council in Webb v.
Outrim.
The decision in The State of Victoria v. The Common-wealth
of Australia (3) was referred to but as that decision
reiterates the principles laid down in R. v. Burah (4) it is
not necessary to refer to it. The principle laid down is
that if what has been done is legislation within the general
words which give the power and if it violates no express
condition or restriction by which that power is limited,
then it is not for the court of justice to inquire but it
cannot be understood as meaning that the word ‘express’ does
not exclude what is necessarily implied. In Liyanage v. R(5)
the Privy Council while interpreting the Constitution of
Ceylon held that the Constitution did not expressly vest the
judicial power exclusively in the judiciary but, that fact
was not decisive as the scheme of the Constitution
particularly the provisions relating to the judiciary viewed
in the light of the fact that the judicial power had always
been vested in courts, held that the judicial power vested
exclusively in the judiciary. To the same effect is the
decision of this Court in The State of West Bengal v.
Nripendra Nath Bagchi (6). The question that arose in that
case was whether the inquiry ordered by the Government and
conducted by an Executive Officer of the Government against
a District and Sessions Judge contravened the provision-, of
Article 235 of the Constitution which vests in the High
Court the control over the District Court and the courts
subordinate thereto. The Court construed the word ‘control’
used in Article 235 as including disciplinary control or
jurisdiction over District Judges. Relying on the history
which lay behind the enactment of these articles the Court
came to the conclusion that ‘control’ was vested in the High
Court to effectuate a purpose, namely, the securing of the
independence of the subordinate judiciary and unless it
included disciplinary control as well, the very object would
be frustrated. It also took into account the fact that the
word ‘control’ is accompanied by the word ‘vest’ which is a
strong word which showed that the High Court is made the
sole custodian of the control over the judiciary. The Court
observed : “This aid to construction (the history which lies
behind the enactment) is admissible because to find out the
meaning of a law, recourse may legitimately be bad to the
prior state of the law, the evil sought to be removed and
the process by which the law was evolved.” Though there is
no
(1) 28 C.L.R. 129.
(2) [1907] A.C. 81,
(3) 122 C.L.R. 353.
(4) Supra.
(5)[1967] A.C. 259.
(6)[1966] 1 S.C.R. 771.
152
express provision in the Article conferring the disciplinary
control and jurisdiction over the District judge it was
implied from the wording of the Article. Reading the
decision of the Privy Council in Liyanage v. R. (Supra) and
the decision of this Court in the State of West Bengal v.
Nripendra Nath Bagchi (Supra), the word ‘express’ in R. v.
Burah (Supra) should be construed as including what is
necessarily implied. Taking into account the history and
the scheme of the Constitution the safeguards in the
Constitution regarding the States have necessarily to be
implied, though it is conceded on behalf of the State of
Karnataka that no particular provision of the Constitution
has been expressly modified, amended or altered.
The extent of the executive power of the Union is found in
Art. 73 and that of the State is given in Art. 162. In Part
XI, Chapter II, which deals with the administrative
relations between the Union and the States Articles 256 and
257 list the obligations of the States and the Union and
control of the Union over the States in certain cases.
Article 256 provides that the executive power of every State
shall be so exercised as to ensure compliance with the laws
made by Parliament and any existing laws which apply in that
State, and the executive power of the Union shall extend to
the giving of such directions to a State as may appear to
the Government of India to be necessary for that purpose.
Under this Article it is obligatory on every State to so
exercise its executive power as to ensure the compliance
with the laws made by the Parliament and the executive power
of the Union shall extend to giving such instructions to the
State as are necessary for that purpose. Article 257(1)
provides that the executive power of every State shall be so
exercised as not to impede or prejudice the exercise of the
executive power of the Union, and the executive power of the
Union shall extend to the giving of such directions to a
State as may appear to the Government of India to be
necessary for that purpose. Sub-article (2) extends the
power of the Union to giving directions as to the
construction and maintenance of means of communication
declared in the direction to be of national or military
importance sub-article (3) extends the power of the Union to
the giving of directions to a State as to the measures to to
be taken for the protection of the railways within the
State. By 42nd Amendment to the Constitution Art. 257A was
introduced by which Government of India is empowered to
deploy any armed force of Union or any other force subject
to the control of the Union for dealing with any grave
situation of law and order in any State. Sub-article (2) of
Article 257A provides that any Armed Force or other force or
any contingent or unit thereof replayed under clause (1) in
any State shall act in accordance with such directions as
the Government of India may issue and shall not, save
otherwise provided in such directions, be subject to the
superintendence or control of the State Government or any
officer or authority subordinate to the State Government.
No reliance was placed by the, Government of India on any of
its inherent or overriding powers. Except in cases referred
to in articles 256 and 257 and 257A, the Constitution does
not provide for the Union Government to give any directions
to the State Government. Though under Article 355 it shall
be the duty of the Union to protect every State against
external aggression and internal disturbance, it was thought
a constitutional amendment was necessary to enable the Govt.
of India to deploy
153
armed forces to deal with grave situation of law and order.
As there is no specific Article in the Constitution enabling
the Union Government to cause an inquiry into the
governmental functions of the State the power cannot be
assumed by ordinary legislation but resort must be bad to a
constitutional amendment.
In I. C. Golak Nath & Ors. vs. State of Punjab & Anr.,(1)
Wanchoo J. has stated “The Constitution is the fundamental
law and no law passed under mere legislative power conferred
by the Constitution can affect any change in the
Constitution unless there is an express power to that effect
given in the Constitution itself. But Subject to such
express power given by the Constitution itself, the
fundamental law, namely the Constitution, cannot be changed
by a law passed under the legislative provisions contained
in the Constitution as an legislative Acts passed under the
power conferred by the Constitution must conform to the
Constitution. There are a number of articles in the
Constitution which expressly provide for amendment by law,
as for example, 3, 4, 10, 59(3), 65(3), 73(2), 97, 98(3),
106, 120(2), 135, 137, 142(1), 146(2), 148(3), 149, 169,
171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2),
225, 229(2), 239(1), 241(3), 283(1) and (2), 285(2),287,
300(1), 313, 345, 373, Sch. V. cl. 7 and Sch. VI, cl. 21”.
Art. 2 enables the Parliament by law to admit into the
Union, or establish, new States on such terms land
conditions as it thinks fit and Art. 3 enables the
Parliament by law to form new States and alteration of the
areas or boundaries of any State and the names of the
existing States. Article 4 provides that laws made under
Articles 2 and 3 shall contain such pro-visions for the
amendment of the First Schedule and the Fourth Schedule-as
may be necessary to give effect to the provisions of the law
and may also contain such supplemental, incidental and
consequential provisions as Parliament may deem necessary.
Sub-article (2) of Art. 4 provides that no such law as
aforesaid shall be deemed to, be an amendment of the
Constitution for the purposes of Article 368. So also Art.
169(1) enables the Parliament by law to provide for the
abolition of the Legislative Council of a State and Sub-
article (3) provides that no such law as aforesaid shall be
deemed to be an amendment of the Constitution for the
purposes of Article 368. Similar provisions are found in
Schedule V, cl. 7 and Schedule VI, cl. 21 where the law made
by Parliament is deemed not to be an amendment of the
Constitution for the purposes of Art. 368. So far as the
other Articles mentioned above are concerned the Articles
themselves enable the Parliament to make law for the
purposes mentioned in the various Articles. Regarding the
Articles in which no- power is conferred on the Parliament
to make laws, Parliament cannot add to the Constitution by
ordinary law making process.
The Union Government relied on Entry 94 in List I and Entry
45 in List III in the Seventh Schedule as empowering it to
enact the Commissions of Inquiry Act, 1952, and to issue the
impugned notification. Entry 94 in List I runs as follows :
“94. Inquiries, surveys and statistics for the Purpose of
any of the matters in this List.”
(1) 11967] 2 S.C.R. 762.
154
Entry 45 in List III, Concurrent List, is as follows :
“45. Inquiries and statistics for the purposes of any of
the matters specified in List II or List III.”
As Entry 94 in List I is confined to matters in List I the
learned Solicitor General rightly did not rely on that Entry
but relied mainly on. Entry 45 in List Ill. Entry 45
enables the Union to make laws for inquiries for the purpose
of any of the matters specified in Lists II & III i.e. State
List and the Concurrent List. The question that arises is
whether the word ‘inquiries’ would include the power to make
inquiry into misuse of the governmental powers by the Chief
Minister and the other Ministers of a State Government while
in office. The golden rule of interpretation is that the
words should be read in their ordinary, natural and
grammatical meaning and in construing words in a
Constitution conferring legislative power the most liberal
construction should be put upon the words so that they may
have effect in their widest amplitude. But this rule is
subject to certain exceptions. It is found necessary to
prevent conflict between two exclusive jurisdictions a
restricted meaning may be given to the words. The Federal
Court in Re the Central Provinces and Berar Sales of Motor
Spirit and Lubricants Taxation Act, 1938 (Central Provinces
and Berar Act No. XIV of 1938) ( in Re A Special Reference
tinder Section 213 of the Government of India Act, 1935) (1)
in construing the expressions “duties of excise” in Entry 45
of List I-in the Seventh Schedule and “taxes on sale of
goods” in Entry 48 of List II i.e. the State List, held that
the conflict could be resolved by giving the expression
“duties of excise” a restricted meaning, namely that the
duty of excise is a tax on manufacture or production of
goods. Thus it is permissible to, give a restricted meaning
in construing the language of conflicting provisions. In
Madras v. Gannon Dunkerly & Co. (Madras) Ltd. (2), it was
held that though in construing a legislative entry widest
construction must be put on the words used, as the
expression “sale of goods” was a term of well-recognised
legal import in the general law; relating to the sale of
goods and in the legislative practice relating to that
topic, it must be interpreted in Entry 48, List II, Sch. 7
of the Act as having the same meaning as in the Sale of
Goods Act. The rule that in construing the words in a
Constitution most liberal construction should be put upon
the words is not a universal rule as is seen from the
judgment of Lord Blackburn in River Wear Commissioners v.
Adamson(3) where Lord Blackburn expressed his view that in
interpreting the words, the object is to ascertain the
intention expressed by the words used and that the object of
interpretation of documents and statutes is to ascertain of
the intention of them that made it”. Lord Coke in Heydon’s
case applied the principle which was laid down by Lord
Blackburn. In R.M.D. Chamarbaugwalla v. The Union of India
(4) “I Venkatarama Ayyar J. cited with approval the rule in
Heydon’s case and added that the principles laid down
(1)[1939] F.C.R. 18.
(2)[1959] S.C.R. 379.
(3)[1877] S A.C. 743.
(4)(1957] S.C.R. 930.
155
are well-settled and have been applied in Bengal Immunity
Co. Ltd. V. State of Bihar(1), and observed that the
legislative history of the impugned law showed that prize
competitions involving skill had presented no problems to
the legislatures, and that having regard to that history,
and also the language, used hi the Act, the definition must,
by construction, be limited to prize competitions of a
gambling nature. Thus there is ample authority for the
proposition that in interpretation of statutes the main
object is to ascertain. the “intention of them that made
it”.
It is therefore necessary to discern the intention of the
Parliament in enacting the Commissions of Inquiry Act, 1952.
The inquiry under Entry 45 is for the purpose of any of the
matters specified in List II or List III. It is seen that
inquiry into the misconduct in exercising governmental
functions by the Chief Minister of a State cannot be
discerned from any of the entries in List II or List III.
Entry 45 is in the Concurrent List and if a law could be
enacted by the Parliament empowering the Union Government to
conduct an inquiry into the misuse of the governmental
functions by a Minister of State, it cannot be denied that
the State Government will have the power to legislate
empowering the State to inquire into the misuse of govern-
mental powers by a Union Minister relating to matters in
List II and List III. Obviously the powers conferred
under Entry 45 cannot be construedin such manner, for it
could never have been intended. Otherwisethe result will
not be conducive to the harmonious functioning ofthe Union
and the States. This circumstance is a strong indication
that Entry 45 in List III ‘inquiries’ should not be given a
wide meaning as conferring on the Union and the State
Governments powers to enact a provision to embark on an,
enquiry as to the misuse of the Governmental powers by the
other.
The provisions of the Commissions of Inquiry Act, 1952, Act
60 of 1952 will now be examined. The preamble of the Act,
is as follows :-
“An Act to provide for appointment of Commissions of Inquiry
and for vesting such Commissions with certain powers.”
Section 2 defines the “appropriate Government” as meaning
the Central Government in relation to a Commission appointed
by it to make an inquiry into any matter relatable to any
of-the entries enumerated in List I or List II or List III
in the Seventh Schedule to the Constitution and the State
Government, in relation to a Commission appointed by it to
make an inquiry into any matter relatable to any of the
entries enumerated in List II or List III in the Seventh
Schedule to the Constitution. Section 3(1) provides for the
appointment of Commission. It runs as follows:
“3. (1) The appropriate Government may, if it
is of opinion that it is, necessary so to do,
and shall, if a resolution in this behalf is
passed by the House of the People or,
(1)[1955] 2 S.C.R. 603.
156
as the case may be, the Legislative Assembly
of the State, by notification in the Official
Gazette, appoint a Commission of Inquiry for
the purpose of making an inquiry into any
definite matter of public importance and
performing such functions and within such time
as may be specified in the notification, and
the Commission so appointed shall make the
inquiry and perform the functions accordingly
:”
The proviso to section 3(1) bars the State Government except
with the approval of the Central Government to appoint
another Commission to inquire into the same matter when a
Commission appointed by the Central Government is
functioning and bars the Central Government from appointing
a commission from inquiring into the same matter so long as
the Commission appointed by the State Government is
functioning unless the scope of the inquiry is extended to
two or more States. Under section 3(1) the appropriate
Government may appoint a commission but shall appoint one if
a resolution is passed by the House of the People or, the
Legislative Assembly of the State as the case may be. The
purpose of the commission is to make an inquiry into any
“definite matter of public importance?’.
The Parliament under the Act has delegated its legislative
functions to the appropriate Government and has conferred
the discretion to appoint a commission if it is in its
opinion necessary to do so and make it obligatory on the
Government to appoint a commission if there is a resolution
by the Legislature concerned. The purpose of appointment of
the commission is for making an inquiry into any definite
matter of public importance. There is no mention or guid-
ance as to the person against whom an inquiry is to be
conducted. In the proviso which bars the State Government
from appointing the commission to inquire into the same
matter when already the Central Government has appointed a
commission and vice versa, it is clear that the section
could not have contemplated the appointment by the Central
Government of a commission to inquire into the abuse of the
power by the State Government being aware of the fact that
such a construction would enable the State Government to
appoint a commission to inquire into the misuse of the power
of the Central Government in any of the matters relating to
Lists 11 and III. Such a construction would not reflect,
the intention of the Parliament. Before dealing fully with
the scope of the powers of the appropriate Government as a
delegate and the construction that has to be put on the
scope of appointment of a commission of inquiry ‘under this
section, it is necessary to notice other relevant provisions
of the Act. Subsection (4) of section 3 requires the
appropriate Government to lily before the House of the
People or the House of the Legislative Assembly of the
State, the report of the commission on the inquiry made by
the commission together with a memorandum of the action
taken thereon, with a period of six months of the submission
of the report by the Commission to the appropriate
Government. Subsection (4) therefore contemplates some
action to be taken by the appropriate Government. Section 4
deals with the powers of a commission. It shall have the
powers of a civil court while trying the suit under the Code
of Civil Procedure, 1908, in respect of matters
157
mentioned in the section. Section 5 enables the Commission
to require any person to furnish information on the subject
matter of the inquiry and any person so required shall be
deemed to be legally bound to furnish such information
within the meaning of sections 176 ;and 177 of the Indian
Penal Code. The Commission may also cause :search and
seizure of books of account and documents or take extracts
or copies therefrom so far as they are applicable. The
commission is deemed to be a civil court, for certain
purposes mentioned in sub-sections (4) and (5) of section 5.
Section 5A empowers the commission to utilize the services
of certain officers in the case of a commission appointed by
the Central Government of any officer or investigation
agency of the Central Government or any State Government
with the concurrence of the Central Government or the State
Government, as the case may be, or in the case of a
Commission appointed by the State Government of any officer
or investigation agency of the State Government or Central
Government with the concurrence of the State Government or
the Central Government, as the case may be. The commission
may summon and enforce the attendance of any person and
examine him, require the discovery and production of any
document, and requisition any public record or copy thereof
from any office. Section 8-B provides that if at any stage
of inquiry the commission considers it necessary to inquire
into the conduct of any person and is of opinion that his
reputation is likely to be prejudicially affected by the
inquiry the commission shall give to that person a
reasonable opportunity of being heard and section 8-C con-
fers a right of cross-examination and representation by the
legal practitioner to persons referred to in section 8-B of
the Act.
Reading the Act as a whole the Commission is given wide
powers ,of inquiry compelling Pie attendance of witnesses
and persons who are likely to be prejudicially affected
giving them a right of cross-examination. When a report is
submitted by the Commission, section 3(4) contemplates
action to be, taken by the appropriate Government.
While considering the scope of Entry 45 in List III and
particularly the, word ‘inquiries’ it has been found that in
the context a restricted meaning should be given and if the
word is given a wide meaning as to an inquiry into the
governmental action of the State or the Union, as the case
may be, it would not be conducive to the smooth running of
the Constitution. Under section 3 the Parliament has
conferred the power on the appropriate Government to appoint
a commission of inquiry to inquire into any definite matter
of public importance. On behalf of the Union it was
submitted that the words “definite matter of public
importance?’ would embrace the inquiry into the misuse of
the governmental functions of the State and in support of
this contention several decisions were cited.
In M. Y. Rajwade v. Dr. S. M. Hasan and others(1) the
question arose as to whether a commission appointed under
the Commissions of Inquiry Act, 1952. has the status of a
court. The High Court at Nagpur held that the Act does not
confer on it the status of a Court.
(1)I.L.R. [1954] Nag. 1.
158
The facts of the case are that the Government of Madhya
Pradesh appointed a commission of inquiry under the
Commissions of Inquiry Act, 1952, with Hon’ble Shri Justice
B. K. Choudhuri as the sole member. The Commission was
asked to inquire ‘and report whether
(i) the firing was justified
(ii) excessive force was used; and
(iii)after the firing adequate action was taken to
maintain peace and order, to prevent recrudescence of
trouble and to give adequate medical and other aid to the
injured.
Dealing with the nature of the inquiry the court held that
the commission in question was obviously appointed by the
State Government for the information of its own mind, in
order that it should not act,, in exercise of its executive
power, otherwise than in accordance with the dictates of
justice and equity, in ordering a departmental inquiry
against its officers. It was therefore a fact finding body
meant only to instruct the mind of the Government without
producing any document of a judicial nature. So far as the
scope of the inquiry in the case was concerned it falls
strictly within section 3 as the inquiry related to a
definite matter of public importance and not an inquiry into
the misuse of governmental functions of a Chief Minister or
a State Minister. On the facts of the case it was
appropriate that the court found that it was merely a fact
finding body meant to instruct the mind of the Government.
In Branjnandan Sinha v. Jyoti Narain(1) the Supreme Court
considered the question whether the Commission appointed
under the Public Servants (Inquiries) Act, 1850, is not a
court within the meaning of the Contempt of Courts Act,
1952. The Court approved the view taken by the Nagpur High
Court that the Commission was only a fact finding Commission
meant only for instruct the mind of the Government and found
that a Commission under the Public Servants (Inquiries) Act,
1850, is not a court. In Shri Ram Krishna Dalmia v Shri
Justice S. R. Tendolkar and Others(2) the Central Government
appointed a Commission of Inquiry to inquire into and report
in respect of certain companies mentioned in the schedule
attached to the notification and in respect of the nature
and extent of the control and interest which certain persons
named in the notification exercised over these companies.
The validity of the Commissions of Inquiry Act was
questioned. The Supreme Court held that the Act was valid
and intra vires and the notification was also valid
excepting the words “as and by way of securing redress or
punishment’ in clause 10 thereof which went beyond the scope
of the Act. The Court also held that the Act does not dele-
gate to the Government any arbitrary or uncontrolled power
and does not offend Article 14 of the Constitution. The
Court further observed that the discretion given to the
Government to set up a commission of inquiry is guided by
the policy laid down in the Act and the executive action is
to be taken only when there exists a definite matter of
public importance into which an inquiry is necessary. The
facts of the case are that the Central Government appointed
a Commission
(1)[1955] S.C.R. 955.
(2)[1959] S.C.R. 279.
159
of Inquiry under section 3 of the Commissions of Inquiry
Act, 1952, to inquire and report in respect of the
administration of the affairs of companies specified in the
schedule and other matters mentioned in clauses (2) to (11)
of the Order. The inquiry under clause (3) is regarding the
nature and extent of the control, direct and indirect,
exercised over such companies and firms or any of them by
Shri R. K. Dalmia and 3 others, their relatives, employees
and persons connected with them. Under clause (10) the
inquiry was against any irregularities, frauds or breaches
of trust etc. and required the Commission to recommend the
action which in the opinion of the Commission should be
taken as and by way of securing redress and arrangement or’
to act as a preventive in future cases. This Court held
that the Commission in the case was merely to investigate
and record its findings and re,commendations without having
any power to enforce them. It was further held that a
portion of last part of cl. (10) which called upon the
Commission of Inquiry to make recommendations about the
action to be taken as and by way of securing redress or
punishment cannot be said to be at all necessary or
ancillary to the purpose of the Commission. The Court held
that the words “as and by way of securing redress or
punishment” clearly go outside the scope of the Act, and
such a provision was not covered by the two legislative
entries in the Constitution and should therefore be deleted.
Considering the scope of section 3 it observed that the
“answer is furnished by the statute itself for section
indicates that the appropriate Government can appoint a
Commission of Inquiry only for the purpose of an inquiry
into any definite matter of public importance and to no
other matter. In other words, the subject matter of inquiry
can only be of a “definite matter of public importance”.
Rebutting the contention on behalf of the appellant that the
delegation of the authority to the appropriate Government is
unguided and uncontrolled, the Court observed that “the
executive action of setting up a Commission of Inquiry must
conform to the condition of the- section, that is to say,
that there must exist a definite matter of public importance
into which an inquiry is, in the opinion of the appropriate
Government, necessary or is required by a resolution in that
behalf passed by the House of the People or the Legislative
Assembly of the State”. The Court proceeded to observe that
if the Parliament had declared with sufficient clarity the
policy and laid down the principles for the guidance of the
exercise of the powers conferred on the appropriate Govern-
ment it cannot be said that an arbitrary and uncontrolled
power had been delegated to the appropriate Government. On
the facts of the case before the Court the conclusion was
reached that the power was exercised within the policy laid
down by the Parliament and the guidance afforded by the
preamble and section 3 of the Act. The decision was not
dealing with a case in which the inquiry is ordered into the
misuse of governmental functions of the Chief Minister of a
State exercising the executive functions of the State. The
Court also rejected the plea on behalf of the appellant that
the Act and conduct of individual persons can never be
regarded as definite matter of public importance, observing
that the act and conduct of individuals may assume such
dangerous proportions as may well affect the public well-
being and thus become a definite matter of public import-
160
ance. An inquiry into “definite matter of public importance”
may be incidental or ancillary to such inquiry require
inquiring into the conduct of persons. Section 8-B which
was introduced by an amendment by Act 79 of 1971 provides
that if at any stage of the inquiry the Commission considers
it necessary to inquire into the conduct of any person or is
of opinion that the reputation of any person is likely to be
prejudicially affected by the inquiry, the Commission shall
give to that person a reasonable opportunity of being heard
in the inquiry and to produce evidence in his defence. The
amendment would indicate the procedure to be adopted if in
the course of the inquiry it becomes necessary to inquire
into the conduct of any person. This would suggest that
principally the inquiry is as regards a matter of definite
public importance. It may be that in some cases the conduct
of individuals may become a definite matter of public
importance as laid down in R. K. Dalmias case. But the
decision does not conclude the point that has arisen in this
case, namely whether the definite matter of public
importance) should be construed as to include the right to
inquire into the abuse of governmental functions by’ a,
State Government when no such intention could have been in
the minds (if the Parliament.
In State of Jammu and Kashmir v. Bakshi Ghulam Mohammad(1)
the State Government of Jammu and Kashmir issued a
notification under section 3 of the Jammu and Kashmir
Commission of Inquiry Act, 1962, setting up a commission to
inquire into the wealth acquired by the first respondent and
certain specified members of his family during his period of
office. It may be noted +that the Commission of Inquiry was
set up by the State Government after Bakshi Ghulam Mohammad
resigned and ceased to be, the Chief Minister of the State.
Two of the three Judges of the High Court took the view
that, the matter referred to was not of public importance
because on the date of the notification Bakshi Ghulam
Mohammad did not hold any office in the Government and that
there was no evidence of public agitation in respect of the
conduct complained of and that showed that they were not
matters of public importance. The Supreme Court rejected
the view taken by the High Court observing : “It is
difficult to imagine how a Commission can be set up by a
Council of Ministers to inquire into the acts of its head,
the Prime Minister, while he is in office. It certainly
would be a most unusual thing to happen.. If the rest of the
Council of Ministers resolves to have any inquiry, the Prime
Minister can be expected to ask for their resignation. In
any case, he would himself go out. If he takes. the first
course, then no Commission would be set up for the Ministers
wanting the inquiry would have gone. If he went out
himself, then the Commission would be set up to inquire into
the acts of a person who was no longer in office and for
that reason, if the learned Judges of the High Court were
right, into matters which were not of public importance.
The result would be that the acts of a Prime Minister could
never be inquired into under the Act. We find it extremely
difficult to accept that
(1) [1966] Supp. S.C.R. 401.
161
view.” The decision of the Court is that the inquiry into
the past and which have affective the public well-being
would be matters of public importance and it was irrelevant
whether the person who committed those acts is still in
power to be, able to repeat them. The pronouncement is an
authority for the proposition that inquiry into the acts a
person who had ceased to be a Chief Minister may continue to
I a matter of public importance.
It Bakshi’s case the inquiry %,as directed by the State
Government against the conduct of an erstwhile Chief
Minister of the State.. Thus Court rejected the, contention
that the inquiry against a person is outside the scope of
section 3 of the Commissions of Inquiry Act. It was
contended before this Court relying on section 10 of the
Jammu and Kashmir Commission of Inquiry Act, 1962 that the
inquiry directed into the conduct of Bakshi Cjhulam
Mohanunad was outside the scope of the Act. Section 10 of
the Jammu and Kashmir Act is similar to the present sections
8-B and 8-C of the Commissions of Inquiry Act, 1952. The
section states that if at any stage of the inquiry the
Commission considers it necessary to inquire into the
conduct of any person or is of opinion that the reputation
of any person is likely to be prejudicially affected by the
inquiry the Commission shall give to that person a
reasonable opportunity of being heard in the inquiry and to
produce evidence in his defence. Basing on the wording of
the section it was submitted that the inquiry is normally
only into a definite matter of public importance and
inquiries into the conduct of a person can arise only as
incidental or ancillary to such an inquiry. As the section
contemplates the necessity of inquiry into the conduct of a
person arising at any stage of the Inquiry Commission’s
proceedings, it was submitted that the inquiry into the
conduct of a person is only incidental. This Court rejected
the contention on the ground that section 3 which permits a
Commission of Inquiry to be appointed is wide enough to
cover an inquiry into the conduct of an individual and it
could not be natural reading of the Act to cut down the
scope of section 3 by an implication drawn from section 10.
This observation was, as the subsequent sentence makes it
clear, made in rejecting the plea that section 10 does not
apply to a person whose conduct comes up directly for
inquiry before a Commission set up under section 3. In
Bakshi’s case as the inquiry was ordered by the State
Government into the affairs of a Chief Minister who had
ceased to be in office, the Court was not called upon to
consider the question whether the Union Government can
appoint a commission of inquiry into the conduct of a Chief
Minister of a State in office which implies the
determination of Centre-State relationship under the
Constitution. In this case the appointment was by the State
Government against the erstwhile Chief Minister. Apart from
this question it is seen that if section 3 of the
Commissions of Inquiry Act, 1952 is construed as enabling
the appointment of a commission of inquiry into the conduct
of a State Chief Minister in office it would result in
empowering the Central Government which is a delegate of the
Parliament to exercise the powers which would never have
been contemplated by the Parliament, for as already pointed
out the result of such construction would be inviting the
State Government to appoint a commission of inquiry
162
to the conduct of Central Ministers regarding matters in
List II and List III. It is significant to note that after
Bakshi’s case was decided by the Supreme Court in 1966,
amendments were introduced to the Commissions of Inquiry Act
by Act 79 of 1971. Section 8-B ins as follows :-
“8B. If, at any stage of the inquiry, the
Commission,-
(a)considers it necessary to inquire into
the conduct of any person; or
(b)is of opinion that the reputation of any
person is likely to be prejudicially affected
by the inquiry, the Commission shall give to
that person a reasonable opportunity of being
heard in the inquiry and to produce evidence
in his defence :
Provided that nothing in this section shall
apply where the credit of a witness is being
impeached.”
No doubt, there was corresponding section, section 10, of
the Jammu & Kashmir Commission of Inquiry Act, 1962, which
was considered in Bakshi’s case by the Supreme Court, and
the Court had held that section 1 0 was also applicable to a
case in which the conduct of a person was directly under
inquiry. It observed that the scope of section 3 cannot be
cut down by an implication drawn from section 10. The
subsequent amendment of the Act by introduction of section
8-B which provides that if at any stage of the inquiry, the
Commission considers it necessary to inquire, into the
conduct of any person, or is of opinion that the reputation
of any person is likely to be prejudicially affected by
enquiry would indicate that the Parliament was aware, of the
consequence of such wording, and intended the Act to be
applicable in the main to any definite matter of public
importance while an inquiry into the affairs of persons
would be permissible if it arose-as incidental or ancillary
to such inquiry. This construction appears to be
justifiable, for otherwise section 3 would have the result
of empowering the delegate i.e. the Union Government, to
order an inquiry into the affair of the Chief Minister of a
State and inviting the same treatment from the State
Government.
The decision in P. V. Jaganmohan Rao & Ors. v. State of
Orissa & Ors.(1) also relates to the appointment by the
State Government of a Commission of Inquiry into the conduct
of the Chief Minister and Ministers who ceased to hold
office on the date of the notification in regard to the in
regularities committed during the tenure of their office and
it does not relate to the Commission of Inquiry appointed by
the Central Government to inquire into the abuse of
governmental functions by the Chief Minister and other
Ministers.
It will be, seen on an examination of the cases cited above
that in no case the Central Government bad ordered an
inquiry into the abuse of powers by the State Chief Minister
in office. It is stated that an inquiry was ordered by the
Central Government against Pratap Singh
(1)[1968] 3. S.C.R. 789.
163
Kairon, a State Chief Minister, while in office but the
validity of such an ,order was not questioned before a
court. The Sarkaria Commission
was appointed by the Central Government to inquire into the
conduct of the Chief Minister when lie ceased to hold that
office and the President took over the administration of the
Tamil Nadu State. While in office the Chief Minister
questioned the Union Government’s power to appoint such a
Commission.
The impugned notification by the Central Government was
challenged on the ground that it is in violation of the
proviso to section 3(1) of the Commissions of Inquiry Act.
Under the proviso when a State Government has appointed a
commission of inquiry, the Central Government shall not
appoint another commission to inquire into the same matter
for so long as the commission appointed by the State
Government is functioning, unless the Central Government is
of opinion that the scope of the inquiry should be extended
to two or more States. In this case it is common ground
that the State Government had appointed a Commission of
Inquiry earlier. The scope of the inquiry ordered by the
Central Government does not extend to two or ,more States.
In the circumstances the notification is sought to be
supported by the Central Government on the plea that the
inquiry ;does not relate to the “‘same matter” and therefore
the validity of the notification cannot be challenged.
Reading section 3(1) along the proviso, it is apparent that
the intention of the Act is to en.able the appropriate
Government i.e. the Central or the State Government to
appoint a Commission of Inquiry for the purpose of making an
inquiry into any definite matter of public importance. The
Central Government can appoint a commission to make an
inquiry into any matter relatable to any of the Entries
enumerated in List I, List II or List III of the Seventh
Schedule of the Constitution while the State Government can
appoint a commission to inquire into any matter relatable to
any of the entries enumerated in List II and List III of the
Constitution. As both the Central Government and the State
Government have power to appoint a commission of inquiry
relating to entries in List II and List III there might
arise occasions when there may be overlapping. In order to
avoid such a contingency provisos (a) and (b) to section
3(1) enact that when the Central Government has appointed a
commission of inquiry the State Government ‘shall not
appoint another commission to inquire into the same matter
without the approval of the Central Government-,as long as
the commission appointed by the Central Government is
functioning and the Central Government shall not appoint
another commission to inquire into the same matter as long
as the commission appointed by the State Government is
functioning. These provisions are for the purpose of
avoiding any conflict by the two Governments appointing two
separate commissions to inquire into the same matter. in a
speech made by the Minister for Law Shri C. C. Biswas while
introducing the Bill on August 6, 1952 in the Rajya Sabha,
he explained the provisions of section 3 and its underlying
purposes as follows :
“Then there is also the question whether and
bow far there may be overlapping inquiries by
the Centre appointing Commission on its own
and a State also a commission of
164
its own to deal with the ‘same matter. That
is dealt with here in the proviso. The danger
of overlapping is avoided by providing that if
there is a Commission appointed-by the Central
Government already functioning then it will
not be open to a State Government, except with
the approval of the
Centre, to appoint another commission to
inquire into the
same matter. Similarly, if there is already a
Commission appointed by a State Government
functioning with respect to a matter which is
within the jurisdiction of the State it will
not be open to the Central Government to
override the State Commission except in
certain circumstances which are indicated,
that is, unless the Central Government is of
the opinion that the scope of inquiry should
be extended to two or more States. Then of
course this will be done, obviously not with-
out reference to the State. So as you will
see, Sir, provision is made in this clause for
avoiding conflict between the Centre and the
State.”
It will be seen that the provisos were enacted for the
purpose of avoiding conflict between the Union and the
State. The very object of the proviso to section 3 is
defeated by the construction sought to, be put upon by the
Union Government. The objection to the appointment of a
commission by the Union Government when there is already a
commission appointed by the State functioning is ‘sought to
be got over by the Union on the plea that by the impugned
notification the. inquiry is not directed against the same
matters for which the State: has appointed a commission of
inquiry. In the written statement filed on behalf of the
Union of India it is contended that the matters. referred to
the Grover Commission of Inquiry appointed by the Union
Government are those which are not covered by the terms of
reference of the Hussain Commission of Inquiry appointed by
the Government of Karnataka and that Annexure I to the
notification dated May 23, 1977 lists such allegations
contained in the Memorandum dated April 11, 1977 as are not
at all included in the terms of reference of the Hussain
Commission of Inquiry and that relating to allegations,
contained in Annexure II the said allegations stipulated
that the Grover Commission of Inquiry will inquire into the
said allegations excluding any matter covered by the
notification of the Government of Karnataka dated May 18,
1977. It was submitted that while the matter referred to by
the State Government is regarding various irregularities,
the inquiry directed by the Central Government is for making
an inquiry on charges of corruption, nepotism, favouritism
or misuse of governmental power against the Chief Minister
and certain other Ministers of the State of Karnataka. The
notification of the Karnataka: State Government appointing a
Commission of Inquiry runs as follows:
“Whereas allegations have been made on the
floor of the Houses of the State Legislature
and elsewhere that irregularities have , been
committed/excess payments made in certain
matters relating to contracts, grant of land,
allotment of sites, purchase of furniture,
disposal of food grains, etc.;
165
Whereas the State Government is of the opinion
that It is necessary to appoint a Commission
of Inquiry to inquire into the said
allegations;
NOW THEREFORE, in exercise of the powers
conferred by sub-section (1) of section 3 of
the Commissions of Inquiry Act, 1952 (Central
Act 60 of 1952) the Government of Karnataka
hereby appoint Justice Shri Mir Iqbal Hussain,
Retired Judge of the Karnataka High Court to
be the Commission of Inquiry………….”
The plea on behalf of the State is that the inquiry is
directed against all the allegations that have been made on
the floor of the Houses of the State ]Legislature and
elsewhere and the charges therefore comprehend all the
matters that are found in the impugned notification.
Further it was submitted that as the commission is to go
into and determine as to who are the persons responsible for
the lapses the inquiry would include charges against the
Chief Minister also. As the purpose of the two provisos to
section 3(1) is to avoid conflict, the words “the same
matter” in the provisos should be given a wide
interpretation and only matters that are not referable to
the subject matter of the inquiry by the Commission
appointed by the State can be taken over by the Central
Government. We were not called upon to go into the two
notifications and determine which item in the notification
of. the Central Government is not covered by the State
Government notification. In giving a wider meaning to the
words ‘the same matter’ with a view to avoid conflict, the
contention of the Central Government that the inquiry into-
the conduct of the Chief Minister about the same incident
will make it a different matter cannot be accepted.
The contention as to the maintainability of the suit under
Article 131 of the Constitution may now be considered.
Article 131 is as follows:
“Subject to the provisions of this
Constitution, the Supreme Court shall to the
exclusion of any other court, have original
jurisdiction in any dispute-
(a) between the Government of India and one
or more States, or
(b)…………..
(c)between two or more states,
If andin so far as the dispute involves
any question (whether of lawor fact) on
which the existence or extent of a legal right depends:
The point is whether the dispute involves any question
whether of law or fact on which the existence or extent of a
legal right of the State depends. In other Words, a suit
would be maintainable if there is any infringement of a
legal right of the State. The submission on behalf of the
Union Government is that what is affected is not the legal
right of the State but if at all that of the State
Government or the Ministers concerned. Ministers may have a
cause of action in which case the remedy will be by way of a
petition under Article 226. If the State
166
Government feels aggrieved they can also take action under
Article 226 but unless the legal right of the State is
affected recourse to Art. 131 cannot be had. Relying on the
General Clauses Act and the distinction that is maintained
in the Constitution between the State and the State
Government it was submitted that the State itself is an
ideal person intangible, invisible, and immutable, and the
Government is its agent. In order to appreciate the
contentions of the parties it is necessary to refer to the
relevant articles of the Constitution to determined the
question as to whether any of the legal rights of the State
is affectedPart VI of the Constitution relates to the
States and Art. 154 providesthat the executive power of
the State shall be vested in the Governorand shall be
exercised by him either directly or through the officers
subordinate to him in accordance with the Constitution.
Article 162 provides that subject to the provisions of the
Constitution the executive power of the State shall extend
to the matters with respect to which the Legislature of the
State has power to make laws. In other words the executive
power of the State is co-extensive with the legislative
power of the State. The executive power of the State will
be exercised by the Governor with the aid and advice of the
Chief Minister and other Ministers of the State. According
to the impugned notification Commission of Inquiry is
appointed for the purpose of making an inquiry into a
definite matter of public importance, namely charges of
corruption, nepotism, favouritism or misuse of governmental
power against the Chief Minister and certain other Ministers
of the State of Karnataka. The inquiry therefore is amongst
other things regarding the misuse of the governmental power
against the Chief Minister and other Ministers of the State.
The executive function of the State which is vested in the
Governor is exercised by him with the aid and advice of the
Chief Minister and the Council of Ministers. The power is
also exercised by the Governor either directly or indirectly
through officers subordinate to him in accordance with the
Constitution. The governmental functions of the State are
performed by the Governor as required by the Constitution
with the aid and advice of the Ministers The scope of the
enquiry would inevitably involve the functioning of the
executive of the State. The plea of the State Government is
that its powers are derived from the Constitution and its
existence and its exercise of powers as executive of the
State is guaranteed by the Constitution, and the Centre
cannot interfere with ‘such exercise of executive functions.
The question involves the extent of the executive power of
the State and any interference with that power by the
Central Government would affect the legal right of the
State. The plea on behalf of the Union Government is that
Art. 154 contemplates the exercise by the Governor of his
executive power through officers subordinate to him in
accordance with the Constitution. The submission is that
when the powers are exercised through Ministers who. accord-
ing to the learned counsel for the respondent, are officers
the rights of such Ministers or officers are only interfered
with and not the legal rights of the State. Further it was
submitted that State is different from the Government of a
State and if any action of the State or the Ministers of the
State is questioned the State as ‘such cannot have any
grievance. When the exercise of the executive functions of
the State through its officers is interfered with by the
Central Government it cannot be said that the legal right of
the State is not affected.
167
Strong reliance, was placed by the Union Government on a
recent decision of the Supreme Court in State of Rajasthan
and Others v. Union of India.(1) The States of Rajasthan,
Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa
filed suits under Art. 131 of the Constitution against the
Union of India challenging a directive contained in a letter
dated April 18, 1977 issued by the Union Home Minister to
the Chief Ministers of the States as unconstitutional,
illegal, and ultra vires of the Constitution and for a
declaration that the plaintiffs States are not
constitutionally or legally obliged to comply with or give
effect to the directive contained in the said letter. The
power of the Central Government to dissolve the State
Assemblies was questioned. A preliminary objection was
raised to the maintainability of the suit on the ground that
no legal rights of the State were infringed and that the
State is different from the State Government and if at all
any one was aggrieved it was the State Government and not
the State. Chief Justice Beg observed that even if there be
some grounds for making a distinction between a State’s
interests and rights and those or it,, Government or its
members, the Court need not take a too restrictive or a
hyper-technical view of the State’s rights to sue for any
rights, actual, or fancied, which the State Government
chooses to take up on behalf of the State concerned in a
‘suit under Art. 131. Mr. Justice Chandrachud was of the
view that when the States question the constitutional right
of the Union Government to dissolve the State Assemblies on
the rounds mentioned in the Home Minister’s letter to the
Chief Ministers a legal, not a political, issue arising out
of the existence and extent of a legal right squarely arises
and the suits cannot be thrown out as falling outside the
purview of Art. 131. The learned Judge proceeded to express
his view as follows:
“The legal right of the States consists in
their immunity, in the sense of freedom from
the power of the-Union Government. They are
entitled,. under Art. 131, to assert that
right either by contending in the absolute
that the Centre ham no power to dissolve the
Legislative Assemblies or with the
qualification that such a power cannot be
exercised on the ground stated”.
Bhagwati and Gupta JJ. were of the view that the exercise of
the power in the case would affect the constitutional right
of the State to insist that the federal basis of the
political structure set up by the Constitution shall not be
violated by an unconstitutional, assault under Art. 356
(1,). As the suit sought to enforce a legal right of the
State arising under the Constitution the suit could not be
thrown out in limine as being outside the scope and ambit of
Art. 131. Goswami and Untwalia JJ. were of the view that
the legal right must be that of the State. When the ‘Home
Minister asks the Chief Minister of the Government of the
States to advice the Governors to dissolve the Legislative
Assemblies and the Chief Ministers decline to accept the
advice it is not a dispute between the State on the one hand
and the
(1)[1978] 1 S.C.R. 1.
168
Government of India on the other. It is a real dispute
between the Government of the State and the Government of
India. It is no doubt a question of life and death for the
State Government but not so far the State as legal entity,
as even after the dissolution of the Assembly the State will
continue to have a government for the time being as provided
for in the Constitution. Fazal Ali, J. was of the view that
the mere fact that letters were sent to the State Government
containing gratuitous advice would not create any dispute if
one did not exist before nor would such a course of conduct
clothe the State Government with a legal right to call for a
determination under Art. 131 as the State did not possess a
legal right. The State Government who have raised dispute
are not covered by the word ‘State appearing in Art. 131 and
therefore the suits were not maintainable on that ground
also. It will be seen that four of the seven Judges were of
the view that the suits are maintainable though Bhagwati and
Gupta JJ. were of the view that there is a difference
between the State and the State Government. Whatever the
question that might have risen regarding the dissolution of
the Assemblies, in the present case the dispute relates to
the functioning of the State in exercise of the powers
conferred under the Constitution and the State’s legal
rights are affected. The preliminary objection therefore
fails.
To sum up taking into account the history of the development
of the Indian Constitution and its scheme the impugned
notification impinges on the right of the State to function
in its limited sphere. Further, the impugned notification
is beyond the powers conferred on the Union Government under
Section 3 of the Commissions of Inquiry Act, 1952. In this
view the question whether section 3 of the Commissions of
Inquiry Act, 1952 is ultra vires of the power of Parliament
or not does not arise.
it is necessary that Commission of Inquiry should be
appointed in order to maintain and safeguard the purity of
the Union and the State administration. But such Commission
of Inquiry should be strictly in accordance with the,
Constitution and should not affect the Centre-‘ State
relationship. The proposal now pending before Parliament
for appointment of Lok Pal to conduct such inquiries is a
move in the right direction, if sufficient constitutional
safeguards are provided for the institution of Lok Pal.
In view of the Judgment the first issue whether the suit is
maintainable is answered ‘in the affirmative. Under Issue
No. 2 the impugned notification is ultra vires of the powers
of the Central Government conferred on it by Section 3 of
the Commissions of Inquiry Act. In this view Issue No. 3
does not arise for consideration The suit has to be decreed
as prayed for.
ORDER
In accordance with the view of the majority, the Suit is
dismissed with costs.
P.B.R.
169