{"id":144455,"date":"1977-11-08T00:00:00","date_gmt":"1977-11-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-vs-union-of-india-another-on-8-november-1977"},"modified":"2018-03-16T19:05:37","modified_gmt":"2018-03-16T13:35:37","slug":"state-of-karnataka-vs-union-of-india-another-on-8-november-1977","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-vs-union-of-india-another-on-8-november-1977","title":{"rendered":"State Of Karnataka vs Union Of India & Another on 8 November, 1977"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Karnataka vs Union Of India & Another on 8 November, 1977<\/div>\n
Equivalent citations: 1978 AIR 68, \t\t 1978 SCR (2)\t 1<\/div>\n
Author: M H Beg<\/div>\n
Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V. (Cj), Bhagwati, P.N., Untwalia, N.L. & Shingal, P.N., Singh, Jaswant & Kailasam, P.S.<\/div>\n
           PETITIONER:\nSTATE OF KARNATAKA\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA & ANOTHER\n\nDATE OF JUDGMENT08\/11\/1977\n\nBENCH:\nBEG, M. HAMEEDULLAH (CJ)\nBENCH:\nBEG, M. HAMEEDULLAH (CJ)\nCHANDRACHUD, Y.V. ((CJ)\nBHAGWATI, P.N.\nUNTWALIA, N.L.\nSHINGAL, P.N.\nSINGH, JASWANT\nKAILASAM, P.S.\n\nCITATION:\n 1978 AIR   68\t\t  1978 SCR  (2)\t  1\n 1977 SCC  (4) 608\n CITATOR INFO :\n R\t    1984 SC1675\t (11)\n RF\t    1989 SC 714\t (19)\n\n\nACT:\nConstitution  of India 1950-Art. 131-Scope of-Commission  of\nInquiry\t appointed  by\tthe  Central  Government  under\t the\nCommissions of Inquiry Act, 1932 to inquire into allegations\nof  corruption, favouritism and nepotism against  the  Chief\nMinister of a State-Suit filed by the State under Art.\t131-\nIf  maintainable-Central Government, if could  constitute  a\nCommission  of\tInquiry against sitting Chief  Minister\t and\nMinisters   of\tthe  State  Government-Action\tof   Central\nGovernment,  if\t destructive  of federal  structure  of\t the\nConstitution  and distribution of powers between the  Centre\nand  the  States-If  subverts the  principle  of  collective\nresponsibility under which Ministers are responsible only to\nthe State Legislature-If violates privileges of the  members\nof the Assembly under Art. 194(3).\nCommissions of Inquiry Act, 1952 validity of-Section 3-Scope\nof-If s. 3 ultra vires Part XI of the  Constitution-Inquiry-\nPurpose\t and scope of\"Definite matter of public\t importance\"\nmeaning of.\n\n\n\nHEADNOTE:\nArticle\t 131 of the Constitution of India provides that\t the\nSupreme\t Court\tshall  have  original  jurisdiction  in\t any\ndispute\t :  (a) between the Government of India and  one  or\nmore  States;  or (b) between Government of  India  and\t any\nState or States on one side and one or more other States  on\nthe  other; or (c) between two or more States if and  in  so\nfar as the dispute involves any question (whether of law  or\nfact)  on  which the existence or extent of  a\tlegal  right\ndepends.\nA  memorandum alleging corruption, favouritism and  nepotism\nagainst\t the  Chief Minister of the State of  Karnataka\t was\nsubmitted  to the Union Homo Minister by certain  opposition\nmembers of the State Assembly.\tThe Chief Minister  repelled\nthe allegations as frivolous and politically motivated.\t  By\na  notification\t dated\tMay 18, 1977  the  State  Government\nappointed under s.. 3(1) of the Commissions of Inquiry\tAct,\n1952, a one man commission presided over by a retired  judge\nof   the  Karnataka  High  Court  for  inquiring  into\t the\nallegations specified in the notification.  By\tnotification\ndated May 23, 1977, the Government of India appointed  under\ns.  3(1) of the Commissions of Inquiry Act, 1952, a one\t man\ncommission  presided over by a retired judge of the  Supreme\nCourt  to  enquire into the charges made against  the  Chief\nMinister  excluding \"any matter covered by the\tnotification\nof  the\t Government  of Karnataka\".   Thereupon,  the  State\nGovernment filed in this Court a suit under Art. 131 of\t the\nConstitution.  On the pleadings of the parties, three issues\nwere  framed  by this Court.  These were : (1) Is  the\tsuit\nmaintainable ? (2) Is the impugned notification ultra  vires\nthe  powers  of\t the Central Government under s.  3  of\t the\nCommissions of Inquiry Act, 1952 ? (3)\tEven\t if\t the\nnotification  falls  within  sec. 3 of\tthe  Commissions  of\nInquiry Act    is the section itself unconstitutional ?\nIt  was contended on behalf of the plaintiff that : (1)\t the\nCentral\t Government  has  no jurisdiction  or  authority  to\nconstitute  the\t Commission  of\t Inquiry  in  the  purported\nexercise of its powers under the Act; (2) the action of\t the\nCentral Government in appointing the Commission against\t the\nMinisters  of  the State Government is\tdestructive  of\t the\nfederal\t structure  of the Constitution and  the  scheme  of\ndistribution  of powers between the Centre and\tthe  States;\n(3)  under the Cabinet system of government the\t Council  of\nMinisters  is  responsible to the Legislature  for  all\t its\nactions\t and the inquiry ordered by the\t Central  Government\nagainst the State Ministers, while they are in office  would\nsubvert\t the  principle\t of  collective\t responsibility\t  of\nMinisters to the Legislature; (4)  by  virtue of Art  194(3)\nit is the privilege of the Assembly (and not of\n2\nany  other body) to appoint a Committee for  inquiring\tinto\nthe conduct of any of its members; (5) interpretation of  a.\n3  of the 1952 Act in such a way as to empower\tthe  Central\nGovernment  to\tappoint\t a  Commission\tfor  inquiring\tinto\nmatters\t relating  to any of the entries in List II  of\t the\nSeventh Schedule to the Constitution-would make a. 3 itself\nultra  vires the provisions of Part XI of the  Constitution;\nand  (6)  since\t on  the basis of  the\treport\tthe  Central\nGovernment  cannot take any action against the Ministers  of\nthe  State  Government such a Commission  cannot  serve\t any\nuseful purpose.\nOn the other hand, the defendant (Central Government) raised\npreliminary objections as to the maintainability of the suit\non  the\t ground that the appointment of\t such  a  Commission\ndoes- not affect any legal right of the State; and.(2)\talso\nthat  the  Central Government is competent to  constitute  a\nCommission  to\tinquire\t into a definite  matter  of  public\nimportance, (3) that, furthermore, its notification does not\ncover any of the matters mentioned in the State Government's\nnotification, namely, the conduct of Ministers of the  State\nGovernment.\n(Per majority Beg, C.J. Chandrachud, Bhagwati and  Kailasam,\nJJ)\n(Untwalia, Shinghal and Jaswant Singh, JJ dissenting)\nThe suit is maintainable.\nG. C. J.\n1(a)  The State concerned, which challenges the validity  of\nthe action of the Central Government against one or more  of\nits  Ministers in respect of acts involving exercise of\t its\ngovernmental  powers,  would  have  sufficient\tinterest  to\nmaintain a suit under Art. 131 because it involves claims to\nwhat appertains to the State is a \"State.\" [94 C-D]\n(b)  The  case\tinvolves consideration of  the\texercise  of\ngovernmental  powers  which vest in the\t Government  of\t the\nState  and  its\t Ministers as such vis-a-vis  those  of\t the\nCentral\t Government  and  its  Ministers.   It\talso  raises\nquestions  relating  to the meaning and the  ambit  and\t the\napplicability\tof   the  particular   provisions   of\t the\nConstitution whose operations are of vital interest to every\nState.\t Interpretations  given\t to  those  provisions\tmust\nnecessarily be of great concern to the Union as well. (91 C-\nD]\n(c)  The   Union  of  India,  acting  through  the   Central\nGovernment,  could  be said to represent the  whole  of\t the\npeople\tof  India.  The individual  States,  acting  through\ntheir Governments and Ministers, could be said to  represent\nthe  people  of each individual State and  their  interests.\nWhen  differences arise between the representatives  of\t the\nState  and those of the whole people of India, on  questions\nof interpretation of the Constitution, which must affect the\nwelfare\t of the whole people, and, particularly that of\t the\npeople\tof  the\t State concerned, it  is  too  technical  an\nargument  to  be  accepted that a suit does  not  lie  under\nArticle 131 of the Constitution. [91 E-P]\n(d)  Article  131 can be invoked whenever a State and  other\nStates\tor the Union differ on a question of  interpretation\nof the Constitution so that a decision of it will affect the\nscope\tor  exercise  of  governmental\tpowers\t which\t are\nattributes  of\ta  State.  It makes  no\t difference  to\t the\nmaintainability\t of  the action if the powers of  the  State\nwhich\tare  executive,\t legislative,  and-   judicial\t are\nexercised through particular individuals. [92 F-G]\n(e) The distinction between the State and its Government is,\nat the most,one between the whole and an inseparable part of\nthe whole.It  would be immaterial as regards claims  on\nbehalf of either the State or itsGovernment  whether   the\ntwo are distinct juristic entities.  Assuming that these are\ndistinctly  separate entities, the claim of  the  Government\nwould be that of the State. [91 H]\n(f)The\tfact that the State acts through its Ministers\tor\nofficials cannot affect% the maintainability of a quit under\nArt. 131 of. the Constitution.\tArticle 166(3) provides\t for\nallocation of the business of the Government\t\t,be\nMinisters  for\t\"the  more  convenient\ttransaction  of\t the\nbusiness\".  that  the State cannot act\tmerely\tthrough\t its\nGovernment as a whole but also\n3\nthrough\t its individual Ministers as provided by the  rules.\nArticles  166(3)  and  154(1),\tfar  from  establishing\t any\nantithesis  between the official capacity of a Minister\t and\nthe State for which he acts, only show that, as a  Minister,\nhe is an agent or a limb of the Government of the State and,\ntherefore,  he can be treated as an officer for purposes  of\nArt.  154(1).  The result is that a Ministers official\tacts\ncannot\tbe  distinguished from those of the State  on  whose\nbehalf\the  acts.   There  is nothing in  Art.\t131  of\t the\nConstitution  itself to debar the State, which\tmust  always\nnecessarily act through its officers or agents or Ministers,\nfrom suing the Central Government not only to protect one of\nits  officers,\tagents\tor Ministers  from  being  proceeded\nagainst,  by the Central Government, but to prefer  its\t own\nclaim to exclusive power to deal with him and\t  this\t  is\nwhat the plaintiff has done by means of the suit. [92 H;  93\nD]\nState of Rajasthan v. Union of India A.I.R.<\/a> 1977 S.C.  1361,\nKing Emperor V.\t    Sibnath  Benerji & Ors, 72 LA.  241\t and\nSanjeevi Naidu etc. etc. v. State of Madras & Anr. [1970]  3\nS.C.R. 505 referred to.\nThe  Governor-General in Council v. The Province of  Madras,\n[1943]\tFCR  1,\t United\t Provinces  v.\tGovernor-General  in\nCouncil,  AIR 1939 FC 58, Attorney-General for\tVictoria  at\nthe Relation of Dale and Ors. v. The Commonwealth & Ors., 71\nC.L.R.\t237  and Attorney-General for Victoria\t(At  the  ,-\nelation\t of the Victorian Chamber of Manufacturers)  v.\t The\nCommonwealth 1933-1934 (2) C.L.R. 533 held inapplicable.\nThe Central Government's notification is valid. [94 G]\n2(a) A perusal of the two notifications shows that while the\nState  notification is meant to set up the commission  which\nhas to enquire whether the veil worn by certain transactions\nis  correct  in\t form  and  covers  it\tfully,\tthe  Central\nGovernment  notification  is  clearly meant  to\t enable\t the\nCommission appointed by it to tear down the veil of apparent\nlegality   and\tregularity  which  may\tbe  worn   by\tsome\ntransactions.  It cannot be said that the two  notifications\nwould  be  covering  \"the same matter\"\tas  contemplated  by\nproviso\t  (b)  to  s.  3(1)  of\t the  Act.   If\t the   State\nnotification  is  meant only to\t superficially\tscratch\t the\n,surface  of  the  allegations\tmade  whereas  the   Central\nGovernment  notification is meant to probe into the crux  or\nthe  heart of what may or may not have gone wrong  with\t the\nbody  politic  in  the State, this Court could\tnot  be\t too\ntechnical  or  astute in finding reasons to  hold  that\t the\nsubject-matter\tof  the two inquiries is  substantially\t the\nsame. [36 G-H]\n(b)Since  the two notifications authorise  inquiries  into\nmatters\t which\tare substantially different  in\t nature\t and\nobject, the inquiry of the Central Commission cannot be said\nto be barred by reason of the State Government\tnotification\nunder proviso (b) to s. 3 (1 ) of the Act even if, in  order\nto  deal  with\ta  substantially  different  subject-matter,\ncentral\t areas of fact or rules governing  the\ttransactions\nmay  be\t common.   If  the  objectives\tare  different\t the\nexamination  of common areas of fact and law  for  different\npurposes will be permissible. [39 B]\n3(a) The obvious intention behind the 1952 Act is to  enable\nthe  machinery\tof democratic Government  to  function\tmore\nefficiently  and effectively.  It could hardly be  construed\nis an Act meant to thwart democratic methods of\t Government.\n[44 E]\n(b)In  all  democratic\tcountries  when\t allegations   and\nrumours circulate causing crisisof   confidence\t in   the\nintegrity  of public life or about other matters  of  public\nimportance, it is essential that public confidence should be\nrestored   and\t this  can  be\tdone  only   by\t  thoroughly\ninvestigating and probing the rumours and allegations.\tSuch\nan inquiry might reveal either that the evil exists or\tthat\nthere is no force in the rumours.  In either case confidence\nis restored. [40 H]\n(c)In England, the Tribunal of Inquiry (Evidence) Act 1921\nwas   passed   \"to   displace  the   procedure\t of   Select\nParliamentary  Committees  which  till then  were  used\t \"to\ninvestigate  alleged  wrong doing in high places\".   Such  a\nmethod of investigation by a political Tribunal was found to\nbe wholly unsatisfactory 'because such bodies could never be\nfree from party political influences.  When\n4\nreports of these committees came to be debated in the  House\nof  Commons, the House was divided on party-lines and  by  a\nmajority   exonerated\tthe  ministers\t from\tall   blame.\nTherefore, investigation by a political tribunal on  matters\ncausing\t grave public disquiet had been discredited and\t the\n1921   Act  was\t passed\t for  setting  up   some   permanent\ninvestigating  machinery.  Even in the United States,  where\nthe system of Congressional Committees is still in vogue, ad\nhoc tribunals (such as the Warren Commission) are  appointed\nto   avoid   a\tmatter\tbeing  referred\t  to   Congressional\nCommittees.\t    This clearly, shows that, in  democratic\ncountries,  not\t only does modem practice  but\tstatute\t can\nprovide for inquiries of the kind which are to be  conducted\nunder  the 1952 Act.  The proceedings of the Commission\t can\nonly  result  in  a report which is to be  laid\t before\t the\nLegislature  concerned under s. 31(4) of the Act.   The\t Act\ncontains  no provision for giving effect to the findings  of\nthe Commission or for enforcing any order which can be\tmade\nby the Commission. [41 C-H; 44 E]\n4.  The\t question whether a State Government  or  its  Chief\nMinister  is  or  is not carrying out the  trust  which\t the\nconstitutional\tpower  places  in  the\thands  of  a   State\nGovernment  and\t its head for the  purposes  of\t determining\nwhether any exercise of extraordinary powers under Art.\t 356\nis  called  for\t or not. is a matter which  lay\t within\t the\npowers\tof the Central Government.  What is contemplated  by\nArt.  356  when\t it  speaks of\tthe  \"satisfaction\"  of\t the\nPresident  from\t a  report of the  Governor  \"or  otherwise\"\nwhether\t a  particular\tsituation has arisen  in  which\t the\nGovernment of the State can be carried on in accordance with\nthe  provisions of the Constitution is a matter which  would\nbe  of\tpublic\timportance.   If  the  President  deems\t  it\nnecessary to give the State Government or its Chief Minister\nan opportunity of being heard before an impartial Commission\nof  Inquiry constituted under the Act, it could not be\tsaid\nthat such I mode of exercise of power under Art. 356 is\t not\nfully  covered\tby  what  is  necessarily  implied  in\t the\nprovisions of the Constitution, that is, the Power to  order\nan inquiry for the purposes of the satisfaction required  by\nArt. 356.\n[48 F-H]\n5(a)  Provisions of either Art. 75(2) or Art. 164(2)  cannot\noperate\t as  bars against the institution  of  inquiries  by\nCommissions set up under the Act.  To infer such bars  would\nbe  to\tmisunderstand  the object as well as  the  mode\t and\nsphere of operation of these articles as also the  purposes,\nscope,\tand function of Commissions to be set up  under\t the\nAct. [53 H]\n(b)'The\t  Council  of  Ministers,   though   theoretically\nappointed  by the Governor, is collectively  responsible  to\nthe  Legislative Assembly of the State.\t But his  collective\nresponsibility does rot abridge or truncate the power of the\nCentral Government to appoint a Commission under s. 3 of the\nAct.   Collective  responsibility has a scope  and  mode  of\noperation which are very different from those of an  inquiry\nunder  s.  3  of the Act even though  the  same\t or  similar\nmatters\t  may  some  times  give  rise\tto  both.    Matters\ninvestigated  under s. 3 of the Act may have no\t bearing  on\nany collective responsibility.\tThe sphere of inquiry  under\ns.  3  is  very\t different from\t that  in  which  collective\nresponsibility\tfunctions.  While the object  of  collective\nresponsibility\tis  to\tmake the  whole\t body  of  Ministers\ncollectively  or vicariously responsible for acts of  others\neven  if  an  individual  minister  may\t not  personally  be\nresponsible, the inquiry under s. 3 has been ordered by\t the\nCentral Government to determine who is actually\t responsible\nfor certain actions and what will be the motive behind them.\n[50 F]\n(c)Inasmuch as the Council of Ministers is able to stay in\noffice\tonly  so,  long\t as it\tcontinues  the\tsupport\t and\nconfidence of a majority of the Members of the\tLegislature,\nthe  whole Council of Ministers is  politically\t responsible\nfor the decisions and policies of each of the Ministers\t and\nof  his department.  So far is the Ministry's  answerability\nto the Legislative Assembly is concerned. the whole Ministry\nhas to be treated as one entity.  The purpose of Art. 164(2)\nwhich  embodies this Principle, is not to find out facts  or\nto  establish the actual responsibility of a Chief  Minister\nor any other Minister or Ministers for particular  decisions\nor  governmental acts.\tThe principle of individual as\twell\nas  collective\tministerial  responsibility  can  work\tmost\nefficiently  only  when cases requiring proper\tsifting\t and\nevaluation of evidence and discussion of questions: involved\nhave   taken  place  in\t proceedings  before  a\t  Commission\nappointed under s.  3 of the, Art. [51 F-G)\n5\n6(a)  The  only sanction for the enforcement  of  collective\nresponsibility\tis  the\t pressure  of  public  opinion.,  In\nEngland,  the principle operators as a of convention  backed\nby  political  judgment, but for us this  principle  in\t our\nConstitution itself [Arts. 75(2) and 164(2)].\tNevertheless\nhere  also  it depends upon convention and  public  opinion,\nparticularly   as  reflected  in  Parliament  or  in   State\nLegislatures,  for  its effectiveness.\t The  principle,  of\ncollective   responsibility  also  exists   separately\t and\nindependently from the legal liability of a Minister holding\nan office in the Union or a State Government. [52 H]\n(b)An  investigation  by a Commission  of  inquiry  should\nfacilitate or help the formation of sound public opinion.  A\nMinister's  individual actions, however, do not\t bring\tinto\noperation  the principle of collective responsibility  where\nhis  colleagues in the Government cannot reasonably be\theld\nguilty of dereliction or breach of any duty. [53 C-D]\nConstitutional Law-Wade & Phillips 8th Edn. p. 87.\nConstitutional and Administrative Law Prof.  S. A. de Smith,\npp. 170-179 referred to.\n7.A  Commission of Inquiry has an orbit of action of  its\nown  within which it can move so as not to conflict with  or\nimpede\tother  forms  of  action or  modes  of\tredress.   A\nCommission of Inquiry is meant to explore and discover\treal\nfacts. It  is neither a substitute for action in a  court\nof law nor can its report orfindings  relieve  courts\tof\ntheir duty.  The appointment of a Commission isgenerally\na  confession  of want of sufficient evidence to  take\tthe,\nmatter toa  court combined with an attempt to  satisfy\tthe\npublic\tneed  and desire to discover what  had\treally\tgone\nwrong and how and where, if possible. [53 G-H]\n8.There\t is  no force in the  contention  that\tMinisters\nanswerable to the Legislature are governed by a separate law\nwhich exempted them from liabilities under the ordinary law.\nArticles 194 and 105 which deal with powers, privileges\t and\nimmunities  of\teach House as well as its  Members,  do\t not\napply  to legislative powers of Parliament or of  the  State\nLegislatures.\tThe powers\" meant to be indicated  in  these\nArticles  are powers which depend upon or are necessary\t for\nthe conduct of business of each House. [57 B-C]\n9(a)  The Constitution could not mention and  exhaust  every\nconceivable topic of legislation and it is precisely to meet\nsuch  a\t situation  that Art. 248, read with  Entry  97\t was\ninserted.  Therefore, Art. 248 read with Entry 97 of List  I\nwill fully cover s. 3 of the Act even if Entry 94 of List  I\ndoes  not.   The  term 'constitutional law  can\t be  neither\nclearly\t nor exhaustively defined.  A Constitution could  be\nexpected to contain only the basic frame-work., It is not  a\npart  of its nature to exhaustively deal with  all  matters.\nIt is well accepted that nit all constitutional law need  be\nwritten.  There can be no clear-cut distinction between what\ncould  or  should  and\twhat could  not\t or  should  not  be\ncomprehended within the body of rules called  constitutional\nlaw.   In  practice,,  what is embodied even  in  a  written\nconstitution depends sometimes on the peculiar notions of  a\npeople.\t  It reflects their views about what should be\tcon-\nsidered\t so basic or fundamental as to find a place  in\t the\nconstitutional\tdocument.   To\texpect the  content  of\t the\nConstitution  to be so all-embracing as to deal\t with  every\nconceivable topic of legislation exhaustively so as to leave\nno room for doubt is to expect the humanly impracticable, if\nnot  the impossible.  The most that could be  expected\tfrom\nthe  human  foresight of Constitution-makers  is  that\tthey\nshould\tProvide for the residual power of legislation  which\ncould\tcover\ttopics\t on  which   Parliament\t  or   State\nlegislatures could legislate even though the legislation may\nnot  be\t easily assignable to any specific  entry.   Such  a\nprovision  our Constitution-makers did make. [61 H; 59\tG-H;\n61 B-C; D-E]\n(b)The\tterm 'inquires' as used in Entry 94 of List I  and\nEntry  45  of  List III, without any  limitations,  is\twide\nenough to embrace every kind of inquiry, whether a  criminal\noffence\t by  any one is disclosed or not by  facts  alleged.\nEntry  45  in  List  III  must\tinclude\t inquires  to  cover\nallegations against all persons which bring them within\t the\nsphere of Entry I of List III relating to criminal law.\t All\nthat \"inquires\" covered by Entry 45 require is that they\n6\nmust be \"for the purpose of any of the matters specified  in\nList  II or List III\". The language used........ any of\t the\nmatters\t specified. .  \" is broad enough to  cover  anything\nreasonably  related to any of the enumerated items  even  if\ndone by holders of ministerial offices in the States.  Other\nsubjects  will\tbe  found in List II.\tEven  assuming\tthat\nneither Entry 94 List I nor Entry 45 of List III would cover\ninquires  against Ministers in the States, relating to\tacts\nconnected  with\t the exercise of ministerial  powers.\tArt.\n248, read with Entry 97 of List I, must necessarily cover an\ninquiry\t against Ministers on matters of public\t importance,\nwhether\t the allegations include violations of criminal\t law\nor not.\t A contrary view would have the wholly\tunacceptable\nconsequence  of\t placing  Ministers  in\t State\t Governments\npractically above the law. [63 C-E]\n(c)Since the powers conferred by s. 3 upon the Central and\nState\tGovernments,  including\t the  power   to   institute\ninquiries  of  the  kind  set  up  under  each\tof  the\t two\nNotifications,\tare  covered by the  express  constitutional\nprovisions,   no  question  of\tany  exclusion,\t either\t  by\nnecessary implication or by any principle, supposed to\tform\na  part\t of  or\t to flow from the  basic  structure  of\t the\nConstitution, can rise here.  Nor is it possible to so\tread\ndown  and interpret s. 3 of the Act as to exclude  from\t its\npurview\t inquiries  of\tthe kind instituted  under  the\t two\nnotifications.\t To do so would be to give an  incentive  to\npossible misuse and perversion of governmental machinery and\npowers for objects not warranted by law.  Such powers  carry\nconstitutional\tobligations  with  them.   They\t are  to  be\nexercised  like the powers and obligations of  trustees\t who\nmust not deviate from the purposes of their trusts.  Whether\na  Minister has or his not abused his powers and  privileges\ncould be best determined by fair and honest people  anywhere\nonly after a just and impartial inquiry has taken place into\ncomplaints  made against him so that its results  as  before\nthem. [64 A-C]\n(d)  There  is\tno  room for applying  the  rule  Expression\nUnion.v Est Exclusion Alterius to exclude what falls  within\nin   expressly\tprovided  legislative  entry.\tBefore\t the\nprinciple  can\tbe applied at all, the Court  must  find  an\nexpress\t mode  of  doing something that\t is  provided  in  a\nstatute\t which, by its necessary implication, could  exclude\ndoing  of  that very thing and not something  else  in\tsome\nother  way.   Far  from\t this  being  the  case\t here,\t the\nconstitution-makers   intended\tto  cover  the\t making\t  of\nprovisions  by Parliament for inquiries for various  objects\nwhich,\tmay  be\t matters of public  importance\twithout\t any\nindications of any other limits except that they must relate\nto subjects found in the List. [64 H]\nColquhoun v. Brooks, [1888] Q.B.D 52 @ 65 referred to.\n(e)The proposition that what is not specifically mentioned\nin the Constitutionmust\t  be  deemed  to  be   deliberately\nexcluded from its purview so that nothingshort\t of    a\nconstitutional amendment could authorise legislation upon it\nis  really  to invent a \"Casus Omissus\" so as to  apply\t the\nrule  that, where there is such a gap in the law, the  Court\ncannot\tfill it.  The rule, however, is equally\t clear\tthat\nthe  Court  cannot so interpret a statute as  to  produce  a\ncasus\tomissus\t where\tthere  is  really  none.    If\t the\nConstitution itself provides for legislation to fill what is\nsought\tto be construed as a lacuna, legislation seeking  to\ndo  this cannot be held to be void because it  performs\t its\nintended  function by an exercise of an expressly  conferred\nlegislative   power.   In  declaring  the  purpose  of\t the\nprovisions  so made and the authority for making it,  Courts\ndo  not supply an omission or fill up a gap at all.   It  is\nParliament which can do so and his done it. [65 A-B]\nThe Mersey Docks and Harbour Board v. V. Henderson Brothers,\n[1888] 13 A.C. 595 @ 602 referred to.\n10(a)  The  written Constitution by its very nature  as\t the\nembodiment  of\tthe 'fundamental law of the  land  makes  it\nimperative for Courts to determine the meaning of its  parts\nin keeping with its broad and basic purposes and objectives.\nIt  must be read as a whole, and construed in  keeping\twith\nits  declared  objects\tand  its  functions.   Although\t the\nCourts, acting in exercise of judicial power. may supplement\nthose  parts where the letter of the Constitution is  silent\nor  may\t leave room for its development by  either  ordinary\nlegislation\n7\n or judicial interpretation, they cannot nullify, defeat, or\ndistort\t the  reasonably clear Meaning of any  part  of\t the\nConstitution in Order to give expression to some theories of\ntheir\town  about  the\t broad\t'or  basic  scheme  of\t the\nConstitution.\tThis  must  be done with  reference  to\t the\nexpress provisions of the Constitution.\t The dubiousness  of\nexpressions  used  may be cured by Courts  by  making  their\nmeanings  clear and definite, if necessary, in the light  of\nthe  broad and basic purposes set before themselves  by\t the\nConstitution-makers.   The power of judicial  interpretation\ncannot extend to laying down what is in direct conflict with\nexpress\t provisions  of the Constitution.- Nor\tcan  express\nprovisions be curtailed by importing limits based on a\tmere\ntheory of limitations on legislative powers. [66 C-G]\n(b)  In\t the matter of interpretation of. the  Constitution,\nin a long line of decisions, this Court has held that  where\ntwo constructions are possible, the Court should adopt\tthat\nwhich  will implement and discard that which will  ,stultify\nthe apparent intentions of the Constitution-makers, that the\nCourt  should adopt a construction which  harmonizes  rather\nthan  one which produces a conflict between its\t provisions,\nthe  construction  which will ensure smooth  and  harmonious\nworking of the Constitution and eschew the other which\twill\nlead to absurdity or give rise to practical inconvenience or\nmake well-established\t provisions of existing law nugatory\nthat the plenitude of power to legislate,    indicated by  a\nlegislative  entry has to be  given as wide and\t liberal  an\ninterpretation as is reasonably possible. If  a subject does\nnot fall within a   specifically  demarcated field found  in\nList II or List III, it would fall in List I,\t  apparently\nbecause of the amplitude of the residuary field indicated by\nEntry 97, List I. Legislative entries only denote fields  of\noperation  of legislative power which is actually  conferred\nby one of the articles of the Constitution.  This Court\t has\nalso rejected argument that the wide range given to Entry 97\nof  List  I, read with Art. 248 of the\tConstitution,  would\ndestroy\t the  federal  structure of  our  Republic.   On  an\napplication  of\t a  similar test, the powers  given  to\t the\nCentral Government by s. 3 of the Act, could not be held  to\nbe  invalid on the ground that the federal structure of\t the\nState is jeopardized. [68 C; E; 69 C; 70 B & D]\nA.   K.\t Gopalan v. State  of Madras<\/a> [1950] SCR 88 & 119  to\n120.  ,State of Bihar v. Kameshwar Singh,<\/a> [1952] SCR  889  &\n980-81, I. C. Golaknath v. State of Punjab [1967] 2 SCR\t 762\n@  791, K K. Kochuni v. State of Madras & Kerala,<\/a>  [1960]  3\nSCR 887 & 905, Mohd.  Hanif v. State of Bihar\t  [1959] SCR\n629  @ 648, State of M.P. v. Ranojirao Shinde,<\/a> [1963] 3\t SCR\n489,  Prem  Chand Garg v.  Excise  Commissioner,  U.P.<\/a>[1963]\nsuppl.1 SCR    885  @  911  Devadasan  v.  Union  of  India,<\/a>\n[19647] 4 SCR 680 @ 695 Keshvananda\tBharati\t  v.   State\nof  Kerala,  [1973] 4 SCC 225 @ 426, (=1973 Suppl.1  SCR  1)\nSakal  Papers (P) Ltd. v. Union of India.<\/a> [1962] 3  SCR\t 842\nJagannath Baksh\t    Singh v. State of U.P.,<\/a> [1963] 1 SCR 220\n@ 228-229 and Union of India v. R. S. Dhillon,<\/a> [1972] 2\t SCR\n33 referred to.\n(c)  Whenever  the  doctrine  of basic\tstructure  has\tbeen\nexpounded   or\tapplied\t it  is\t only  as  a   doctrine\t  of\ninterpretation of the Constitution as it actually exists and\nnot of a Constitution which could exist only subjectively in\nthe  minds of different individuals as mere  theories  about\nwhat  the Constitution is.  The doctrine did not add to\t the\ncontents of the Constitution.  It did not, in theory, deduct\nanything  from what was there.\tIt only\t purported_to  bring\nout  and explain the meaning of what was already there.\t  It\nwas,  in fact, used by ill the Judges for this purpose\twith\ndiffering  results  simply  because  their  assessments\t  or\ninferences as to what was part of the basic structure in the\nConstitution  differed.\t This is the correct  interpretation\nof the doctrine of the basic structure of the  Constitution.\nIt should only be applied if it is clear, beyond the  region\nof  doubt,  that what is put forward as a  restriction\tupon\notherwise clear and plenary legislative power is there as  a\nConstitutional imperative. [ 86 G-H]\n(d)  If this is the correct view about the basic  structure,\nas  a  mode of interpreting the Constitution  only,  the  so\ncalled federalism as a fetter on legislative power must find\nexpression  in\tsome express provision to be  recognised  by\nCourts.\t  A  majority of Judges who decided  the  Keshvanand\nBharati's case have not treated \"federalism\" as part of\t the\nbasic  structure  of the Constitution and none of  them\t has\ndiscussed  the extent of the \"federal\" part of\tthis  struc-\nture.\tIt  is\tnot  enough  to point  out  Art.  1  of\t the\nConstitution-to emphasise that\n8\nour  Republic is a \"Union\" of States.  The word \"Union\"\t was\nused in the context of the peculiar character of our federal\nRepublic  revealed  by its express provisions.\tOne  has  to\nfind  from other express provisions what this 'Union'  means\nor  what is the extent or nature of \"federalism\" implied  by\nit.    The  Constitution  itself  does\tnot  use  the\tword\n\"federation\"  at  all.\tIt is not possible to  discover\t any\nsuch  fetter  which  could.,  by  a  necessary\timplication,\nprevent Parliament from enacting s. 3 of the Act. [87 B-D]\nPer Chandrachud, J.\nThe preliminary objection to the maintainability of the suit\nought  to be rejected.\tThe proceeding brought by the  State\nof   Karnataka\tis  maintainable  under\t Art.  131  of\t the\nConstitution. [100 C]\n(a)  The jurisdiction conferred on the Supreme Court by Art.\n131 of the Constitution should not be tested on the anvil of\nrules  which are applied under the Code of  Civil  Procedure\nfor   determining  whether  a  suit  is\t  maintainable.\t   A\nconstitutional\t  provision    which\tconfers\t   exclusive\njurisdiction  on  this\tCourt to  entertain  disputes  of  a\ncertain nature in the exercise of its original jurisdiction,\ncannot be equated  with a provision conferring a right on  a\ncivil court to entertain a    common suit so as to apply  to\nan original proceeding under Art. 131 the canons  of a\tsuit\nwhich  is ordinarily triable under s. 15 of the C.P.C. by  a\ncourt of  the  lowest  grade  competent\t to  try  it.\t The\nConstitution does not describe a   proceeding under Art. 131\nas  a suit but uses words and phrases commonly employed\t for\ndetermining the jurisdiction of a court of first instance to\nentertain  and try a suit.  It does not speak of a cause  of\naction;\t instead it employs the word \"dispute\".\t Above\tall,\nArt. 131 is a self-contained code on matters falling  within\nits  purview.\tBy the very terms of the Article,  the\tsole\ncondition required to be satisfied for invoking the original\njurisdiction  of this Court is that the dispute between\t the\nparties\t referred  to in clauses (a) to (c) must  involve  a\nquestion  on which the existence or extent of a legal  right\ndepends. [97 E-H]\n(b)  The quintessence of Art. 131 is that there has to be  a\ndispute\t between the parties regarding a question  on  which\nthe  existence\tor  extent  of a  legal\t right\tdepends.   A\nchallenge  by the State Government to the authority  of\t the\nCentral\t Government  to\t appoint  a  Commission\t of  Inquiry\nclearly involves a question on which the existence or extent\nof the legal right of the Central Government to appoint\t the\nCommission of Inquiry depends and that is enough to  sustain\nthe  proceeding brought by the State under Art. 131  of\t the\nConstitution.\tThe Constitution has purposefully  conferred\non  this  Court\t a jurisdiction\t which\tis  untrammelled  by\nconsiderations\twhich fetter the jurisdiction of a court  of\nfirst  instance which entertains and tries suits of a  civil\nnature.\t  The very nature of the dispute arising under\tArt.\n131 is different both in form and substance from the  nature\nof claims which require adjudication in ordinary suits.\t [98\nB-D]\n(c)  Part XI of the Constitution is devoted specially to the\ndelineation  of relations between the Union and the  States.\nThe  object  of\t Art.  131 is  to  provide  a  high  powered\nmachinery  for ensuring that the Central Government and\t the\nState Governments act within the respective spheres of their\nauthority   and\t  do   not  trespass   upon   each   other's\nconstitutional functions or powers, Therefore, a,  challenge\nto the constitutional capacity of the defendant to act in an\nintended manner is enough to attract the application of Art.\n131  particularly  when\t the  plaintiff\t claims\t that  right\n\"exclusively for itself. [98 F-G]\n(d)  A\tproceeding under Art. 131 stands in  sharp  contrast\nwith  an  ordinary civil suit.\tWhile in an  ordinary  civil\nsuit  rejection of a right asserted by the defendant  cannot\ncorrespondingly\t and  of its own force establish  the  right\nclaimed\t by  the plaintiff, proceedings under Art.  131\t are\nadjudicatory of the limits of constitutional power vested in\nthe  Central or the State Governments.\tIn a civil suit\t the\nplaintiff  has to succeed on the strength of his own  title;\nthe  competition in a proceeding under Art. 131\t is  between\ntwo  or more Governments.  There is no third alternative  as\nin  a civil suit wherein the right claimed by the  plaintiff\nmay  reside  neither in him nor in the defendant  but  In  a\nstranger.   A demarcation and definition  of  constitutional\npower between the\n9\nrival  claimants  and restricted to them and them  alone  is\nwhat a proceeding under Art. 131 necessarily involves. [98 H\nJUDGMENT:\n<\/pre>\n
(e)  There is no force in the defendant’s contention that if
\na  State Government challenges the constitutional rights  of
\nthe  Central  Government  to take  a  particular  course  of
\naction, Art. 131 will not be attracted.\t The contention\t ,of
\nthe State Government is not only that the Central Government
\nhas no power to appoint\t the\tInquiry\t   Commission\t for
\nenquiring into the conduct of State Ministers\t  but\tthat
\nsuch  right is exclusively vested in the  State\t Government.
\nThere is, therefore, not only a denial of the right  claimed
\nby  the Central Government but an assertion that  the  right
\nexclusively resides in the State Government. [99 D-E]
\nState of Rajasthan v. Union of India A.I.R.<\/a> 1977 S.C.I.\t 361
\nreferred to.\n<\/p>\n
(f)  A\twrit  under Art. 226 is hardly a  substitute  for  a
\nproceeding  under Art. 131.  A dispute between one  or\tmore
\nStates or between the Government of India and a State on the
\none  hand  and another State or other States on\t the  other,
\ncannot\tproperly be decided by a High Court under Art.\t226.
\nMore,over,  disputes  of the nature described  in  Art.\t 131
\nbeing usually of an urgent nature should be decided by\tthis
\nCourt  to  obviate dilatoriness of a possible  appeal.\t The
\noriginal  proceeding  is decided once and for  all  by\tthis
\nCourt. [100 A_B]\n<\/p>\n
2.   The  notification issued by the Central  Government  is
\nwithin the scope of s.\t 3(1) of the Act.  The objection  of
\nthe State Government that it offends against cl. (b) of\t the
\nproviso\t to  s. 3(1) of the Act is factually  unfounded\t and
\ntheoretically unsound. [114 F; 101 H]\n<\/p>\n
(a)  It is wrong to contend that the Central Government\t has
\nappointed  the\tCommission  of Inquiry for  the\t purpose  of
\ninquiring into the same matter into which the Commission  of
\nInquiry\t appointed  by the State Government is\tdirected  to
\ninquire. [101 E]\n<\/p>\n
(b)  Considering  the terms of the notifications  issued  by
\nthe  State  Government and the Central\tGovernment  and\t the
\nmatters\t into which the respective Commissions are  directed
\nto inquire, it is obvious that the object and purpose of the
\ntwo inquiries is basically different.  The primary object of
\nthe  State  Government in appointing the  commission  is  to
\nascertain whether improper or excessive payments were  made,
\nundue  favours\twere  shown,  irregularities  or  fraud\t had
\noccurred  in  the  conduct of  official\t business  etc;\t and
\nsecondly to find out as to who are ‘the persons\t responsible
\nfor the lapses, if any, regarding the aforesaid and to\twhat
\nextent”.  On the other hand, the Commission appointed by the
\nCentral\t Government  is\t specifically  directed\t to  inquire
\n“whether  the  Chief  Minister\tpracticed  favouritism\t and
\nnepotism”  in  regard to various matters  mentioned  in\t the
\nnotification. (100 G; 101 D-E]\n<\/p>\n
(c)  Moreover,\tit  is hardly ever possible that  the  State
\nGovernment will appoint a Commission to inquire into acts of
\ncorruption,  favouritism  and nepotism on the  part  of\t its
\nChief Minister. [101 G]
\n3(a)  On  a  plain  reading of s. 3(1) of  the\tAct,  it  is
\nimpossible  to bold that the section cannot be construed  as
\nauthorising  the Central Government to appoint a  Commission
\nof Inquiry for the purpose of inquiring into the conduct  of
\na sitting Minister of a State Government. [102 B]\n<\/p>\n
(b)  Section  3(1)  cannot be given  a\trestricted  meaning.
\nThere is no justification for reading down the provisions of
\nthe section to limit the power of the ‘Central Government to
\nappointing  a Commission of Inquiry for inquiring  into\t the
\nconduct\t of  persons in relation to matters  concerning\t the
\naffairs of the Union Government only.  The section  empowers
\nthe Central Government to appoint a Commission for making an
\ninquiry\t into any definite matter of public importance.\t  It
\nis inarguable that the conduct of Ministers of State Govern-
\nments in the purported discharge of their official functions
\nis not a definite matter of public importance.\tFurther,  it
\ncannot\tbe  said that the Central Government does  not\teven
\npossess the power to collect facts in regard to
\n10<\/span>
\nallegations  of\t corruption made by a section of  the  State
\nLegislature   against\tsitting\t Ministers  of\t the   State
\nGovernment. [102 E-F]\n<\/p>\n
(c)  The  argument  that  s. 3(1) will\toffend\tagainst\t the
\nprinciple   of\tcollective  responsibility  unless   it\t  is
\nconstrued  narrowly is without substance.  Whatever may\t the
\nfindings  of  the  Commission of  Inquiry,  the\t Council  of
\nMinisters whether at the Centre or in the States,  continues
\nto be collectively answerable or accountable to the House of
\nthe  People  or\t the  ‘Legislative  Assembly.\tNeither\t the
\nappointment of the Commission nor even the rejection by\t the
\nCommission  of all or any of the allegations referred to  it
\nfor its inquiry would make the Council of Ministers any\t the
\nless  answerable  to those bodies.  The object\tof  Articles
\n75(3) and 164(2) of the Constitution is to provide that\t for
\nevery  decision\t taken\tby  the\t Cabinet  each\tone  of\t the
\nMinister-  is responsible to the Legislature concerned.\t  It
\nis difficult to accept that for acts of corruption, nepotism
\nor  favouritism\t which\tare alleged by\tmembers\t against  an
\nindividual Minister, the entire Council of Ministers can  be
\nheld  collectively  responsible to the Legislature.   If  an
\nindividual  Minister  uses  his office\tas  an\toccasion  or
\npretense  for  committing acts of corruption,  he  would  be
\npersonally answerable for his unlawful acts and no  question
\nof collective responsibility of the Council of Ministers can
\narise in such a case. [105 C; 103 F-H]\n<\/p>\n
(d)  The essence of collective responsibility of the Council
\nof  Ministers  is  that the Cabinet is\tresponsible  to\t the
\nLegislature for every action taken in any of the ministries.
\nIn  other words the principle of  collective  responsibility
\ngoverns\t only  those acts which a Minister performs  or\t can
\nreasonably be said to have performed in the lawful discharge
\nof his official functions. [104, B]
\nA.   Sanjeevi Naidu etc. v. State of Madras & Anr., [1970] 3
\nSCR 505, 512 referred to.\n<\/p>\n
(e)  In\t  the  absence\tof  a  specific\t provision  in\t the
\nConstitution  the  conduct of a member\tof  the\t Legislature
\nshall  be  inquired  into by the  Legislature  only,  it  is
\nimpossible  to hold that the appointment of a Commission  of
\nInquiry\t under\tthe Act constitutes  interference  with\t the
\nprivileges of the Legislature.\tEnglish precedents  relating
\nto the privileges of the House of Commons which are relevant
\nunder Art. 194(3) do not support the States contention. [105
\nD]\n<\/p>\n
(f)  The  power\t conferred  by\tParliament  on\tthe  Central
\nGovernment to a Commission of Inquiry under s. 3 (1 ) of the
\nAct  for  the purpose of facts in regard to  allegations  of
\ncorruption, favouritism and nepotism against a sitting Chief
\nMinister  or Ministers cannot be held to  constitute  inter-
\nference with the executive functions of the State Government
\nor  that it confers on the Central Government the  power  to
\ncontrol the functions of the State executive. [109 F-G]\n<\/p>\n
(g)  An examination of the provisions and scheme of the\t Act
\nshows that a Commission appointed under the Act is purely  a
\nfact finding body with no power to pronounce a binding or  a
\ndefinitive  judgment.  The larger interest of the  community
\nrequires that sensitive matters of public importance  should
\nbe enquired into by a high-powered Commission whose findings
\ncan  command the  confidence of the people.  If, on  receipt
\nof  the report, the Central Government decides to  take\t any
\naction\tthe validity thereof may have to be decided  in\t the
\nlight  of  the constitutional provisions.  But,\t until\tthat
\nstage  arrives,\t it is difficult to hold  that\tthe  Central
\nGovernment   is\t exercising  any  control   or\t supervisory
\njurisdiction over the executive functions of the State.\t 108
\nB-C]\n<\/p>\n
(h)  The impugned Act cannot be held to suffer from want  of
\nlegislative competence in the Parliament to enact it.  Entry
\n94 of List I, Entry 45 of List III and failing these,  Entry
\n97 of List I must sustain the Act. [112 B]\n<\/p>\n
(i)  In\t Shri  Ram  Krishna Dalmia v.  Shri  Justice  S.  R.
\nTendolkar and others<\/a> this Court held that Parliament had the
\nlegislative  competence\t to pass the law under Entry  94  of
\nList  I\t and Entry 45 of List III of the  Seventh  Schedule.
\nThe  word “Inquiries” occurring in the two Entries  must  be
\nheld  to  cover\t the  power to\tpaw  an\t Act  providing\t for
\nappointment of Commissions of Inquiry.\tSince
\n11<\/span>
\nthe  power  to\tappoint a Commission  of  Inquiry  into\t the
\nconduct\t of sitting Ministers of State Governments does\t not
\noffend against the principle of collective responsibility or
\nagainst\t the  privileges of the Legislative  Assembly,\tand,
\nsince it does not also confer on the Central Government\t the
\npower  of  control over the State executive,  the  provision
\nmust  be  held to be a valid exercise  of  the\tlegislative,
\ncompetence of the Parliament. [111 B-C]
\nShri  Ram Krishna Dalmia v. Shri Justice S. R.\tTendolkar  &
\nOthers,<\/a> [1959] SCR 279, 293 approved.\n<\/p>\n
M.   V. Rajwade v. Dr. S. M. Hassan & Ors., AIR 1954 Nag. 71
\nand  Brajnandan Sinha v. Jyoti Narain,<\/a> [1955] SCR  955,\t 975
\nreferred to.\n<\/p>\n
(j)  Entry 97 is in the nature of a residuary entry and\t the
\nwords  “any  other matter” which appear therein,  mean\t“any
\nmatter other than those enumerated in List I”.\tIf entry 94,
\nList  I\t does  not cover the Act, inquiries  of\t the  nature
\ncontemplated  by  the Act will fall within  the\t description
\n“any other matter” occurring in entry 97 of List I. If entry
\n45  of List III and ‘,he whole of the State List are  to  be
\nkept out of consideration, the Act will relate to “a  matter
\nnot enumerated in List II or List III [11 G]\n<\/p>\n
(k)  The   contention\tthat  by  empowering   the   Central
\nGovernment  to appoint a Commission for inquiring  into\t the
\nconduct\t of the sitting Ministers of the  State\t Government,
\nParliament has legislated, on the Centre-State\trelationship
\nwhich  is  a constitutional subject, is without\t any  force.
\nThe Act merely empowers the Central Government to appoint  a
\nCommission  of Inquiry for collecting facts with a  view  to
\ninforming  its own mind and the report of the Commission  is
\nnot binding on any one.\t If a law is within the\t legislative
\ncompetence  of the legislature, it cannot be invalidated  on
\nthe  supposed ground that it has added something to, or\t has
\nsupplemented,  a  constitutional provision so  long  as\t the
\naddition  or  supplementation is not inconsistent  with\t any
\nprovision of the Constitution. [113 A; 112 F-G; 114 C-D]
\n(1)  Not  only\tthat the pith and substance of\tthe  Act  is
\n“inquiries”  but it does not even incidentally\tencroach  or
\ntrespass upon the constitutional field occupied by Part\t XI.
\nIf  it\tdoes not touch the subject  matter  of\tCentre-State
\nrelationship, there is no question of its impinging\tupon
\na  subject  dealt with by the Constitution.   Even  assuming
\nthat   legislation   on\t the  question\t of   Centre   State
\nrelationship is impliedly barred, the impugned Act does\t not
\nfall within the vice of that rule and cannot, therefore,  be
\npronounced as unconstitutional. [113 H]
\nPer Bhagwati, J. concurring
\nThe  suit  filed under Art. 131 of the Constitution  by\t the
\nState\tof   Karnataka\tagainst\t the  Union  of\t  India\t  is
\nmaintainable. [122 B]\n<\/p>\n
1.   The    State    would   have   locus    to\t   challenge
\nunconstitutional exercise of power by the Central Government
\nwhich encroaches upon States exclusive sphere in relation to
\nthe  conduct  of  its Council of Ministers.   By  reason  of
\nprovision (a) to s. 3(1) of the Commissions of Inquiry\tAct,
\n1952, it could challenge the impugned action of the  Central
\nGovernment because it prevents the State from exercising its
\npower  to  direct  inquiry into\t matters  specified  in\t the
\nnotification issued by the Central Government. [121 H]\n<\/p>\n
2.   (a)  The  claim of the State that its  Legislature\t and
\nGovernment  alone  have\t power to  investigate\tand  control
\nmisuse of governmental power by the Chief Minister and other
\nMinisters  of the State and that Central Government  has  no
\npower to enquire into the same or to set up a Commission  of
\nInquiry for that purpose, clearly raises a dispute as to the
\nextent\tof  the power of the State and the  existence  of  a
\nsuperior  or co-ordinate power in the Central Government  to
\ninquire\t into  the conduct of the Chief Minister  and  other
\nMinisters   of\t the  State  in\t the  discharge\t  of   their
\ngovernmental functions.\t Such a dispute concerns the content
\nof the respective powers of the State and the Union of India
\nand  the inter se relationship between the two entities\t and
\nthe  State is vitally interested in it.\t The State  is\tvery
\nmuch  concerned\t whether  the  conduct\tof  its\t Council  of
\nMinisters in the discharge of governmental functions can  be
\nenquired
\n12<\/span>
\ninto  only  by\titself\tthrough its own\t agency\t or  can  be
\nsubjected  to  scrutiny by the Union of\t India.\t  The  State
\nwould  have  locus  to say that the Union has  no  right  to
\nencroach upon its exclusive power to investigate into misuse
\nof  governmental power by its Council of  Ministers.   Apart
\nfrom   the  Council  of\t Ministers,  the  State\t  can\talso
\ncompetently  make  a claim that the  Council  of  Ministers,
\nacting on its behalf, is immune from subjection to the power
\nof  the Central Government to enquire into their conduct  as
\nMinisters.  This immunity claimed in respect of- the Council
\nof Ministers can be ascribed to the State and the State\t can
\nraise  a  dispute  touching  upon  the\texistence  of\tthis
\nimmunity. [121 B-E]
\nAttorney-General for Victoria v. The Commonwealth, 71 C.L.R.
\n237  and Attorney-General for Victoria v. The  Commonwealth,
\n52 C.L.R. 533 referred to.\n<\/p>\n
(b)  The two limitations in regard to a dispute which can be
\nbrought before the Supreme Court under Art. 131 are  parties
\nand subject matter.  The object of the Article is that since
\nin a federal or quasi-federal structure disputes. may  arise
\nbetween\t the Government of India and one or more  States  or
\nbetween\t two or more States, a forum should be provided\t for
\nthe resolution of such disputes and that forum should be the
\nhighest\t court in the land.  Article 131 is  attracted\tonly
\nwhen the parties to the dispute are the Government of  India
\nor  one\t or  more  States  arrayed  on\teither\tside.\t The
\nlimitation  as to subject matter is contained in  the  words
\n“if  and  in  so far as the dispute  involves  any  question
\nwhether\t of law or fact on which the existence or extent  of
\nlegal  right depends” which indicates that the dispute\tmust
\nbe  one affecting the existence or extent of a\tlegal  right
\nand  not  a dispute on the political plane not\tinvolving  a
\nlegal aspect. [115 G-H]
\nState of Rajasthan v. Union of India, A.I.R.<\/a> 1977 S.C.\t1361
\nreferred to.\n<\/p>\n
(c)  There  are two fallacies in the argument based  on\t the
\ndistinction  between  State and State Government  :  one  in
\ndrawing\t a  rather rigid,  water-tight\tdistinction  between
\nState and State Government and the other in assuming that it
\nis only where the legal right of the plaintiff is  infringed
\nthat the suit can be maintained under Art. 131. (117 B-D]\n<\/p>\n
(d)  Although  theoretically  a distinction  exists  between
\nState and State Government (and this finds recognition in s.
\n3(58)  and  s.\t3(60)  of the  General\tClauses\t Act,  1897)
\nconstitutional\t authorities  have  pointed  out  that\t the
\ndistinction  is\t analogous  to that between  a\tgiven  human
\nindividual  as\ta  moral and  intellectual  person  and\t his
\nmaterial  physical body.  By the term ‘State’ is  understood
\nthe  political\tperson or entity which\tpossesses  the\tlaw-
\nmaking right and by the term ‘Government’ is understood\t the
\nagency\tthrough which the will of the State  is\t formulated,
\n“pressed  and  executed.  The Government thus  acts  as\t the
\nmachinery of the State and those who operate this  machinery
\nact  as the agents of the State. Again, the State itself  is
\nan ideal person, intangible, invisible and immutable and the
\nGovernment  is\tits agent.  If the State Government  is\t the
\nagent through which the State expresses its will, the  State
\ncannot be said to be unconcerned when any right or  capacity
\nor  lack  of it is attributed to the State  Government.\t  It
\nwould be wholly unrealistic to suggest that since the  State
\nGovernment  is\tdistinct  from\tthe  State,  any  action  or
\ncapacity  or  lack of it in the State Government  would\t not
\naffect\tthe State and the State would not be  interested  in
\nit.  To do this would be to ignore the integral relationship
\nbetween\t the  State and the State  Government.\t Any  action
\nwhich affects the State Government or the Ministers in their
\ncapacity  as  ministers would raise a matter  in  which\t the
\nState would be concerned. [117 D-H]\n<\/p>\n
(e)  When any right or capacity or lack of it is  attributed
\nto any institution or person acting on behalf of the  State,
\nit  raises  a  matter  in which the  State  is\tinvolved  or
\nconcerned.   The  State\t would,\t in  the  circumstances,  be
\naffected  or, at any rate, interested if the Chief  Minister
\nand other Ministers in their capacity as such that is in the
\nmatter\tof  discharge  of  their  official  functions,\t are
\nsubjected  to  unconstitutional\t exercise of  power  by\t the
\nCentral Government.  If the Central Government were to issue
\na  direction  to the Chief Minister and other  Ministers  to
\nexercise  the executive power of the State in  a  particular
\nmanner,\t the  State  would  be\tclearly\t affected  if\tsuch
\ndirection  is  unconstitutional\t and would  be\tentitled  to
\ncomplain against it. if
\n13<\/span>
\nthe  Central Government proceeds Without any  constitutional
\nauthority to enquire how the executive power of the State is
\nexercised  by  the Chief Minister and  other  Ministers\t and
\nwhether it is exercised in a proper manner, the State  would
\nclearly\t have  a  locus to  challenge  the  unconstitutional
\naction of the Central Government. [118 E-G]\n<\/p>\n
(f)  It\t is not a sine qua non of the applicability of\tArt.
\n131 that there should be infringement of some legal right of
\nthe  plaintiff\tbefore\tit can institute a  suit  under\t the
\nArticle.  What the Article requires is that the dispute must
\nbe one which involves a question “on which the existence  or
\nextent of legal right depends”.\t The legal right may be that
\nof the plaintiff or of the defendant.  In other words,\twhat
\nis  necessary is that the existence or extent of  the  legal
\nright  must be in issue in the dispute between the  parties.
\n[118 H]\n<\/p>\n
(g)  Article  131 does not lay down any particular  mode  of
\nproceeding   for  exercise  of\tthe  original\tjurisdiction
\nconferred   by\tit.   Although\tthe  Supreme   Court   Rules
\ncontemplate  that  the original jurisdiction  of  the  Court
\nunder this Article shall be invoked by means of a suit\tthat
\nis  not the requirement of the Article.\t While\tinterpreting
\nthe  Article  one  is perhaps  unconsciously  influenced  to
\nimport\tthe notion of cause of action which is germane in  a
\nsuit  and read this Article as limited only to\tcases  where
\nsome   legal  right  of\t the  plaintiff\t is  infringed\t and
\nconsequently it has a cause of action against the defendant.
\nBut  there is no reference to a suit or cause of  action  in
\nArt. 131.  That Article confers jurisdiction on the  Supreme
\nCourt  with reference to the character of the dispute  which
\nmay be brought before it for adjudication.  The\t requirement
\nof cause of action, which is so necessary in a suit,  cannot
\nbe  imported  while construing the scope and ambit  of\tArt.\n<\/p>\n
131. (115 E & 119 B-C]\n<\/p>\n
(h)  The  only\trequirement  necessary\tfor  attracting\t the
\napplicability  of Art. 131 is that the dispute must  be\t one
\ninvolving any question “on which the existence or extent  of
\na  legal  right” depends irrespective of whether  the  legal
\nright  is  claimed by one party or the other and it  is\t not
\nnecessary  that some legal right of the plaintiff should  be
\ninfringed  before a suit can be brought under that  Article.
\n[119 E-F]\n<\/p>\n
(i)  The word “right” is used in Art. 131 in a generic sense
\nand  not  according to its strict meaning.  A right  in\t its
\nnarrow sense constitutes the correlative of duty, but in its
\ngeneric\t sense includes not only right strict to  sense\t but
\n“any advantage or benefit conferred upon a person by a\trule
\nof law.” The word “right” has four different meanings :\t (i)
\nRight  stricto\tsensu; (ii) liberty, (iii) power;  and\t(iv)
\nimmunity.   In\tits  strict  sense  ‘right’  is\t defined  as
\ninterest  which the law protects by  imposing  corresponding
\nduty  (in others.  “Liberty” is exemption from the right  of
\nanother\t and  its  correlative is ” no\tright”;\t “power,  is
\nability\t to  change the legal relations of another  and\t its
\ncorrelative is liability.  “Immunity” is exemption from\t the
\nlegal  power of another and its correlative  is\t disability.
\n[119 H & 120 A]\n<\/p>\n
(i)  The  word\t‘right’ is used in Art. 131 in\tthe  generic
\nsense.\t If  the State claims to be  entitled  to  legislate
\nexclusively  on\t a particular Matter on the ground  that  it
\nfalls  within  List  II\t of  the  Seventh  Schedule  to\t the
\nConstitution and the Union of India questions this right  of
\nthe  State,  the dispute would be one relating, not  to\t any
\nright  of the State in the strict sense of the term. but  to
\nthe ‘liberty’ of the State to legislate on such matters\t and
\nit would come directly within the terms of Art. 131.  Even a
\ndispute\t relating  to  the power of the Union  of  India  to
\nabolish\t the legislative assembly of a State or to  dissolve
\nit  would  fall within the scope and ambit of  Article\t131.
\n[120 C-D]
\nState of  Rajasthan  v.\t Union of India,  A.I.R.<\/a>  1977\tS.C.
\n1361, Attorney-General for    Victoria v. The  Commonwealth.
\n71 C.L.R. 237 and Attorney-General for\tVictoria   v.\t The
\nCommonwealth, 52 C.L.R. 533 referred to.\n<\/p>\n
Untwalia, Shinghal and Jaswant Singh, JJ. (Dissenting)
\nThe suit is not maintainable. [126 D]
\n14<\/span>\n<\/p>\n
(a)  The State by itself is an ideal person, a legal entity,
\nunchangeable,  invisible and immutable.\t The  Government  is
\nthe   agency  through  which  the  will\t of  the  State\t  is
\nformulated, expressed and executed. [123 E]\n<\/p>\n
(b)  In\t relation to the existence of a dispute between\t the
\nUnion of India on the one hand and one or more States on the
\nother,\tthe  expression used in Art. 131 for the  former  is
\nGovernment of India signifying that the dispute may be\twith
\nthe  Government of India but the other party to the  dispute
\nmust  be  the  State only and not any  limb  of\t the  State,
\nnamely,\t the  executive, the legislature or  the  judiciary.
\nArticle\t 300  of  the Constitution  which  states  that\t the
\nGovernment of India may sue or be sued by the name of  Union
\nof India and the Government of a State may sue or be sued by
\nthe.  name of the State is only an enabling  provision.\t  An
\ninroad\tupon  the right of the Government  may,\t in  certain
\ncircumstances,\tbe  an inroad upon the legal  right  of\t the
\nState, and if there is any invasion on the legal right of  a
\nState the agency through which action will be commenced, may
\nbe  the\t Government  of\t the  State.   Article\t300   merely
\nprescribes the mode of describing a party to the suit.\t But
\nthe real answer to the maintainability of the suit is to  be
\nfound from Art. 131 itself. [123 F-G]\n<\/p>\n
(c)  Article  131  does not specifically state\twhose  legal
\nright  the question involved in the dispute must  relate  to
\nand in what respect.  To say that for the application of the
\nArticle\t it is sufficient that the plaintiff  questions\t the
\nlegal or constitutional right asserted by the defendant\t may
\nnot  be correct.  Ordinarily and generally in any  suit\t the
\ncompetition is between the legal right of the plaintiff\t and
\nthe defendant.\tBut primarily the plaintiff has to establish
\nhis  legal  right to succeed in the suit. if  the  defendant
\nestablishes  his  legal right, the suit\t fails.\t  If  either
\nparty fails to establish the legal right, yet the suit fails
\nbecause\t the plaintiff cannot succeed unless he\t establishes
\nhis legal right.  The expression “the existence or extent of
\na legal right used in Art. 131 is meant to bring about\tthis
\nresult.\t  It  was neither necessary nor advisable  to  state
\nfurther\t in  the Article that the dispute must\tinvolve\t any
\nquestion  on  which the legal right of\tthe  plaintiff\tmust
\ndepend. (124 B; E-F]\n<\/p>\n
(d)  It\t is well-established that a Minister is\t an  officer
\nsubordinate  to\t the Governor.\tThe enquiry set up  in\tthis
\ncase  is not against the State or the State Government,\t but
\nagainst the Chief Minister and other Ministers to whom it is
\nopen  to  move\tthe  High  Court  under\t Art.  226  of\t the
\nConstitution and the High Court would then have referred the
\nquestion of vires of the Act to the Supreme Court under Art.
\n131A.  But, that in no way entitles the State to invoke\t the
\noriginal  jurisdiction of the Supreme Court under Art.\t131.
\n[125 A-B]
\nState  of  Rajasthan & Ors. v. Union of India,\tA.I.R.<\/a>\t1977
\nS.C. 1361, King Emperor v. Sibnath Banerji & Ors., 72 Indian
\nAppeals,  241  and A. Sanjeevi Naidu etc. etc. v.  State  of
\nMadras and Anr., [1970] 3 S.C.R. 505 referred to.\n<\/p>\n
(e)  There is no force in the contention that it is only the
\nState  Government and not the Central Government  which\t has
\nthe  right  to\torder an enquiry under s. 3.  There  may  be
\ncompetition  between  the power of one\tauthority.  (Central
\nGovernment)  and another (State Government), but unless\t the
\npower  exercised  by one authority brings  about  a  dispute
\nimpinging  upon\t the  legal right of the  other\t party,\t the
\nlatter\tcannot\tcome  under Art. 131  and  say\tthat  merely
\nbecause it was within its power to do so, its legal right is
\naffected  by the illegal exercise of the power by the  other
\nparty.\tThe exercise of power must directly or by  necessary
\nimplication  affect  the  legal right of  the  other  party.
\nSuppose for example, if Parliament passes a law under  Entry
\n8 (intoxicating liquors) in List II and in pursuance of that
\nlaw, makes an order against a resident in a State, the order
\nis  bad as having been issued under an invalid law  made  by
\nParliament.   The State Government, in such a  case,  cannot
\nfile a suit under Art. 131 merely because the order had been
\nmade against its resident under a law which encroached\tupon
\nthe legislative field of the State.  In the instant case the
\nconcerned ministers can challenge the impugned\tnotification
\nbut the notification can in no way be said to have  affected
\nor restrained the State Government from giving effect to its
\nnotification. [125 B; D-G]
\n15<\/span>\n<\/p>\n
(f)  Moreover, if a restricted meaning were not to be  given
\nto  the scope of the suit which can be filed under Art.\t 131
\nvery anomalous results may follow.  Any action taken by\t the
\nCentral\t Government under the Act or otherwise\tagainst\t any
\ncitizen\t residing  in  or an officer of a  State,  could  be
\nchallenged  by institution of a suit under Art. 131  by\t the
\nState  on  the\tground\tthat  the  action  of  the   Central
\nGovernment  is ultra vires and without any legal  right.   A
\nMinister, being an officer of the State, the order affecting
\nhim  cannot confer a right of suit on the State\t under\tArt.\n<\/p>\n
131. [126 B-C]
\n(Concurring with the majority)
\n2(a)  There  is\t no  justification  for\t reading  down\t the
\nprovisions    of   the\t Act   nor   are   the\t  provisions
\nconstitutionally invalid on any account. [137 C]\n<\/p>\n
(b)  The  Indian Constitution is not federal  in  character,
\nbut has been characterised as quasi-federal in nature.\tEven
\nthough the executive and legislative functions of the Centre
\nand  States  have been defined and distributed,\t there\truns
\nthrough\t it all a thread or rein in the hands of the  Centre
\nin  both the fields.  Apart from the  exclusive\t legislative
\npower  of  the Centre and the States, both  have  concurrent
\npowers of legislation in regard to the entries of List\tIII.
\nThe  residuary\tpower lies with the  Parliament\t (Art.\t248,
\nEntry  97 of List I).  Parliament has a predominant hand  in
\nrespect\t of matters in the concurrent list (Art.  254).\t  In
\ncertain circumstances, Parliament has power to legislate  on
\nmatters in the State List (Articles 249, 250, 252 and  253).
\nArticle\t 256 provides, inter alia, that the executive  power
\nof  the Union shall extend to the giving of such  directions
\nto  a State as may appear to the Government of India  to  be
\nnecessary for that purpose.  There are also other  important
\nfeatures  which demonstrate the weak federal  structure\t and
\nthe  controlling  hand of the Centre over the  States.\t The
\nGovernor  is appointed by the President and holds office  at
\nhis  pleasure.\tHe reports to the Centre from time  to\ttime
\nabout the administration of the State.\tEntry 45 in List  II
\nempowers  the  Parliament  to legislate on  the\t subject  of
\ninquiries for the purpose of any of the matters specified in
\nList  II.  Parliament has power to admit into the Union,  or
\nestablish,  new States (Art. 2) and can make a law  for\t the
\nformation  of  new  States  and\t alteration  of\t areas\t and
\nboundaries if existing States (Art. 3). [128 A-D; 129 C-E]
\nState of West, Bengal v. Union of India<\/a> [1964] 1 S.C.R.\t 371
\nreferred to.\n<\/p>\n
(c)  The  law made under Entry 45 of List III can  cover  an
\ninquiry\t  in   matters\t like\tcorruption,   nepotism\t  or
\nmaladministration  in  any  executive action  of  the  State
\nGovernment.   Such  an enquiry neither interferes  with\t the
\nlegislative  power  of\tthe State  nor\twith  its  executive
\naction.\t An inquiry under the Act by a Commission  appointed
\nthereunder, which is a fact finding body, is for the purpose
\nof  finding the facts.\tIt cannot be said that a  Commission
\nappointed by the Central Government under the Act cannot  be
\nappointed  for finding facts in relation to the\t allegations
\nmade against a Minister of a State. [131 B-C]\n<\/p>\n
(d)  In\t an  enquiry  set  up under the\t Act,  there  is  no
\nprosecution,  no  framing  of a formal\tcharge,\t no  accused
\nbefore the Commission of Inquiry and there is no exercise of
\nany supervisory or disciplinary jurisdiction by the  Central
\nGovernment  against  the State Government nor is  there\t any
\nusurpation  of\tany executive function of  the\tState.\t The
\nCentre is concerned with and interested only in knowing\t and
\nascertaining facts as regards the allegations made against a
\nChief  Minister, Minister or any other officer of the  State
\nGovernment. [132 A-B; C]
\n(3)  It\t may be true to say that the Ministers of the  State
\nGovernment  are\t not under the disciplinary control  of\t the
\nCentral\t Government.   But  it\twould  be  incongruous\t and
\nanomalous to say that it is only the State Government  which
\nis  competent  to appoint a Commission\tof  Inquiry  against
\nitself\tor  its\t Ministers.   It  is  not  likely  that\t the
\nMinisters,   while  remaining  in  office,  would   set\t  up
\nCommissions  of\t Inquiry for enquiring\tinto  their  alleged
\nmisdeeds  even\tif it is assumed that this is  possible,  it
\ndoes  not  lead\t to  the  conclusion  that  their  power  is
\nexclusive  and excludes the power of the Central  Government
\nunder  the  Act.  There is nothing in  the  Constitution  to
\nindicate  that\tthe power of the State\tLegislature  or\t the
\nState Government is exclusive.\tIt may be co-extensive
\n16<\/span>
\nand  such a situation is postulated and provided for in\t the
\nproviso to s. 3(1) of the Act.\tThere is nothing in the\t Act
\nor the Constitution which excludes the power of the  Central
\nGovernment  to\tset up a Commission of Inquiry\tfor  finding
\nfacts  in  regard to the alleged  maladministration  of\t the
\nState.\t After\tascertaining the facts, further\t action\t may
\nfollow in accordance with the provisions of the Constitution
\nor  the\t law.\tThe Act does not provide  for  any  kind  of
\ndisciplinary action against a Minister. [132 F-H]
\n(4)  The  doctrine  of collective  responsibility  does\t not
\ngrant  immunity to the State Ministers from being  subjected
\nto  the\t provisions of the Commissions of Inquiry  Act.\t  In
\ntruth, it is little more than a political practice which  is
\ncommonplace  and  inevitable.  All that\t it  means  is\tthat
\nCabinet\t decisions bind all Cabinet Ministers even  if\tthey
\nargued\tin the opposite direction in the Cabinet,  and\tthat
\nthe team must not be weakened by some of its members  making
\nclear  in  public that they disapprove of  the\tGovernment’s
\npolicy.\t  It only means that the Council of  Ministers\twill
\nhave   to  stand  or  fall  together,  every  member   being
\nresponsible for the action of any other. [134 E]
\n“Representative and Responsible Government” by A. H. Birch.
\n“Government and Law” by T.C. Hertley and J. A. C. Griffith.
\nState of Jammu and Kashmir v. Bakshi Ghulam Mohammad,<\/a> [1966]
\nSuppl. S.C.R. 401 referred to.\n<\/p>\n
(5) The power granted to Parliament under Entry\t 45 of\tList
\nIII is clear and explicit for passing a law for inquiries in
\nregard\tto any of the matters in List II. That being so\t the
\npower\tcannot\tbe  curtail  by\t the  doctrine\tof   implied
\nprohibition.   The  doctrine  of  implied  prohibition\t was
\ndefinitely  rejected by Courts in England and Australia\t and
\nby  an\toverwhelming  majority of this\tCourt  in  Kesavanda
\nBharati’s  case.  The  only way in  which  the\tCourt  could
\ndetermine whether the prescribed limits of legislative power
\nhad  been exceeded or not is by looking to the terms of\t the
\ninstrument by which affirmatively the legislative power\t was
\ncreated and by which negatively they are restricted. [136E]
\nSmt.   Indira  Nehru  Gandhi v. Shri Rai  Narain,<\/a>  [1976]  2
\nS.C.R.\t347, Webb v. Outrim [1907] A.C. 81  The\t Amalgamated
\nSociety\t of  Engineers and The\tAdelaide  Steamship  Company
\nLimited\t and Others, 28 Commonwealth Law Reports, 129.\t The
\nState  of  Victoria and The Commonwealth of  Australia,\t 122
\nCommonwealth  Law Reports, 353 and His Holiness\t Kesavananda
\n‘Bharati  Sripadagalavaru v. State of Kerala, [1973]  Suppl.
\nS.C.R. 1 referred to.\n<\/p>\n
(6)  There is no substance in the argument that a commission
\nappointed by the Central Government to inquire into the same
\nmatter for which a commission had already been set up by the
\nState  Government  is violative of s. 3(1) (b) of  the\tAct.
\nThe notification of the State Government has not, in  terms,
\nappointed any commission for inquiring into the matter-,  of
\nalleged\t  corruption,\tnepotism,   favouritism\t  and\tmal-
\nadministration\tof the Chief Minister or any other  Minister
\nof the Government.  The items referred to for inquiry by the
\nState  Commission were “irregularities committed  or  excess
\npayments  made\tin certain matters  relating  to  contracts,
\ngrant of loan, allotment of sites, purchase IT of furniture,
\ndisposal  of foodgrains, etc.” In none of those clauses,  is
\nit  mentioned as to the person responsible for\tthe  alleged
\nirregularities or maladministration.  There is no  reference
\nto  any alleged misconduct, corruption or  maladministration
\nof  the Chief Minister or any other Minister.  In  contrast,
\nthe  terms  of reference in the notification issued  by\t the
\nCentre is to enquire into the specific matters enumerated in
\nAnnexure  I, one of which is covered by the notification  of
\nthe  State  Government.\t In regard to  specific\t matters  in
\nAnnexture II, there may be some common matters which are the
\nsubject-matter\tof enquiry by the State Government.  but  in
\nregard to matters in Annexure II, the notification in  clear
\nterms excludes any matter covered by the notification of the
\nState  Government.  The Commission appointed by the  Central
\nGovernment,  therefore, would he competent to  exclude\tsuch
\nmatters from the purview, of its enquiry. [137 E-F]
\n17<\/span>
\nPer Kailasam, J. (concurring)
\n1(a)  The  suit is maintainable.  When the exercise  of\t the
\nexecutive  functions  of the State through its\tofficers  is
\ninterfered with by the Central Government, it cannot be said
\nthat  the legal right of the State is not affected. [168  G;
\n167 Al\n<\/p>\n
(b)  The executive powers of the State will be exercised  by
\nthe  Governor with the aid and advice of the Chief  Minister
\nand other Ministers, The power is exercised either  directly
\nor  indirectly through officers subordinate to the  Governor
\nin  accordance\twith  the provisions  of  the  Constitution.
\nAccording  to  the impugned notification the  Commission  of
\nInquiry\t was appointed for the purpose of making an  inquiry
\ninto a definite matter of public importance, namely, charges
\nof  corruption, nepotism, favouritism and misuse of  govern-
\nmental power levelled against the Chief Minister and certain
\nother Ministers ,of the State.\tTherefore, the scope of\t the
\ninquiry-  would\t inevitably involve the functioning  of\t the
\nexecutive  of  the State.  The dispute in the  instant\tcase
\nrelates\t to the functioning of the State in exercise of\t the
\npowers\tconferred under the Constitution and so. the  States
\nlegal rights are affected. [166 D-F]
\nState  of  Rajasthan  v. Union of India\t AIR  1977  SC\t1361
\nreferred to.\n<\/p>\n
(c)  The  Government  of  India\t Act,  1858,  provided\tonly
\nabsolute imperial control without any popular  participation
\nin the administration. The Government of India Act 1919, for
\nthe  first time introduced dyarchy in the Provinces.   Under
\nthis Act the Provinces were delegates of the Centre and\t the
\nCentral\t legislature retained the power to legislate on\t any
\nsubject\t for  the whole of India.  The Government  of  India
\nAct, 1935 changed the unitary nature of the Government under
\nthe 1919 Act into a federal structure and made the Provinces
\nas  units.  The 1935 Act divided legislative powers  between
\nthe centre and the provinces; the Federal list comprising of
\nsubjects  over which the federal legislature  had  exclusive
\npowers\tof  legislation, the Provincial List  comprising  of
\nsubjects   over\t which\tthe  Provincial\t  legislatures\t had
\nexclusive jurisdiction and the Concurrent List comprising of
\nsubjects   over\t which\tboth  the  Federal  and\t  Provincial
\nlegislatures had power to make laws.  Under the Constitution
\nthe  States,  in several respects, are\tsubordinate  to\t the
\nCentral\t Government in that the formation of the  federation
\nwas not as a result of any treaty between the States and the
\nFederation.  There are various features of the\tConstitution
\nwhich  make it strictly not federal.  It has variously\tbeen
\ndescribed as quasifederal or federal in structure or federal
\nsystem\twith  a\t strong\t central bias.\t In  the  scheme  of
\ndistribution  of  powers between the Union and\tthe  States,
\nthere  is  a strong tilt in favour of the  Union.   For\t the
\npurpose\t of  settling disputes between the  Centre  and\t the
\nStates a machinery is also provided for in the ,Constitution
\nitself. [140 C; 141 C; 142]\n<\/p>\n
(d)  In determining what the respective powers of the Centre
\nand  the States are, one has to look into the  Constitution.
\nSince  the  States  are not the\t delegates  of\tthe  Central
\nGovernment  and\t the source of power both for the  Union  as
\nwell  as  the  States being  the  Constitution\titself,\t the
\nCentral Government cannot exercise any power over the States
\nwhich is not provided for in the Constitution.\tThere is  no
\noverriding power with the Union Government. [143 B]
\nAtiabari Tea Co. Ltd. v. The State of Assam & Ors.<\/a> [1961]  1
\nSCR 809, Automobile Transport (Rajasthan) Ltd. v. The  State
\nof  Rajasthan<\/a>  [1963] 1 SCR 491.  State of  West  Bengal  v.
\nUnion of India<\/a> [1964] 1 SCR 371 and Kesavanand Bharti [1973]
\nSapp.  S.C.R. I referred to.\n<\/p>\n
(e)  Under  Article  254(1)  when a law made  by  the  State
\nLegislature is In conflict with any provision of law made by
\nParliament  or\tto any provision of any\t existing  law\twith
\nrespect\t to one of the matters enumerated in the  Concurrent
\nList, then the law made by Parliament shall prevail and\t the
\nState law shall be void to the extent of repugnancy. [149 C]\n<\/p>\n
(f)  Before  declaring a law as repugnant an attempt  should
\nbe made to see whether\t the  conflict could be\t avoided  by
\nconstruction. [149 C]\n<\/p>\n
(g)  Article  248(1) and Entry. 97 in List I of the  Seventh
\nSchedule  make\tit clear that the residuary  power  is\twith
\nParliament and when a matter sought
\n18<\/span>
\nto  be\tlegislated  is not included in List II\tor  List  II
\nParliament  has\t power\tto make laws with  respect  to\tthat
\nmatter\tor  tax.  But the function of the Lists\t is  not  to
\nconfer\tpowers on the legislature; they only  demarcate\t the
\nlegislative  field.   Since  there is no  provision  in\t the
\nConstitution conferring on the Union the power to  supervise
\nthe  governmental  functions of the State reference  to\t the
\nLists will not solve, the problem raised in this case.\t[149
\nC-D]
\nThe  Governor General in Council v. The\t Raleigh  Investment
\nCo.  [1944]  F.C.R.  229, 261 and Union of India  v.  H.  S.
\nDhillon<\/a> [1972] 2 SCR 33 referred to.\n<\/p>\n
(b)  The well accepted basic principles of  construction  of
\nthe Constitution as laid down by decided cases are that when
\na  question arises whether the prescribed limit\t shave\tbeen
\nexceeded, the only way in which it can be done is by looking
\ninto the terms of the instrument by which affirmatively\t the
\nlegislative powers were\t created  and  by  which  negatively
\nthey  are restricted.  If what has been done is\t legislation
\nwithin the general scope of the affirmative words which give
\nthe  power,  and  if  it  violates  no\texpress\t conditioner
\nrestriction by which\t that  power is limited, it  is\t not
\nfor  any Court of justice to inquire further or\t to  enlarge
\nconstructively those conditions and restrictions.If the text
\nis  explicit  the  text is conclusive.\t When  the  text  is
\nambiguous, recourse must be had to the context and scheme of
\nthe  Act.  Yet another well-accepted aid to construction  is
\nthat   the  history  which  lies  behind  an  enactment\t  is
\nadmissible  because  to\t find out the meaning  of  the\tlaw,
\nrecourse  may legitimately be had to the prior state of\t the
\nlaw, the evil sought to be remedied and the process by which
\nthe law was evolved. [150 H; 151 A]\n<\/p>\n
(i)The\tgolden rule of interpretation that  in\tconstruing
\nwords  in a Constitution conferring legislative\t power,\t the
\nmost  liberal  construction should be put  upon\t the  words,
\nadmits\tof certain exceptions.\tIf it is found necessary  to
\nprevent\t conflict  between  two\t exclusive  jurisdictions  a
\nrestricted  meaning may be given to the words.\tFurther,  in
\ninterpreting  the words of a statute the main object  is  to
\nascertain  the intention expressed by the words\t used,\tthat
\nis, to ascertain “the intention of them that made it.”\t[154
\nF-G]
\nR.v.  Burah [1878] 3 A.C. 889 and Attorney-General  for\t the
\nProvince of Ontario and Others. v. Attorney-General for\t the
\nDominion  of Canada and Another [1912] A.C. 571 at 573,\t The
\nAmalgamated  Society of Engineers v. The Adelaide  Steamship
\nCompany\t Ltd.  & Ors. 28 C.L.R. 129, Webb v.  Outrim  [1907]
\nA.C.  81.  The\tState of Victoria v.  The  Common-Wealth  of
\nAustralia, 122 C.L.R. 353, Liyange v. R. [1967] A.C. 259 and
\nThe State of West Bengal v. Niripendra Nath Bagchi<\/a> [1966]  1
\nSCR 771 referred to.\n<\/p>\n
(j)Articles  256 and 257 list the obligations of the  States
\nand  the Union and control of the Union over the  States  in
\ncertain cases.\tArticle 257(A) (introduced by 42nd Amendment
\nof  the\t Constitution) empowers the Government of  India  to
\ndeploy any armed forces of the Union or any other force\t for
\ndealing\t with  any grave situation of law and order  in\t any
\nState.\t Except in cases referred to in these Articles,\t the
\nConstitution  does not provide for the Union  Government  to
\ngive any directions to the State Government.  As there is no
\nspecific  article  in the Constitution\tenabling  the  Union
\nGovernment  to\tcause  an  inquiry  into  the\tgovernmental
\nfunctions  of  the  State the power  cannot  be\t assumed  by
\nordinary   legislation\t but  resort  must  be\thad   to   a
\nconstitutional amendment. [152 C-D; F; H]\n<\/p>\n
(k)The\tConstitution  being the fundamental  law,  no  law
\npassed under mere legislative power can effect any change in
\nthe  Constitution unless there is an express power  to\tthat
\neffect given in he Constitution itself.\t There are a  number
\nof  articles  which expressly provide for amendment  of\t the
\nConstitution by law.  But where no power is conferred on the
\nParliament  to make laws, it cannot add to the\tConstitution
\nby ordinary law making process. [153 C]
\nI.C.  Golak Nath & Ors. v. State of Punjab & Anr.  [1967]  2
\nS.C.R. 762 referred to.\n<\/p>\n
(1) Entry 45 in List III (Enquiries…….. for the purposes
\nof  any\t of the matters specified in List II  or  List\tIII)
\nshould not be given a wide meaning as,
\n19<\/span>
\nconferring  on the Union and the State Government powers  to
\nenact  a provision to embark on an inquiry as to the  misuse
\nof the governmental powers by the other. [155 C-D]
\nRiver  Wear  Commissioners  v. Adamson [1877]  2  A.C.\t743,
\nR.M.D. Chamarbaugwalla v. The Union of India<\/a> [1957] SCR\t 930
\nand Bengal Immunity Co. Ltd. v. State of Bihar<\/a> [1955] 2\t SCR
\n603 referred to.\n<\/p>\n
(m)The\tpower conferred under Entry 45 List III cannot\tbe
\nconstrued in such a manner as to lead to the conclusion that
\nif a law enacted by Parliament empowers the Union Government
\nto  conduct  an\t inquiry into  the  misuse  of\tgovernmental
\nfunctions by a Minister of State Government, the State\twill
\nhave  the power to legislate empowering it to  enquire\tinto
\nthe  misuse  of\t governmental powers  by  a  Union  Minister
\nrelating  to  matters in List III.  Such  an  interpretation
\nwould not be conducive to the harmonious functioning of\t the
\nUnion and the States. [155 D-E]\n<\/p>\n
(n)The decisions on which the Union Government relied  for
\nthe  proposition that the words “definite matter  of  public
\nimportance”  would  embrace an inquiry into  the  misuse  of
\ngovernmental  functions\t of the State, do not  support\tthat
\ncontention. In\tM.  V. Rajwade v. Dr. S.  M.  Hassan  and
\nOthers the commission appointedwas  only a  fact-finding
\nbody meant to instruct the mind of the Government andthe
\nscope  of  the inquiry fell within s. 3 as it related  to  a
\ndefinite matter ofpublic  importance  and not  an  inquiry
\ninto  the  misuse  of  governmental  functions\tof  a  Chief
\nMinister or a State Minister.In Shri Ram     Krishna  Dalmia
\nv.  Shri  Justice S. R. Tendolkar and others<\/a>,, it  was\theld
\nthat  the  act and conduct of individuals  may\tassume\tsuch
\ndangerous  proportions as may well affect the  public  well-
\nbeing\tand  thus  become  a  definite\tmatter\t of   public
\nimportance.   But  neither  decision  concludes\t the   point
\narising\t in ‘this case, namely, whether the words  “definite
\nmatter\tof  public  importance” should be  construed  as  to
\ninclude the right to inquire into the abuse of\tgovernmental
\nfunctions by a State Government.  Again in State of Jammu  &
\nKashmir v. Bakshi Ghulam Mohammad<\/a> which is an authority\t for
\nthe  proposition that inquiry into the acts of a person\t who
\nhad  ceased  to\t be a Chief Minister may continue  to  be  a
\nmatter\tof  public importance it was held that\tthe  inquiry
\ninto the past acts which have affected the public well-being
\nwould be matters of public importance and it was  irrelevant
\nif the person who committed those acts was still in power to
\nbe able to repeat them. [158 A-H]
\nShri  Ram Krishna Dalmia v. Shri Justice S. R.\tTendolkar  &
\nOthers<\/a> [1959] SCR 279, State of Jammu and Kashmir v.  Bakshi
\nGhulam Mohammad,<\/a> [1966] Supp.  SCR 401 and M. V. Rajwade  v.
\nDr.  S.\t M.  Hassan  & Others I.L.R.  [1954]  Nag.   I\theld
\ninapplicable.\n<\/p>\n
(Dissenting)\n<\/p>\n
2.The impugned notification impinges on the right of  the
\nState  to function in its limited sphere and is\t beyond\t the
\npowers of the Central Government under s. 3 of the Act. [168
\nG]\n<\/p>\n
(a)If  s.  3 of the Commissions of Inquiry  Act,  1952\tis
\nconstrued  as  enabling the appointment of a  Commission  of
\nInquiry\t into the conduct of a Chief Minister in office,  it
\nwould result in empowering the Central Government which is a
\ndelegate  of  the Parliament to exercise  the  powers  which
\nwould  never have been contemplated by the Parliament.\t The
\nresult\tof such a construction would amount to inviting\t the
\nState Government to appoint Commissions of Inquiry into\t the
\nconduct\t of Central Ministers regarding matters in  List  II
\nand List III. [161 H]\n<\/p>\n
(b)Section 3(1) read with the proviso makes it clear  that
\nthe  intention\tof  the Act is\tto  enable  the\t appropriate
\nGovernments that is, the Central or the State Government  to
\nappoint a Commission of Inquiry for the purpose of making an
\ninquiry into any definite matter of public importance.\t The
\nCentral\t Government  can  appoint a Commission\tto  make  an
\ninquiry\t into  any matter relatable to any  of\tthe  Entries
\nenumerated  in\tList I, List II or List III of\tthe  Seventh
\nSchedule of the Constitution while the State Government\t can
\nappoint a Commission to inquire into any matter relatable to
\nany of the Entries enumerated in List II and List III of the
\nConstitution.  As both the Central Govern-\n<\/p>\n
20<\/span><\/p>\n
ment  and  the\tState Government have  power  to  appoint  a
\nCommission  of\tInquiry relating to Entries in List  II\t and
\nList  III  there  might arise occasions when  there  may  be
\noverlapping.  In order to avoid such a contingency  provisos\n<\/p>\n
(a)  and  (b)  to  s.  3(1)  enact  that  when\tthe  Central
\nGovernment has appointed a Commission of Inquiry, the  State
\nGovernment  shall not appoint another Commission of  Inquiry
\ninto  the  same matter without the approval of\tthe  Central
\nGovernment  so\tlong  as the  Commission  appointed  by\t the
\nCentral Government is functioning and the Central Government
\nshall  not appoint an,other Commission to inquire  into\t the
\nsame matter as long as the Commission appointed by the State
\nGovernment  is\tfunctioning.  These provisions are  for\t the
\npurpose\t of  avoiding any conflict by  the  two\t Governments
\nappointing two separate commissions to inquire into the same
\nmatter. [163 D-F-]\n<\/p>\n
(c)In the instant case the Court is not called upon to\tgo
\ninto  the two notifications and determine which item in\t the
\nnotification of the Central Government is not covered by the
\nState Government’s notification. [168 G]<\/p>\n
&
\nORIGINAL JURISDICTION : Original Suit No. 8 of 1977.
\nL.   N. Sinha, R. N. Byra Reddy, Adv.  Genl., S. C. Agarwal,
\nVinoo Bhagatand Narayan Metter, for the Plaintiff.
\nS.   N.\t Kacker, Solicitor General, Soli J. Sorabjee,  Add1.
\nSolicitor General, R. N. Sachthey, E. C. Agarwala and Girish
\nChandra, for Defendant No. 1.\n<\/p>\n
The following Judgments were delivered by
\nBEG, C.J.-“India, that is Bharat, shall be union of States’.
\nThe  very  first  mandate  of  the  first  article  of\t our
\nConstitution  to which we owe allegiance thus prohibits,  by
\nnecessary  implication,\t according to the plaintiff  in\t the
\noriginal  suit\tnow  before  us under  Article\t131  of\t the
\nConstitution  of India, any  constitutionally  unjustifiable
\ntrespass  by  the Union Government upon the  domain  of\t the
\npowers\tof  the\t States.   The\tState  of  Karnataka,\thas,
\ntherefore, sued for a declaration that it notification dated
\n23-5-1977   (hereinafter   referred  to\t as   ,rho   Central
\nNotification)  constituting  a\tCommission  of\tInquiry\t  in
\npurported  exercise  of its powers under Section  3  of\t the
\nCommissions of Inquiry Act, 1952 (hereinafter referred to as
\n‘the Act’), is illegal and ultravirus.\tThis declaration  is
\nsought on one of two alternative grounds : firstly, that the
\nCommissions  of Inquiry Act, 1952, does not  “authorise\t the
\nCentral Government to constitute a Commission of Inquiry  in
\nregard\tto matters falling exclusively within the sphere  of
\nthe State’s legislative and executive power”, and, secondly,
\nthat  if  the  provisions of the Act do\t cover\tthe  Central
\nGovernment   Notification,   they   are\t  ultra-vires\t for
\ncontravention  of “the terms of the Constitution as well  as
\nthe federal structure implicit and accepted as an inviolable
\nbasic  feature of the Constitution”.   Consequentially,\t the
\nplaintiff  seeks  a  perpetual injunction  to  restrain\t the
\nrespondents,  the Union of India and Shri A. N. Grover,\t the
\none-man Commission of Inquiry into ”  charges of corruption,
\nnepotism,  favouritism\tand misuse  of\tGovernmental  power,
\nagainst the Chief Minister and other Ministers of the  State
\nof  Karnataka”, from acting under the  Central\tGovernment’s
\nnotification.\n<\/p>\n
21<\/span><\/p>\n
The plaintiff State’s case is : that, the Congress Party was
\nreturned  by the electors by a majority at an election\theld
\nin  the\t State\tin  1972; that the  majority  party  in\t the
\nlegislature  elected Shri Devraj Urs as its leader who\tthen
\nformed\this  Government as required by Article\t163  of\t the
\nConstitution;  that, the Government thus installed, by\twhat
\nmust  be  deemed to be the will and decision  of  the  State
\nLegislature,  continues\t to  enjoy  the\t confidence  of\t the
\nlegislature and is in office; that, in the recent Lok  Sabha
\nelections,  the\t Congress party headed by  Shri\t Devrai\t Urs
\nachieved  a  resounding success by having won 26 out  of  28
\nseats  so  that the Janata party, which is in power  at\t the
\nCentre,\t must  be  deemed  to  have  been  rejected  by\t the
\nelectorate, but it is indirectly, through the appointment of
\na  Central  Commission of Inquiry trying  to  discredit\t the
\nCongress  Party and its leaders in the State  of  Karnataka,
\nand,  thereby, interfering with the democratic machinery  of
\ncontrol\t and  supervision  of the Government  of  the  State
\nprovided by the Constitution itself.\n<\/p>\n
On  26th April, 1977, the Union Home Minister sent a  letter
\nto  the\t Chief\tMinister  of  the  State  communicating\t the
\nallegations  contained in a Memorandum submitted by  certain
\nmembers\t of  the  opposition party in  the  Karnataka  State
\nLegislatures and asked him to make his comments.  The  Chief
\nMinister  gave a reply dated 13th May, 1977 a copy of  which
\nwas attached to the plaint.\n<\/p>\n
The Chief Minister, in his reply, complains that “slanderous
\npropaganda  has been unleashed without any  verification  of
\nthe truth or otherwise of the allegations or past history of
\nmost  of  the charges”.\t He points out that  broadcasts\t and
\npress reports had given him an intimation of the allegations
\nsent  to him even before they were received by him with\t the
\nHome  Minister’s letter.  The Chief Minister said :  “It  is
\nreasonable  to presume that the object of this\tcampaign  of
\nslander\t is  mainly  to tarnish the image  of  the  Congress
\nparty,\tmy  colleagues and myself in an effort to  gain,  if
\npossible,  power  for your party in  the  State\t immediately
\nafter  your party was totally rejected by the electorate  of
\nthe   State  in\t the  recent  Lok  Sabha  elections”.\t The
\ninsinuation was that the whole object of manipulated charges
\nagainst\t the  Chief  Minister  was to  vilify  him  and\t his
\nGovernment  and to bring him down in the estimation  of\t the
\npublic so as to destroy the support which the Congress party
\nhad  from the people of the State. it was thus a  charge  of
\nmalice in fact.\n<\/p>\n
The Chief Minister also admitted, in his letter to the Union
\nHome  said to be embodied in our Constitution and  described
\nthem  as  “the comer-stone of national\tunity  and  national
\nintegrity”. He asserted : “the constitution is the source of
\nall power for the various organs of the Centre and the State
\nand  all actions and exercise of all power under any of\t the
\nstatutes  either by the Centre or by the State must  conform
\nto  and\t be subordinated to the scheme\tof  distribution  of
\npowers, legislative and executive, under the Federal  Scheme
\nof the Constitution”.\n<\/p>\n
The Chief Minister also admitted in his letter to the  Union
\nHome Minister, that the Constitution “in certain exceptional
\ncircumstances pro-\n<\/p>\n
22<\/span><\/p>\n
vides  for  the\t Centre making inroads\tinto  the  exclusive
\ndomain\tof  the State Legislature or the  State\t executive”.
\nBut,   lie  denied  that  the\texceptional   circumstances,
\nexpressly provided for in the Constitution, for interference
\nby the Centre, existed in the instant case.
\nEvidently,  the Chief Minister meant that there was no\troom
\nfor  invoking the emergency provisions under Article 356  of
\nthe  Constitution which provides for the assumption  by\t the
\nPresident of India of any of the functions of the Government
\nand  by the Union Parliament of the functions of  the  State
\nLegislature, provided “the President is satisfied on receipt
\nof a report from the Governor of a State or Otherwise that a
\nsituation  has arisen in which the Government of  the  State
\ncannot be carried on in terms of the Constitution”.
\nThe Chief Minister also invokes the aid of the principles of
\ndemocracy which, according to him, permeate the whole scheme
\nof the Constitution, so that Chief Ministers and other State
\nMinisters  can\tbe  called  to account\tonly  by  the  State
\nLegislature to which they are responsible.  He asserted that
\n“the Cabinet system of Government is a basic feature of\t the
\nIndian Constitution”.  This implies, according to him,\tthat
\nall  control  over ministerial actions vests  in  the  State
\nLegislatures only and not in the Union Government,  subject,
\nof course, to exceptions expressly provided.  With regard to
\nthe actions of the State Government, he complained that\t the
\nassumption of inquisitorial or supervisory functions by\t the
\nUnion Government at the instance of “an extra constitutional
\nagency,\t however high, would destroy the basic character  of
\nthe   Cabinet  system  of  Government  and  would  rob\t the
\nlegislature   of   the\tState  and  its\t  people,   of\t the
\nconstitutionally guaranteed right of having a Government  of
\ntheir choice subject to their control”.\t He claimed that the
\nState had exclusive right to investigate charges relating to
\nmatters falling “within exclusive domain of the State  under
\nthe  Constitution”.   He  warned  against  the\tdangers\t  to
\nnational  interest  by undue interference with\tthe  federal
\nscheme contemplated by the Constitution.
\nThe Chief Minister, after having emphatically asserted\twhat
\nhe conceived to be the object of the proceedings against him
\nand  his  constitutional rights, very  properly\t offered  to
\nplace all the material having a bearing upon the 36  charges
\nout of which he admitted that 23 related to him.  He offered
\nto clear himself of these charges. lie pointed out that 4 of
\nthe charges related to his colleagues and had been discussed
\nin the legislature.  He also said that 3 charges had already
\nbeen  enquired into by the former Prime Minister.   He\tsaid
\nthat  be  did not want these to be reopened.  He  cited\t the
\nspeech of Shri Om Mehta, a former Minister of State, in\t the
\nLok  Sabha, on 5th May 1976, where it was stated  that\tsome
\nmemoranda   bad\t  been\tsent,  containing   allegations\t  of
\ncorruption  and\t misuse\t of power  made\t against  the  Chief
\nMinister and other ministers of Karnataka by some members of
\nthe Legislative Assembly, as long ago as 1973.\tAccording to
\nthat  statement, there were 99 allegations out of  which  16
\nconcerned  the\tChief Minister personally.  Shri  Mehta\t was
\nsaid to have declared that the allegations against the Chief
\nMinister  were\tfound to lack substance\t after\tthe  settled
\nprocedure
\n23<\/span>
\nof  inviting  comments from the Chief  Minister\t Iliad\tbeen
\nobserved.   The\t Chief Minister then dealt  at\tconsiderable
\nlength with the individual charges.\n<\/p>\n
In the plaint before us, it was pointed out that charges  of
\nthe  nature  now referred to the one man Commission  by\t the
\nCentral\t Government had been made over since 1972  elections
\nboth on the floor of the Legislature and elsewhere.  It also
\nsaid that they had been explained and answered on the  floor
\nof   the   Legislature\trepeatedly.   The   Chief   Minister
\ncomplained that the same allegations had been repeated after
\na new Government had assumed office at the Centre.
\nIt  was also asserted in the plaint that, in order to  allay
\nany suspicion in the ‘minds of the public in-the State, and,
\nin  view  of the continued agitation for a  judicial  probe,
\nand,  in accordance with the highest and best traditions  of
\nGovernment, the State Government, by a notification, dated 1
\n8th  May,  1977,  appointed a Commission  of  Inquiry  under
\nSection\t 3(1) of the Commissions of Inquiry Act,  1952.\t  ‘A
\ncopy  of  the  notification  of\t the  State  Government\t was
\nattached to the complaint.  It was alleged that a copy of it
\nhad also been sent to the Home Minister ,on 18th May, 1977.
\nOne  of the submissions by the plaintiff is that  the  State
\nGovernment notification dated 18th May, 1977, appointing its
\nown   Commission  to  inquire  into  all  the  matters\t and
\nirregularities,\t to  which additions could be  made  and  of
\nwhich further particulars could be provided, covers all that
\ncould  be enquired into by the Grover Commission  under\t the
\nnotification  dated  23rd  May,\t 1977,\twhich\tspecifically
\nexcludes  matters  covered  by\tthe  Karnataka\tGovernment’s
\nnotification  dated 18th May, 1977.  Reliance is  placed  on
\nproviso\t (b) to Section 3(1) of the Act which prohibits\t the
\nCentral\t Government from appointing another Commission ”  to
\ninquire\t into  the  same matter for so\tlong  as  Commission
\nappointed by the State Government is functioning, unless the
\nCentral\t Government,  is of opinion that the  scope  of\t the
\ninquiry should be extended to two or more States”.
\nThe written statement filed on behalf of the Union of  India
\nraises\t2 preliminary objections as follows  before_replying
\nseriatim  to the paragraphs in the plaint.  The\t preliminary
\nobjections are :\n<\/p>\n
\t      “1. The suit by the State of Karnataka is\t not
\n\t      maintainable   inasmuch\tas   the    impugned
\n\t      notification  S.O. No. 365(E) dated  23rd\t May
\n\t      1977  constituting the Commission\t of  inquiry
\n\t      does  not\t affect\t the  plaintiff-State.\t  By
\n\t      impugned notification a Commission of  Inquiry
\n\t      under section 3 of the Commissions of  Inquiry
\n\t      Act,  1952,  has\tbeen  constituted  for\t the
\n\t      purpose of making an inquiry into the  charges
\n\t      of   corruption,\tnepotism,  favouritism\t and
\n\t      misuse of Governmental power against the Chief
\n\t      Minister and certain other Minister’,; of\t the
\n\t      State Karnataka specified in the notification.
\n\t      The inquiry is against the Chief Minister\t and
\n\t      certain other Ministers as individuals and not
\n\t      against  the State of Karnataka.\tThe  inquiry
\n\t      is rather
\n\t      24<\/span>
\n\t      in the interest of State that such corruption,
\n\t      nepotism, favouritism should not exist in\t the
\n\t      State.  The State of Karnataka is not directly
\n\t      interested in the inquiry proposed to be\theld
\n\t      against  the Chief Minister and certain  other
\n\t      Ministers\t of  the  State.   The\t individuals
\n\t      occupying\t the  office of Chief  Minister\t and
\n\t      Ministers are distinct from the State it”.\n<\/p><\/blockquote>\n
\t      2.Article 131 of the Constitution of India
\n\t      gives  original jurisdiction to  the  Hon’ble,
\n\t      Supreme  Court  in  any  dispute\tbetween\t the
\n\t      Government  of  India and one or\tmore  States
\n\t      etc., if the dispute involves any question  of
\n\t      law  or fact or which the existence or  extent
\n\t      of  a  legal right depends.   There  being  no
\n\t      dispute  between the Government of  India\t and
\n\t      the  State,  the\tsuit  is  not  maintainable.
\n\t      There is no legal right of the plaintiff-State
\n\t      to Me the present suit.”\n<\/p><\/blockquote>\n
The  Union  of\tIndia  denied that the\tmatters\t now  to  be
\nenquired  into\tby  the\t Grover\t Commission  constituted   a
\nresuscitation of previous charges and allegations which\t had
\nbeen  disposed\tof.  Mala fides in the\tinstitution  of\t the
\nCommission  of\tInquiry\t is denied.   The  validity  of\t all
\nprovisions  of the Act is staunchly defended.\tThe  Inquiry
\nordered\t by the Central Government is, its  asserted,  quite
\ncompetent   and\t  not  covered\tby  the\t  State\t  Government
\nnotification.\tIt  is\tdenied that the\t federal  scheme  or
\ndemocratic  principles\tembodied in the Constitution  are  ‘
\naffected  by the institution of a Commission of\t Inquiry  of
\nthe  kirict  set  up.\tIt is  submitted  that\tthe  Central
\nGovernment  Commission of Inquiry was ordered to  enable  an
\nappropriate and completely impartial fact finding process to
\ntake  place  so that either the Central\t Government  or\t any
\nother  authority  or  even members of  the  public  may,  in
\naccordance with democratic principles, act in a manner which
\nis  constitutionally  proper and fully\tjustified.   In\t any
\ncase,  the  conduct of the Chief Minister of  a\t State\twith
\nregard\tto affairs of State and the manner in which he\tused
\nhis  official position were, according to Union\t Government,
\nmatters\t  of  public  importance  into\twhich  the   Central
\nGovernment  was\t quite\tcompetent to  order  impartial\tfact
\nfinding inquiries in public interest.\n<\/p>\n
On  the\t above set of pleadings, the following\tissues\twere
\nframed this Court :\n<\/p>\n
“1.  Is the suit maintainable ?\n<\/p>\n
2.   Is the impugned notification ultra vires the powers  of
\nthe Central Government under section 3 of the Commissions of
\nInquiry Act ?\n<\/p>\n
3.   If\t Section 3 of the Commission of Inquiry\t Act  autho-
\nrises\tthe  Central  Government  to  issue   the   impugned
\nnotification, is the Section itself unconstitutional
\nAn  important  preliminary question to be decided,  for\t the
\nreasons\t already indicated, concerns the nature of  the\t two
\ninquiries,  one the State Government and another  instituted
\nby  the Central Government.  If the two notifications  cover
\nsubstantially “the same matter”, it may
\n25<\/span>
\nnot  be necessary to deal with other questions at all.\t The
\nparties have very fully argued their cases on this  question
\neven  through no separate or specific issue has been  framed
\non it.\tBoth the parties have raised this issue specifically
\nin their pleadings.  They have argued on the assumption that
\na decision on it is implied in the trial of other issues  in
\nthe  case.  We will, therefore, take it up first  separately
\nas  a  preliminary question which we  should  decide  before
\ntaking\tup other matters in issue.  A determination of\tthis
\nquestion  has  an important bearing on\tmatters\t argued\t for
\npurposes of deciding each of the three issues framed  above.
\nEven if the question was not directly or indirectly involved
\nin the decision of each of the three issues framed above,  a
\ndecision on it seems necessary for clearing the ground for a
\ncorrect\t approach to the whole case.  It is certainly not  a
\nquestion  we could abstain from deciding simply\t because  no
\nspecific  issue was framed separately on it at\tthe  outset.
\nAlthough, in view of the fact that the question has been put
\nin  issue  and so understood and very fully  argued  by\t the
\nparties,  a separate and specific issue need not  be  framed
\nupon  it, yet, because of the crucial importance of  it,  we
\nformulate it now separately and specifically as follows : Do
\nboth  the State and the Central Government inquiries  relate
\nto  the\t ‘same matter within the meaning of proviso  (b)  to
\nSection\t 3(1)  of  the Act so as to bar an  inquiry  by\t the
\nCentral or Union Government so long as the State  Commission
\nis  functioning?  The State Government’s notification  dated
\n18-5-1977, reads as under
\n“Government of Karnataka”\n<\/p>\n
Karnataka  Government Secretariat Vidhana Soudha  Bangalore,
\nMay 19, 1977
\nNOTIFICATION
\nWHEREAS\t allegations  have  been made on the  floor  of\t the
\nHouses\t of  the  State\t Legislature  and   elsewhere\tthat
\nirregularities\thave been committed\/excess payments made  in
\ncertain\t matters  relating  to contracts,  grants  of  land,
\nallotment of sites, purchase of furniture, disposal of\tfood
\ngrains, etc. :\n<\/p>\n
WHEREAS\t the State Government is of the opinion that  it  is
\nnecessary to appoint a Commission of Inquiry to inquire into
\nthe said allegations :\n<\/p>\n
NOW, THEREFORE, in exercise of the powers conferred by\tsub-
\nsection (1) of Section 3 of the Commissions of Inquiry Act,,
\n1952  (Central Act 60 of 1952) the Government  of  Karnataka
\nhereby appoint Justice Shri Mir Iqbal Hussain, Retired Judge
\nof the Karnataka High Court to be the Commission of  Inquiry
\nfor  the  purpose  of  making  an  inquiry  into  the\tsaid
\nallegations,  particularly specified below and to  submit  a
\nreport\tthereon to the State Government within a  period  of
\nfour months from the date of this Notification :-\n<\/p>\n
26<\/span><\/p>\n
I.Whether improper or excessive payment was made to  M\/s.
\nNirmala Engineering Construction Company in respect of\ttile
\ncontracts awarded to them by the Government of Karnataka and
\nthe Karnataka Urban Water Supply and Drainage Board for lift
\nirrigation or water supply scheme ?\n<\/p>\n
11.Whether  any improper or excessive payment was made\tto
\nM\/s.   Balaji  Engineering and Construction Works  Ltd.,  in
\nrespect of the contracts awarded to them for-
\n(1)  the  construction\tof the right bank earth dam  of\t the
\nHemavathi Project from change No. 7890 to 8510.
\n(2)  the construction of the right bank irrigation sluice of
\nthe Hemavathi Dam;\n<\/p>\n
(3)  the construction of the left bank irrigation sluice  of
\nthe Hemavathy Dam;\n<\/p>\n
(4)  the  construction of the masonry dam of  the  Hemavathy
\nProject\t from  Chainage\t No. 4400  to  5740′  including\t the
\noverflow section and the protective works;
\n(5)  the  construction of the spillway dam of the  Hemavathy
\nProject;\n<\/p>\n
(6)  the  construction\tof the masonry dam  of\tthe  Harangi
\nProject ?\n<\/p>\n
III. Whether any improper or excessive payment was made
\nor  undue  favour  shown to  M\/s.   Nechipadam\tConstruction
\nCompany\t in respect of the contract awarded to them for\t the
\nconstruction  of  the Hemavathy right Bank  Earth  Dam\tfrom
\nchainage 2025m. to 2405m. and chainage 1750m. to 2025m ?
\nIV.Whether  any improper or excessive payment was made\tor
\nundue  favour  shown to M\/s.   Shankaranarayan\tConstruction
\nCompany in respect of the contracts awarded to them for-\n<\/p>\n
0<\/span><\/p>\n
(1)  the  construction of the combined Board  Administrative
\nDivision Building;\n<\/p>\n
(2)  the  construction of the right bank earthen portion  of
\nthe Hidkal Dam in the two reaches from 10,000 to 11,000\t and
\n11,100 to 14,700 ?\n<\/p>\n
V.Whether  any improper or excessive payment was made  or
\nundue  favour  shown  to  M\/s.\t EICIL\tin  respect  of\t the
\ncontracts awarded to them for-\n<\/p>\n
(1)  the construction of the head race tunnel from the\tBom-
\nmanhalli pick up dam to the surge point;\n<\/p>\n
(2)  the  construction\tof the surge tank and  the  pressure
\nshaft ?\n<\/p>\n
VI.   Whether any undue favour was shown to  M\/s.   Ghansham
\nCommercial  Co. Ltd., in the sale of 25,000 tonnes of  bajra
\nat the rate of Rs. 73.50, per quintal in 1972 ?\n<\/p>\n
27<\/span><\/p>\n
VII. Whether  any  undue  favour  was  shown  to   m\/s.
\nKrishna\t Flour\tMills in respect of the lease  of  the\tland
\nnext- to its premises, measuring 200×200′ for a period of 30
\nyears ?\n<\/p>\n
VIII. Whether any improper or excessive payment was made
\nor  any\t undue favour was shown to M\/s.\t  Shah\tConstruction
\nCompany\t in the settlement of their claims for the  contract
\nawarded to them for the construction of the Almatti Dam ?
\nIX.Whether  any undue favour was shown to  M\/s.\t  Poornima
\nElectronics  in the placing of orders on them for supply  of
\nelectronic equipments like Intercome etc. ?
\nX.Whether there was any disappropriation or fraud in  the
\ndealings  of  the State\t Co-operative  Marketing  Federation
\nduring the period 1971-72 and 1972-73 ?\n<\/p>\n
XI.Whether  any\t undue\tfavour\thas  been  shown  by   the
\nGovernment  or the KSTRC in leading out the building in\t the
\nKSRTC bus stand at Mysore for a Canteen at Mysore ?
\nXII. Whether  any undue favour was shown by  Government
\nor  the KSTRC in leasing out resting rooms in the  KSRTC  in
\nMysore to Shri Prem Kumar ?\n<\/p>\n
XIII. Whether\tthe   funds  of\t the   Agro   Industries
\nCorporation were wrongly diverted to the Gadag\tCo-operative
\nTextile Mills, Hulkoti, Gadag, Dharwar district ?
\nXIV. Whether  undue favour was shown to\t M\/s.\tNavrasa
\nFertilizers  in purchasing fertilisers and  whether  payment
\nwas made even without receipt of the stock ?
\nXV.Whether site on J.C. Road was leased to Shri M. B.  Lal
\nand  N. V. Venkatappa contrary to the interests of the\tCity
\nof Bangalore Municipal-Corporation?\n<\/p>\n
XVI. Whether the grant of land in S. No. 15 of Bommena-
\nhalli  Village,\t Nelamangala Taluk, Bangalore  District\t was
\nmade contrary to rules ?\n<\/p>\n
XVII.  Whether sites in Rajmahal Vilas and Palace Orchard’s
\nlayouts were irregularly allotted’?\n<\/p>\n
XVIII. Whether\tthe  purchase of one thousand  tonnes  of
\npaddy fromTamil\t Nadu by Shri Atheeq Ahmed,  Proprietor
\nof the MandyaRice  Mills,  Mandya at the instance  of  the
\nState Governmentand the subsequent disposal thereof were
\nadverse to the interests of the State ?\n<\/p>\n
XIX. Whether the contract for the preparation of models
\nand  designs  for  the re-modelling of\tthe  K.\t R.  Market,
\nBangalore  was\tirregularly  awarded to\t M\/s.\tKarekar\t and
\nSundaram ? 3-1042 SCI\/77
\n28<\/span>
\nXX.Whether  the\t conversion of land owned by  Shri  C.\tM.
\nDinshaw\t and family in Narasipura Village,  Bangalore  North
\nTaluk  (known as ‘Dinshaw Estate’) as non-agricultural\tland
\nwas not in accordance with the rules ?\n<\/p>\n
XXI. Whether  any irregularities or improprieties  have
\nbeen  committed in the administration of the Karnataka\tFilm
\nDevelopment Corporation since 1971 ?\n<\/p>\n
XXII. Whether  the  cement  or steel  allotted\tfor  the
\nconstruction  of the Government Harijan Hostel\tbuilding  in
\nBangalore City was diverted to other purposes ?
\nXXIII. Whether\torders for the purchase of furniture  for
\nthe  Health Department for the years 1972-73,  1973-74\twere
\nplaced\tat  exorbitant\trates with firms  who  were  neither
\nfurniture dealers nor approved PWD contractors\/suppliers ?
\nXXIV. Whether  essentiality certificates  for  stainless
\nsteel  were  issued  to bogus firms  or\t fictitious  persons
\nduring the period 1st March 1974 to 30th June 1974 ?
\nXXV. Whether the purchase of Fargo and Bedford\tChassis
\nby  the KSRTC in August 1972 was against  the  Corporation’s
\ninterests ?\n<\/p>\n
XXVI. Whether the appointments of agents, sub-agents and
\ndealers\t during the years 1967-77 by the  Visvesvaraya\tIron
\nand  Steel Ltd., Bhadravathi for the distribution  of  Steel
\nand cement were adverse to the Company’s interests ?
\nXXVII. Whether the appointments of agents, sub-agents and
\ndealers\t for  the years 1967-77 by the\tMysore\tPaper  Mills
\nLtd., Bhadravathi for the distribution of paper were adverse
\nto the Company’s interests ?\n<\/p>\n
XXVIII. Whether improper or excessive payment was made\tto
\nShri  M. S. Ramaiah, contractor, in respect of the  contract
\nawarded\t to him for the construction of the  Talakalele\t dam
\nand its appurtenant works, which form part of the Sharavathi
\nValley
\nProject.\n<\/p>\n
XXIX. Whether there were any defects in the construction
\nof  Talakalele Dam owing to bad design, use of\tsub-standard
\nmaterials  caused by negligence or wilful commission of\t the
\ncontractor or any individual ?\n<\/p>\n
XXX. Whether  unjust or excessive payment was  made  to
\nM\/s.  Tarapore & Co., in respect of the contract awarded  to
\nthem for the rock fill work both up and down stream, in\t the
\nLingannamakki earthen dam?\n<\/p>\n
XXXI. Whether there was any irregularity or  impropriety
\nin  the grant of 3000 acres of land in Periyapatna Taluk  to
\nM\/s.  Oriental Aromatics ?\n<\/p>\n
29<\/span><\/p>\n
XXXII.\t  Whether any favour was shown to Shri Bhooma  Reddy
\nin thematter  of  award of the right to retail\tvend  of
\nliquors in the year1968 ?\n<\/p>\n
XXXIII.\t  Who are the persons responsible for the lapses, if
\nany regarding the aforesaid and to what extent ?
\nBy order and in the name of the
\nGovernor of Karnataka.\n<\/p>\n
Sd.\/- G. V. K. RAO,
\nChief Secretary to the Government
\nTo
\nThe  Compilor,\tKarnataka Gazette, for publication  of\tthis
\nNotification  in a Gazette Extraordinary and supply  of\t 200
\ncopies.\n<\/p>\n
COPY to:\n<\/p>\n
All Secretaries to Government,
\nThe  Registrar,\t High  Court of Karnataka  with\t a  covering
\nletter.”\n<\/p>\n
The Central Government Notification dt. 23-5-1977 reads as
\nfollows :-\n<\/p>\n
“THE GAZETTE OF INDIA
\nEXTRAORDINARY
\nPART II-SECTION 3-SUB-SECTION (ii)
\nMINISTRY OF HOME AFFAIRS
\nDEPARTMENT OF PERSONNEL & A.R.\n<\/p>\n
NOTIFICATION
\nNew Delhi, the 23rd May, 1977
\nS.C.365(E)-Whereas the Central Government is of opinion that
\nit  is necessary to appoint a Commission of Inquiry for\t the
\npurpose\t of  making  an inquiry into a\tdefinite  matter  of
\npublic importance, namely’ charges of corruption,  nepotism,
\nfavouritism or misuse of Government power against the  Chief
\nMinister  and  certain\tother  Ministers  of  the  State  of
\nKarnataka, hereinafter specified;\n<\/p>\n
Now,  therefore\t in  exercise of  the  powers  conferred  by
\nsection\t 3  of the Commissions of Inquiry Act, 1952  (60  of
\n1952),\tthe Central Government hereby appoints a  Commission
\nof Inquiry consisting of a single member, namely, Shri A. N.
\nGrover, retired Judge of the Supreme Court of India.\n<\/p>\n
30<\/span><\/p>\n
2. The terms of reference of the Commission shall be as,.
\nfollows :-\n<\/p>\n
(a)  to inquire into the following allegations, namely:–\n<\/p>\n
\t      (i)   such of the allegations contained in the
\n\t      memorandum;  dated 11th April, 1977,  received
\n\t      from  some  Members  of  the  Karnataka  State
\n\t      Legislature   and\t addressed  to\t the   Prime
\n\t      Minister as are specified in Annexure 1;.\n<\/p><\/blockquote>\n
\t      (ii)such of the allegations contained in the
\n\t      memoranda\t  aforesaid  as\t are  specified\t  in
\n\t      Annexure II, but excluding any matter  covered
\n\t      by  the  notification  of\t the  Government  of
\n\t      Karnataka in the Chief Secretariat No. DPAR  7<\/span>
\n\t      GAM 77, dated the 18th May, 1977;\n<\/p><\/blockquote>\n
\t      (b)   to\t inquire  into\t any   irregularity,
\n\t      impropriety or contravention of law other than
\n\t      those  specified in the said  notification  of
\n\t      the  Government of the State of Karnataka,  on
\n\t      the  part\t of any person in  relation  to\t any
\n\t      matter   referred\t  to  in   the\t allegations
\n\t      aforesaid;\n<\/p><\/blockquote>\n
\t      (c)   to\tinquire into any other matter  which
\n\t      arises   from,   or  is  connected   with\t  or
\n\t      incidental   to,\t any   act,   omission\t  or
\n\t      transaction  referred  to in  the\t allegations
\n\t      aforesaid;\n<\/p><\/blockquote>\n
\t      Explanation-In\tthe   Annexures\t  to\tthis
\n\t      notification,  “Chief  Minister”\tmeans\tShri
\n\t      Devraj Urs, the Chief Minister of the State of
\n\t      Karnataka.\n<\/p><\/blockquote>\n
\t      3.    The headquarters of the Commission\twill
\n\t      be at New Delhi.\n<\/p><\/blockquote>\n
4.The  Commission will complete its inquiries and  report
\nto  the\t Central  Government on or before  the\t1st  day  of
\nDecember, 1977.\n<\/p>\n
5.And whereas the Central Government is of opinion having
\nregard\tto  the\t nature of the inquiry to  be  made  by\t the
\nCommission and other circumstances of the case, that all the
\nprovisions of sub-section (2), sub-section (3),\t sub-section
\n(4) and sub-section (5), of section 5 of the Commissions  of
\nInquiry Act, 1952 (60 of 1952) should be made applicable  to
\nthe  Commission, the Central Government hereby\tdirects,  in
\nexercise  of the powers conferred by subsection (1)  of\t the
\nsaid section 5, that all the provisions of the said sub-sec-
\ntion  (2), (3), (4) and (5) of that section shall  apply  to
\nthe Commission.\n<\/p>\n
ANNEXURE I\n<\/p>\n
1.Whether  the Chief Minister practiced\t favouritism  and
\nnepotism by appointing his own brother, Shri D Kamparaj Urs,
\nas  a  Director\t of  the  Karnataka  State  film  Industries
\nDevelopment  Corporation  in place of Shri  R.\tJ.  Rebello,
\nChief  Secretary  to the Government, in 1974, and  later  as
\nDirector-in-charge  with  the  powers to  exercise  all\t the
\npowers of the Managing Director.\n<\/p>\n
2.Whether  the\tChief Minister had  directed  auction  of
\nexcise shops out of turn in five districts on the eve of the
\nrecent Lok Sabha
\n31<\/span>
\nElections  in  the  month of February,\t1977,  With  corrupt
\nmotives although the auctions were due in the month of\tMay,
\n1977,  and  whether  this  was\tdone  with  the\t object\t  of
\ncollecting funds for the Elections.\n<\/p>\n
3.Whether the Chief Minister had released Rs. 50.60 lakhs
\nto  buy “Understanding Science” from I.B.H.  overruling\t the
\ndecision  of the Sub-Committee constituted for\tthe  purpose
\nunder the Chairmanship of the Chief Minister and also  over-
\nruling the orders of the concerned Minister.\n<\/p>\n
4.Whether  the\tChief  Minister\t was  guilty  of   shielding
\ncorrupt,  officers,  in\t particular, two,  officers  of\t the
\npublic\t Works\tDepartment,  namely,  Shri  Seshagiri\tRao,
\nAssistant Engineer, and Shri Shivanna, a Clerk, against whom
\nprosecution  orders  were passed by the\t Government  on\t the
\nbasis  of the recommendations of the  Vigilance\t Commission.
\nWhether the Chief Minister on his own revised the order\t and
\nwithdrew the prosecution for any consideration.\n<\/p>\n
5.Whether Shri Hanumantha Reddy, Superintending Engineer,
\nwas promoted as Chief Engineer by the Chief Minister against
\nthe  recommendation  of\t the Vigilance\tCommission  that  he
\nshould\tbe demoted and certain amounts should  be  recovered
\nfrom him and whether the Chief Minister also over-ruled\t the
\norders of the concerned Minister and whether such  action,of
\nthe Chief Minister was for any Consideration.\n<\/p>\n
6.Whether  the\tfollowing  payments  were  made\t to  M\/s.
\nShankaranarayana Construction Co. :-\n<\/p>\n
(i)  an\t ex-gratia payment of Rs. 6.37 lakhs  in  Malaprabha
\nProject;\n<\/p>\n
(ii) excess payment to the tune of Rs. 12.00 lakhs in Ghata-
\nprabha Project with an intention to favour the contractors.\n<\/p>\n
7.Whether  any misappropriation of funds and  fabrication
\nof  accounts of the Social Welfare Department was made\twith
\nthe  connivance of the then Minister Shri N. Rachaih to\t the
\nextent\tof  Rs.\t 30.00\tlakh-  and  whether  any  fraud\t was
\npractised in connection with the said matter.\n<\/p>\n
8.Whether  appointment was made of fictitious persons  as
\ndealers\t in sandal soap by Mysore Sales International  under
\nthe  orders  of\t the Chief Minister  and  the  Minister\t for
\nIndustry  and  payment was made of hugs amounts\t by  way  of
\ncommission.\n<\/p>\n
9.   Whether gross misuse of powers and position was made by
\nShri H.M. Channa Bassappa, formerly Minister-in-charge of
\nPublic\tworks  Department and Electricity (now\tMinister  of
\nHealth)\t in  converting The residential site  which  he\t got
\nallotted  to him by the Trust Board into a  commercial\tsite
\nand starting a company with his family members as directors.\n<\/p>\n
32<\/span><\/p>\n
10.Whether any favouritism was shown or whether there was.
\nany  corruption\t in the purchase of new types  and  in\tbody
\nbuilding  contract  for the new chassis by  Karnataka  State
\nRoad Transport Corporation under the undue influence of\t the
\nChief  Minister\t and the Minister for  Transport  Shri\tAziz
\nSait.\n<\/p>\n
11.Whether  there  was any nepotism  and  favouritism  and
\nmisuse\tof power by the Chief Minister and the\tMinister  of
\nTransport  in  the  matter of  nationalisation\tof  contract
\ncarriages and wilfully benefiting certain parties with\twhom
\nthe Chief Minister’s second son-in-law was a partner.\n<\/p>\n
12.Whether any favouritism was shown in the nomination\tof
\nShri  K.  V.  Rao as a member of the  Karnataka\t State\tRoad
\nTransport  Corporation Board against the provisions  of\t the
\nAct.\n<\/p>\n
13.Whether  an\tundue  favour was shown\t to  M\/s.   Balaji
\nEngineeringConstruction Company by accepting the  tender
\nfor construction ofhouses    under   Housing   and    Urban
\nDevelopment Corporation’s Low Income Group Scheme in  Dumlur
\nLay-out\t by  the Bangalore Development Authority,  which  is
\nunder the administrative control of the Chief Minister.\n<\/p>\n
14.Whether  allotment of 20 acres of land was made to  the
\nthree sons ofthe Finance Minister, Shri M. V. Ghorpade, in
\ncontravention of landgrant  rules and the provisions  of
\nthe Land Reforms Act and the Land Revenue Acts.\n<\/p>\n
15.   Whether  any  misuse of power was\t committed,  or\t any
\ncorruption  committed  by Shri D. K.  Naikar,  Minister\t for
\nMunicipal  Administration, with regard to the grant of\tland
\nto Boroda Textile Milles in Hubli-Dharwar Corporation Area.
\nANNEXURE II
\nWhether\t the  Chief Minister or any other  Minister  of\t the
\nState  of   Karnataka was guilty  of  corruption,  nepotism,
\nfavouritism  or misuse of governmental power  in  connection
\nwith all or any of the following matters, namely :-\n<\/p>\n
\t      (1)   Grant  of 20 acres of  Government  land,
\n\t      reserved\t  for\tgrazing\t  of\tcattle
\n\t      in Hommanahalli, Nelamangala taluk,  Bangalore
\n\t      District,\t to  the  son-in-law  of  the  Chief
\n\t      Minister, Shri M. D. Nataraj, in violation  of
\n\t      the  provisions of the Land Revenue  Code\t and
\n\t      disregarding  the\t claims of  local  Scheduled
\n\t      Caste applicants;\n<\/p><\/blockquote>\n
\t      (2)   Allotment  of  4  large  valuable  house
\n\t      sites in the most posh locality of  Bangalore,
\n\t      Raj Mahal Vilas Extension, to Shri Devaraj Urs
\n\t      and his family members in supersession of\t the
\n\t      rightful claims of other applicants;
\n\t      (3)   Undue  favours shown to  Messrs  Nirmala
\n\t      Engineering Construction Company, by releasing
\n\t      Government funds.\n<\/p><\/blockquote>\n
\t      33<\/span><\/p>\n
\t      in  spite\t of  the  fact\tthat  the  concerned
\n\t      Minister has taken a decision to prosecute the
\n\t      firm  on the basis of the\t recommendations  of
\n\t      the Vigilance Commissions.\n<\/p><\/blockquote>\n
\t      (4)   Excess  payment  of Rs. 98.88  lakhs  to
\n\t      Messrs   Balaji\tEngineering   Company,\t  in
\n\t      Hemavathi\t Project,  in contravention  of\t the
\n\t      terms of the contract with a view to favouring
\n\t      the contractor;\n<\/p><\/blockquote>\n
\t      (5)   Under favour shown to Messrs  Nechipadam
\n\t      Construction Company in Hemavathi Project,  by
\n\t      accepting the highest tender with an intent to
\n\t      benefit  the contractors and involving  excess
\n\t      payment to the extent of Rs. 3.5 lakhs;
\n\t      (6)   Excess payment of Rs.  1 crore to Messrs
\n\t      TICIL Contractors, in Kali Hydel Project,\t for
\n\t      the benefit of the contractors;\n<\/p><\/blockquote>\n
\t      (7)   Whether   about  5,000  tons  of   rice,
\n\t      purchased by the Government of Karnataka\tfrom
\n\t      the  Tamil Nadu Government  on  government-to-
\n\t      government  basis, was allowed to be  marketed
\n\t      by  a  private party, Shri H. R.\tAthu  Ahmed,
\n\t      without  the knowledge of the Food  Department
\n\t      instead  of  the\tMysore\tState\tCo-operative
\n\t      Marketing\t Federation as was  earlier  agreed,
\n\t      with the sole intent of benefiting the private
\n\t      party;\n<\/p><\/blockquote>\n
\t      (8)   Undue  favour  shown  to  a\t  fictitious
\n\t      cooperative society in regard to conversion of
\n\t      270 acres of agricultural land called  Dinshaw
\n\t      Estate   into  ;non-agricultural\tpurpose\t  in
\n\t      violation\t of the mandatory provisions of\t the
\n\t      Land Reforms Act and the Land Revenue Act;
\n\t      (9)   Whether  undue favour was shown  to\t one
\n\t      Ghanshyam in the sale of 2500 tons of Bajra at
\n\t      the  rate of Rs. 73.50 p. per quintal  without
\n\t      calling\tfor   tenders  and   allowing\tShri
\n\t      Ghanshyam\t to sell the Bajra in the  State  of
\n\t      Maharashtra  at  the rate of  Rs.\t 125.00\t per
\n\t      quintal\tduring\tthe  time  of\tdrought\t  in
\n\t      Karnataka.<\/p><\/blockquote>\n
\t      (10)  Whether   undue  favour  was  shown\t  or
\n\t      concession\t      was   made   to\tM\/s.\n<\/p><\/blockquote>\n
\t      Karakar and Sundaram, Architects, in regard to
\n\t      the preparation of designs for remodelling the
\n\t      K.  R. Market in supersession of the order  of
\n\t      the concerned Minister.\n<\/p><\/blockquote>\n
\t      (11)  Whether  undue  favour  was\t shown,\t  or
\n\t      concession was made to M\/s.  Shah Construction
\n\t      Co., Contractors, in Upper Krishna Project  at
\n\t      Alamatti.\n<\/p><\/blockquote>\n
\t      (12)  Whether  undue favour was shown to\tM\/s.
\n\t      Krishna flour Mills in granting valuable\tland
\n\t      in  Bangalore City, which land was  meant\t for
\n\t      children’s  park, at a nominal rent  by  over-
\n\t      ruling the orders of the concerned Minister.\n<\/p><\/blockquote>\n
\t      34<\/span><\/p>\n
\t      (13)  Whether  there was any  misappropriation
\n\t      of   funds   of  the  Karnataka\tState\tFilm
\n\t      Industries Development Corporation to the tune
\n\t      of  Rs. 10.00 lakhs, when the  Chief  Minister
\n\t      himself  was the Chairman of that\t Corporation
\n\t      and  whether the business of the\tCorporation,
\n\t      its members, creditors or any other person  or
\n\t      otherwise\t  for  a  fraudulent   or   unlawful
\n\t      purpose.\n<\/p><\/blockquote>\n
\t      (14)  Whether  any undue favour was  shown  to
\n\t      M\/s.  Poornima Electronics, Bangalore, in\t the
\n\t      purchase of electronic equipment (intercom) by
\n\t      superseding the recommendation of the Head  of
\n\t      the  Department  and orders of  the  concerned
\n\t      Minister.\n<\/p><\/blockquote>\n
\t      (15)  Whether  any  misappropriation  of\t the
\n\t      funds  of\t the  Karnataka\t State\tCo-operative
\n\t      Marketing Federation to the extent of  several
\n\t      crores  of  rupees  was made  by\tShri  H.  S.
\n\t      Srikantiah,  Minister of State for Home,\twhen
\n\t      he  was the President of that  Federation\t and
\n\t      whether  the  business of the  Federation\t was
\n\t      conducted\t  with\t intent\t to   defraud\tthat
\n\t      Federation,  its\tmembers, creditors,  or\t any
\n\t      other person or otherwise for a fraudulent  or
\n\t      unlawful purpose.\n<\/p><\/blockquote>\n
\t      (16)  Whether  any undue favour was  shown  by
\n\t      Shri  Satya Pal by the Minister  of  Transport
\n\t      Shri  Mohamed  Ali,  by  accepting  the\tonce
\n\t      rejected\ttender of Shri Satya Pal in  leasing
\n\t      out  its\tbuilding for  canteen  in  Karnataka
\n\t      State  Road Transport Corporation\t Bus  Stand,
\n\t      Mysore, and whether any undue favour was shown
\n\t      by  the same Minister to Shri Satya Pal’s\t son
\n\t      Shri  Prem Kumar, in leasing out its  retiring
\n\t      rooms  of the Karnataka State  Road  Transport
\n\t      Corporation in Mysore.\n<\/p><\/blockquote>\n
\t      (17)  Whether  any undue favour was  shown  to
\n\t      four firms, namely, All India Agencies, Vidyut
\n\t      Engineering   Co.,  Trishul  Enterprises\t and
\n\t      Mysore  Woods, in purchasing furniture  valued
\n\t      at  Rs.  29.00  Lakhs in\t1973-74\t under\tI.P.
\n\t      Project  by the Minister for Health,  Shri  H.
\n\t      Siddaveerappa.\n<\/p><\/blockquote>\n
\t      (18)  Whether  any undue favour was  shown  by
\n\t      the   Minister   of  State   for\t Small-scale
\n\t      Industries,  Shri\t Koulajgi in  1974,  in\t the
\n\t      issue  of Essentiality Certificate to  parties
\n\t      many of which are fictitious and bogus.
\n\t      (19)  Whether  undue favour was shown  by\t the
\n\t      Chief Minister and the Minister of  Transport,
\n\t      Shri  Aziz Sait in 1973-74, to M\/s.  Fargo  in
\n\t      buying  150 chassis against the advice of\t the
\n\t      Chief  Mechanical\t Engineer of  the  Karnataka
\n\t      State Road Transport Corporation.
\n\t      (20)  Whether  any undue favour was  shown  by
\n\t      the   Minister  of  Industries,  Shri  S.\t  M.
\n\t      Krishna,\tin  allotting of paper,\t cement\t and
\n\t      steel  of the, State-owned Industries to\tNon-
\n\t      traditional dealers\/agents including his\tkith
\n\t      and kin.\n<\/p><\/blockquote>\n
\t      35<\/span><\/p>\n
\t      (21)  Whether  an excess payment of Rs.  30.00
\n\t      lakhs  was  made\tto  M\/s.    Shankaranarayana
\n\t      Construction   Company   in  regard   to\t the
\n\t      construction of combined Board  Administrative
\n\t      Building\tComplex at Bangalore over and  above
\n\t      the contract rates.\n<\/p><\/blockquote>\n
\t      (22)  Whether  any excess payment was made  to
\n\t      M\/s.   Balaji Engineering Company to the\ttune
\n\t      of Rs. 80.00 lakhs in Harangi Project with  an
\n\t      intent to favour the contractor.
\n\t      (23)  Whether  Shri  K.  H.  Patil,  the\tthen
\n\t      Minister\tfor  Agriculture  and  Forest,\t was
\n\t      guilty  of  any  misuse  of  power  or   undue
\n\t      favouritism  in  relation to  Hukkeri  Textile
\n\t      Mills or Gadage Co-operative Textile Mills, or
\n\t      both.\n<\/p><\/blockquote>\n
\t      (24)  Whether  any undue favour was  shown  or
\n\t      any corruption committed by Shri Chikke Cowda,
\n\t      the  then\t Minister for Animal  Husbandry\t and
\n\t      Agriculture  in relation to the payment  of  a
\n\t      sum of Rs. 3.00 lakhs to M\/s.  Navarasa Ferti-
\n\t      lizers.\n<\/p><\/blockquote>\n
\t      (25)  Whether  there was any misuse  of  power
\n\t      and corruption committed by Shri D. K. Maikar.
\n\t      Minister\t for  Municipal\t Administration\t  in
\n\t      connection with the allotment of land on\tJ.C.
\n\t      Road  to\tShri  M.  B.  Lal  and\tShri  M.  V.
\n\t      Venkatappa.<\/p><\/blockquote>\n
\n\t      (No. 375\/16\/77-AVD-III)\n\t      R.    K. TRIVEDI\n\t      Secretary\n<\/pre>\n
The  first thing that strikes one, on a bare reading of\t the
\ntwo  notifications is that, whereas the\t State\tNotification
\nseems  scrupulously to avoid any mention of  any  particular
\nact  or part of any individual whatsoever, the whole  object
\nof  the\t Central  Government notification  seems  to  be  to
\ninquire into the correctness of the allegations made against
\nthe  Chief  Minister  of  the  State  principally  and\tinto
\nallegations    against\t  other\t   specified\t individuals
\nincidentally.  The objects and subject matter of the Central
\nGovernment   notification  become  clearer  by\tlooking\t  at
\nAnnexures  1 and 2 of it giving particulars of\ttransactions
\n:to be investigated.  The first five items of Annexure 1 and
\nseparate transactions in each of which the Chief Minister of
\nthe  State is himself alleged to have played  the  principal
\nrole   in   such  a  way  as  to  indicate   his   exclusive
\nresponsibility.\t  In  other transactions, such as  in  items
\n,10,  1\t 1  and 13, the Chief Minister is  shown  as  having
\nparticipated   with   ,Others.\t And,\tin   the   remaining
\ntransactions  mentioned,  the allegations do not  place\t the
\nresponsibility\ton any particular individual, but they\tseem
\ndesigned to elicit the truth of allegations of\tfavouritism,
\nnepotism,  and\tmisuse\tof  power  against  whoever  may  be
\nresponsible.\tAnnexure   2  of  the\tCentral\t  Government
\nnotification  begins  by a statement which  shows  that\t its
\nobject\tis to determine whether the Chief Minister  or\t,any
\nother Minister of the Government of the State of Karnataka,
\n36<\/span>
\nindulged in nepotism, favouritism, or misuse of Governmental
\npowers in a number of transactions which are listed as items
\n1  to  25 there.  On the other hand,  the  State  Government
\nnotification,  without mentioning the persons who  might  be
\nresponsible  for  any  excessive or  improper  payments,  or
\nfavouritism, or misappropriation, or irregularity,  mentions
\ncertain contracts in favour of various companies, or parties
\nunder  32  heads.   It then states, as a  separate  item  of
\ninquiry, the question as to who were the persons responsible
\nin  the lapses, if any, mentioned earlier.  In other  words,
\napart from their parts in certain lapses the  responsibility
\nof  the\t Chief\tMinister  or  any  other  Minister  of\t the
\nGovernment  of Karnataka could not be inquired into  by\t the
\nCommission appointed under the State notification.  And, all
\nthat the State notification seems to empower its  Commission
\nto enquire into, with regard to transactions mentioned there
\nis  whether there was any excessive payment or\tirregularity
\ninvolved.   Hence, it speaks of responsibility for  “lapses”\n<\/p><\/blockquote>\n
as  though  one\t could assume that there  was  no  dishonest
\nmotive.\t The emphasis, in the State notification, is on\t the
\nquestion  of observance or non-observance of  rules  coupled
\nwith  the  question whether certain  payments  were  proper.
\nAnd,  the  question  of\t affixation  of\t responsibility\t  is
\nconfined  to  “lapses” in the course of\t these\ttransactions
\nonly.\n<\/p>\n
Even if a transaction has been made completely in accordance
\nwith  the  rules,  it  may,  nevertheless,  be\tan  act\t  of
\nfavouritism  tainted  with corruption or  dishonesty.\tLess
\ndeserving parties could be deliberately preferred over\tmore
\ndeserving parties in much transactions.\t It is not difficult
\nto  make out compliance with the rules or to show  on  paper
\nthat the most deserving party has received the benefit of  a
\ncontract.  Indeed, even the post deserving party may receive
\na  contract  or\t a  benefit under  a  decision\ttaken  by  a
\nGovernment or its Ministers who may have received an illegal
\ngratification  for  it\twithout\t anything  what\t so   ‘,ever
\nappearing  on the records of the Government about the  bribe
\nreceived by the Minister, concerned.  Hence, in addition  to
\nthe  fact that the items mentioned in the two  notifications
\nmostly\tdo not tally with each other, it appears to us\tthat
\nthe  objects  of  the State notification do  not  go  beyond
\ninvestigation  into  the illegality or irregularity  of\t any
\ntransaction  and “responsibility” only of persons  concerned
\nto  point  out what they were.\tIf one may so  put  it,\t the
\nState notification is meant to set up a Commission which has
\nto inquire whether the veil worn by certain transactions  is
\ncorrect\t in  form  and\tcovers it  fully,  but\tthe  Central
\nGovernment  notification  is  clearly meant  to\t enable\t the
\nCommission appointed to tear down even the veil of  apparent
\nlegality   and\tregularity  which  may\tbe  worn   by\tsome
\ntransactions.\tIt  authorises\tthe  Grover  Commission\t  to
\ninquire into and discover the reality or substance, if\tany,
\nbehind\tcertain (mostly other) transactions.  The object  of
\nthe  Central Government notification seems clearly not\tonly
\nto affix responsibility for transactions mentioned there  on
\nindividuals  who may be really guilty even if a few of\tthem
\ncould be said to have been mentioned in both  notifications.
\nWe  do\tnot think that such notifications  would  justly  or
\nfairly\tbe  spoken  of as covering  “the  same\tmatter”,  as
\ncontemplated  by  proviso (b) to Section 3(1)  of  the\tAct,
\nbecause the
\n3 7
\nState  Commission is there to examine the appearance or\t the
\nsurface whereas the Central Commission is expected to  delve
\ndeeper into what could only lie behind or below it.
\nIt  is\tcertainly a matter for concern to a  State  if\tsome
\nirregularity   or  illegality  has  been  committed   in   a
\nparticular  transaction\t by its Government  or\ta  Minister.
\nBut, it would obviously be more helpful to determine why  it
\nhas been committed.  And, it should be still more  important
\nfor  it\t to find out who, however highly placed,  is  really
\nresponsible  for  the commission of  that  irregularity\t and
\nwhether\t any  dishonesty or corruption has operated  at\t the
\nhighest\t levels in the State even if the form is proper\t and
\nregular.   If  the State notification shows no\tconcern\t for
\nwhat seem to us to be the much more important objects of the
\nCentral\t Government  notification, one could  perhaps  guess
\nthat the indifference of the State towards the more  serious
\nmatters\t  is  not  without  some  object  or   significance.
\nNevertheless, we do not propose to pass any judgment on\t the
\nmotives\t of the State Government or the fact that  the\tmost
\nimportant  or significant features of what has been  alleged
\nagainst\t the  Chief Minister and members of  his  Government
\nhave been left out by the State Government notification even
\nif  the object of that notification was quite  bonafide\t and
\nproper so far as it went. We  think, however,  that  the
\nState notification does not go far enough. But,\t       the
\nCentral Government notification does proceed further. It
\nsquarely  levels charges against persons who,  according  to
\nthe allegations made, may have acted in a manner which makes
\nthem not only theoretically responsible but actually  guilty
\nof corruption.\n<\/p>\n
For  the success of the policies of any State or  Government
\nin  it, in any part of the country over which its  authority
\nruns,  it should be shown to be capable of carrying out\t the
\nconstitutional\t mandates  contained  in  Part\tIV  of\t the
\nDirective Principles of State Policy so as to make the basic
\nhuman  rights guaranteed by our Constitution a\treality\t and
\nDot  a mirage.\tThat, for the masses of our people,  is\t the
\nbasic  purpose\tof the whole Constitution  which  cannot  be
\nallowed to be frustrated.  If the basic rights of the people
\nare not to be stultified and to appear chimerical, those  in
\ncharge\tof the affairs of the State, at the highest  levels,
\nmust be above suspicion.  This is only possible if their own
\nbona fides and utterly unquestionable integrity are  assured
\nand  apparent  in the context of the high  purposes  of\t our
\nConstitution  and  the\tdire needs  of\tour  poverty  strike
\nmasses.\t  We cannot view allegations of corruption  lightly.
\nWe  think that the interests of the States and of the  Union
\nare  not antithetical when there are charges  of  corruption
\nand misuse of power against those in authority anywhere.  To
\nserve  the  common interests of the whole people,  on  whose
\nbehalf\tour  Constitution speaks, the States and  the  Union
\ncannot\tstand  apart.  They must stand\ttogether  united  in
\npurpose and action.  It is as important that unjustified and
\nmalicious  attacks and charges\tagainst individuals in\thigh
\nplaces\tshould\tbe  unmasked and  the  reality\tbehind\tthem
\nexposed\t for  what  it is worth, as  it\t is  that  justified
\ncomplaints  must find adequate means of redress so that\t the
\ninterests  of the dumb millions of our country men are\tduly
\nsafeguarded against unscrupulousness wherever found.  If, as
\nwe  find in this case, the State notification is meant\tonly
\nto  superficially  scratch the surface\tof  the\t allegations
\nmade,
\n38<\/span>
\nwhereas\t the  Central Government notification  is  meant  to
\nprobe into the crux or the heart of what may or may not have
\ngone wrong with the body politic in the State of  Karnataka,
\nwe  could not be too technical or astute in finding  reasons
\nto  hold  that the subject matter of the  two  enquiries  is
\nsubstantially the same.\t Obviously, this could not really be
\nso.   A\t bare reading of the two notifications, set  out  in
\nfull above, shows that.\n<\/p>\n
In  the circumstances of this case, it may be more  graceful
\nfor  the Chief Minister of the State of Karnataka  to  waive
\nhis  technical objections, as he seems to do in\t undertaking
\nto place all the material before whichever commission may be
\nfound  to have jurisdiction to inquire into the\t allegations
\nmade  against  him.   He  could\t take  the  opportunity\t  to
\nhonourably  face and repel the charges which,  according  to
\nhim, have been repeatedly but Unjustifiably and\t maliciously
\nmade against him over a sufficiently long period.  He  could
\nthus  be able to establish that he is serving the  interests
\nof  his State, its inhabitants, and, indeed, of the  country
\nas a whole, if his assertions are correct.\n<\/p>\n
The  plaintiff\thas not suggested anywhere that\t the  Grover
\nCommission  is\tnot  presided  ever  by\t an  individual\t  of
\nunquestionable\tintegrity  and independence who has  been  a
\nJudge  of this Court., Mr. Lal Narain Sinha,  appearing\t for
\nthe plaintiff, has, very frankly and properly, conceded that
\nhe cannot successfully press want of bona fides on the\tpart
\nof the Central Government in issuing its notification.\tThis
\nmeans  that  the question whether the Commission  is  either
\nunnecessary,  except  as a weapon of political\twarfare,  as
\nwell  as any doubts about whether it could be or was  to  be
\nmisused\t in this case, must be dismissed  as  unsustainable.
\nThe  State  Government must itself be deemed to\t admit\tthat
\ncircumstances necessitated the appointment of a\t Commission,
\nby  appointing\tits own, to inquire into  analogous  matters
\nwhich deserved investigation due to their public importance.
\nWe  find  that the Central  Government\tnotification  itself
\nexcludes from its purview those charges which may be  fairly
\nsaid  to fall within the scope of the Commission set  up  by
\nthe  State  Government.\t We are not concerned  with  matters
\nwhich may be subsequently added so as to expand the scope of
\ninquiry\t by  the  State\t Commission.   We  think  that\t the
\nprovisions  of proviso (b) to Section 3(1) of the  Act\twill
\nprevent the State Government from adding such matters as are
\nalready covered by the Central Government notification.\t We,
\nhowever,  leave\t it  to\t the  Grover  Commission  itself  to
\ndetermine,  whenever  it is faced with\tsuch  an  objection,
\nwhether\t a  particular\tmatter\tis  already  being  properly
\nenquired into by the State Commission.\n<\/p>\n
In view of what we have observed above, it would perhaps  be
\nproper for the Government of Karnataka itself to withdraw it
\nsown  notification if it thinks that certain members of\t the
\nState  Government  will be unduly embarrassed by  having  to
\nface inquiries by two Commissions on matters which may\thave
\nsome connections or even some common areas.  Indeed, to\t get
\nto   the  heart\t of  a\ttransaction,  its   surrounding\t  or
\nsuperficial shell, which is all that the State Commission
\n39<\/span>
\ncan inquire into with regard to some transactions, may\thave
\nto,  be\t pierced, or, to some degree, traversed\t before\t the
\ncore of these transactions can be reached.  As we hold\tthat
\nthe two notifications authorise inquiries into matters which
\nare  substantially  different  in  nature  and\tobject,\t the
\nenquiry by the Grover Commission cannot be said to be barred
\nby reason of the State Government notification under proviso\n<\/p>\n
(b)  to Section 3 (1) of the Act, even if, in order to\tdeal
\nwith the substantially different subject matter, in view  of
\nthe  divergence\t in objects certain areas of fact  or  rules
\ngoverning transaction may be common.  If the objectives\t are
\ndifferent  the examination of common areas of fact  and\t law
\nfor different purposes will still be permissible.
\nWithout\t doubting  the motives of the  State  Government  in
\nappointing  its own Commission perhaps we may observe  that,
\nin  a  case involving charges of the kind made\tagainst\t the
\nChief Minister and other Ministers of the State, it would be
\nbetter\tif the State’s own Commission did not even  remotely
\nappear\tto  have  been set up merely in\t anticipation  of  a
\nthorough investigation by an outside Central authority which
\nwould, presumably, appear more impartial and objective,\t or,
\nto  impede  or\tembarrass the  proceedings  of\tthe  Central
\nGovernment Commission.\tSuch doubts as could arise on  these
\ngrounds\t will be dispelled by the, withdrawal of  the  State
\nnotification.\tAlthough  the prompt action  toy  the  State
\nGovernment  may\t seem  quite commendable  and  bonafide,  in
\nappointing   its   own\tCommission  in\t the   context\t and
\ncircumstances  disclosed above, its continued existence\t may
\nnot  give  exactly that impression after what we  have\theld
\nabove  on  an analysis of the apparent objects\tof  the\t two
\nCommissions judged by the contents of the two notifications.
\nIn  any\t case, the subject matter, not\tbeing  substantially
\nsame,  the Central Government Commission could proceed\twith
\nits investigations if other objections, which we now proceed
\nto  examine,  are not really fatal to the  validity  of\t the
\nCentral Government’s notification.\n<\/p>\n
Those  other  objections  to the  validity  of\tthe  Central
\nGovernment’s notification may be summarised as follows :
\nFirstly,  it  is submitted that express\t provisions  of\t the
\nConstitution relating to the federal structure, distribution
\nof  executive and legislative powers between the  State\t and
\nthe  Union,  joint responsibility of a\tState’s\t Council  of
\nMinisters,  conditions under which they can bold  office  or
\nmay  be dismissed, the State Legislatures exclusive  control
\nover  their  actions  and conduct of affairs  of  the  State
\nGovernment, are infringed by it, so that, if all this  could
\nbe done, under the clock of the powers conferred by  Section
\n3  of the Act, by the Central Government, this provision  of
\nthe  Act  is, pro tanto, invalid.  Secondly,  and  following
\nlogically  and\tnaturally from the set of  propositions,  as
\ntheir  necessary consequence, the  notification\t constitutes
\nviolations by the Central Government of what must be held to
\nbe parts of the basic features or the basic structure of the
\nConstitution  which do not permit the destruction of  either
\nfederalism or democracy by issuing executive fiats.   Third-
\nly,  carrying  the  logic  of  the  last  mentioned  set  of
\nsubmissions  a step further, it is urged that, as the  basic
\nfeatures  of the Constitution have been ‘held by this  Court
\nto be outside the procedure for amendment
\n40<\/span>
\ncontained  in  Article 368 of the Constitution, it  must,  a
\nfortiori,  be held to be outside the legislative  competence
\nof Parliament as contemplated by Articles 245-255 in Part XI
\nof the Constitution read with provisions of the\t Legislative
\nLists  in  Schedule  7. Fourthly, it is\t suggested,  in\t the
\nalternative,  that, in any case, a necessary implication  of
\nthe express provisions of the Constitution is that a control
\nby the Union Government. over the day-to-day working of\t the
\nGovernments in the States by the adoption of the legislative
\nprocedure  found in Part Xi of the Constitution must have  a
\nresult\twhich  can  only be  achieved  by  a  Constitutional
\namendment under Article 368 of the Constitution’ Fifthly, it
\nis  submitted that even if interference with the day to\t day
\nworking\t of the Governmental machinery in the States is\t not
\nbarred by the basic structure of the Constitution, yet,\t the
\nsituations  in which such interference is  warranted  having
\nbeen specifically laid down in the emergency\t  provisions
\ncontained  in  Articles 352-360 found in Part XVIII  of\t the
\nConstitution,  any  other  mode of  interference,  with\t the
\noperations  of State Governments, not expressly provided  by
\nthe  Constitution itself, must be deemed to be\toutside\t the
\nordinary legislative competence of Parliament.\tSixthly, the
\nplaintiff’s  counsel  submitted\t that,\tin  any\t event,\t the
\nprovisions  of the Act must be so construed or\tinterpreted,
\nby   reading  them  down  if  necessary,  as   to   preclude
\ninterference by the Union Government with the operations  of
\nthe State Government or the conduct of its Ministers keeping
\nin view all the submissions mentioned above.
\nIt  is\ttrue  that learned counsel for\tthe  plaintiff\tkept
\nreverting  to  what he really meant to put  forward  as\t the
\nbasic  or inviolable features of the Constitution,  yet,  he
\nfelt  reluctant to unequivocally commit himself to the\tview
\nthat  the  Act\tcontained  provisions  which  constituted  a
\nviolation  of the basic structure of the Constitution  which
\nhas  been  held to include both\t Democracy  and\t Federalism.
\nApparently,  this  somewhat shifting position arose  from  a
\nrealisation that the Act may, have very little, if  anything
\nat  all,  to do with provisions meant to  ensure  Democratic
\nGovernment, and that our Constitution has, despite  whatever
\nfederalism  may\t be  found in  its  structure,\tso  strongly
\nunitary features also in it that, when the totality of these
\nprovisions  is\texamined,  it becomes  difficult  to  assert
\nconfidently   how  much\t federalism  such   a\tConstitution
\ncontains,  whether those parts of it which seem to  override
\nthe federal elements of our Constitution are not more  basic
\nor significant than what is described as its federalism, and
\nwhether\t  possible  actions  under  the\t Act,  intended\t  to
\nauthorise  investigation, presumably with a view to  finding
\nremedies,  into\t whatever dishonesty or\t corruption  may  be
\ndiscovered  in\tthe  conduct  of  governmental\taffairs\t  by
\nMinisters, are not really meant to safeguard or help  rather
\nthan to destroy\t or hinder democratic government.
\nIt  is\tinteresting  to note what  Sir\tGyril  Salmon,\tLord
\nJustice\t of  Appeal.  said  in a  lecture  on  Tribunals  of
\nInquiry”.\n<\/p>\n
\t      “In  all countries, certainly in\tthose  which
\n\t      enjoy  freedom  of speech and  a\tfree  Press,
\n\t      moments  occur  when allegations\tand  rumours
\n\t      circulate\t causing  a  nation-wide  crisis  of
\n\t      confidence in the integrity of public life  or
\n\t      about other matters
\n\t      41<\/span>
\n\t      of  vital\t public importance.  No\t doubt\tthis
\n\t      rarely  happens,\tbut  when  it  does  it\t  is
\n\t      essential\t that  public confidence  should  be
\n\t      restored, for without it no democracy can long
\n\t      survive.\t This confidence can be\t effectively
\n\t      restored only by thoroughly investigating\t and
\n\t      probing  the rumours and allegations so as  to
\n\t      search out and establish the truth.  The truth
\n\t      may  show that the evil exists, thus  enabling
\n\t      it  to  be  rooted out, or that  there  is  no
\n\t      foundation  in the rumours and allegations  by
\n\t      which  the  public  has  been  disturbed.\t  In
\n\t      either case, confidence is restored”.\n<\/p><\/blockquote>\n
In the lecture mentioned above, it was pointed out that\t the
\nTribunal  of  Inquiry (Evidence) Act, 1921,  was  passed  in
\nEngland\t  to   displace\t the  procedure\t by   which   Select
\nParliamentary  Committees were used “to investigate  alleged
\nwrongdoing  in\thigh places”.  About  the  Select  Committee
\nprocedure  he  said : “Such a method of investigation  by  a
\npolitical  tribunal  was  wholly  unsatisfactory.   Being  a
\nprogressive  people it took us only little more\t than  about
\n300 years to do anything about it.  In the United States  of
\nAmerica,  however, which is still more progressive  than  we
\nare,   they   still   use   virtually\tthe   same   method.
\nCongressional\tCommittees   of\t investigation,\t  like\t our
\nParliamentary  committees, consist of  members\trepresenting
\nthe relative strength of the majority and minority  parties.
\nClearly\t such bodies can never be free from party  political
\ninfluences.   This  is a very real defect  in  any  tribunal
\ninvestigating allegations of public  misconduct-particularly
\nas  the\t subject  matter of the\t inquiry  often\t has  highly
\ncharged political overtones.” He observed : “The history  of
\nsuch  investigations in England by Parliamentary  committees
\nis, to say the least, unfortunate.  Let me give you but\t one
\nexample.   Early in the present century there occurred\twhat
\nbecame\tknown  as  the Marconi Scandal.\t In  1912  the\tPost
\nMaster General in a Liberal Government accepted a tender  by
\nthe  English Marconi Company for the construction of  State-
\nowned  wireless\t telegraph stations throughout\tthe  Empire.
\nThere  followed widespread rumours that the  Government\t had
\ncorruptly  favoured  the Marconi Company  and  that  certain
\nprominent members of the Government had improperly  profited
\nby  the\t transaction.  The  Select  Parliamentary  Committee
\nappointed  to  investigate  these  rumours  represented\t the
\nrespective   strengths\tof  the\t Liberal  and\tConservative
\nParties.  The majority report of the Liberal members of\t the
\nCommittee exonerated the members of the Government concerned
\nwhereas a minority report by the Conservative members of the
\nCommittee  found  that these members of the  Government\t had
\nbeen guilty of gross impropriety.  When the reports came  to
\nbe  debated  in the House of Commons, the House\t divided  on
\nstrictly  party\t lines\tand by\ta  majority  exonerated\t the
\nMinisters  from all blame.  This is the last instance  of  a
\nmatter of this kind being investigated by a Select Committee
\nof Parliament”.\t In other words, “it was because in  England
\ninvestigation  by  a political tribunal of  matters  causing
\ngrave public disquiet had been discredited that the Tribunal
\nof Inquiry (Evidence) Act, 1921, was passed, with a view  to
\nsetting\t up  some permanent investigating  machinery  to  be
\navailable  for use when required”  Furthermore,\t he  pointed
\nout that even in America ad hoc
\n42<\/span>
\ntribunals  are not infrequently appointed to avoid a  matter
\nbeing  referred\t to  a\tCongressional  Committee,  as,\t for
\nexample, the Warren Commission to investigate the murder  of
\nPresident Kennedy.\n<\/p>\n
It  is\tthus  clear that in democratic\tcountries  not\tonly
\nmodern practice but statute can provide for Inquiries of the
\nkind which are meant to be conducted under our Act of  1952.
\nThe Preamble of our Act shows that it was meant to  “provide
\nfor  appointment  of  the Commissions  of  Inquiry  and\t for
\nvesting\t such Commissions with certain powers”.\t Section  1,
\nsub-section (2) of the Act indicates that it extends to\t the
\nwhole  of  India; but, a proviso to it\tputs  certain  limi-
\ntations\t to which its operation is subjected so far  as\t the
\nState of Jammu & Kashmir is concerned inasmuch as, for\tthis
\nState, Inquiries set up must relate to matters\tappertaining
\nto  such  entries  in List II or List  III  of\tthe  Seventh
\nSchedule  as  may  be applicable to  the  State.   There  is
\nnothing in the Act to show any such limitations with regard.
\nto any other State.\n<\/p>\n
\t      Section 2 of the Act provides:\n<\/p>\n
\t      “2. In this Act, unless the context  otherwise
\n\t      requires-\n<\/p>\n
\t      (a)   .”appropriate Government” means-\n<\/p>\n
\t      (i)   the Central Government, in relation to a
\n\t      Commission appointed by it to make an  inquiry
\n\t      into  any\t matter\t relatable  to\tany  of\t the
\n\t      entries  enumerated  in List I or List  II  or
\n\t      List  III\t in  the  Seventh  Schedule  to\t the
\n\t      Constitution; and\n<\/p>\n
\t      (ii)The  State Government, in relation to\t a
\n\t      Commission appointed by it to make an  inquiry
\n\t      into  any\t matter\t relatable  to\tany  of\t the
\n\t      entries  enumerated in List II or List III  in
\n\t      the Seventh Schedule to the Constitution :
\n\t      Provided\tthat  in relation to  the  State  of
\n\t      Jammu  &\tKashmir, these\tclauses\t shall\thave
\n\t      effect subject to the modification that-\n<\/p>\n
\t      (a)  in sub-clause (i) thereof,for  the  words
\n\t      and figures “List I or List II or List III  in
\n\t      the Seventh Schedule to the Constitution”\t the
\n\t      words  and figures “List I or List III in\t the
\n\t      Seventh\tSchedule  to  the  Constitution\t  as
\n\t      applicable to the State, of Jammu and Kashmir”
\n\t      shall be substituted;\n<\/p>\n
\t      (b)   in\tsub-clause  (ii)  thereof,  for\t the
\n\t      words and figures “List II or List III in\t the
\n\t      Seventh  Schedule\t to the\t Constitution”,\t the
\n\t      words  and  figures “List III in\tthe  Seventh
\n\t      Schedule to the Constitution as applicable  to
\n\t      the  State  of  Jammu and\t Kashmir”  shall  be
\n\t      substituted;\n<\/p>\n
\t      (b)   “Commission”   means  a  Commission\t  of
\n\t      Inquiry appointed under section 3;\n<\/p>\n
\t      43<\/span><\/p>\n
\t      (c)   “Prescribed”  means prescribed by  rules
\n\t      made under
\n\t      Act.”\n<\/p>\n
\t      Section 3 of the Act reads as follows:\n<\/p>\n
\t      “3. (1) The appropriate Government may. if  it
\n\t      is  of opinion that It is necessary so to\t do,
\n\t      and  shall, if a resolution in this behalf  is
\n\t      passed by the House of the people, or, as\t the
\n\t      case  may be, the Legislative Assembly of\t the
\n\t      State, by notification in the Official Gazette
\n\t      appoint  a  Commission  of  Inquiry  for\t the
\n\t      purpose of making an inquiry into any definite
\n\t      matter  of  public importance  and  Performing
\n\t      such functions and within such time as may  be
\n\t      specified\t  in  the  notification,   and\t the
\n\t      Commission so appointed shall make the inquiry
\n\t      and Perform the functions accordingly :\n<\/p>\n
\t      Provided\tthat where any such  Commission\t has
\n\t      been appointed to inquire into any matter-\n<\/p>\n
\t      (a)   by\tthe  Central  Government.  no  state
\n\t      Government shall. except with the approval  of
\n\t      the   Central  Government,   appoint   another
\n\t      Commission to inquire into the same matter for
\n\t      so  long\tas the Commission appointed  by\t the
\n\t      Central Government is functioning;<\/p>\n
\t      (b)   by\ta  State  Government,  the   Central
\n\t      Government    shall   not\t  appoint    another
\n\t      Commission to inquire into the same matter for
\n\t      so  long\tas the Commission appointed  by\t the
\n\t      State Government\t is functioning, unless\t the
\n\t      Central  Government  is of  Opinion  that\t the
\n\t      scope of the inquiry should be extended to two
\n\t      or more States.\n<\/p>\n
\t      (2)   The\t Commission  may consist of  one  or
\n\t      more  members  appointed\tby  the\t appropriate
\n\t      Government,  and where the commission  consist
\n\t      of  more than one member, one of them  may  be
\n\t      appointed as the chairman thereof.\n<\/p>\n
\t      (3)   The\t appropriate Government may, at\t any
\n\t      stage of an inquiry by the Commission fill any
\n\t      vacancy which may have arisen in the office of
\n\t      a member of the Commission (whether consisting
\n\t      of one or more than one member).\n<\/p>\n
\t      (4)   The\t appropriate Government shall  cause
\n\t      to be laid before the House of the People\t or,
\n\t      as  the case may be, the Legislative  Assembly
\n\t      of  the  State,  the report,  if\tany  of\t the
\n\t      Commission   on\tthe-inquiry  made   by\t the
\n\t      Commission under sub-section (1) together with
\n\t      a\t memorandum  of the  action  taken  thereon,
\n\t      within a period of six months of the,  submis-
\n\t      sion  of the report by the Commission  to\t the
\n\t      appropriate Government”.\n<\/p>\n
\t      4-1042 SCI\/77
\n44<\/span>
\nAfter  the two sections, set out above, which  disclose\t the
\napparently very wide and undefined scope of inquiries to  be
\nconducted under the Act, the only limit being that they must
\nrelate\tto matters of “definite public\timportance”,  follow
\nsections conferring upon Commissions under the Act powers of
\na  civil court for the purpose of eliciting  evidence,\tboth
\noral  and documentary, and power to punish those  guilty  of
\nits contempt.  Section 6 of the Act, however, makes it clear
\nthat  statements  made\tby a person in\tthe  course  of\t his
\nevidence  before the Commission “will not subject him to  or
\nbe  used  against him in any civil  or\tcriminal  proceeding
\nexcept in a prosecution for giving false evidence by  making
\nsuch  statements”.  But; this protection is not extended  to
\nstatements  made in reply to questions not required  by\t the
\nCommission  to be answered, or, those made on matters  which
\nare not relevant to the subject-matter of the inquiry.\t The
\nAct,  however, contains no provisions for giving any  effect
\nto the findings of the Commission or for enforcing any order
\nwhich could be made by the Commission against any person  as
\na  result  of  an  inquiry.  In\t fact,\tthe  only  orders  a
\nCommission  under  the\tAct is\tempowered  to  make  against
\nanybody are those relating to abduction of evidence, whether
\noral  or  documentary, and those which may  be\trequired  to
\nprotect the Commission against “acts calculated to bring the
\nCommission  or\tany  member thereof  into  disrepute”.\t The
\nproceedings  of a Commission could only result in  a  Report
\nwhich  is to be laid before the Legislature concerned  under
\nthe  provisions of s. 3 (4) of the Act.\t Hence, the  obvious
\nintention  behind  the\tAct is to enable  the  machinery  of
\ndemocratic  government\tto  function  more  efficiently\t and
\neffectively. it could hardly be construed as an Act meant to
\nthwart democratic methods of government.
\nEven  in countries with undiluted unitary systems  of  Govt.
\nthere  is devolution of powers of local self-Government\t for
\nrestricted purposes.  In ‘our country, there is, at the top,
\na Central or the Union Government responsible to Parliament,
\nand  there are, below, it State Governments, responsible  to
\nthe  State Legislatures, each functioning within the  sphere
\nof its own powers which are divided into two categories; the
\nexclusive  and the concurrent.\tWithin the exclusive  sphere
\nof the powers of the State legislature is local\t Government.
\nAnd, in all States there is a system of local Government  in
\nboth   Urban  and  Rural  areas,  functioning  under   State
\nenactments.   Thus, we can speak of a three tier  system  of
\nGovernment in our country in which the Central or the  Union
\nGovt.  comes  at the apex with certain\tsubjects  which\t are
\nexclusively  left to the States concerned ordinarily  or  in
\nnormal\ttimes.\t But, even problems which arise\t within\t the
\nterritories  of\t States\t may  fall  within  the\t sphere\t  of
\noverriding Central power in emergencies.  And, if a  subject
\nis considered important enough to be regarded as the concern
\nof the whole nation, the Constitution makers have themselves
\nplaced it either in the exclusively Central Legislative List
\nI  or  in  the\tconcurrent Legislative\tList  III  of  items
\nmentioned in Schedule VII.\n<\/p>\n
Our Parliament consists of the President and the two  Houses
\nof  Parliament.\t  The House of, the People is not  meant  to
\nrepresent  the States as independent units of  a  federation
\n,’Article 79).\tIt has to
\n45<\/span>
\nhave  a\t strength  of members not exceeding  525  in  number
\nchosen\tby  direct  election  by  the  people  from  various
\nterritorial  constituencies in the States and not more\tthan
\ntwenty\trepresentatives\t of  people  living  in\t the   Union
\nterritories  (Article 81).  There, the people of In”  living
\nin  the\t States and of the Union  territories  are  directly
\nrepresented  so\t that their interests and  rights  could  be
\npresumed  to  be well looked after and\tprotected  by  their
\ndirect\trepresentatives.   The\tCouncil\t of  States  has  12
\nmembers\t in it nominated by the President for their  special
\nknowledge  or  experience  in matters of  art,\tscience,  or
\nsocial service, and not more than 238 representatives of the
\nStates and elected by members of the legislative assembly of
\neach  State  in accordance with the system  of\tproportional
\nrepresentation by means of single transferable vote and from
\nthe  Union territories in the manner prescribed by law\tmade
\nby  the Parliament (Article 80).  The representation of\t the
\nLegislative   bodies  of  the  States  and  of\t the   Union
\nterritories  is\t certainly  a recognition  of  the,  federal
\nprinciple.   But,  this\t does  not  mean  that\tthe  Central
\nGovernment  is\tprecluded from all interference\t in  matters
\nconcerning individual States.  For determining the extent of
\nthat  interference  and\t the circumstances in  which  it  is
\n,possible  we  have  to\t turn to  other\t provisions  of\t our
\nConstitution.\n<\/p>\n
Article\t 245(1)\t of our Constitution gives  the\t territorial
\noperations  of\tthe laws made by Parliament  and  the  State
\nlegislatures.  Article 246(1) enacts that items in List I of
\nthe  Seventh Schedule fall exclusively within the domain  of
\nParliament and those  in List II come exclusively within the
\nlegislative  power of the State legislatures, but  those  in
\nList III are to be concurrent.\tArticle 248, however,  vests
\nParliament with exclusive power to legislate with respect to
\nmatters\t not  enumerated in either the concurrent  or  State
\nlist.  This is what is spoken of generally as the “residuary
\npower”.\t  In addition, Parliament has over-riding powers  of
\nlegislating  even for matters in the State list for  limited
\ndurations  if the Council of States by resolution  supported
\nby not less than two thirds of its members declared that  it
\nis  necessary  to do so in national interest or\t during\t the
\ncontinuance of a proclamation of emergency (Articles 249 and\n<\/p>\n
250).  Inconsistency between laws made by the Parliament and
\na  State legislature on an item found in a concurrent  list,
\nis  to be resolved in favour of the law made  by  Parliament
\n(Article  254).\t  And,\tfar-reaching  powers,  contained  in
\nArticles  352-360 in Part XVIII of the Constitution,  enable
\nthe  President\tto  suspend  not  only\tthe  enforcement  of
\nfundamental  rights  of\t citizens, and\ttheir  operation  as
\nfetters on legislative powers but also the functions of\t the
\nState legislature which can be assumed by Parliament and  of
\nState Governments which can be taken over by the  President.
\nIt  is\ttrue that the emergency powers are so  drastic\tthat
\nthey  can be abused.  We have not, however, got before us  a
\ncase  of  the exercise of emergency powers or  of  abuse  of
\npowers.\t  We are only considering here the extents  of\twhat
\nare put forward as federal and democratic features of  Govt.
\nwhich  may  or\tmay not be capable of  suspension.   As\t the
\nConstitution   stands  at  present,  the  exercise  of\t the
\nemergency powers, whose validity is not questioned before us
\nby  any party in this case, can completely remove  even\t the
\nsemblance of a federal structure in our Constitution for the
\nduration of an emergency.\n<\/p>\n
46<\/span><\/p>\n
A look at Chapter 11 of Part XI on administrative, relations
\nbetween\t the Union and the States, shows us  provisions\t for
\ndirections which can be given to the, State Governments even
\nin normal times by the\t Central Govt. described in Articles
\n25-6-257, as “the Govt. of India.,  Article 256 enacts :\n<\/p>\n
\t      “256.   The  executive power  of\tevery  State
\n\t      shall be so exercised as to ensure  compliance
\n\t      with  the\t laws  made by\tParliament  and\t any
\n\t      existing\tlaws which apply in that State,\t and
\n\t      the executive power of the Union shall  extend
\n\t      to the giving of such directions to a State as
\n\t      may  appear to the Government of India  to  be
\n\t      necessary for that purpose”.\n<\/p><\/blockquote>\n
Article\t 257(1) may also be quoted to illustrate the  extent
\nof Executive powers of the State and Union Govt. :\n<\/p>\n
\t      “257(1)  The  executive power of\tevery  State
\n\t      shall  be\t so exercised as not  to  impede  or
\n\t      prejudice the exercise of the executive  power
\n\t      of  the Union, and the executive power of\t the
\n\t      Union  shall  extend  to the  giving  of\tsuch
\n\t      directions  to  a State as may appear  to\t the
\n\t      Government  of India to be necessary for\tthat
\n\t      purpose”.\n<\/p><\/blockquote>\n
The  extent of the normal executive powers of the Union\t are
\nindicated as follows by Article 73(1) of the Constitution :\n<\/p>\n
\t      “73(1)  Subject  to  the\tprovisions  of\tthis
\n\t      Constitution, the executive power of the Union
\n\t      shall extend-\n<\/p><\/blockquote>\n
\t      (a)   to\tthe  matters with respect  to  which
\n\t      Parliament has power to make laws; and\n<\/p><\/blockquote>\n
\t      (b)   to\t the   exercise\t of   such   rights,
\n\t      authority and jurisdiction as are\t exercisable
\n\t      by  the Government of India by virtue  of\t any
\n\t      treaty or agreement;\n<\/p><\/blockquote>\n
Provided  that the executive power referred to in  subclause\n<\/p>\n
(a)   shall  not,  save\t as  expressly\tprovided   in\tthis
\nConstitution or in any law made by Parliament, extend in any
\nState  to matters with respect to which the  Legislature  of
\nthe State has also power to make laws”.\n<\/p>\n
And, the extent and limitations of the executive power of  a
\nState given in Article 162 as follows:\n<\/p>\n
\t      “162.   Subject  to  the\tprovisions  of\tthis
\n\t      Constitution,  the executive power of a  State
\n\t      shall  extend to the matters with\t respect  to
\n\t      which  the Legislature of the State has  power
\n\t      to, make laws:\n<\/p><\/blockquote>\n
\t      Provided\tthat in any matter with\t respect  to
\n\t      which   the   Legislature\t of  a\t State\t and
\n\t      Parliament  have\tpower  to  make\t laws,\t the
\n\t      executive power of the State shall be  subject
\n\t      to,  and\tlimited\t by,  the  executive   power
\n\t      expressly conferred by this Constitution or by
\n\t      any  law made by Parliament upon the Union  or
\n\t      authorities thereof’.\n<\/p><\/blockquote>\n
47<\/span><\/p>\n
The  wide scope of executive powers of the Union  Government
\nwas  considered\t by  this Court not long  ago  in  State  of
\nRajasthan  v. Union of India(1), where, after examining\t the
\nrelevant  Constitutional provisions, one of us\tobserved  in
\nthe  context  of  what\twas sought  to\tbe  construed  as  a
\n“direction”  to\t the  State Government, given  by  the\tHome
\nMinister in the Union Government, to dissolve a State Assem-
\nbly :\n<\/p>\n
\t      “I  may  point  out  that\t there\tare  various
\n\t      aspects of relations between the Union and the
\n\t      States governed by different provisions of the
\n\t      Constitution.  I may here refer to those which
\n\t      relate to giving of ‘directions’ by the  Union
\n\t      Government  to the State\tGovernments  because
\n\t      Art. 365 provides
\n\t      ‘365.   Where any State has failed  to  comply
\n\t      with or to give effect to any directions given
\n\t      in the exercise of the executive power of\t the
\n\t      Union  under  any of the\tprovisions  of\tthis
\n\t      Constitution,  it\t shall\tbe  lawful  for\t the
\n\t      President to hold that a situation has  arisen
\n\t      in which the government of the State cannot be
\n\t      carried  on in accordance with the  provisions
\n\t      of this Constitution’
\n\t      Articles\t256 and 257 mention a wide range  of
\n\t      subjects\t,on which the Union  Government\t may
\n\t      give    executive\t   directions\t to    State
\n\t      Governments.    Article  73(1)  (a)   of\t the
\n\t      Constitution tells us that the Executive power
\n\t      of  the Union extends to all matters on  which
\n\t      ‘Parliament has power to make laws’.   Article
\n\t      248  of the Constitution vests exclusively  in
\n\t      the Parliament residuary powers of making laws
\n\t      on any matter not enumerated in the Concurrent
\n\t      or   State   Lists.   Article   256   of\t the
\n\t      Constitution covers cases where the  President
\n\t      may want to give directions in exercise of the
\n\t      executive\t power\tof  the\t Union\tto  a  State
\n\t      Government in relation to a matter covered  by
\n\t      an  existing  law\t made  by  Parliament  which
\n\t      applies  to  that\t State.\t  But,\tArt.  257(1)
\n\t      imposes  a  wider obligation upon a  State  to
\n\t      exercise\tits powers in such a way as  not  to
\n\t      impede the exercise of executive power of\t the
\n\t      Union  which, as would appear from Art. 73  of
\n\t      the Constitution, read with Art. 248 may cover
\n\t      even  a subject on which there is no  existing
\n\t      law   but\t  on  which  some   legislation\t  by
\n\t      Parliament is possible.  It could,  therefore,
\n\t      be  argued that although,\t the.\tConstitution
\n\t      itself does not lay down specifically when the
\n\t      power  of dissolution should be  exercised  by
\n\t      the  Governor  on the advice of a\t Council  of
\n\t      Ministers in the State, yet if a direction  on
\n\t      that  matter was properly given by  the  Union
\n\t      Government  to a State Government, there is  a
\n\t      duty  to\tcarry  it out.\t The  time  for\t the
\n\t      dissolution of a State Assembly is not covered
\n\t      by
\n\t      (1)   A.I.R. 1977 S.C. p. 1361,1383-84.\n<\/p><\/blockquote>\n
\t      48<\/span><\/p>\n
\t      any specific provision of the Constitution  or
\n\t      any law made on the subject.  It is  possible,
\n\t      however, for the Union Government, in exercise
\n\t      of  its residuary executive power to  consider
\n\t      it   a  fit  subject  for\t the  issue  of\t  an
\n\t      appropriate  direction when it considers\tthat
\n\t      the political situation in the country is such
\n\t      that a fresh election is necessary in the\t in-
\n\t      terest of political stability or to  establish
\n\t      the confidence of the people in the Govt. of a
\n\t      State”. (p. 1383-84).\n<\/p><\/blockquote>\n
\t      In that case, after considering the extent  of
\n\t      federalism  in (our constitution it  was\talso
\n\t      observed (p. 1383) :\n<\/p><\/blockquote>\n
\t      “If  then our Constitution creates  a  Central
\n\t      Government  which is ‘amphibian’ in the  sense
\n\t      that  it\tcan move- either on the\t federal  or
\n\t      unitary  plane, according to the needs of\t the
\n\t      situation\t and circumstances of a\t case,\tthe,
\n\t      question which we are driven back to  consider
\n\t      is whether an assessment of the ‘situation’ in
\n\t      which the Union Government should move  either
\n\t      on  the federal or unitary plane\tare  matters
\n\t      for  the Union Government itself or  for\tthis
\n\t      Court to consider and determine. Each organ of
\n\t      the Republic is expected to know the limits of
\n\t      its own powers. The judiciary comes in   generally
\n\t      only  when any question of ultra vires  action
\n\t      is    involved, because questions relating  to
\n\t      vires appertain to its domain”.\n<\/p><\/blockquote>\n
In the first quotation given above, what was spoken of as  a
\n,’residuary  executive\tpower” of  the\tCentral\t Government,
\nanalogous   to\t the  “residuary”  legislative\t powers\t  of
\nParliament,  was  relied  upon in  support  of\tthe  alleged
\n“direction” from the Centre’ In the case before us it  could
\ncertainly  be  urged that a consideration  of  the  question
\nwhether\t a  State Govt. or its Chief Minister is or  is\t not
\ncarrying out the trust which Constitutional power places  in
\nthe  hands  of\ta State Government and its head,  so  as  to
\ndetermine whether any exercise of extraordinary powers under
\nArticle\t 356  of the Constitution is called for or  not,  is
\ncertainly  a  matter  which lay within\tthe  powers  of\t the
\nCentral Government.  Article 356 speaks of the satisfaction”
\nof  the\t President  from  a  report  of\t the  Governor\t “or
\notherwise”  whether  a particular situation  has  arisen  in
\nwhich  the  Govt.  of  the State cannot\t be  carried  on  in
\naccordance with the provisions of the Constitution.  Such  a
\nmatter would certainly be a matter of public importance.  If
\nthe President deems it necessary to give the State Govt.  or
\nits  Chief Minister an opportunity of being heard before  an
\nimpartial  Commission of Inquiry constituted under the\tAct,
\nit could certainly not be said that such a mode of  exercise
\nof  power under Article 356 is not fully covered by what  is
\nnecessarily  implied  by this article of  the  Constitution.
\nIndeed, such a procedure would be a very fair and reasonable
\none.   And,  in\t judging  the-validity\tof  provisions\teven
\nhypothetical  situations to which they could apply could  be
\ntaken into account and not merely those present in the Pi
\ncase before the Court.\tWe do not think that an\t examination
\nof  the express provisions of the Constitution advances\t the
\ncase of the plaintiff-\n<\/p>\n
49<\/span><\/p>\n
On the other hand, the Central Government can place reliance
\non, interalia, provisions of Article 356 of the Constitution
\nfor powers which could be held to be necessarily implied  in
\nthe  provisions of the Constitution-that is to say, a  power
\nto  order  an inquiry for the purposes of  the\tsatisfaction
\nrequired by article 356.  And the machinery provided by\t the
\nAct  could,  it seems to us, be utilised to  decide  whether
\naction under article 356 is really called for.
\nReliance was, however, placed strongly on provisions of\t the
\nConstitution setting up what, in the words of Dr.  Ambedkar,
\none of the prime architects of our Constitution, is “a\tDual
\nPolity”\t by which, as was explained in the case of State  of
\nRajasthan (supra), he meant a Republic “both unitary as well
\nas  federal”  according\t to  the  needs\t of  the  time\t and
\ncircumstances.\t This “Dual Polity” of ours is a product  of
\nhistorical  accidents,\tor, at any  rate,  of  circumstances
\nother  than  those which result in  genuine  federations  in
\nwhich  the desire for a separate identity  and\tgovernmental
\nindependence  of  the  federating units is  so\tstrong\tthat
\nnothing\t more than a union with a strictly demarcated  field
\nof  Central Government’s powers is possible.   A  nonfederal
\npolity\tcarries the attenuation of Central authority to\t the
\nextent of confining combined or concerted action to the more
\nstrictly limited field of collaboration only to matters such
\nas  foreign  affairs  and  defence so  that  it\t sets  up  a
\nmechanism  of cooperative action in limited areas which\t can
\nhardly\tbe spoken of as a Government.  A genuine  federation
\nis  a  combination of political units  which  adhere  rather
\ntenaciously  to the exclusion of the Central authority\tfrom
\nstrictly demarcated spheres of State action, but there is  a
\nCentral\t or Federal “Government”.  The extent of  Federalism
\nset  up\t depends  upon\tthe extent  of\tdemarcation  in\t the
\nexecutive,  legislative\t and judicial spheres.\tIn  a  truly
\nFederal\t Constitution this demarcation is carried out  in  a
\nvery  carefully\t comprehensive\tand  detailed  manner.\t The
\nlimits are clearly specified.  We will thus have to  examine
\nour Constitution to determine how much of it is found here.
\nNo  doubt,  throughout the long course of our  history,\t our
\nsuccessive  rulers  bad been trying to build up a  unity  of
\nIndia  by establishing their imperial sway  Politically\t and
\nadministratively over the whole country, but, it was  really
\nthe  British  who  succeeded in giving reality\tto  such  an
\nobjective.  And, even they preserved a duality of systems of
\nGovernment.   There was a British India under  the  Governor
\nGeneral\t  presiding  over  the\tdestinies  of  the   various
\nprovinces  under Governors as Imperial sub-agents,  but\t all
\nacting on behalf of an Emperor whose governments ruled\tfrom
\nWestminster  and Whitehall.  And, there were other parts  of
\nthe country, ruled by Indian Prince.,; owing allegiance to a
\nforeign\t Emperor  to  whose authority they  paid  homage  by
\nacknowledging  his sovereignty or the paramountly  exercised
\nthrough\t his  Viceroy.\tThese two parts were  sought  to  be
\nknitted together into a federal polity by the Government  of
\nIndia Act of 1935.  Federal principles, including a  Federal
\nCourt,\twere embodied in it so as to bring together and\t co-
\nordinate  two different types of political systems and\tsets
\nof authorities.\t But, after the Constitution
\n50<\/span>
\nof our Republic, came the gradual disappearance of  Princely
\nStates\tand a unification of India in a single\tpolity\twith
\nduality\t of agencies of Government only for the purposes  of
\ntheir  more  effective\tand  efficient\toperations  under  a
\nCentral direction.  It was, more or less, an application  of
\nthe  principle of division of labour under at least  Central
\nsupervision.   In other words the duality or duplication  of
\norgans of government on the Central and State levels did not
\nreflect\t a truly federal demarcation of powers based on\t any
\nseparatist  sentiments which could threaten the\t sovereignty
\nand integrity of the Indian Republic to which members of our
\nConstituent  Assembly seemed ardently devoted,\tparticularly
\nafter  an unfortunate division of the country  with  certain
\nobviously disastrous results.\n<\/p>\n
However,  we  may  examine the\texpress\t provisions  of\t our
\nConstitution  relating\tto the organs of Government  in\t the
\nStates which, no doubt, give the appearance of\tfull-fledged
\nseparate  States for certain purposes.\tEach State  has\t its
\nown  Governor exercising the executive power of that  State.
\nBut,   all   Governors,\t although  undertaking\t to   devote
\nthemselves  to the service and well-being of the  people  of
\ntheir respective States, owe an undivided allegiance to “the
\nConstitution and the law”.  Each of them is appointed by the
\nPresident  and\tholds  office during  the  pleasure  of\t the
\nPresident  to whom he sends his reports with a view  to\t any
\nproposed action under Article 356 of the Constitution.\t The
\nGovernor’s authority, under the Warrant of his\tappointment,
\nis  traceable to the President to whom he is to\t submit\t his
\nresignation if he resigns.\n<\/p>\n
Article\t 163 speaks of the, Council of Ministers  “with\t the
\nChief  Minister at the head to. aid and advise the  Governor
\nin the exercise of his functions, except in so far as he  is
\nby  or\tunder  this Constitution required  to  exercise\t his
\nfunctions  or  any  of them in\this  discretion.”  Now,\t the
\nCouncil of Ministers, theoretically appointed by the  Gover-
\nnor,   is   certainly  “collectively  responsible   to\t the
\nLegislative  Assembly of the State” (see :  Article  164(2).
\nBut, this “collective responsibility” does not, as has\tbeen
\nerroneously  attempted\tto be argued before us,\t abridge  or
\ntruncate  the power of the Central Government to  appoint  a
\nCommission under s. 3 of the Act.  In fact, this “collective
\nresponsibility” has a scope and mode of operation which\t are
\nvery  different from those of an inquiry under s. 3  of\t the
\nAct even though the same or similar matters may,  sometimes,
\ngive rise to both.  “Collective Responsibility” is basically
\npolitical  in  origin and mode of operation.  It  may  arise
\neven  in  cases\t which may not call for\t any  inquiry  under
\nSection\t 3  of\tthe Act.  And,\tmatters\t investigated  under
\nSection 3 of the Act may have no bearing on any\t “collective
\nresponsibility”.\n<\/p>\n
The object of collective responsibility is to make the whole
\nbody of persons holding Ministerial office collectively, or,
\nif  one\t may so put it, “vicariously” responsible  for\tsuch
\nacts  of  the others as are referable  to  their  collective
\nvolition  so  that,  even  if  an  individual  may  not\t  be
\npersonally  responsible\t for it, yet, he will be  deemed  to
\nshare
\n51<\/span>
\nthe   responsibility  with  those  who\tmay  have   actually
\ncommitted some wrong.  On the other hand, in the case before
\nus,  the  enquiry under Section 3 of the Act by\t the  Grover
\nCommission has been ordered by the Central Government so  as
\nto determine who is actually responsible for certain actions
\nand  what  could be the motive behind them.  The  sphere  of
\nthis   enquiry\tis  very  different  from  that\t  in   which
\n“collective    responsibility”\t  functions.\t  Explaining
\n“collective  responsibility”, as understood in England,\t two
\nwriters\t on Constitutional matters (see : “Some Problems  of
\nthe Constitution’ by Geoffrey Marshall and Graeme C. Moodie)
\nsay: (at p. 71)
\n\t      “If  responsibility  is taken  in\t the  formal
\n\t      constitutional   sense,  there   would   seem,
\n\t      granted  collective  governmental res-\n<\/p>\n
\t      ponsibility, to be no clear distinction to
\n\t      be  drawn between Ministers inside  and  those
\n\t      outside  the  Cabinet.  To be  responsible  in
\n\t      this sense simply is to share the consequences
\n\t      of- responsibility-namely to be subject to the
\n\t      rule  that  no member of\tthe  Government\t may
\n\t      properly\t remain\t a  member  and\t  dissociate
\n\t      himself from its policies (except on occasions
\n\t      when the Government permits a free vote in the
\n\t      House)”.\n<\/p>\n
\t      ‘They add :\n<\/p>\n
\t      “The substance of the Government’s  collective
\n\t      responsibility could be defined as its duty to
\n\t      submit  its  policy to and defend\t its  policy
\n\t      before the House of Commons, and to resign  if
\n\t      defeated on an issue of confidence”.\n<\/p>\n
Each  Minister can be and is separately responsible for\t his
\nown  ,decisions and acts and omissions also.  But,  inasmuch
\nas  the Council of Ministers is able to stay in office\tonly
\nso  long  as  it commands the support and  confidence  of  a
\nmajority  of  Members of the Legislature of the\t State,\t the
\nwhole  Council of Ministers must be held to  be\t politically
\nresponsible, for the decisions’ and policies of each of\t the
\nMinisters  and of his department which could be presumed  to
\nhave  the support of the whole Ministry.  Hence,  the  whole
\nMinistry  will,\t at  least on issues  involving\t matters  of
\npolicy,\t have  to  be treated as one entity so\tfar  as\t its
\nanswerability  to the Legislative Assembly representing\t the
\nelectors is concerned.\tThis is the meaning of the principle
\nunderlying article, 164(2) of the Constitution.\t The purpose
\nof  this provision is not to find out facts or to  establish
\nthe  actual responsibility of a Chief Minister or any  other
\nMinister   or\tMinisters  for\t particular   decisions\t  or
\nGovernmental  acts.   That can be more suitably\t done,\twhen
\nwrongful  acts or decisions are complained of, by  means  of
\ninquiries  under the Act.  As already indicated above,\t,the
\nprocedure of Parliamentary Committees to inquire into  every
\nlegally\t  or   ethically   wrong  act  was   found   to\t  be
\nunsatisfactory and unsound.  The principle of individual  as
\nwell as collective ministerial responsibility can work\tmost
\nefficiently  only  when cases requiring proper\tsifting\t and
\nevaluation of evidence and discussion of questions  involved
\nhave taken place, where this is required, in proceedings be-
\nfore a Commission appointed under, s. 3 of the Act.-\n<\/p>\n
52<\/span><\/p>\n
Text-books writers on Constitutional Law have indicated\t how
\ncollective  ministerial responsibility to Parliament,  which
\nhas  essentially a political purpose and effects,  developed
\nlater\tthan  individual  responsibility  of  Ministers\t  to
\nParliament which was also political in origin and operation.
\nIt  is true that an. individual Minister could, in  England,
\nwhere  the  principle of individual and\t collective  respon-
\nsibility of Ministers was evolved, be responsible either for
\nwrongful acts done by him without the authority of the whole
\ncabinet\t or of the monarch to support them, or under  orders
\nof the King who could, in the eye of law, do no wrong.\tBut,
\napart  from  an impeachment, which has become  obsolete,  or
\npunishment for contempt of a House, which constitute only  a
\nlimited kind of offences, the Parliament does not punish the
\noffender.  For establishing his legal liability recourse  to
\nordinary courts of law is indispensable.\n<\/p>\n
Responsibility\tto Parliament only means that  the  Minister
\nmay  be\t compelled  by convention to resign.   Out  of\tthis
\nliability arose the principle of collective  responsibility.
\nThus,  in  Wade and Phillips on\t “Constitutional  Law”,\t 8th
\nEdn.,  p. 87, we find; “Just as it became recognised that  a
\nsingle Minister could not retain office against the will  of
\nParliament, so later it became clear that all Ministers must
\nstand or fall together in Parliament, if the Government\t was
\nto  be\tcarried\t on as a unity rather than by  a  number  of
\nadvisers   of  the  Sovereign  acting\tseparately”.\tThis
\ndevelopment of collective responsibility was thus  described
\nin 1878 by Lord Salisbury:\n<\/p>\n
\t      “For  all that passes in Cabinet every  member
\n\t      of  it who does not resign is  absolutely\t and
\n\t      irretrievably  responsible  and has  no  right
\n\t      afterwards  to say that he agreed in one\tcase
\n\t      to  a  compromise,  while in  another  he\t was
\n\t      persuaded by his colleagues…. It is only  on
\n\t      the principle that absolute responsibility  is
\n\t      undertaken  by  every member of  the  Cabinet,
\n\t      who,  after a decision is arrived at,  remains
\n\t      member of it, that the joint responsibility of
\n\t      Ministers to Parliament can be upheld and\t one
\n\t      of   the\t most\tessential   principles\t  of
\n\t      parliamentary responsibility established.”\n<\/p><\/blockquote>\n
The  whole  question  of responsibility is  related  to\t the
\ncontinuance  of\t a Minister or a Government  in\t office.   A
\nMinister’s  own acts or omissions or those of others in\t the
\nDepartment  in\this charge, for which he  may  feel  morally
\nresponsible,  or,  for\twhich others may  hold\thim  morally
\nresponsible,  may compel him to resign.\t By an extension  of
\nthis logic, applied to individual Ministers at first, emerg-
\ned  the\t principle of “collective responsibility”  which  we
\nfind   enacted\t in  Articles  75(2)  and  164(2)   of\t our
\nConstitution.  The only sanction for its enforcement is\t the
\npressure  of public opinion expressed particularly in  terms
\nof withdrawal of political support by members of  Parliament
\nor the State Legislature as the case may be.
\nAs  Prof.  S. A. de Smith points out in\t his  Constitutional
\nand  Administrative  Law,  1971,  at  p.  170  to  179,\t the
\nprinciple   operates  in,  a  nebulous\t moral-cum-political
\nsphere, sometimes forcing an individual Minister to  resign,
\nas in the, case of Mr. Profumo, and, on
\n53<\/span>
\nother  occasions, involving the fate of the whole  Ministry,
\ndepending  upon the extent to which the Cabinet as  a  whole
\ncould be, in the circumstances of a particular case,  deemed
\nto  be\tresponsible for a particular decision or  action  or
\ninaction.  In England, the principle operates as a matter of
\nconvention  backed  by political judgment, as  reflected  in
\nParliament  whereas, for us, the principle is stated in\t our
\nConstitution  itself,  but it,\tnevertheless,  depends\tupon
\nconvention   and  upon\tpublic\topinion,   particularly\t  as
\nreflected in Parliament or in the State Legislature, as\t the
\ncase  may  be, for its effectiveness.\tThe  principle\tthus
\nexists separately and independently from the legal liability
\nof  a  Minister, holding an office in the Union or  a  State
\nGovernment.\n<\/p>\n
An   investigation  by\ta  Commission  of   Inquiry   should
\nfacilitate  or help the formation of sound  public  opinion.
\nThat  was the object of the Commission of  Inquiry  presided
\nover by Lord Denninig on the Profumo affair.  The fact\tthat
\nthe   Minister\t concerned   was   considered\tindividually
\nresponsible  to the House for a wrong statement made  to  it
\ndid  not prevent an inquiry by a Commission into matters  on
\nwhich  he had made the statement.  His\tindividual  actions,
\nhowever,  did  not  bring into operation  the  principle  of
\ncollective   responsible  because  his\tcolleagues  in\t the
\nGovernment   could   not  reasonably  be  held\t guilty\t  of
\ndereliction or breach of any duty.\n<\/p>\n
A  Commission of Inquiry could not properly be meant, as  is
\nsometimes  suspected,  to merely white-wash  ministerial  or
\ndepartmental action rather than to explore and discover,  if
\npossible,  real facts.\tIt is also not meant to serve  as  a
\nmode   of   prosecution\t and  much  less   of\tpersecution.
\nProceedings  before  it\t cannot\t serve\tas  substitutes\t for
\nproceedings  which should take place before a Court  of\t law
\ninvested with powers of adjudication as well as of  awarding
\npunishments  or affording reliefs.  Its report\tor  findings
\ncannot\trelieve\t Courts\t which may  have  to  determine\t for
\nthemselves matters dealt with by a Commission.\tIndeed,\t the
\nlegal  relevance  or  evidentiary value\t of  a\tCommission’s
\nreport\tor  findings  on issues which a Court  may  have  to
\ndecide for itself, is very questionable.  The appointment of
\na  Commission  of  Inquiry to  investigate  a  matter  which
\nshould, in the ordinary course, have gone to a Court of\t law
\nis generally a confession of want, of sufficient evidence-as
\nin  the case of the appointment of the Warren Commission  in
\nthe  U.S.A. to inquire into facts concerning the  murder  of
\nthe late President Kennedy-to take it to Court combined with
\nan attempt to satisfy the public need and desire to discover
\nwhat had really gone wrong and how and where if possible.  A
\nCommission of Inquiry has, therefore, a function of its\t own
\nto  fulfill.   It has an orbit of action of its\t own  within
\nwhich it can move so as not to conflict with or impede other
\nforms of action or modes of redress.  Its report or findings
\nare  not immune from criticism if they are either  not\tfair
\nand impartial or are unsatisfactory for other reasons as was
\nsaid to be the case with the Warren Commission’s report.
\nProvisions  of either Article 75(2) or Article 164(2)  could
\nnot operate as bars against the institution of inquiries  by
\nCommissions
\n54<\/span>
\nset up wider the Act.  To infer such bars as their necessary
\nconsequences would be to misunderstand the object as well as
\nthe mode and sphere of operation of the principles found  in
\nboth articles 75(2) and 164(2) of the Constitution and\talso
\nthe. purpose,, scope, and function of Commissions of Inquiry
\nset up under the Act.\n<\/p>\n
In a somewhat desperate attempt to find some  constitutional
\nprohibition  against  the  inquiries  on  which\t the  Grover
\nCommission  has embarked, learned Counsel for the  plaintiff
\nrelied\t on  Article  194(3)  of  the\tConstitution.\t The
\nparticular  clause (3) of Article 194 has to be read in\t the
\ncontext\t of  other  clauses of Article 194 as  well  as\t the
\nremaining  provisions  of the Constitution as  indicated  by
\nArticle\t 194(1).  We may here set out the whole\t of  Article
\n194 which reads as follows :-\n<\/p>\n
\t      “194  (1).  Subject to the provisions of\tthis
\n\t      Constitution  and\t to the rules  and  standing
\n\t      orders   regulating  the\tprocedure   of\t the
\n\t      Legislature, there shall be freedom of  speech
\n\t      in the Legislature of every State.
\n\t      (2)   No member of the Legislature of a  State
\n\t      shall  be\t liable. to any proceedings  in\t any
\n\t      Court in respect of anything said or any\tvote
\n\t      given  by\t him  in  the  Legislature  or\t any
\n\t      committee\t thereof, and no person shall be  so
\n\t      liable  in  respect of the publication  by  or
\n\t      under  the  authority  of a House\t of  such  a
\n\t      Legislature  of  any report, paper,  votes  or
\n\t      proceedings.\n<\/p><\/blockquote>\n
\t      (3)   In\t  other\t  respects,   the    powers,
\n\t      privileges  and immunities of a House  of\t the
\n\t      Legislature of a State, and of the Members and
\n\t      the committees of a House of such Legislature,
\n\t      shall  be\t such as may from time\tto  time  be
\n\t      defined by the Legislature by law, and,  until
\n\t      so  defined,  shall be those of the  House  of
\n\t      Commons  of  the\tParliament  of\tthe   United
\n\t      Kingdom, and of its members and committees, at
\n\t      the commencement of this Constitution.
\n\t      (4)   The, provisions of clauses (1), (2)\t and
\n\t      (3) shall apply in relation to persons who  by
\n\t      virtue of this Constitution have the right  to
\n\t      speak  in, and otherwise to take part  in\t the
\n\t      proceedings of, a House of the Legislature  of
\n\t      a State or any committee thereof as they apply
\n\t      in relation to members of that Legislature”.\n<\/p><\/blockquote>\n
Article\t 194. reproduces the terms of article 105 with\tthis
\nevident difference that, whereas article 194, is  applicable
\nto  Houses of a State Legislature,, article 105\t applies  to
\nthe  two Houses of Parliament.\tEach of these  two  articles
\nsubjects  “the\tpowers, privileges and immunities”  of\teach
\nHouse as well as all its Members and its Committees not only
\nto the laws made by the appropriate legislature but also  to
\nall the other provisions of the Constitution.  It is  clear,
\nfrom  these articles, that they do not apply to\t legislative
\npowers of Parliament or of the
\n55<\/span>
\nState  Legislatures  which are specifically  dealt  with  by
\narticles  245 to 255 of the Constitution.  Articles 105\t and
\n194, far from dealing with the legislative powers of  Houses
\nof  Parliament\tor of State Legislatures  respectively,\t are
\nconfined  in  scope to such powers of each House as  it\t may
\nexercise separately functioning as a House.  It also  covers
\nimmunities  and privileges of each House as a House as\twell
\nas of its members The correct principle of interpretation to
\napply is “no scitur a sociis”, or, in other words, the\tword
\n“powers”  gets\tits  meaning and colour not  only  from\t its
\ncontext\t but also from the other words used  in\t association
\nwith it.\n<\/p>\n
It is evident, from the Chapter in which article 194  occurs
\nas  well  as  the heading and its  marginal  note  that\t the
\n“powers”  meant\t to be indicated here are  not\tindependent.
\nThey are powers which depend upon and are necessary for\t the
\nconduct-of the- business of each House.\t They cannot also be
\nexpanded  into those of the House of Commons in England\t for
\nall  purposes.\tFor example, it could not be contended\tthat
\neach  House  of a State Legislature has the  same  share  of
\nlegislative power as the House of Commons has, as a  consti-
\ntuent part of a completely sovereign legislature.  Under our
\nlaw  it is the Constitution which is sovereign\tor  supreme.
\nThe  Parliament\t as well as each Legislature of a  State  in
\nIndia\tenjoys\t only  such  legislative   powers   as\t the
\nConstitution  confers  upon it.\t Similarly,  each  House  of
\nParliament   or\t  State\t Legislature  has  such\t  share\t  in
\nLegislative  power as is assigned to it by the\tConstitution
\nitself.\t  The  powers  conferred  on  a\t House\tof  a  State
\nLegislature  are  distinct from the  legislative  powers  of
\neither\tParliament or of a State legislature for  which,  as
\nalready\t observed,  there  are separate\t provisions  in\t our
\nConstitution.\tWe  need  not travel  beyond  the  words  of
\narticle\t 194  itself,  read with  other\t provisions  of\t the
\nConstitution, to clearly reach such a conclusion.
\nThere is, if we may say so, considerable confusion still  in
\nthe  minds of some people as to the scope of  the  undefined
\n“powers,  privileges and immunities” of a House of  a  State
\nLegislature  so much so that it has sometimes been  imagined
\nthat  a\t House of a State legislature has some\tjudicial  or
\nquasi-judicial powers also. quite apart from its  recognised
\npowers\tof  punishment\tfor its contempt  or  the  power  of
\ninvestigations\tit may carry out by the appointment  of\t its
\nown  committees.   Arguments  of the kind  which  have\tbeen
\nsometimes  advanced  in\t this country could  not  have\tbeen
\nadvanced if it was clearly understood that, even in England,
\nwhere the Constitution is largely conventional, the exercise
\nof  judicial powers directly by Houses of  the\tlegislature,
\nincluding   powers  such  as  those  of\t  impeachment,\t are
\npractically  obsolete.\tWhatever remained of the  power\t en-
\njoyed  once by the High Court of Parliament, when  the\tKing
\ncould himself sit, as a part of Parliament, with the  Houses
\nof Parliament, to administer justice is now concentrated  in
\nthe  House  of Lords, exercised through a Committee  of\t Law
\nLords.\n<\/p>\n
Every power of the House of Parliament in England is subject
\nto  an\tact  of\t Parliament.  The  Act\twith  which  we\t are
\nconcerned is an
\n56<\/span>
\nAct  of\t our Parliament.  We have to, satisfy  ourselves  by
\nreference   to\t our  Constitution  and\t not   the   British
\nConstitution  that the provisions of the Act before  us\t are
\nwithin the legislative competence of Parliament.  But, if we
\ncould ignore the provisions of our Constitution relating  to
\ndistribution  of  legislative  powers,\twhich  is  what\t the
\narguments based on Article 194(3) seem to imply, we would be
\nleft  with  no yard-stick for  determining  the\t legislative
\ncompetence  of our Parliament.\tIt would be absurd  to\ttake
\nthat  view simply because that is the position\tin  England.
\nNobody could, in England, question the validity of an Act of
\nParliament  on the ground that it is in excess of the  power
\nvested in a sovereign Parliament to legislate.\tIf we  could
\napply  that  principle\there the Act before us\twould  be  a
\nsufficient answer to all argument against its validity.
\nIf  that principle does not apply in our country because  of
\nthe provisions of our Constitution, which constitute  courts
\njudges\tof constitutionality of even Acts of Parliament,  we
\nhave  to  test\tthe provisions of the Act on  the  anvil  of
\nexpress\t provisions of our own Constitution and not  on\t the
\nerroneously supposed powers of a House of Commons in England
\nwhich could never ignore or invalidate the provisions of any
\nAct  made by the Parliament there although it could  play  a
\ndecisive role in its repeal if it so desired.
\nA source of confusion about the “powers” and “privileges” of
\nthe  House  of\tCommons even in England\t was  sought  to  be
\nremoved\t long ago by Sir Erskine May when he pointed out  in
\nhis  “Parliamentary Procedure and Practice’, in\t 1844,\tthat
\nCoke’s dictum and Blackstones views, according to which\t the
\nordinary law courts could not judge matters relating to “Lex
\nParliament”,   on  the\tground\tthat  “the  High  Court\t  of
\nParliament  hath no higher”, were out of date even  in\t17th
\nCentury England.  He said about such views :\n<\/p>\n
\t      “The  views  belonged  to\t a  time  when\t the
\n\t      distinction    between   the   judicial\t and
\n\t      legislative   functions  of   Parliament\t was
\n\t      undrawn or only beginning to be drawn and when
\n\t      the  separation of the Lords from the  Commons
\n\t      was  much\t less complete than it\twas  in\t the
\n\t      seventeenth  century.   Views about  the\tHigh
\n\t      Court of Parliament and its powers which\twere
\n\t      becoming\tantiquated  in\tthe  time  of  Coke,
\n\t      continued\t  to  be  repeated  far\t  into\t the
\n\t      eighteenth   century,   although\t after\t the
\n\t      Restoration  Principles began to be laid\tdown
\n\t      which  were more in accord with the  facts  of
\n\t      the  modern Constitution.\t But much  confusion
\n\t      remained which was not dismissed by the use of
\n\t      the phrase “privileges of Parliament”.\n<\/p><\/blockquote>\n
Sir  Erskine  May  went on to  indicate\t the  three  notions
\nresulting from this “confusion of thought” in the course  of
\nEnglish Constitutional history.\t He wrote :\n<\/p>\n
\t      “Three  notions arise from this  confusion  of
\n\t      thought
\n\t      (1)   That  the courts, being inferior to\t the
\n\t      High  Court  of  Parliament,  cannot  call  in
\n\t      question,\t the decision of either House  on  a
\n\t      matter of privilege.\n<\/p><\/blockquote>\n
\t      57<\/span><\/p>\n
\t      (2)   That the lex et conseutudo parliament is
\n\t      a separate law, and, therefore, unknown to the
\n\t      Courts.\n<\/p><\/blockquote>\n
\t      (3)   That   a  Resolution  of  either   House
\n\t      declaratory   of\tprivilege  is\ta   judicial
\n\t      precedent binding on the courts.”\n<\/p><\/blockquote>\n
Now,  what  learned  counsel for  the  plaintiff  seemed  to
\nsuggest was that Ministers, answerable to a Legislature were
\ngoverned  by  a\t separate  law\twhich  exempted\t them\tfrom
\nliabilities under the ordinary law.  This was never the\t law
\nin  England.   And,  it is not so  here.   Our\tConstitution
\nleaves\tno  scope for such arguments, based on\ta  confusion
\nconcerning  the\t “powers” and “privileges” of the  House  of
\nCommons\t mentioned  in\tarticles  105(3)  and  194(3).\t Our
\nConstitution  vests only legislative power in Parliament  as
\nwell as in the State Legislatures.  A House of Parliament or
\nState Legislature cannot try anyone or any case directly, as
\na Court of Justice can, but it can proceed  quasi-judicially
\nin  cases of contempt of its authority and take\t up  motions
\nconcerning  its\t “privileges” and “immunities”\tbecause,  in
\ndoing  so, it only seeks removal of obstructions to the\t due
\nperformance  of\t its  legislative functions.   But,  if\t any
\nquestion of jurisdiction arises as to whether a matter falls
\nhere or not, it has to be decided by the ordinary courts  in
\nappropriate  proceedings.  For example, the jurisdiction  to
\ntry a criminal offence, such as murder committed even within
\na House vests in ordinary criminal courts and not in a House
\nof  Parliament or in a State legislature.  In  Smt.   Indira
\nNehru  Gandhi v. Shri Rai Narain<\/a>(1), this Court held that  a
\nHouse  of  Parliament cannot, in exercise  of  any  supposed
\n“powers”  under\t article 105, decide election  disputes\t for
\nwhich  special authorities have been constituted  under\t the
\nRepresentation\tof People Act, 1961, enacted  in  compliance
\nwith  article 329.  Similarly, appropriate  provisions\tfor.
\nappointments  of  suitable persons, invested with  power  to
\ndetermine, in accordance with a procedure which is fair\t and
\njust  and regular and efficient, for ascertainment of  facts
\non matters of public importance, is provided by the Act.  If
\nsuch provisions are covered by specific provisions  relating
\nto  legislative\t competence of Parliament and on(–  of\t the
\nitems  in Central List I or the concurrent List III  of\t the
\nSeventh\t Schedule  of the Constitution, we-need\t not  go  to
\nother  provisions  which would, strictly  speaking,  not  be
\nrelevant  unless they could be relied upon to clearly  carve
\nout  some  exception  ,operating  against  such\t legislative
\ncompetence.\n<\/p>\n
Learned\t Counsel for the plaintiff has relied also upon\t the
\nprovisions  of Chapter 11, Part XI, containing Articles\t 256
\nto 263 of the Constitution.  Here, we find Articles 256\t and
\n257(1)\tof the Constitution which we have  already  examined
\nabove to bring out the extent of Government of India’s power
\nto  give  necessary  directions to every  State.   The\tterm
\n“State”\t used  there  could not possibly be  held  to  apply
\nmerely\tto a geographical entity or  territory.\t  Article-1,
\nsub-article  (2)  and Article-3 of our Constitution  make  a
\ndistinction between “the State” and its territory.   Article
\n300,  in  the  context\tof  legal  proceedings,\t makes\t the
\nGovernment of a State the legal representative of the
\n(1) [1976] 2 S.C.R. 347.\n<\/p>\n
58<\/span><\/p>\n
State.\tA direction can only be given to a legal entity\t and
\nnot  to\t a  geographical or a  territorial  entity.   Hence,
\n“directions”  to  the “State”, as these terms  are  used  in
\nArticles  256 and 257, must necessarily mean  directions  to
\nStates\tas legal entities which must have legal\t representa-
\ntives.\t There\tneed  be no  difficulty\t in  treating  State
\nGovernments   as   representatives   of\t  their\t  respective
\nindividual  States.   Can we, with such\t a  constitution  as
\nours, say that the Union Government must take no   interest,
\nand,  consequently,  no action whatsoever which\t savours  of
\ninterference   with  governmental  functions  of   a   State
\nGovernment ? in, the dissolution of State Assemblies case we
\nhave  already  stated  the views of this  Court\t on  such  a
\nsubject\t at  some  length  indicating  there  the  ]dud\t  of
\nfederation  we\thave  in this country  with  what  has\tbeen
\ncharacterised  as “a strong unitary bias”, or, at any  rate,
\nwith powers given to the Union Government of.supervision and
\neven  supersession,  in\t certain  circumstances,  of   State
\nGovernments  temporarily  to restore normalcy or  to  inject
\nhonesty,   integrity,  and  efficiency\tinto   State   admi-
\nnistrations where these essentials of good government may be
\nwanting.\n<\/p>\n
Neither\t Chapter 11, part XI of the-  Constitution,  dealing
\nwith the administrative relations between the Union and\t the
\nStates, nor any other part of the Constitution could be held
\nto   imply  a  prohibition  against  the  exercise  of\t any
\nlegislative  power of Parliament.  Indeed, a glance  through
\nChapter\t 11 in part XI shows that, apart from articles 25  6
\nand 25 7 (1 ), it deals only with some special matters, such
\nas  maintenance\t of  national  highways,  water\t ways,\t and
\nrailways,  constructions  to be undertaken  for\t objects  of
\nnational  or  military\timportance,  delegation\t of  certain
\npowers,\t  some\tarbitrations,  recognition  throughout\t the
\nterritory  of  India  of certain public\t acts  and  judicial
\nproceedings  of the Union and of every State,  determination
\nof  disputes relating to waters, and certain  other  matters
\ninvolving co-ordination between the States.  It could not be
\nsaid to exhaust all matters which may involve the  interests
\nof  particular\tStates as well as of the  Union.   There  is
\nnothing\t in any of the provisions here or elsewhere  in\t our
\nConstitution  which  could, by a necessary  implication,  be
\nsaid  to  impose conditions on the exercise  of\t legislative
\npowers\t distributed  by  Chapter  I  of  Part\tXI  of\t the
\nConstitution  read  with  the three  lists  in\tthe  Seventh
\nSchedule.   Such a question must, therefore,  be  determined
\nexclusively by the provisions of Chapter I of Part XI  which
\nrefer  us to the legislative lists in the Seventh  Schedule.
\nWe  cannot  forget that we are really  concerned  here\twith
\nlegislative powers and not with administrative relations  or
\ndirections.   It  is  true that those powers  cannot  be  so
\nexercised  as to displace or amend the\tConstitution.\tBut,
\nunless they have that effect, provisions meant to supplement
\nand facilitate due discharge of Constitutional powers cannot
\nbe deemed to be in excess of ordinary legislative power.
\nEntry  94  in  List I of  exclusively  Central\tsubjects  of
\nlegislation reads as follows :\n<\/p>\n
“94.   Inquiries, surveys and statistics for the purpose  of
\nany of the matters in this list”.\n<\/p>\n
It  is\ttrue that matters affecting  relations\tbetween\t the
\nUnion  Government  and the State Government  are  not  found
\nmentioned specifically
\n59<\/span>
\nanywhere  in the Union List.  It was, therefore, urged\tthat
\n“inquiries””  mentioned\t here, even if\tthey  extend  beyond
\nsurveys\t and statistics, must, nevertheless, be confined  to
\n“matters  in  this  list”.   It\t was  submitted\t that\tsuch
\n“inquiries” could not embrace the conduct of Ministers exer-
\ncising\tgovernmental  powers as such conduct does  not\tfall
\nunder  any item in the list but should,\t properly  speaking,
\nhave  found  a\tplace  in  the\tChapter\t on  “administrative
\nrelations”.  It was suggested that the Union Government war,
\nreally trying to exercise a kind of unwarranted disciplinary
\nauthority  and control over the conduct of Ministers in\t the
\nStates\tin  the\t performance of\t governmental  functions  by
\nsetting\t up  a\tCommission  of\tInquiry\t a  subject,  it  is
\nsubmitted, that could properly be dealt with only as a\tpart
\nof  “Constitutional  law” and should have  found  a  mention
\nexplicitly  in\tsome part of our Constitution so as  to\t ‘be
\nunmistakably identifiable there as such control\t exercisable
\nthrough the means adopted for it.\n<\/p>\n
We  do not think that the term “Constitutional law”  can  be
\neither ,clearly or exhaustively defined although its  nature
\ncan  be\t roughly  indicated in the way\tin  which  text-book
\nwriters\t have attempted to do it.  For\texample,  Professors
\nE.C.S.\tWade and Godfrey Phillips (See\tConstitutional\tLaw,
\n8th Ed. page 4) say :\n<\/p>\n
\t      “There  is  no  hard and\tfast  definition  of
\n\t      constitutional law.  In the generally accepted
\n\t      use  of  the  term it means  the\trules  which
\n\t      regulate the structure of the principal organs
\n\t      of  government and their relationship to\teach
\n\t      other,\tand   determine\t  their\t   principal
\n\t      functions.”\n<\/p><\/blockquote>\n
In  other  words, it could be expected to contain  only\t the
\nbasic\tframework.   It\t is  not  part\tof  its\t nature\t  to
\nexhaustively deal with all governmental matters.
\nAs there is no written Constitution in Britain, the  authors
\nquoted\t above\tsaid  “the  Constitution  has  no   separate
\nexistence  since it is the ordinary law of the land”.\tThey
\nadded  :  “There  is a common body of law  which  forms\t the
\nconstitution,  partly  statutory,  partly  common  law,\t and
\npartly\tconventions”.\tIt  is not possible  in\t England  to
\nequate\tall that passes as “constitutional law”\t With  rules
\nenforceable through Courts of law because conventions, which
\ncannot\tbe  so enforced, are also,  apparently,\t treated  as
\nparts of it since they also contain rules of conduct.  Thus,
\nnot  all  “constitutional law” need be written\tor  be\teven
\n“law”  in the commonly accepted sense of this term.  In\t any
\ncase,  there  can be no clear-cut distinction  between\twhat
\ncould  or  should  and\twhat could  not\t or  should  not  be
\ncomprehended within the body of rules called “constitutional
\nlaw”.\tIn practice, it will be found that what is  embodied
\neven  in  a written constitution depends  sometimes  on\t the
\npeculiar  notions for the time being of people who make\t it.
\nIt  reflects their views about what should be considered  so
\nbasic\tor   fundamental  as  to  find\ta   place   in\t the
\nConstitutional document.  For example, one of the provisions
\nof  the\t Swiss Constitution of 1893 prohibits  “sticking  of
\nanimals for butchers” meat unless they have previously\tbeen
\nstunned”.   According to normal notions\t of  “Constitutional
\nlaw”,  such a subject should not have found a place  in\t it.
\nOthers think that a 5-1042SCI\/77
\n60<\/span>
\nconstitution  should  contain nothing more than\t the  barest
\npossible  outlines of the structure of the Government  of  a
\ncountry.   The\trest, whether “constitutional law”  or\tnot,
\ncould  be  done\t by the\t exercise  of  ordinary\t legislative
\npowers.\n<\/p>\n
Prof.\tK. C. Where, in his “modern Constitutions”, wrote  a
\nChapter\t on “What a constitution should contain”,  where  he
\nobserves :\n<\/p>\n
\t      “A  glance at the Constitutions  of  different
\n\t      countries\t shows at one,,- that people  differ
\n\t      very much in what they think it necessary\t for
\n\t      a\t Constitution  to contain.   The  Norwegians
\n\t      were  able to say all that they wanted to\t say
\n\t      in about twenty five pages; the Indians occupy
\n\t      about  two  hundred and fifty pages  in  their
\n\t      Constitution  of\t1950.  A principal  line  of
\n\t      division\tis found between those who regard  a
\n\t      Constitution    as   primarily   and    almost
\n\t      exclusively   a  legal  document\t in   which,
\n\t      therefore,  there is a place for rules of\t law
\n\t      but  for practically nothing else,  and  those
\n\t      who  think  of  a Constitution as\t a  sort  of
\n\t      manifesto, a confession of faith, a  statement
\n\t      of  ideals,  a ‘charter of the land’,  as\t Mr.
\n\t      Podsnap called it”.\n<\/p><\/blockquote>\n
He  opined  that “the one essential  characteristic  of\t the
\nideal or the best form of constitution is that it should  be
\nthe shortest possible”.\t And, Chief Justice John Marshall of
\nthe United States said in 1819 in McCulloch v. Maryland(1) :\n<\/p>\n
\t      “A Constitution to contain an accurate  detail
\n\t      of  all  the subdivisions of which  its  great
\n\t      powers  will  admit, and of all the  means  by
\n\t      which  they  may be  carried  into  execution,
\n\t      would  partake  of the prolixity\tof  a  legal
\n\t      code,  and could scarcely be embraced  by\t the
\n\t      human  mind.   It\t would\tprobably  never\t  be
\n\t      understood by the public.\t Its nature,  there-
\n\t      fore,  requires that only its  great  outlines
\n\t      should  be  marked,  its\timportant’   objects
\n\t      designated,  and the minor ingredients  ,which
\n\t      compose  those  objects be  deduced  from\t the
\n\t      nature of the objects themselves.”\n<\/p><\/blockquote>\n
It  is\ttrue  that our Constitution-makers did\tnot  try  to
\nconform\t to  the standards indicated above.   This  was\t due
\nlargely\t to the historical background and the manner of\t our
\nConstitution  making.  We did not start with a clean  slate.
\nWe accepted as our starting point the scheme embodied in the
\nGovernment  of\tIndia  Act, 1935,  enacted  by\tthe  British
\nParliament, evidently in an attempt to provide quite a\tcom-
\nprehensive  and\t foolproof  set\t of  legal  rules  for\t the
\ngovernance of. our country.  On it, were engrafted a set  of
\nprovisions  containing\tprinciples,  sometimes\tconflicting,
\nculled\t from  the  Constitutions  of\tvarious\t  countries,
\nincluding  Japan,  and results of judicial  wisdom  and\t ex-
\nperience  gathered from all comers of the earth, so that  we
\nhave a Constitution which, as Mr. Granville Austin  suggests
\nin his book on “The Indian Constitution : The cornerstone of
\na Nation”, resembles a coat of various colours.
\n(1)  4, LEd. 579.\n<\/p>\n
61<\/span><\/p>\n
Our  Constitution  may\tbe  lengthy  and  considerably\tmore
\ncomprehensive  and  elaborate than  Constitutions  of  other
\ncountries. Nevertheless, to expect its contents to be so all
\nembracing  as  to necessarily specify and  deal\t with  every
\nconceivable  topic  of\tlegislation  on\t all  constitutional
\nmatters exhaustively, with sufficient particulars, so as  to
\nleave  no  room\t for  doubt as to what\tcould  be  meant  by
\nit…… as though a topic of legislation had to be  stated,
\nwith  necessary\t particulars, like a charge  to\t an  accused
\nperson\t…. is to expect the humanly impracticable  if\t not
\nthe  impossible.  And, to build an argument founded  on\t the
\nsupposed  reasonableness  of such an  expectation  and\tsome
\nloosely\t  drafted   comprehensive   definition\t of   either
\n“Constitutional\t law”  or a “Constitution”, to\tconvince  us
\nthat what is not so specified and identifiable as a  subject
\nof   legislation,   given  in  the  Constitution   must\t  be
\nnecessarily  prohibited\t at  least as a\t topic\tof  ordinary
\nlegislation,  although\tit  may\t become\t permissible  by  an
\namendment of the Constitution, by an addition to it, appears
\nvery unrealistic to us.\t At any rate, our Constitution\tdoes
\nnot  inhibit  the  growth or  development  of  supplementary
\nconstitutional law through channels other than Article 368.
\nExcessive  particularity  is  not  consistent,\tas   already
\nindicated  above, with the generally accepted notions  of  a
\nbasic  or what may be characterised as the “structural”\t law
\nof the State delineating its broad basic features only.\t The
\nmost  that  could be expected from the\thuman  foresight  of
\nConstitution  makers  is that they should provide  for\tthat
\nresidual  power of legislation which could cover  topics  on
\nwhich,\tconsistently  with  the\t constitutional\t  framework,
\nParliament  or\tState legislatures could  depending  on\t the
\nconstitutional\t pattern,   legislate\teven   though\t the
\nlegislation  may  not be easily assignable to  any  specific
\nentry.\tSuch a provision our Constitution makers did make.
\nItem  97 corresponds to the residuary legislative powers  of
\nParliament under Article 248.  It reads as follows :
\n“97.  Any other matter not enumerated in List II or List III
\nincluding any tax not mentioned in either of those lists.”
\nIt gives effect to Article 248.\t No doubt, resort to Article
\n248,  read  with item 97 of List I, could not  overcome\t any
\nspecific   constitutional   bar\t  against   legislation\t  on
\ninvestigation\tof  conduct  of\t Ministers  of\t any   State
\nGovernment  in the discharge of their duties had there\tbeen
\none.  There is certainly no such express and specific bar in
\nour  Constitution.  And, it is difficult to see how one\t can
\narise  by some necessary implication of\t provisions  dealing
\nwith  entirely\tdifferent topics.  There  is  no  indication
\nanywhere  in  our  Constitution\t that,\twhile  enacting\t the
\nprovisions from which we are asked to infer a bar against or
\nlimitation  upon legislation on such a topic  as  inquiries,
\nthat our Constitution-makers had any such bar or  limitation
\neven  remotely\tin  their minds.  There seems  no  legal  or
\nrational nexus between such a supposed bar or limitation and
\nthe  subjects  dealt with in the articles relied  upon.\t  As
\nalready\t indicated  above, the\tConstitution  makers  cannot
\nalways\tmention\t and exhaust every  conceivable\t topic.\t  We
\nthink that it is in order to meet precisely such a situation
\nthat article 248 read with Entry 97 was inserted.  Hence, we
\nthink that article 248 read
\n62<\/span>
\nwith  Entry 97 of list I will fully cover Section 3  of\t the
\nAct even if item 94 of List I does not.\n<\/p>\n
Alternatively,\tEntry 45 of the Concurrent List III  of\t the
\nSeventh\t Schedule  was relied upon on behalf of\t the  Union.
\nThis item reads as follows\n<\/p>\n
45.Inquiries and statistics for the purposes of any of the
\nmatters ‘specified in List II or List III”.
\nTo fall under item 45 of List III the topic of inquiry\tmust
\nrelate to one of the specified items in List II or List III.
\nIf  neither  items 94 and 97 of List I nor item 45  of\tList
\nIII which refers to inquiries relating to topics in List  II
\nas  well  could\t cover\tSection\t 3  of\tthe  Act,  it  would
\nnecessarily  follow  that such an enactment,  assuming\tthat
\nSection\t 3  was meant to cover an inquiry  against  a  State
\nMinister’s conduct in the exercise of powers enjoyed by\t him
\nby  virtue of his office was not contemplated at all by\t our
\nConstitution  makers.\tIf  such an  argument  was  correct,
\nSection\t 3  would,  on the assumption  made,  fall  entirely
\noutside\t the legislative competence of both  Parliament\t and
\nState  Legislatures  because there would be  no\t legislative
\npower  conferred  upon\tany Legislature to  deal  with\tsuch
\nsubject as it could not be covered by any entry in any list.
\nIndeed,\t if  we have correctly understood  the\targument  of
\nlearned\t Counsel  for the plaintiff in the form\t it  finally
\ntook,  this  is\t precisely  what  is  submitted\t to  us\t for
\nacceptance.   It was contended that this was so because\t the
\nconduct\t of  governmental affairs by State  Governments\t and
\ntheir  Ministers  is subject exclusively to the\t control  by
\nState  Legislature  and\t those of the  Union  Government  by
\nParliament alone by reason of the Constitutional  provisions
\nwe have already examined and explained.\n<\/p>\n
To  accept such contentions of the learned Counsel  for\t the
\nplaintiff  is to place Ministers, both in the States and  in
\nthe Union Governments, completely outside the scope of legal
\nanswerability on the ground that they were only\t politically
\nresponsible to and controllable by appropriate\tlegislatures
\neven  when  they,  in the course of  purported\texercise  of
\nofficial  powers,  act dishonestly and\tcorruptly  and\teven
\ncommit\tcriminal offences.  This would mean that even  if  a
\nMinister receives bribes, as we genuinely hope that none  in
\nthe  whole country does, he could not be made answerable  in
\nordinary courts or be subjected to criminal proceedings.  If
\nno  inquiry  under  any law into his  conduct  was  possible
\nsimply because the act complained of was done by a  Minister
\nin purported exercise of a power vested in him by virtue  of
\nhis  ministerial office, he would be placed in a  privileged
\nposition  above the ordinary processes of law applicable  to
\nother  citizens.  Mere holding of Ministerial  office  would
\nconfer\timmunity from any inquiry.  He would thus  become  a
\nlegally irresponsible despot above the ordinary law.
\nThe  determine\twhether there is a prima facie, case  for  a
\ncriminal  offence facts have to be necessarily\tinvestigated
\nor  inquired  into.   But,  of every  type  of\tinquiry\t and
\ninvestigation except one by the House of the Legislature  of
\nwhich he is a member is burred, the very first stop
\n63<\/span>
\ntowards aprosecution  for any serious crime would  be  shut
\nout in limine. No question of any further legal\t proceedings
\nwould arise under any enactment.  Such a consequence of\t the
\nconstitutional provisions relied upon by learned counsel for
\nthe plaintiff could not, in our opinion, be possible  within
\nthe contemplation of our Constitution makers.  Indeed,\tsuch
\na  view would clearly violate the express and very  salutary
\nprovisions of Article 14.\n<\/p>\n
We  prefer to infer and hold that the term  ‘inquiries’,  as
\nused  in item 94 of List I and Item 45 of List III,  without
\nany limitations upon their nature or specification of  their
\ncharacter  or objects, is wide enough to embrace every\tkind
\nof  inquiry,  whether  a  criminal  offence  by\t anyone\t  is
\ndisclosed  or  not by facts alleged.  Entry 45 in  List\t III
\nmust  include  inquiries to cover  allegations\tagainst\t all
\npersons\t which\tbring them within the sphere of Entry  I  of
\nList  II  relating  to criminal law.  All  that\t “Inquiries”
\ncovered by Item 45 require is that they must be\t  “for\t the
\npurpose\t of any of the matters specified in List II or\tList
\nIII.”\t  The language used-“any of the matters\t specified”-
\nis broad enough\t    to cover anything reasonably related  to
\nany  of\t the  enumerated items even if done  by\t holders  of
\nministerial  offices  in the States.Other subjects  will  be
\nfound  in  State List II.  And, even assuming  that  neither
\nEntry  94  of List I nor Entry 45 of List III,\twould  cover
\ninquiries against ministers in the States, relating to\tacts
\nconnected with the exercise of ministerial powers, we  think
\nthat  Article  248,  read  with Entry 97  of  List  I,\tmust
\nnecessarily cover an inquiry against Ministers on matters of
\npublic importance whether the allegations include violations
\nof  criminal  law  or not.  A contrary\tview  would,  in  my
\nopinion have the wholly unacceptable consequence of  placing
\nMinisters  in State Governments practically above  the\tlaw.
\nWe   must   lean  against  an\tinterpretation\t which\t has
\nconsequences   which,  had  they  flowed  from\tan   express
\nenactment  of  Parliament or of a State\t Legislature,  would
\nhave  invalidated the provision for conflict  with  Article,\n<\/p>\n
14.
\nIt  would not be out of place to mention that even  for\t the
\npurposes  of  an inquiry into the conduct of Judges  of\t the
\nSupreme\t Court\tor of High Courts an Act of  Parliament\t was
\npassed for the specific purposes of Article 124 to  provide,
\nthrough appropriate investigation and inquiry, “proof of the
\nmisbehaviour  or incapacity of a Judge”\t before\t proceedings
\nunder  Article 124(4) could be initiated for their  removal.
\n(See  : The Judges’ (Inquiry) Act 51 of 1968).\tHence,\teven
\nJudges,\t who  have  to be  protected  against  unfounded  or
\nmalicious charges, as they have to give decisions which must
\nnecessarily  displease\tat  least one out  of  two  or\tmore
\nparties\t to a case, are not in a more  privileged  position.
\nIt is true that, as somebody has observed, reckless  charges
\nare  perhaps hurled against those holding public offices  in
\nour  country  with the abundance of confetti at\t a  wedding,
\nyet, we cannot do away with inquiries under the Act for this
\nreason.\t The liability to face such inquiries before a\tduly
\nappointed impartial Commission is one of those hazards which
\nindividuals  holding ministerial office have to face.\tThey
\ncan perhaps find solace in the thought that inquiries  which
\nare  thorough and impartial, conducted by competent  persons
\nwho  have held high judicial office, are the best  means  of
\nclearing  them\tof charges which are  really  unfounded\t and
\nmalicious.\n<\/p>\n
64<\/span><\/p>\n
As we think that the powers conferred by Section 3 upon\t the
\nCentral\t and  State  Governments,  including  the  power  to
\ninstitute inquiries of the kind set up under each of the two
\nNotifications,\tare  covered by the  express  constitutional
\nprovisions  mentioned above, no question of  any  exclusion,
\neither by necessary implication or by any principle supposed
\nto form a part of or to flow from the basic structure of the
\nConstitution, can arise here.  Nor can we, upon the view  we
\ntake, read down and so interpret Section 3 of the Act as  to
\nexclude\t from its purview inquiries of the  kind  instituted
\nunder  the two Notifications.  To do so would be to give  an
\nincentive to possible misuse and perversion of\tgovernmental
\nmachinery and powers for objects not warranted by law.\tSuch
\npowers carry constitutional obligations with them.  They are
\nto be exercised like the powers and obligations of  trustees
\nwho  must  not deviate from the purposes  of  their  trusts.
\nWhether\t a  Minister has or has not abused  his\t powers\t and
\nprivileges  could  be  best determined by  fair\t and  honest
\npeople anywhere only after a just and impartial inquiry\t has
\ntaken  place  into complaints made against him so  that\t its
\nresults are before them.\n<\/p>\n
It  is\tevident\t from  the  foregoing  discussion  that\t the
\nprinciple  relied  upon by the plaintiff’s  learned  Counsel
\nrepeatedly,  in support of which a passage  from  Crawford’s
\n“Statutory Construction” (1940 Edn. paragraph 195 at p. 334-\n<\/p>\n
335) was also cited, as the basis of the submissions of\t the
\nlearned Counsel, was that what is expressly provided for  by
\nthe  Constitution  must necessarily exclude what is  not  so
\nprovided for.  This reasoning is an attempted misapplication
\nof  the\t principle  of construction  “Expression  Unius\t Est
\nExclusio Alterius.” Before, the principle can be applied  at
\nall  the Court must find an express mode of doing  something
\nthat  is  provided  in a statute, which,  by  its  necessary
\nimplication, could exclude the doing of that very thing\t and
\nnot  something else in some other way.\tFar from this  being
\nthe  case  here,  as the discussion  above  has\t shewn,\t the
\nConstitution   makers  intended\t to  cover  the\t making\t  of
\nprovisions  by Parliament for inquiries for various  objects
\nwhich  may  be\tmatters of  public  importance\twithout\t any
\nindications of any other limits except that they must relate
\nto subjects found in the Lists.\t I have also indicated why a
\nprovision  like section of the Act would, in any case,\tfall
\nunder entry 97 of List I of Schedule VII read with  Articles
\n248  and  356 of the Constitution even if  all\tsubjects  to
\nwhich  it may relate are not found specified in\t the  lists.
\nThus,  there  is express provision in  our  Constitution  to
\ncover  an  enactment such as Section 3 of the  Act.   Hence,
\nthere  is  no room whatsoever for  applying  the  “Expressio
\nUnius”\trule  to  exclude what\tfalls  within  an  expressly
\nprovided legislative entry.  That maxim has been aptly\tdes-
\ncribed\tas  a “useful servant but a  dangerous\tmaster\t(per
\nLopes  L.J. in Colquhoun v. Brooks(1).\tThe  limitations  or
\nconditions  under  which  this\tprinciple  of\tconstruction
\noperates  are frequently overlooked by those who attempt  to
\napply it.\n<\/p>\n
(1)  [1888] 21 Q.B.D. p. 52 @ 65.\n<\/p>\n
65<\/span><\/p>\n
To  advance the balder and broader proposition that what  is
\nnot  specifically  mentioned  in the  Constitution  must  be
\ndeemed to be deliberately excluded from its purview, so that
\nnothing short of a Constitutional amendment could  authorise
\nlegislation  upon it, is really to invent a “Casus  Omissus”
\nso as to apply the rule that, where ‘,.here is such a gap in
\nthe  law, the Court cannot fill it.  The rule,\thowever,  is
\nequally\t clear that the Court cannot so interpret a  statute
\nas  “to produce a casus omissus” where there is really\tnone
\n(see  :\t The  Mersey Docks and Harbour\tBoard  v.  Penderson
\nBrothers(1).   If  our\tConstitution  ‘itself  provides\t for
\nlegislation  to\t fill what is sought to be  construed  as  a
\n‘lacuna how can legislation seeking to do this be held to be
\nvoid  because  it  performs  its  intended  function  by  an
\nexercise  of an expressly conferred legislative power ?\t  In
\ndeclaring  the\tpurpose of the provisions so  made  and\t the
\nauthority for making it, Courts do not supply an omission or
\nfill  up  a gap at all.\t It is Parliament which\t can  do  so
\nand has done it.  To hold that parliament is incompetent  to
\ndo this is to substitute an indefensible theory or a figment
\nof one’s imagination that the Constitution stands in the way
\nsomehow-for that which only a clear Constitutional bar could
\nachieve.\n<\/p>\n
This  brings me to the next question to be considered :\t Are
\nthere  any  special rules relating to  the  construction  of
\nConstitutions\tin  general  or\t of  our   Constitution\t  in
\nparticular  ? And, if there be any such rules,\twould  their
\napplication support the restrictive construction, ,submitted
\non  behalf  of\tthe plaintiff for  our\tacceptance,  on\t the
\nParliament’s  power  to enact section 3 of the\tAct?   These
\nseem to be important questions which need answers with\tsome
\nclarity if possible.\n<\/p>\n
A writtenConstitution,\t like  any  other   enactment,\t is
\nembodied in a document. There are certain general rules\t of
\ninterpretation\tand constructionof  all documents  which,
\nno doubt, apply to the Constitution as well.Nevertheless,
\nthe nature of a Constitution of a Sovereign Republic,  which
\nis  meant to endure and stand the test of time, the  strains
\nand  stresses  of  changing  circumstances,  to\t govern\t the
\nexercise  of all Governmental powers, continuously,  and  to
\ndetermine the destiny of a nation could be said to require a
\nspecial\t approach  so that judicial  intervention  does\t not
\nunduly\tthwart the march of the nation towards the goals  it
\nhas set before itself.\n<\/p>\n
Napoleon Bonaparte once said that the best Constitution\t for
\nany   country  is  one\twhich  is  both\t short\tand   vague.
\nObviously,  be\tmeant  that a  Constitution  must  have\t the
\ncapacity to develop and to be easily adapted to the changing
\nneeds of the nation, to the vicissitudes of its fortunes, to
\nthe  growth  and expansion of various spheres of  its  life-
\nsocial\t  economic,   political,   legal,   cultural,\t and
\npsychological.\t If  the Constitution is unable\t to  perform
\nthis  function\tit  fails.  Prof.   Willis,  whose  work  on
\n“Constitutional\t Law  of the United States” has\t been  cited
\nbefore this Court, has said (at p. 19):\n<\/p>\n
\t      “Our  original Constitution was not an  anchor
\n\t      but a rudder.  The Constitution of one  period
\n\t      has not been the
\n\t      (1) [1888] 13A.C.595@ 602
\n\t      66<\/span>
\n\t      Constitution of another period.  As one period
\n\t      has  succeeded another, the  Constitution\t has
\n\t      become larger and larger.”\n<\/p><\/blockquote>\n
This elasticity or adaptability of the American Constitution
\nmay account for its durability.\n<\/p>\n
Although,  a written Constitution, which is always  embodied
\nin  a  document, must necessarily be subject  to  the  basic
\ncannons\t of construction of documents, yet, its very  nature
\nas the embodiment of the fundamental law of the land,  which
\nhas  to be adapted to the changing needs of a nation,  makes
\nit  imperative for Courts to determine the meanings  of\t its
\nparts  in  keeping  with its broad and\tbasic  purposes\t and
\nobjectives  This  approach seems to flow from  what  may  be
\ncalled\ta  basic principle of construction of  documents  of
\nthis  type : that the paramount or predominant\tobjects\t and
\npurposes,  evident  from  the contents,\t must  prevail\tover
\nlesser\tterms ones obscurely embedded here and there.\t The
\nConstitutional\tdocument, in other words, must be read as  a
\nwhole and construed in keeping with its declared objects and
\nits  functions.\t  The dynamic needs of the nation,  which  a
\nConstitution must fulfill, leave no room for merely pedantic
\nhairsplitting play with words or semantic quibblings.  This,
\nhowever,  does\tnot mean that the Courts, acting  under\t the
\nguise  of a judicial power, which certainly extends to\teven
\nmaking\tthe  Constitution,  in\tthe  sense  that  they\t may
\nsupplement  it in those parts of it where the letter of\t the
\nConstitution is silent or may leave room for its development
\nby  either ordinary legislation or judicial  interpretation,
\ncan  actually  nullify, defeat, or  distort  the  reasonably
\nclear  meaning of any part of the Constitution in  order  to
\ngive  expression  to some theories of their  own  about\t the
\nbroad or basic scheme of the Constitution.
\nThe  theory behind the Constitution which can be taken\tinto
\naccount for purposes of interpretation, by going even so far
\nas to fill what have been called the “interstices” or spaces
\nleft  unfilled, due perhaps to some deliberate vagueness  or
\nindefiniteness in the letter of\t   the\tConstitution,\tmust
\nitself\t be   gathered\tfrom  express  provisions   of\t the
\nConstitution.\t   The dubiousness of expressions  used\t may
\nbe  scured  by\tCourt by making\t their\tmeanings  clear\t and
\ndefinite  if necessary in the light of the broad  and  basic
\npurposes  set before themselves by the Constitution  makers.
\nAnd,  these meanings may, in keeping with the objectives  or
\nends  which  the Constitution of every\tnation\tmust  serve,
\nchange\twith changing requirements of the times.  The  power
\nof judicial interpretation, even if it includes what may  be
\ntermed as “interstitial” law making, cannot extend to direct
\nconflict  with express provisions of the Constitution or  to
\nruling\tthem out of existence.\tWhat the express  provisions
\nauthorise cannot be curtailed by importing limits based on a
\nmere theory of limitations on legislative powers.
\nThe statement of general principles of construction set\t out
\nabove, is home out by earlier pronouncements of this  Court-
\nsome  emphasizing  the clearly expressed meanings  of  words
\nused  in the Constitution., which cannot be  deviated  from,
\nothers\t laying\t stress\t on  the  paramount   purposes\t and
\nobjectives of the Constitution makers, some asserting the
\n67<\/span>
\nundoubted  power  of Courts to declare void  legislation  in
\nconflict with the Constitutional provisions, others pointing
\nout  the  plenitude of legislative powers conferred  by\t the
\nConstitution  upon  Parliament and the\tState  Legislatures,
\npresumed  to  know  best the needs of the  people,  so\tthat
\nCourts\tcould  not  lightly  invalidate\t statutes.   I\twill
\nbriefly\t refer\tto some of the past pronouncements  of\tthis
\nCourt  where, emphasis would naturally differ from  case  to
\ncase according to the particular context in which some\trule
\nof construction arose for consideration.
\nKania,\tC.  J., quite clearly laid down\t a  basically  sound
\napproach, if I may so characterise it with great respect, to
\nthe  interpretation of the Constitution in A. K. Gopalan  v.
\nState of Madras<\/a>(1), when he said :\n<\/p>\n
\t      “In   respect   of  the  construction   of   a
\n\t      Constitution  Lord  Wright  in  James  v.\t The
\n\t      Commonwealth  of Australia (1936 A.C.  578  at\n<\/p><\/blockquote>\n
\t      614) observed that “a Constitution must not be
\n\t      construed\t in any narrow and pedantic  sense.”
\n\t      Mr. Justice Higgins in Attorney-General of New
\n\t      South Wales v. Brewery Employees’ Union  (1908\n<\/p><\/blockquote>\n
\t      6)  Corn.\t  L.R.\t469  @\t611-12,\t observed  :
\n\t      ‘Although\t we  are to interpret words  of\t the
\n\t      Constitution   on\t the  same   principles\t  of
\n\t      interpretation  as  we apply to  any  ordinary
\n\t      law,  these very principles of  interpretation
\n\t      compel us to take into account the nature\t and
\n\t      scope  of the Act that we are  interpreting-to
\n\t      remember\t that  it  is  a   Constitution,   a
\n\t      mechanism under which laws are to be made\t and
\n\t      not a mere Act which declares what the law  is
\n\t      to  be’.\tIn In re the Central  Provinces\t and
\n\t      Berar Act XIV of 1938 (1939 FCR 18 (1937), Sir
\n\t      Maurice Gwyer, C.J., after adopting these\t ob-
\n\t      servations said : ‘especially is this true  of
\n\t      a\t federal Constitution with its nice  balance
\n\t      of jurisdictions.\t I conceive that a broad and
\n\t      liberal spirit should inspire those whose duty
\n\t      it  is to interpret it; but I do not imply  by
\n\t      this that they are free to stretch or  pervert
\n\t      legal or constitutional theory or even for the
\n\t      purpose\tof   supplying\t omissions   or\t  of
\n\t      correcting   supposed   errors’.\t  There\t  is
\n\t      considerable authority for the statement\tthat
\n\t      the  Courts are not at liberty to\t declare  an
\n\t      Act  void\t because  in  their  opinion  it  is
\n\t      opposed  to a spirit supposed to pervade,\t the
\n\t      Constitution  but\t not  expressed\t in   words.
\n\t      Where  the  fundamental law has  not  limited,
\n\t      either  in terms or by necessary\timplication,
\n\t      the   general   powers  conferred\t  upon\t the
\n\t      legislature  we  cannot declare  a  limitation
\n\t      under   the   notion  of\t having\t  discovered
\n\t      something\t in the spirit of  the\tConstitution
\n\t      which is not even mentioned in the instrument.
\n\t      It is difficult upon any general principles to
\n\t      limit   the  omnipotence\tof   the   sovereign
\n\t      legislative  power by judicial  interposition,
\n\t      except  so  far  as the  express\twords  of  a
\n\t      written Constitution-give that authority.\t  It
\n\t      is  also stated, if the words be positive\t and
\n\t      without ambiguity, there is no authority for a
\n\t      Court  to vacate or repeal a Statute  on\tthat
\n\t      ground  alone.   But, it is  only\t in  express
\n\t      constitutional provisions limiting legislative
\n\t      power and controlling the temporary will of a
\n\t      [1950]1S.C.R. 88 @ 119 to 120.\n<\/p><\/blockquote>\n
\t      68<\/span><\/p>\n
\t\tmajority  by a permanent  and  paramount law
\n\t      settled by the deliberate wisdom of the nation
\n\t      that one can find a safe and solid ground\t for
\n\t      the authority of Courts of justice to  declare
\n\t      void    any   legislative\t  enactment.\t Any
\n\t      assumption  of authority beyond this would  be
\n\t      to place in the hands of the judiciary  powers
\n\t      too  great and too indefinite either  for\t its
\n\t      own  security  or the  protection\t of  private
\n\t      rights.”\n<\/p><\/blockquote>\n
In  State  of Bihar v. Kameshwar Singh<\/a>(1), this\t Court\theld
\nthat where two constructions are possible, “the Court should
\nadopt that which will implement and discard that which\twill
\nstultify  the  apparent\t intention  of\tthe  makers  of\t the
\nConstitution”.\n<\/p>\n
Another principle which this Court has repeatedly laid down,
\nfor  cases  in\twhich two constructions\t may  be  reasonably
\npossible,  is  that  it should adopt  one  which  harmonizes
\nrather\t than\tone  which  produces  a\t  conflict   between
\nConstitutional provisions (See : 1. C. Golaknath v. State of
\nPunjab(2)  ; K. K. Kochuni v. State of Madras  &  Kerala<\/a>(3);
\nMohd.\tHanit v. State Bihar(4); State of M.P. v.  Ranojirao
\nShinde<\/a>(5);\n<\/p>\n
Prem  Chand Garg v. Excise Commissioner, U.P.<\/a>(6),  Devadasan
\nv. Union of India<\/a>(7).\n<\/p>\n
Courts\thave been advised to adopt the\tconstruction  “which
\nwill   ensure\tsmooth\tand  harmonious\t  working   of\t the
\nConstitution  and  eschew  the\tother  which  will  lead  to
\nabsurdity  or give rise to practical inconvenience  or\tmake
\nwell-established provisions of existing law nugatory (See  :
\nKesavananda Bharati v. State of Kerala<\/a>(8).
\nIn Kesavananda Bharati’s case (supra) Sikri C.J., said about
\nthe mode of construing the Constitution :\n<\/p>\n
\t      “One  must  not  construe it  as\tan  ordinary
\n\t      statute.\tThe Constitution, apart from setting
\n\t      up a machinery for Government, has a noble and
\n\t      grand vision in the Preamble.”\n<\/p><\/blockquote>\n
\t      In the very case Khanna J. observed
\n\t      “A  Constitution cannot be regarded as a\tmere
\n\t      legal  document  to be read as a\twill  or  an
\n\t      agreement nor is constitution like a plaint or
\n\t      a\t written statement filed in a  suit  between
\n\t      two litigants.\n<\/p><\/blockquote>\n
\t      xx\t     xx\t\t   xx\t\t  xx
\n\t      xx
\n\t      (1)[1952] S.C.R. 889 at 980-81.\n<\/p><\/blockquote>\n
\t      (2)[1967] 2 S.C.R. 762 at 791.\n<\/p><\/blockquote>\n
\t      (3)[1960] 3 S.C.R. 887 at 905.\n<\/p><\/blockquote>\n
\t      (4)[1959] S.C.R. 629 at 648.\n<\/p><\/blockquote>\n
\t      (5)[1968] 3 S.C.R. 489.\n<\/p><\/blockquote>\n
\t      (6)[1963] Suppl. (1) S.C.R. 88 5 at 91 1.
\n\t      (7)[1964] 4 S.C.R. 680 at 695.\n<\/p><\/blockquote>\n
\t      (8)11973]\t 4 S.C.C. 225 at 426 (1973  Suppl
\n\t      S.C.R.1).\n<\/p><\/blockquote>\n
\t      69<\/span><\/p>\n
\t      It provides for the framework of the different
\n\t      organs  of the State, viz the  executive,\t the
\n\t      legislature and the judiciary.  A Constitution
\n\t      also  reflects the hopes and aspirations of  a
\n\t      people”.\n<\/p><\/blockquote>\n
Repeatedly, this Court has declared that a broad and liberal
\nconstruction in keeping with the purposes of a\tConstitution
\nmust  be given preference over adherence to too\t literal  an
\ninterpretation (see : e.g. Sakal Papers (P) Ltd. v. Union of
\nIndia,<\/a>(1), of the Constitution.\n<\/p>\n
In   particular,  the  plenitude  of  power  to\t  legislate,
\nindicated  by a legislative entry, has to be given  as\twide
\nand  liberal  an interpretation as is  reasonably  possible.
\nThus,  in  Jagannath Baksh Singh v. State of  U.P.,<\/a>(2)\tthis
\nCourt said :\n<\/p>\n
\t      “….it  is  an elementary  cardinal  rule  of
\n\t      interpretation  that  the words  used  in\t the
\n\t      Constitution  which confer  legislative  power
\n\t      must receive the most liberal construction and
\n\t      if they are words of wide amplitude, they must
\n\t      be  interpreted so as to give effect  to\tthat
\n\t      amplitude.  It would be out of place to put  a
\n\t      narrow or restricted construction on words  of
\n\t      wide  amplitude in a Constitution.  A  general
\n\t      word  used  in an entry like the\tpresent\t one
\n\t      must  be construed to extend to all  ancillary
\n\t      or  subsidiary  matters which can\t fairly\t and
\n\t      reasonably be held to be included in it”.\n<\/p><\/blockquote>\n
In  Union of India v. H. S. Dhillon,<\/a>(3) Sikri,\tC.J.,  after
\ndiscussing  :the tests adopted both in India and  in  Canada
\nfor  determining whether a particular subject  falls  within
\nthe Union or the State List observed p. 5 1 ) :\n<\/p>\n
\t      “It  seems  to us that the  function  of\tArt.
\n\t      246(1),  read with entries 1-96 List I  is  to
\n\t      give positive power to Parliament to legislate
\n\t      in respect of these entries.  Object is not to
\n\t      debar Parliament from legislating on a matter,
\n\t      even  if other provisions of the\tConstitution
\n\t      enable it to do so.  Accordingly, we donot
\n\t      interpret\t  the  words  ‘any   other   matter’
\n\t      occurring in entry97 List I to mean a topic
\n\t      mentioned by way of exclusion. These
\n\t      words really refer to the matters contained in
\n\t      each  of the entries 1 to 96.  The words\t‘any
\n\t      other  matter had to be used because entry  97
\n\t      List I follows entries 1-96 List I. It is true
\n\t      that the field of legislation is demarcated by
\n\t      entries 1-96 List I, but demarcation does\t not
\n\t      mean   that  if  entry  97  List\t I   confers
\n\t      additional  powers  we should refuse  to\tgive
\n\t      effect  to  it.  At any rate,  whatever  doubt
\n\t      there may be on the interpretation of entry 97
\n\t      List  I is removed by the wide terms  of\tArt.\n<\/p><\/blockquote>\n
\t      248.   It\t is framed in  the  widest  possible
\n\t      terms.   On its terms the only question to  be
\n\t      asked  is\t :  Is\tthe  matter  sought  to\t  be
\n\t      legislated  on included in List II or in\tList
\n\t      III  or  is  the\ttax  sought  to\t be   levied
\n\t      mentioned in List II or in List
\n\t      (1)   [1962] 3 S.C.R. 842;\n<\/p><\/blockquote>\n
\t      (2)   [1963] 1 S.C.R. 220 @ 228-229.
\n\t      (3)   [1972] 2 S.C.R. 33,
\n\t      70<\/span>
\n\t      III ?  No question has to be asked about\tList
\n\t      I.  If the answer is in the negative, then  it
\n\t      follows that Parliament has power to make laws
\n\t      with respect to that matter of tax”.\n<\/p><\/blockquote>\n
It  will  be seen that the test adopted\t in  Dhillon’s\tcase
\n(supra)\t was,  that  if a subject does\tnot  fall  within  a
\nspecifically  demarcated field found in List II or List\t III
\nit would fall in List I apparently because, of the amplitude
\nof  the\t residuary  field indicated by\tentry  97,  List  I,
\nLegislative  entries  only  denote fields  of  operation  of
\nlegislative power which is actually conferred by one of\t the
\narticles  of  the Constitution.\t It was,  pointed  out\tthat
\nArticle 248 of the Constitution conferring legislative power
\nis  “framed in the widest possible terms”.  The validity  of
\nthe  Wealth Tax Act was upheld in that case.   The  argument
\nthat  a\t wide range given to entry 97 of List I,  read\twith
\nArticle 248 of the Constitution, would destroy the  “federal
\nstructure” of our Republic was rejected there. On      an
\napplication of a similar test here, the powers given to\t the
\nCentral\t Government by Section 3 of the Act, now before\t us,
\ncould  not  be\theld to be invalid on the  ground  that\t the
\nfederal structure of the State is jeopardized by the view we
\nare  adopting in conformity with the previous  decisions  of
\nthis Court.\n<\/p>\n
I may next refer to what may be regarded as certain  special
\nfeatures  of  our Constitution so as to indicate  its  broad
\npurposes and objectives.\n<\/p>\n
Our Constitution has, in it, not only an elevating  preamble
\nsetting\t forth\tthe  presumed will of the  whole  people  of
\nIndia, conceived of as one entity, but a set of\t Fundamental
\nRights in Part III.  Directive Principles of State Policy in
\nPart  IV of the Constitution, a rough separation  of  powers
\nbetween\t the  Executive, the Legislative, and  the  Judicial
\nbranches of Government, a pragmatic federalism which,  while
\ndistributing  legislative powers between the Parliament\t and
\nState  Legislatures,  with  a  concurrent  field  also,\t and
\nindicating  the spheres of Governmental powers of State\t and
\nCentral\t Governments,  is  overlaid,  as  already  indicated
\nabove,\t ‘by  strongly\t‘unitary’   features,\tparticularly
\nexhibited by lodging in Parliament the residuary legislative
\npowers,\t and  in the Central Govt, the\texecutive  power  of
\nappointing State Governors, and Chief Justices and Judges of
\nHigh Courts, powers of giving appropriate directions to\t the
\nState  Governments, and of even displacing the State  Legis-
\nlatures\t and  Governments in  exceptional  circumstances  or
\nemergencies   of   not\tvery  clearly  defined\t ambits\t  or
\ncharacters.  No other “federation” in the world has  exactly
\nsimilar unitary features.  One wonders whether such a system
\nis  entitled  to  be dubbed “federal” in  a  sense  denoting
\nanything more than a merely convenient division of functions
\noperative in ordinary times.  The function of  “supervision”
\nis certainly that of the Central Government with all that it
\nimplies.\n<\/p>\n
It may be noticed that the basic allegiance contemplated  by
\nthe  Constitution is, legally speaking, to the\tConstitution
\nitself about whose advent this Court once said (in  Virendra
\nSingh & Ors. v. the State of U.P. (1) ).\n<\/p>\n
\t      “…….. at one moment of time the new  order
\n\t      was  born\t with the new  allegiance  springing
\n\t      from the same source for
\n\t      (1)   [1955] S.C.R. 415 at 436.\n<\/p><\/blockquote>\n
\t      71<\/span><\/p>\n
\t      all,   grounded  on  the\tsame  basis  :\t the
\n\t      sovereign will of the people of India with  no
\n\t      class,  no  caste,  no  race,  no\t creed,\t  no
\n\t      distinction, no reservation”.\n<\/p><\/blockquote>\n
The  Constitution, as its Preamble makes it clear, is  of  a
\nsovereign   republic.\tThe  legal  sovereignty\t  which\t  it
\nrepresents includes legal legislative sovereignty which must
\nembrace\t the power of making any law on any  subject.\tSuch
\nlegislative  power  to enact any law must,  therefore,\tvest
\nsomewhere in a legislative organ of the Republic.  It cannot
\nbe placed anywhere outside these organs.  To apply the\ttest
\nformulated in Dhillon’s case, (supra) the Parliament  alone,
\nwould  have  the  power to enact by a  simple  majority,  by
\nreason\tof Article 248 read with entry 97 of List I,  if  it
\nfalls  neither\tin List II nor in List\tIII.   As  indicated
\nabove, the contention on behalf of the plaintiff, if  accep-
\nted,  would  expel the power of legislation  itself  on\t any
\nmatter involving an inquiry into the conduct of Governmental
\naffairs\t by  a\tminister  in a\tState  Government  from\t the
\nlegislative  Lists  and place it under\tArticle\t 368.\tThis
\nmeans\tthat,  although\t the  express  provisions   of\t the
\nConstitution, broadly interpreted, as they should be,  would
\nprima facie authorse a provision.. such as Section 3 of\t the
\nAct,  yet,  we\tshould imply  a\t Constitutional\t prohibition
\nagainst\t such  an enactment by Parliament even if  its\twide
\nterms  could  as  they prima  facie  do,  include  inquiries
\nagainst State Ministers exercising Governmental powers.
\nAs indicated above, the first step of the argument mentioned
\nabove is a theory of what the Constitution must\t necessarily
\ncontain\t as contrasted with ordinary law.  To  support\tthis
\nsubmission, a passage was cited from the judgment of Wanchoo
\nJ, in I. C. Golak Nath & Ors. v. State of Punjab and Anr.(1)
\nwhich contains the following question front Ivor Jennings on
\n“The Law and the Constitution” (1933 Edn. at p. 51  onwards)
\n:\n<\/p>\n
\t      “A   written   constitution   is\t thus\t the
\n\t      fundamental  law\tof a  country,\tthe  express
\n\t      embodiment  of  the doctrine of the  reign  of
\n\t      law.    AR   public   authorities-legislative,
\n\t      administrative  and judicial ….\t take  their
\n\t      powers  directly or indirectly  from  it……\n<\/p><\/blockquote>\n
\t      whatever\t  the\tnature\t of   the    written
\n\t      constitution  it\tis  clear that\tthere  is  a
\n\t      fundamental distinction between constitutional
\n\t      law and the rest of the law,. There is a clear
\n\t      separation,     therefore,     between\t the
\n\t      constitutional law and the rest of the law”.
\n\t      The learned Judge then went on to observe
\n\t      “It is because of this difference between\t the
\n\t      fundamental law (namely, the Constitution) and
\n\t      the   law\t  passed   under   the\t legislative
\n\t      provisions of the Constitution that it is\t not
\n\t      possible\t in  the  absence  of\tan   express
\n\t      provision\t to that effect in  the\t fundamental
\n\t      law to change the fundamental law by  ordinary
\n\t      legislation   passed  thereunder,\t  for\tsuch
\n\t      ordinary\tlegislation must always\t conform  to
\n\t      the fundamental law (i.e. the Constitution).”\n<\/p><\/blockquote>\n
(1)  [1967] 2 S.C.R. 762 @ 828.\n<\/p>\n
72<\/span><\/p>\n
in Golaknath’s case, Wanchoo J. had also pointed out at page
\n827<\/span>
\n\t      “The  Constitution is the fundamental law\t and
\n\t      no  law  passed under mere  legislative  power
\n\t      conferred\t by the Constitution can affect\t any
\n\t      change in the Constitution unless there is  an
\n\t      express  power  to that effect  given  in\t the
\n\t      Constitution  itself.   But  subject  to\tsuch
\n\t      express\tpower  given  by  the\tConstitution
\n\t      itself,\tthe  fundamental  law,\tnamely\t the
\n\t      Constitution,  cannot  be\t changed  by  a\t law
\n\t      passed   under  the   legislative\t  provisions
\n\t      contained\t  in   the   Constitution   as\t all
\n\t      legislative   acts  passed  under\t the   power
\n\t      conferred by the Constitution must conform  to
\n\t      the  Constitution can make no change  therein.
\n\t      There   are  a  number  of  Articles  in\t the
\n\t      Constitution   which  expressly  provide\t for
\n\t      amendment by law, as, for example, 3, 4, 1  0,
\n\t      59(3),  65(3), 73(2), 97, 98(3), 106,  120(2),
\n\t      135,  137,  142(1) 146(2), 148(3),  149,\t169,
\n\t      171(2),  186,  187(3),  189(3),  194(3),\t195,
\n\t      210(2), 221(2), 225 , 229(2), 239(1),  241(3),
\n\t      283(1) and (2), 285(2), 287, 300(1), 313, 345,
\n\t      373,  Sch.  V. cl. 7 and Sch.  VI cl. 21;\t and
\n\t      so  far as these Articles are  concerned\tthey
\n\t      can be amended by Parliament by ordinary\tlaw-
\n\t      making  process.\t But  so far  as  the  other
\n\t      Articles\tare  concerned\tthey  can  only\t  be
\n\t      amended by amendment of the Constitution under
\n\t      Art.  368.  Now Art. 245 which gives Dower  to
\n\t      make  law\t for the whole or any  part  of\t the
\n\t      territory\t of India by Parliament is  “subject
\n\t      to  the provisions of this  Constitution”\t and
\n\t      any law made by Parliament whether under\tArt.
\n\t      246  read with List I or under Art.  248\tread
\n\t      with item 97 of List I must be subject to\t the
\n\t      provisions of the Constitution.  If  therefore
\n\t      the   power  to  amend  the  Constitution\t  is
\n\t      contained\t in  Art. 248 read with item  97  of
\n\t      List I, that power has to be exercised subject
\n\t      to  the provisions of Constitution and  cannot
\n\t      be used to change the fundamental law (namely,
\n\t      the Constitution) itself.”\n<\/p>\n
The passages cited above cannot provide a foundation for the
\ntheory\tthat  “constitutional Law” and the rest of  the\t law
\ncan,  in  respect  of their contents or\t subject  matter  be
\nplaced\tin two sharply divided or distinct  and\t water-tight
\ncompartments with no overlapping or uncertain fields between
\nthem.  It must not be forgotten that Wanchoo, J.  repeatedly
\nexplained,   by\t  putting   in\t the   words   namely,\t the
\n“Constitution”\t within\t brackets,  that  he   ‘was   really
\nconcerned  with\t indicating the special features of  a\tvery
\ndetailed or comprehensive Constitution such as ours.  Indeed
\nas  regards the subject matter of the laws contained in\t the
\nConstitution  and  these  which may  be\t introduced  by\t the
\nordinary law making procedure, the above mentioned  judgment
\nof Wanchoo J. itself indicates how even certain parts of the
\nlaw found in our written Constitution may be amended by\t the
\nordinary law making procedure.\tThis passage was used by the
\nlearned Counsel for the plaintiff to urge that additions  or
\nchanges in
\n73<\/span>
\n“Constitutional\t Law” cannot be made by ordinary law  making
\nprocedure  but must take place only in accordance  with\t the
\nprovisions  found  in Article 368  unless  the\tConstitution
\nexpressly  provides  otherwise.\t This  contention,  however,
\noverlooks the fact that Article 368 of the Constitution only
\nprovides   the\t procedure   for  an   amendment   of\t“the
\nConstitution”, and says nothing about any amendment of other
\nlaws  by  the introduction of or changes in laws  which\t may
\nconceivably be classed or construed as “constitutional laws”
\nbecause of their subject matter.  This passage should not be
\ntorn  out  of  its  context,  in  which\t the  difference  in
\nprocedure,  between  the  one  for  an\tamendment  of\t“the
\n,Constitution”,\t provided  by  article\t368,  and  that\t for
\nordinary  legislation, contemplated by Articles 245 to\t248,
\nwas under consideration.  It was in that connection that the
\nobservation was rightly made that, unless there is  specific
\nauthority  given by constitutional provisions  for  changing
\nthe law laid down by “the Constitution” itself, by  adopting
\nonly the ordinary law making procedure, a change in the\t law
\ncontained in express provisions of the constitution”  itself
\ncould  not be brought about without complying  with  Article
\n368  of\t the Constitution. follows obviously from  the\tvery
\nnotion of a Constitution as an embodiment of a\t“fundamental
\nlaw” which serves as a touchstone for all other “laws”.\t The
\n“fundamental  distinction” between “the Constitutional\tlaw”
\nor “the fundamental law” and the ordinary laws, referred  to
\nthere,\twas meant to bring out only this difference- in\t the
\nuses  made of laws which, being “fundamental”, can test\t the
\nvalidity  of all other laws on a lower normative  level\t and
\nthese other laws which are so tested.  In that very  special
\nor restricted sense, the law not found in “the Constitution”
\ncould  not be “constitutional” or “fundamental” law.   Other
\nparts  of  the\tlaw,  even  though  they  may  appertain  to
\nimportant  constitutional  matters, are not  parts  of\t“the
\nConstitution”,\tand, therefore, could not test the  validity
\nof laws made by Parliament.  What was said with reference to
\nthe  actual  provisions\t of  the  Constitution\tcould\tnot,
\nhowever,  be  used to infer some bar  on  legislative  power
\nwhich  is not there in the Constitution at all\tfor  reasons
\nrepeatedly indicated above.\n<\/p>\n
In  an\tearlier\t part  of this judgment,  it  is  held\tthat
\nlegislative power to enact a provision such as Section 3  of
\nthe  Act could be found, in any event, in Article  248\tread
\nwith entry 97 of List I, even if it could possibly be  urged
\nthat  it is not covered by entries 94 of List I and  45\t  of
\nList III, which seem to exhaust the three Lists in so  farms
\nthe  subject  matters of enquiries are\tconcerned.   Learned
\nCounsel for the plaintiff tried to introduce some doubts  on
\nthe  ground  that there is no specific entry in any  of\t the
\nlists\tto  cover  the\tconduct\t of  Ministers\t in   St-ate
\nGovernments in relation to governmental functions.  And,  it
\nwas submitted, reference to subjects specified in the  Lists
\nwould  exclude\tthose which are unspecified.   It  could  be
\nurged in reply that, as indicated in Dhillon’s case (supra),
\na legislative entry only indicates the field of operation of
\nthe power, but the sources of ordinary legislative power are
\nto be found in one of the Articles 245, 246, 247, 248,\t249,
\n250,  252,  or 253 of the Constitution, and, so far  as\t the
\nfield  of operation of the legislative power  is  concerned,
\nboth  entry  94 of List I and entry 45 of List\tIII  are  so
\nwidely worded as to embrace inquiries
\n74<\/span>
\ntouching  any of the fields indicated by any of the  entries
\nin   the  lists.   A  Minister\tmust  necessarily   exercise
\ngovernmental powers in relation to one of these fields.\t  It
\nis  not necessary to specify which that field is. The  field
\nof  power to legislate about inquiries is indicated in\twide
\nenough terms to make it unnecessary to specify the field, in
\nthe law made itself, to which the inquiry must relate,.\t  It
\nis  enough  if\tthe enquiry set up relates to  a  matter  of
\n“public importance.” Again, it is not a necessary part of an
\nentry ill a legislative list, which only roughly indicates a
\nfield of legislation, that it must also specify the  classes
\nof persons who may be affected by the legislation.  That  is
\nneither a constitutional nor a reasonable requirement.
\nThis  Court has already held that overlapping of  fields  of
\noperation  of  legislative  power does\tnot  take  away\t the
\nlegislative  power.  Indeed, ,as we have said, both  entries
\n94 of List I and 45 of List III must necessarily be  related
\nto  a variety of fields of operation of\t legislative  power.
\nAnd, in any case, even if an inquiry on a matter of  “public
\nimportance”  relates to an unspecified field, it  should  be
\ncovered\t by  entry 97 of List I itself.\t  Therefore,  it  is
\nimmaterial whether we hold that entry 97 of List I by itself
\nsingly or that entry, read with entry 94 of List I, could be
\ndeemed to cover the field of operation of such\tlegislation,
\nwhat  is material and important is that the  three  entries-
\nNos.  94  and 97 of List I and 45 of List III are  bound  to
\ncover, between them, legislation authorising inquiries\tsuch
\nas  the\t one  entrusted to the Grover  Commission.   If\t the
\nsubject of inquiries against Ministers in State\t Governments
\nis not mentioned specifically either in any of the  articles
\nof the Constitution or in the legislative lists it does\t not
\nfollow\tfrom it that legislation covering such inquiries  is
\nincompetent  except by means of a constitutional  amendment.
\n‘On  the  contrary,  such a subject  would  be\tprima  facie
\ncovered by the wide terms of article 248 for the very reason
\nthat  the  Constitution contains no express or\timplied\t bar
\nwhich  could  curtail  the  presumably\tplenary\t powers\t  of
\nlegislation of our Parliament.\n<\/p>\n
Once  we  have located the legislative power in one  of\t the
\narticles   of\tthe   Constitution,   authorising   ordinary
\nlegislation by Parliament for inquiries covered by section 3
\nof  the\t Act, and we find also the  appropriate\t entries  in
\nlegislative Lists I and III indicating the fields of  opera-
\ntion  of  that\tlegislative power of  Parliament,  the\twell
\nrecognised  principle  which  would  apply  and\t exclude  an
\nimplied\t bar against the exercise of that plenary power\t has
\nbeen  stated  by  this Court and also  by  other  Courts  in
\nCommonwealth countries on several occasions.  That principle
\nfollows\t logically  from R. v. Burah (1878) (3\tA.  C.\t889)
\nwhich  is  the locus classics on the subject.\tThe  general
\nprinciple  laid down in Burah’s case was that once  what  is
\nconferred   upon  a  Parliament\t or  other  Legislature\t  is
\nlegislative power, its plenary character must be presumed so
\nthat,\tunless\tthe  instrument\t conferring  the  power\t  to
\nlegislate  itself  contains some express limitation  on\t the
\nexercise  of  legislative  power, the ambit  of\t that  power
\ncannot be indirectly cut down by supposed implications.\t The
\ncases  on  this subject were comprehensively  considered  by
\nthis  Court in Kesavananda Bharati’s case (supra) where\t the
\nmajority  view\twas  that there can  be\t no  merely  implied
\nlimitations on expressly conferred legislative powers.\tThis
\nCourt
\n75<\/span>
\nthere  referred to and adopted the principles laid  down  in
\nBurah’s\t case’\t(supra).  Palekar J.  quoted  the  following
\npassage from it (in Kesavananda Bharati’s case’ at p. 607) :\n<\/p>\n
\t      “The  established\t Courts of Justice,  when  a
\n\t      question arises whether the prescribed  limits
\n\t      have   been   exceeded,  must   of   necessity
\n\t      determine\t that question; and the only way  in
\n\t      which  they can properly do so, is by  looking
\n\t      to the terms of the
\n\t      instrument   by  which,\taffirmatively,\t the
\n\t      legislative powers were created, and by  which
\n\t      ,\t negatively , they are restricted.  if\twhat
\n\t      has  been\t done  id  legislation,\t within\t the
\n\t      general  scope of the affirmative words  which
\n\t      give the power, and if it violates no  express
\n\t      condition\t  or  restriction on by\t which\tthat
\n\t      power\t is limited if is not for any  Court
\n\t      Justice to inquire further,    or\t to  enlarge
\n\t      constructively\t those\t  conditions\t and
\n\t      restrictions.”\n<\/p><\/blockquote>\n
in that case, Judges of this Court also relied upon Attorney
\nGeneral\t for the Province of Ontario’ v. Attorney.   General
\nfor  the Dominion of Canada(1) where Earl Loreburn had\tsaid
\n(at p. 583)
\n\t      “In  the interpretation of a completely  self-
\n\t      governing Constitution founded upon a  written
\n\t      organic  instrument such as the British  North
\n\t      America Act, if the text is explicit the\ttext
\n\t      is  conclusive, alike in what it\tdirects\t and
\n\t      what it forbids.\tWhen the text is  ambiguous,
\n\t      as  for example, when the\t words\testablishing
\n\t      two mutually exclusive jurisdictions are\twide
\n\t      enough  to  bring a  particular  power  within
\n\t      either,  recourse must be had to\tthe  context
\n\t      and scheme of the Act.”\n<\/p>\n
The learned Additional Solicitor General has strongly relied
\nupon  the  State of Victoria v. The Commonwealth  (2)  where
\nearlier\t cases applying the reasoning contained\t in  Burah’s
\ncase  (supra) were surveyed and Barwick C. J. cited the\t two
\npassages  set  out  above by us,  one  from  Lord  Selbome’s
\njudgment  in  Burah’s case (supra) and the  other  from\t the
\njudgment of Earl Loreburn in the Province of Ontario’s\tcase
\n(supra)\t  from\tCanada.\t  Barwick.   C.J.  also\t cited\t the
\nfollowing passage from the Amalgamated Society of  Engineers
\nv. Adelaide Steamship Co.  Ltd.\n<\/p>\n
\t      “The nature and principles of legislation’ (to
\n\t      employ  the words of Lord Selborne in  Burah’s
\n\t      case), the nature of dominion  self-government
\n\t      and  the\tdecisions just cited  entirely\tpre-
\n\t      clude, in our opinion, an a priori  contention
\n\t      that  the\t grant of legislative power  to\t the
\n\t      Commonwealth  Parliament as  representing\t the
\n\t      will  of\tthe whole of the people of  all\t the
\n\t      State,,,\tof Australia should not bind  within
\n\t      the geographical area of the Commonwealth\t and
\n\t      within  the limits of the\t enumerated  powers,
\n\t      ascertained   by\tthe  ordinary  process.\t  of
\n\t      construction, the States and their agencies as
\n\t      representing   separate\tsections   of\t the
\n\t      territory.”\n<\/p><\/blockquote>\n
(1)  [1912] App.  Cas. 571.\n<\/p>\n
(2)  45 Australian Law Journal Reports 251-22 C.L.R. 353.
\n(3)  [1920] 28 C.L.R. 129 @ 152-153.\n<\/p>\n
76<\/span><\/p>\n
In  Victoria’s case (supra), Barwick C.J., although  not  in
\nentire agreement with the way in which Sir Owen Dixon, C.J.,
\nhad  expressed himself in West v. Commissioner\tof  Taxation
\n(N.S.W.(1)  opined that it was only- another way of  putting
\nwhat  had been consistently. laid down as the  principle  of
\ninterpretation\tof Constitutions of British  self  governing
\nDominions  since  Burah’s case (supra).\t  The  passage\tthus
\nexplained was :\n<\/p>\n
\t      “……..\t the principle is that whenever\t the
\n\t      Constitution  confers a power to make laws  in
\n\t      respect  of  a specific subject  matter  prima
\n\t      facie  it is to be understood as enabling
\n\t      the  Parliament  to make\tlaws  affecting\t the
\n\t      operations  of the States and their  agencies.
\n\t      The  prima facie meaning may be  displaced  by
\n\t      considerations  based  on the  nature  or\t the
\n\t      subject matter of the power or the language in
\n\t      which it is conferred on some other  provision
\n\t      in the Constitution.”\n<\/p><\/blockquote>\n
Learned\t Counsel for the plaintiff, conscious of  the  basic
\nprinciples  of\tconstruction of the  plenary  constitutional
\npower  to  legislate,  fried to\t sustain  his  very  gallant
\nattacks\t upon  the  validity  of section 3  of\tthe  Act  by
\nreferring to express provisions of the Constitution  where,,
\nas we have explained above, we could discover no such bar by
\na  necessary implication.  However, the theory of the  basic
\nstructure of the Constitution kept “popping up”, if Nyc\t may
\nso  put\t it,  like the “jack in the box”,  from\t behind\t the
\nconstitutional\tprovisions, from time to time.\tIt was\tsaid
\nto “underlie” constitutional provisions.
\nThus, the plaintiff’s learned Counsel did not entirely\tgive
\nup  reliance  on  what\thas been  described  as\t “the  basic
\nstructure  of the Constitution” although he, very  ;astutely
\nand  rightly,  tried to put the express\t provisions  of\t the
\nConstitution in the fore-front.\t Whatever may be said  about
\nthe strategic value for the plaintiff of this mode of  using
\nthe  doctrine of “the basic structure of the  Constitution”,
\nit  does  not relieve us from the necessity  of\t considering
\nwhether an application of such a doctrine could be  involved
\nin the case before us.\tWe cannot overlook that\t Kesavananda
\nBharati’s case (supra) where although a majority of  learned
\nJudges\tof this Court which rejected the theory of  “implied
\nlimitations”  upon  express plenary  legislative  powers  of
\nconstitutional\tamendment, yet, we accepted, I say  so\twith
\nthe  utmost respect, again by a majority, limitations  which
\nappeared  to  be  not easily  distinguishable  from  implied
\nlimitations upon plenary legislative powers even though they
\nwere  classed  as  parts  of “the  basic  structure  of\t the
\nConstitution.”\tWe  are\t bound\tby  the\t majority  view\t  in
\nKesavananda Bharati’s case (supra) which we have followed in
\nother  cases.\tWe  have,  however, to\tmake  it  clear\t and
\nexplicit   enough   to\tbe  able   to\tdetermine,   without
\ninconsistency and with some confidence, the type of cases to
\nwhich  it  could and others to which it could not  apply  as
\nspecific cases come up before us for consideration.
\n(1)  (1 937) 56 C.L.R. 657 @ 682.\n<\/p>\n
77<\/span><\/p>\n
What, therefore, is this doctrine of “the basic structure of
\nour  ,Constitution”  of\t which, according  to  some  learned
\nJudges of this Court, expressing the majority views on\tthis
\ndoctrine, “federalism” is a part ?  We can only answer\tthis
\nquestion by quoting from certain passages from the  opinions
\nof  the learned Judges who were parties to the\tdecision  of
\nthis Court in Kesavananda Bharati’s case (supra).
\nSikri\tC.  J.,\t who  accepted\tthe  doctrine\tof   implied
\nlimitations,  and, consistently with its logic,\t found\tthat
\nthe  basic structure of the Constitution forms an  orbit  of
\nexercise  of power which is outside the purview\t of  Article
\n368, relied on the observations and dicta found in Melbourne
\nCorporation v. The Conzmonwealth(1) and Australian  National
\nAirways Pvt.  Ltd. v. The Commonwealth (2).
\nThe learned Chief Justice cited Starke J.’s views  expressed
\nin Melbourne Corporation’s case (supra) :\n<\/p>\n
\t      “The  federal  character\tof  the\t  Australian
\n\t      Constitution   carries  implications  of\t its
\n\t      own…………………\n<\/p><\/blockquote>\n
\t      xx\t\t    xx\t\t\t  xx\n\t      xx\n<\/pre>\n
\t      “The position that I take is this The  several
\n\t      subject  matters\twith respect  to  which\t the
\n\t      Commonwealth is empowered by the\tConstitution
\n\t      to  make\tlaws for the peace, order  and\tgood
\n\t      government  of the Commonwealth are not to  be
\n\t      narrowed\tor limited by  implications.   Their
\n\t      scope and amplitude depend simply on the words
\n\t      by which they are expressed.  But implications
\n\t      arising  from the existence of the  States  as
\n\t      parts of the Commonwealth and as\tconstituents
\n\t      of  the federation may restrict the manner  in
\n\t      which the Parliament can lawfully exercise its
\n\t      power   to  make\tlaws  with  respect   to   a
\n\t      particular       subject-matter.\t       These
\n\t      implications, or perhaps it were better to say
\n\t      underlying  assumptions of  the  Constitution,
\n\t      relate  to  the  use of a\t power\tnot  to\t the
\n\t      inherent\tnature of the subject matter of\t the
\n\t      law.  of course whether or not a law  promotes
\n\t      peace,  order and good government is  for\t the
\n\t      Parliament, not for a court, to decide.  But a
\n\t      law   although  it  be  with  respect   to   a
\n\t      designated  subject matter, cannot be for\t the
\n\t      peace,  order  and  good\tgovernment  of\t the
\n\t      Commonwealth  if it be directed to the  States
\n\t\t\t    to\tprevent their carrying out their  function
\ns
\n\t      as parts of the Commonwealth.”<\/p><\/blockquote>\n
\n\t      Again Gibbs J was quoted\n\t      \"The   ordinary\tprinciples   of\t   statutory\n<\/pre>\n
\t      construction  do\tnot preclude the  making  of
\n\t      implications when these are necessary to\tgive
\n\t      effect to the intention of the legislature  as
\n\t      revealed\t   in\t the\tstatute\t    as\t   a
\n\t      whole” ……………. .\n<\/p><\/blockquote>\n
\t      (1)   (1947) 74 C.L.R. 31.\n<\/p><\/blockquote>\n
\t      (2)   (1945) 71 C.L.R. 29.\n<\/p><\/blockquote>\n
\t      78<\/span><\/p>\n
\t      “Thus,  the purpose of the  Constitution,\t and
\n\t      the scheme by which it is intended to be given
\n\t      effect, necessarily give rise to\timplications
\n\t      as to the manner in which the Commonwealth and
\n\t      the  States  respectively may  exercise  their
\n\t      powers, vis-a-vis each other.”\n<\/p><\/blockquote>\n
\t      After considering a number of cases the  Chief
\n\t      Justice\t stated\t  conclusion   on    implied
\n\t      limitations as follows (at p. 163-164) :
\n\t      “What  is the necessary implication  from\t all
\n\t      the provisions of the Constitution ?
\n\t      It seems to me that reading the Preamble,\t the
\n\t      fundamental importance of the, freedom of\t the
\n\t      individual, indeed its inalienability, and the
\n\t      importance   of  the  economic,\tsocial\t and
\n\t      political\t justice mentioned in the  Preamble,
\n\t      the  importance of directive  principles,\t the
\n\t      non-inclusion  in art. 368 of provisions\tlike
\n\t      arts.  52, 53 and various other provisions  to
\n\t      which  reference\thas  already  been  made  an
\n\t      irresistible  conclusion emerges that  it\t was
\n\t      not  the intention to use the word  amendment’
\n\t      in the widest sense.\n<\/p><\/blockquote>\n
\t      It   was\t the   common\tunderstanding\tthat
\n\t      fundamental  rights would remain in  substance
\n\t      as they are and they would not be amended\t out
\n\t      of  existence.  It seems also to have  been  a
\n\t      common  understanding  that  the\t fundamental
\n\t      features\t of   the   constitution,    namely,
\n\t      secularism,  democracy and the freedom of\t the
\n\t      individual would always subsist in the welfare
\n\t      state.\n<\/p><\/blockquote>\n
\t      In  view\tof the above  reasons,\ta  necessary
\n\t      implication  arises  that- there\tare  implied
\n\t      limitations  on the power of  Parliament\tthat
\n\t      the  expression  ‘amendment  of  this  Consti-
\n\t      tution’ has consequently a limited meaning  in
\n\t      our Constitution and not the meaning suggested
\n\t      by the respondents”.\n<\/p><\/blockquote>\n
\t      Sikri  C.J. recorded his finding on the  basic
\n\t      structure in Kesavananda Bharti’s case (supra)
\n\t      as follows (at pp. 165-166) :\n<\/p><\/blockquote>\n
\t      ” The true position is that every Provision of
\n\t      the  Constitution can be amended\tprovided  in
\n\t      the result the basic foundation and  structure
\n\t      of  the  constitution remains the\t same.\t The
\n\t      basic structure may be said to consist of\t the
\n\t      following features:\n<\/p><\/blockquote>\n
\t      (1)   Supremacy of the Constitution;
\n\t      (2)   Republican\t and  Democratic   form\t  of
\n\t      Government;\n<\/p><\/blockquote>\n
\t      (3)  Secular character of the Constitution;
\n\t      (4)   Separation\t of   powers   between\t the
\n\t      Legislature, the executive and the judiciary;\n<\/p><\/blockquote>\n
\t      79<\/span><\/p>\n
\t      (5) Federal character   of the Constitution.
\n\t      The  above  structure is built  on  the  basic
\n\t      foundation,  i.e. the dignity and\t freedom  of
\n\t      the   individual.\t   This\t  is   of    supreme
\n\t      importance.  This cannot by any form of amend-
\n\t      ment be destroyed.\n<\/p><\/blockquote>\n
\t      The  above  foundation  and  the\tabove  basic
\n\t      features are easily discernible not only\tfrom
\n\t      the  preamble  but  the whole  scheme  of\t the
\n\t      Constitution, which I have already discussed”.\n<\/p><\/blockquote>\n
Similarly, Shelat and Grover JJ, after surveying  principles
\nof  interpretation  and construction  of  the  Constitution,
\naccepted  the theory of implied limitations on the power  of
\nParliament as well as the doctrine of basic structure.\tThey
\nrecorded their conclusion as follows (at ;pp. 280-281)
\n\t      “The  basic structure of the  constitution  is
\n\t      not  a  vague concept  and  the  apprehensions
\n\t      expressed\t on behalf of the  respondents\tthat
\n\t      neither  the citizen nor the Parliament  would
\n\t      be  able to understand it are  unfounded.\t  If
\n\t      the  historical background, the Preamble,\t the
\n\t      entire   scheme  of  the\t Constitution,\t the
\n\t      relevant provisions thereof including Art. 368
\n\t      are kept in mind there can be no difficulty in
\n\t      discerning that the following can be  regarded
\n\t      as  the basic elements of\t the  Constitutional
\n\t      structure. (These cannot be cataloged but\t can
\n\t      only be illustrated).\n<\/p>\n
\t      1.    The Supremacy of the, Constitution.\n<\/p>\n
\t      2.    Republican\t and  Democratic   form\t  of
\n\t      Government and sovereignty of the country.\n<\/p>\n
\t      3.    Secular  and  federal character  of\t the
\n\t      Constitution.\n<\/p>\n
\t      4.    Demarcation\t  of   power   between\t the
\n\t      legislature, the
\n\t      executive and the judiciary.\n<\/p>\n
\t      5.    The dignity of the individual secured by
\n\t      the various
\n\t      freedoms and basic rights in Part III and\t the
\n\t      mandate to, build a welfare State contained in
\n\t      Part IV.\n<\/p>\n
\t      6.    The\t unity\tand  the  integrity  of\t the
\n\t      nation”.\n<\/p>\n
Hegde\t  and  Mukherjea,  JJ.\talso  considered  at  length
\nprinciples  of\tinterpretation\tand  construction  in\tthis
\ncountry\t  and\tin   the   Commonwealth\t  countries.\tThey
\ndistinguished  earlier cases of this Court.  They  purported
\nto  apply well established principles of interpretation\t and
\nconstruction such as the Mischief Rule in Heydon’s case, the
\nneed  to ‘view the Constitution as a whole, and its  history
\nand objects.  They ,said (at p. 307) :\n<\/p>\n
\t      “While interpreting a provision in a  statute,
\n\t      or,  Constitution\t the primary  duty,  of\t the
\n\t      Court  is to find out the legislative  intent.
\n\t      In  the present case our duty is to  find\t out
\n\t      the
\n\t      80<\/span>
\n\t      intention of the founding fathers in  enacting
\n\t      article\t368.   Ordinarily  the\t legislative
\n\t      intent is gathered from the language used.  If
\n\t      the    language\temployed   is\tplain\t and
\n\t      unambiguous, the game must be given effect  to
\n\t      irrespective  of\tthe  consequences  that\t may
\n\t      arise.   But  if\tthe  language  employed\t  is
\n\t      reasonably capable of more meanings than\tone,
\n\t      then  the\t Court will have to  call  into\t aid
\n\t      various well settled rules of construction and
\n\t      in particular, the history of the\t legislation
\n\t      to  find\tout the evil that was sought  to  be
\n\t      remedied and also in some cases the underlying
\n\t      purpose  of  the\tlegislation-the\t legislative
\n\t      scheme and the consequences that may  possible
\n\t      flow  from accepting one or the other  of\t the
\n\t      interpretations because no legislative body is
\n\t      presumed to confer a power which is capable of
\n\t      misuse’.\n<\/p><\/blockquote>\n
\t      They  cited  the Preamble and  the  objectives
\n\t      underlying the Constitution, and found (at  p.\n<\/p><\/blockquote>\n
\t      316) :\n<\/p><\/blockquote>\n
\t      “Implied\tlimitations on the powers  conferred
\n\t      under  a statute constitute a general  feature
\n\t      of  all  statutes.   The\tposition  cannot  be
\n\t      different\t in  the case  of  powers  conferred
\n\t      under  a\tConstitution.  A grant of  power  in
\n\t      general terms or even in absolute terms may be
\n\t      qualified\t by other express provisions in\t the
\n\t      same  enactment  or may be  qualified  by\t the
\n\t      implications   of\t the  context  or  even\t  by
\n\t      considerations arising out of what appears  to
\n\t      be the general scheme of the statute”.
\n\t      They did not enumerate all the basic  features
\n\t      of   the\tConstitution  but   recorded   their
\n\t      conclusion as follows (at p. 356) :
\n\t      “Though  the power to amend  the\tConstitution
\n\t      under  Article  368 is a very wide  power,  it
\n\t      does  not yet include the power to destroy  or
\n\t      emasculate   the\t basic\t elements   or\t the
\n\t      fundamental features of the Constitution”.\n<\/p><\/blockquote>\n
Jaganmohan   Reddy,   J,  in  the  course  of\ta   detailed
\nconsideration  of  Constitutional provisions, dwelt  on\t the
\nPreamble  largely  and\ton  the\t needs\tof  the\t nation\t for
\nstability  of its values and gave a narrower connotation  to
\nthe  word “amendment” than one which could destroy the\tvery
\nidentity of the Constitution.  He said (at p. 517):\n<\/p>\n
\t      “There is nothing, vague or unascertainable in
\n\t      +,he preamble and if what is stated therein is
\n\t      subject to this criticism it would be  equally
\n\t      true  of what is stated in Article  39(b)\t and\n<\/p><\/blockquote>\n
\t      (c)  as these are also objectives\t fundamental
\n\t      in  the  governance of the country  which\t the
\n\t      State   is   enjoined  to\t achieve   for\t the
\n\t      amelioration and happiness of its people.\t The
\n\t      elements of the basic structure are  indicated
\n\t      in the preamble and translated in the  various
\n\t      provisions  of the Constitution.\tThe  edifice
\n\t      of  our Constitution is built upon and  stands
\n\t      on  several  props,-remove any  of  them,\t the
\n\t      Constitution   collapses.\t  These\t  are:\t (1)
\n\t      Sovereign\t Democratic Republic;  (2)  Justice,
\n\t      social, economic and political; (3)
\n\t      81<\/span>
\n\t      Liberty of thought, expression, belief,  faith
\n\t      and  worship;  (4) Equality of status  and  of
\n\t      opportunity.   Each one of these is  important
\n\t      and collectively they assure a way of life  to
\n\t      the  people  of India which  the\tConstitution
\n\t      guarantees.   To\twithdraw any  of  the  above
\n\t      elements the structure will not survive and it
\n\t      will  not\t be the same Constitution,  or\tthis
\n\t      Constitution nor can it maintain its identity,
\n\t      if something quite different is substituted in
\n\t      its  place,  which the sovereign Will  of\t the
\n\t      people alone can do.”\n<\/p><\/blockquote>\n
Khanna, J., while definitely rejecting the theory of implied
\nlimitations on plenary powers of legislation,  nevertheless,
\nthought that the need. to reconcile the urge for change with
\nthe need for continuity imposed even upon the wide power  of
\namendment  of the Constitution the limitation that  it\tmust
\nmove  within the orbit defined by its basic  structure.\t  He
\ndid not, and I say so with great respect, explicitly attempt
\na  reconciliation between his views on\timplied\t limitations
\nwith those on the basic structure, which at least  resembled
\nimplied limits on the plenary power of legislation.  He also
\nrelied\theavily\t on the preamble to  the  Constitution.\t  He
\nexplained  later,  in Shrimati Indira Nehru  Gandhi  v.\t Raj
\nNarain<\/a>(1),  that he did not exclude such amendments  in\t the
\nchapter\t on  Fundamental  Rights as may form  parts  of\t the
\n“basic\tstructure”  from the purview of what  could  not  be
\ntouched\t by the power of amendment contained in Article\t 368
\nof  the Constitution.  The judgment of Khanna J. tilted\t the
\nbalance, by a narrow majority of one, in favour of the\t“the
\nbasic structure” of the Constitution as a limitation on\t the
\nexpressly conferred legislative power of amendment.
\nI  need\t not  set out similarly the views  of  Ray,  Palekar
\nMathew,\t Beg, Dwivedi, and Chandrachud, JJ, as\tthey,  while
\naccepting  the undeniable proposition that the\tConstitution
\ncontained what was basic, held the, view, supported also  by
\nreference, to the history of our Constitution-making and  to
\nits  express provisions, that the power to amend  or  change
\nthe Constitution in any manner and in any respect desired by
\nthe  representatives of the people was also a part  of\tthat
\nbasic  structure or the urges of the people which had to  it
\nround  expression  ill Article 368 of the  Constitution\t and
\nwhich  had  to be fully recognised by giving it\t the  widest
\npossible  amplitude.  They too, therefore,  recognised\tthat
\nthere  was  “a basic structure” of the Constitution  in\t the
\nlight  of its history and contents and by an application  of
\nwell  established  rules of  construction.   The  difference
\nbetween\t the  majority and minority views was  only  on\t the
\nquestion  whether a wide scope of powers of amendment  given
\nto  the representatives of the people was or was not a\tpart
\nof  this basic structure or its functioning as evidenced  by
\nthe express declarations and provisions of the Constitution.
\nI  do  not  think that what those  learned  Judges  who,  in
\nKesavananda  Bharti’s case (supra), found a  narrower  orbit
\nfor  the legislative power of amendment of the\tConstitution
\nitself to move in cant to
\n(1)  [1976] 2 S.C.R. 347.\n<\/p>\n
82<\/span><\/p>\n
lay  down some theory of a vague basic\tstructure  floating,
\nlike  a\t cloud\tin  the skies,\tabove  the  surface  of\t the
\nConstitution and outside it or one that lies buried  beneath
\nthe  surface for which we have to dig in order\tto  discover
\nit.   I\t prefer\t to  think That the  doctrine  of  “a  basic
\nstructure” was nothing more than a set of obvious inferences
\nrelating  to the intents of the Constitution makers  arrived
\nat by applying the established canons of construction rather
\nbroadly,   as\tthey  should  be  so  far  as\tan   organic
\nConstitutional\tdocument,  meant  to govern the\t fate  of  a
\nnation, is concerned.  But, in every case where reliance  is
\nplaced upon it, in the course of an attack upon legislation,
\nwhether ordinary or constituent (in the sense that it is  an
\namendment of the Constitution), what is put forward as\tpart
\nof  “a basic structure” must be justified by  references  to
\nthe express provisions of the Constitution.  That  structure
\ndoes  not exist in vacuo.  Inferences from it must be  shown
\nto  be embedded in and to flow logically and naturally\tfrom
\nthe,  bases of that structure.\tIn other words, it  must  be
\nrelated\t to  the provisions of the Constitution and  to\t the
\nmanner\tin  which  they could  indubitably  be\tpresumed  to
\nnaturally and reasonably function.. So viewed, the  doctrine
\nis  nothing more than a way of advancing a  well  recognised
\nmode of construing the Constitution.  It should be used with
\ndue care and caution.  No exposition of it which could\tmake
\nit appear as a figment of judicial imagination or as capable
\nof  ‘such subjective interpretations that it may become\t im-
\npossible  to  decipher or fix its  meaning  with  reasonable
\ncertainty could be accepted by us because that would  amount
\nto  declaring  its futility. In\t Kesavananda  Bharti’s\tcase
\n(supra),  this Court had not worked out the implications  of
\nthe basic structure doctrine in all its applications.  It
\ncould, therefore, be said, with utmost respect, that it was
\nperhaps\t  left there in an amorphous state which could\tgive
\nrise to possible    misunderstandings  as to whether  it  is
\nnot  too  vaguely  stated  or  too  loosely  and   variously
\nformulated  without  attempting a basic\t uniformity  of\t its
\nmeanings or implications.  The one principle, however, which
\nis  deducible  I  in  all  the\tapplications  of  the  basic
\nstructure  doctrine,  which has been used by this  Court  to
\nlimit  even the power of Constitutional amendment,  is\tthat
\nwhatever   is  put  forward  as\t a  basic  limitation\tupon
\nlegislative  power must be correlated to one or more of\t the
\nexpress\t provisions  of\t the  Constitution  from  which\t the
\nlimitation  should naturally and necessarily  spring  forth.
\nThe  doctrine  of  basic  structure,  as  explained   above,
\nrequires that any limitation on legislative power must be so
\ndefinitely   discernible   from\t the  provisions    of\t the
\nConstitution itself that there could be no doubt or  mistake
\nthat  the  prohibition\tis a part  of  the  basic  structure
\nimposing  a  limit  on\teven  the  power  of  Constitutional
\namendment.   And,  whenever  we construe  any  document,  by
\nreading\t its provisions as a whole, trying to  eliminate  or
\nresolve its disharmonies, do we not attempt to interpret  it
\nin accordance with what we find in its “basic structure”  or
\npurposes ? The doctrine is neither unique nor new.
\nI  may here point out that in Smt.  Indira Nehru  Gandhi  v.
\nRai Narain<\/a> (supra), when the doctrine of the basic structure
\nof the Constitution was invoked to assail the provisions  of
\nRepresentation of People Act, Ray C.J., seemed to reject the
\ntheory of basic structure
\n83<\/span>
\naltogether in its application either to the construction  of
\nthe  Constitution or of ordinary legislation.  He  said\t (at
\npp. 436-437) :\n<\/p>\n
\t      “To   accept  the\t basic\tfeatures  or   basic
\n\t      structures  theory  with\tregard\tto  ordinary
\n\t      legislation would mean that there would be two
\n\t      kinds of limitations for legislative measures.
\n\t      One  will pertain to legislative\tpower  under
\n\t      Articles\t245  and  246  and  the\t legislative
\n\t      entries  and the provision in Article 13.\t The
\n\t      other would be that no legislation can be made
\n\t      as  to  damage or destroy\t basic\tfeatures  or
\n\t      basic  structures.  This will  mean  rewriting
\n\t      the  Constitution and robbing the\t legislature
\n\t      of   acting  within  the\tframework   of\t the
\n\t      Constitution.  No legislation can be free from
\n\t      challenge\t on  this  ground  even\t though\t the
\n\t      legislative  measure  is\twithin\tthe  plenary
\n\t      powers of the legislature”.\n<\/p><\/blockquote>\n
\t      He went on to observe (at p. 437):\n<\/p><\/blockquote>\n
\t      “The  theory  of\tbasic  structures  or  basic
\n\t      features\tis  an\texercise  in   imponderable.
\n\t      Basic   structures  or  basic   features\t are
\n\t      indefinable.  The legislative entries are\t the
\n\t      fields of legislation.\tThe\tpith\t and
\n\t      substance\t doctrine has been applied in  order
\n\t      to    find   out\t  legislative\t competency.
\n\t      and  eliminate  encroachment  on\t legislative
\n\t      entries.\tIf the theory of basic structures or
\n\t      basic features will be applied to\t legislative
\n\t      measures\tit will denude Parliament and  State
\n\t      Legislatures  of the power of legislation\t and
\n\t      deprive\tthem  of  laying  down\t legislative
\n\t      policies.\t  This will be encroachment  on\t the
\n\t      separation of powers”.\n<\/p><\/blockquote>\n
\t      Mathew,\tJ.,  observed  :  in  Smt.    Indira
\n\t      Gandhi’s case (supra) (at pp. 525-526)
\n\t      “I  think the inhibition Lo destroy or  damage
\n\t      the  basic  structure by an amendment  of\t the
\n\t      Constitution flows from the limitation on the,
\n\t      power of amendment under Article 368 read into
\n\t      it  by the majority in Bharati’s case  because
\n\t      of  their\t assumption that there\tare  certain
\n\t      fundamental  features  in\t the-\tConstitution
\n\t      which  its makers intended to remain there  in
\n\t      perpetuity.   But I do not find any  such\t in-
\n\t      hibition so far as the power of Parliament  or
\n\t      State Legislatures to pass laws is  concerned.
\n\t      Articles\t245 and 246 give the power and\talso
\n\t      provide the limitation upon the power of these
\n\t      organs to pass laws.  It is only the  specific
\n\t      provisions  enacted in the Constitution  which
\n\t      could  operate as limitation upon\t the  power.
\n\t      The   Preamble,\tthough\t a   part   of\t the
\n\t      Constitution, is neither a source of power nor
\n\t      a\t limitation  upon the power.   The  preamble
\n\t      sets  out the ideological aspirations  of\t the
\n\t      people.\tThe essential features of the  great
\n\t      Concepts\t set   out  in\tthe   preamble\t are
\n\t      delineated  in the various provisions  of\t the
\n\t      Constitution.  It is these specific provisions
\n\t      in   the\tbody  of  the\tConstitution   which
\n\t      determine\t the  type of  democracy  which\t the
\n\t      founders of
\n\t      84<\/span>
\n\t      that  instrument established; the quality\t and
\n\t      nature  of  justice,  political,\tsocial\t and
\n\t      economic\twhich  was  their  desideratum,\t the
\n\t      content  of liberty of thought and  expression
\n\t      which  they entrenched in that  document,\t the
\n\t      scope of equality of status and of opportunity
\n\t      which  they enshrined in it.   These  specific
\n\t      provisions  enacted in the Constitution  alone
\n\t      can  determine  the  basic  structure  of\t the
\n\t      Constitution as’ established.  These  specific
\n\t      provisions,    either   separately    or\t  in
\n\t      combination determine the content of the great
\n\t      concepts\tset  out  in the  preamble.   It  is
\n\t      impossible to spin out any concrete concept of
\n\t      basic  structure out of the gossamer  concepts
\n\t      set   out\t in  the  preamble.   The   specific
\n\t      provisions  of the Constitution are the  stuff
\n\t      from  which  the\tbasic structure\t has  to  be
\n\t      woven”.\n<\/p><\/blockquote>\n
In  Smt.   Indira Gandhi’s case\t (supra),  Chandrachud,\t J.,
\nafter  making  similar\tobservations on the  nature  of\t the
\nPreamble  and pointing out that there was no agreed list  of
\nbasic  features of the Constitution given by learned  Judges
\nconstituting   the  majority  in   Kesavananda.\t   Bharati’s
\n(supra),  said, on the applicability of the basic  structure
\ndoctrine to the power of ordinary legislation. (at pp.\t669-\n<\/p>\n
670)
\n\t      “The  Constitutional  amendments may,  on\t the
\n\t      ratio  of\t the Fundamental  Rights  case,\t be,
\n\t      tested  on the anvil of basic structure.\t But
\n\t      apart  from the principle that a case is\tonly
\n\t      an authority for-what it decides, it does\t not
\n\t      logically follow from the majority judgment in
\n\t      the  Fundamental\tRights\tcase  that  ordinary
\n\t      legislation must also answer the same test  as
\n\t      a\t constitutional\t amendment.   Ordinary\tlaws
\n\t      have to answer two tests for their validity  :
\n\t      (1)  The\tlaw must be within  the\t legislative
\n\t      competence  of  legislature  as  defined\t and
\n\t      specified\t in  Chapter  1,  part\tXI,  of\t the
\n\t      Constitution  and\t (2)  it  must\tnot   offend
\n\t      against  the ions of Article 13(1) and (2)  of
\n\t      the  Constitution\t Basic\t Structure,  by\t the
\n\t      majority judgment. is not a part of the funda-
\n\t      mental  rights nor indeed a provision  of\t the
\n\t      Constitution.   The theory of basic  structure
\n\t      is   woven  out  of  the\tconspectus  of\t the
\n\t      Constitution,   and  the\tamending  power\t  is
\n\t      subject  to  it because it  is  a\t constituent
\n\t      power.   ‘The power to amend  the\t fundamental
\n\t      instrument  cannot carry with it the power  to
\n\t      destroy\tits  essential\tfeatures’-this,\t  in
\n\t      brief,  is  the arch of the  theory  of  basic
\n\t      structure.   It  is  wholly out  of  place  in
\n\t      matters  relating to the validity of  ordinary
\n\t      laws made under the Constitution”.\n<\/p>\n
Both  Khanna  J.,  and I,  however,  expressed\tviews  there
\nshowing that aspirations of the people of India, set out  in
\nthe  Preamble  as well as other parts of  the  Constitution,
\nprovided  general guidance in judging the  Constitutionality
\nof   all  laws\twhether\t constitutional\t or   ordinary.\t   I
\nspecifically  said  there  that the doctrine  of  the  basic
\nstructure  of  the Constitution could be used  to  test\t the
\nvalidity   of  laws  made  by  Parliament  either   in\t its
\nconstituent or ordinary law making capacities
\n85<\/span>
\nbecause\t “ordinary law making cannot go beyond the range  of
\nconstituent power”.\n<\/p>\n
No  doubt, as a set of inferences from a document (i.e.\t the
\nConstitution),\tthe doctrine of “the basic structure”  arose
\nout  of and relates to the Constitution only’ and does\tnot,
\nin that sense, appertain to the sphere of ordinary  statutes
\nor arise for application to them in the same way.      But,
\nif,  as\t a result of the doctrine, certain  imperatives\t are
\ninherent  in  or  logically and necessarily  flow  from\t the
\nConstitution’s ‘basic\t structure”, just as though they are
\nits express mandates, they can be  and\thave to be  used  to
\ntest  the, validity of ordinary laws just as other parts  of
\nthe Constitution are so used.\n<\/p>\n
In  Smt.  Indira Gandhi’s case (supra), the  differences  of
\napproach between the learned Judges, were not so much on the
\nquestion  whether “the basic structure” was to be deemed  to
\nbe  really an additional part of the Constitution  (on\tthis
\nthere is agreement that it could not) or only a principle of
\nits construction, but on the question whether, once it,\t was
\nfound  to  be  a  permissible  mode  of\t construction,\twhat
\nfollowed from it was applicable to test the validity of both
\nconstitutional as well as ordinary law-making.\tThe majority
\nview  of learned Judges of this Court seemed to be that,  it
\nwas  not  available  to test the validity  of  the  impugned
\nprovisions  of the Representation of People Act because\t the
\nexpressly laid down ordinary law making powers of Parliament
\nare  clear  enough.  In other words, it was held to  be\t in-
\napplicable  here on the view that there was no ambiguity  to
\nbe  resolved  about  the  ordinary  law\t making\t powers\t  of
\nParliament.   It was applied to interpret the ambit of,\t the
\nConstituent  power as there was some uncertainty  about\t its
\nscope.\tIt, however, seems to me that the test of “free\t and
\nfair  elections” and of “equality before the law” were\tused
\nby  this  Court\t in judging the\t validity  of  the  impugned
\nprovisions  of\tthe  Representation of People  Act  in\tSmt.
\nIndira Nehru Gandhi’s case (supra) although the majority  of
\nlearned\t judges\t of  the bench preferred to  do\t so  without
\ncharacterising these features as parts of a basic  structure
\nof  the,  Constitution.\t  But, when  deciding  the  question
\nwhether\t the purported constitutional amendment\t could\ttake
\naway  the powers of this Court to hear and decide on  merits
\nthe  election  appeals pending before it,  all\tthe  learned
\nJudges who participated in the decision of that case  seemed
\nto rely, in varying degrees, either expressly or  impliedly,
\nupon  the “basic structure” of the Constitution\t itself,  as
\nrevealed by its express provisions, to hold that, under\t the
\nguise  of  exercising a legislative  power,  the  Parliament
\ncould  not,  in\t effect,  adjudicate on\t the  merits  of  in
\nindividual case under the Constitution as it stood.
\nIt is important to note that majority opinions of Judges who
\nparticipated  in the decision in Kesavananda Bharati’s\tcase
\n(supra)and  those who took part in the decision\t in  Smt.
\nIndira Gandhi’scase   (supra),\t invalidating\tcertain
\nconstitutional amendments, makeout  limitations\t founded
\non the basic structure of the Constitution by very     detailed
\nreferences to the express provisions of the Constitution.In
\nSmt.   Indira  Nehru  Gandhi’s case (supra),  parts  of\t the
\nConstitution
\n86<\/span>
\n(Thirty-Ninth  Amendment)  Act\tof  1975  were\tstruck\tdown
\nprimarily because specific provisions of Article 368 of\t the
\nConstitution left no room for doubt that what was  conferred
\nby  the\t Constitution upon a majority of not less  than\t two
\nthirds\tof  the\t members of the\t two  Houses  of  Parliament
\npresent and voting, supported by resolutions of legislatures
\nof  not less than one half of the States, was a\t legislative
\npower  and not a judicial power judged both by its  contents
\nand  procedure.\t Hence, it was held that, on the very  terms
\nof  the\t specific power conferred, an exercise\tof  judicial
\npower, in purported exercise of legislative powers contained
\nin  Article 368 of the Constitution, was prima\tfacie  ultra
\nvires.\t Such  exercise\t of  power  contravenes\t the   basic
\nstructure of the Constitution of which the legislative orbit
\nof  power  indicated by Article 368 of the  Constitution  is
\nalso  a\t necessary part.  The principle asserted  there\t was
\nstated by me as follows :\n<\/p>\n
\t      “Neither\t of   the   three   constitutionally
\n\t      separate organs of State can, according to the
\n\t      basic  scheme of our Constitution today,\tleap
\n\t      outside\t the   boundaries   of\t  its\t own
\n\t      constitutionally\tassigned sphere or orbit  of
\n\t      authority into that of the other”.\n<\/p><\/blockquote>\n
These orbits were expressly chalked out by the law found  in
\nthe Constitution.  There could be no doubt, whatsoever\tupon
\nreading the provisions of the Constitution as a whole,\tthat
\nthe  orbits  of legislative and judicial power are  not\t the
\nsame.\tBut, so far as the orbits of legislative  power\t are
\nconcerned, it is clear that those of Parliament and ofthe
\nState  legislatures  are  not mutually\texclusive  in  every
\nrespect. There\tis also a concurrent field of  legislation.
\nAnd, there is nothingthere  which could come in the  way
\nof   the  plenary  legislative\tpower  conferred  upon\t our
\nParliament in fields assigned to it.  These can be  limited,
\nat the most, by a necessary or unavoidable implication, such
\nas  the one which must flow from the conferment of  judicial
\nand  legislative  and  executive  powers  separately,\twith
\nunmistakably   different  characteristics,  upon   different
\nauthorities.   The  basic scheme of the\t Constitution  could
\ncertainly   be\t invoked  to   invalidate   legislation\t  by
\nParliament, acting in its ordinary law making capacity, on a
\nsubject\t which falls either exclusively within the orbit  of
\nan  amendment  of “the Constitution” or in List\t II  of\t the
\nSeventh\t Schedule of exclusively State subjects.  But, as  I
\nhave indicated above, this is not so here.\n<\/p>\n
Thus,  it is clear that whenever the doctrine of  the  basic
\nstructure  has\tbeen expounded or applied it is\t only  as  a
\ndoctrine  of  interpretation  of  the  Constitution  as\t  it
\nactually exists and not of a Constitution which could  exist
\nonly  subjectively in the minds of different individuals  as
\nmere theories about what the Constitution is.  The  doctrine
\ndid  not  add to the contents of the Constitution.   It\t did
\nnot,  in  theory, deduct anything from what was\t there.\t  It
\nonly purported to bring out and explain the meaning of\twhat
\nwas already there.  It was, in fact, used by all the  judges
\nfor only this purpose with differing results simply  because
\ntheir  assessments or inferences as to what was part of\t the
\nbasic  structure  in  our Constitution\tdiffered.   This,  I
\nthink, is the ‘Correct interpretation of the doctrine of the
\nbasic structure of the
\n87<\/span>
\nConstitution.\tIt  should only be applied if it  is  clear,
\nbeyond\tthe region of doubt, that What is put forward  as  a
\nrestriction  upon  otherwise clear and\tplenary\t legislative
\npower is there as a Constitutional imperative.
\nIf this be the correct view about the basic structure, as  a
\nmode  of interpreting the Constitution only,  the  so-called
\nfederalism  as\ta  fetter on  legislative  power  must\tfind
\nexpression  in\tsome express provision to be  recognised  by
\nCourts.\t It may be mentioned here that a majority of  Judges
\nwho decided the Kesavananda Bharati’s case (supra) have\t not
\ntreated\t “Federalism” as part of the basic structure of\t the
\nConstitution.  And, none of them has discussed the extent of
\nthe  “federal” part of this structure.\tIt is not enough  to
\npoint to Article I of the Constitution to emphasize that our
\nRepublic  is a “Union” of States.  That, no doubt  is  true.
\nBut,  the  word\t “union”  was used in  the  context  of\t the
\npeculiar  character of our federal Republic revealed by\t its
\nexpress\t provisions.   We  have still to  find,\t from  other
\nexpress\t provisions, what this “Union” means or what is\t the
\nextent\tor  nature  of\t“federalism”  implied  by  it.\t The
\nConstitution  itself does not use the word  “federation”  at
\nall.\tIn  any\t case,\tafter  examining  all  the   express
\nprovisions  of the Constitution, relied upon by the  learned
\nCounsel for the plaintiff, I am unable to discover there any
\nsuch fetter which could, by a necessary implication, prevent
\nParliament from enacting Section 3 of the Act.
\nIndeed,\t if  the theory of necessary implications is  to  be
\napplied\t  here,\t  the,\t entrenched   provisions   of\t our
\nConstitution, for which a special procedure for amendment is
\nprescribed  within  Article 368 itself,\t together  with\t the
\nother provisions discussed above, give the express limits to
\nwhich  the operations of the federal principles is  confined
\nin  our\t Constitution.\t None  of  the\texpressly  mentioned
\nfeatures  could, by any necessary implication, impinge\tupon
\nthe expressly given and distributed legislative powers.\t The
\ndoctrine that express mention excludes that which is not  so
\nmentioned  applies  also  to express  limitations.   If\t the
\nscheme\tof distribution of legislative powers is  basic\t and
\nexpress,  with\tits own express\t limitations,  “implied”  or
\nunspecified alleged limitations going beyond that scheme are
\neliminated by the very force of the express provisions.
\nIn Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar &
\nOrs<\/a>(1).\t  I  find  that the validity of the  Act  and  of  a
\nnotification  under Section 3 of the Act was challenged\t but
\nupheld\tby this Court, although a part of clause 10  of\t the
\nnotification which, in addition to requiring it to recommend
\nmeasures  to prevent similar future cases, also directed  it
\nto  report  on\t“the  action which in  the  opinion  of\t the
\nCommission should be taken as and by way of securing redress
\nor  punishment”, was held to be outside the purview  of\t the
\nAct  in\t so far as the latter part went\t beyond\t the  purely
\ninvestigatory  character  of the inquiry authorised  by\t the
\nAct.   In that case the Commission was required\t to  inquire
\ninto and report on the administration of affairs of certain
\n(1)[1955] S.C.R. 279.\n<\/p>\n
88<\/span><\/p>\n
companies   specified\tin  a  schedule\t  annexed   to\t the
\nnotification.\tIt  was\t held  there  inter-alia  that\tmere
\npossibility  of misuse of powers given by the Act could\t not
\nvitiate\t the power conferred by the Act.  It was  also\theld
\nthere  that the Act was made by Parliament acting in  fields
\nindicated by entries 94 of List I and 45 of List III of\t the
\nSeventh Schdule so that the inquiries could be ordered\t“for
\nthe  purposes of any of the matters in List I, List  II\t and
\nList  III.”  Incompetence  of  Parliament  to  legislate  on
\nmatters in List II could not, it was held, vitiate power  to
\norder inquiries relating to subjects in that list in view of
\nthe express terms of entry 45 in List II.  It was held\tthat
\nthe scope of inquiry may also cover matters ancillary to the
\ninquiries themselves.  Furthermore, relying on Kathi  Raning
\nRawat v. State of Saurashtra,<\/a> (1) it was pointed out (at  p.\n<\/p>\n
293):\n<\/p>\n
\t      ” The Commission has no power of\tadjudication
\n\t      in the sense of passing an order which can  be
\n\t      enforced proprio vigore.\tA clear\t distinction
\n\t      must,  on the authorities, be drawn between  a
\n\t      decision which, by itself, has no force and no
\n\t      penal  effect  and a  decision  which  becomes
\n\t      enforceable  immediately or which\t may  become
\n\t      enforceable by some action being taken.”\n<\/p><\/blockquote>\n
It  is\ttrue  that  in\tR.  K.\tDalmia’s  case\t(supra)\t the
\nprovisions  ‘of\t the  Act  were\t not  assailed\ton  all\t the
\nextensive  grounds  on which they have now  been  questioned
\nbefore\tus.   Nevertheless,  the objects  of  the  Act\twere
\nconsidered and indicated there.\n<\/p>\n
The purposes for which a Commission can be set up under\t the
\nAct  was  considered  long ago by a Division  Bench  of\t the
\nNagpur High Court in M. V. Rajwade v. Dr. S. M. Hasan &\t Ors
\n(2),  which  was  cited\t with  approval\t by  this  Court  in
\nBrajnandan  Sinha  v.  Jyoti  Narain<\/a>(3)\t and  the  following
\npassage was quoted from the judgment:\n<\/p>\n
\t      “The  Commission\tin  question  was  obviously
\n\t      appointed\t by  the State Government  ‘for\t the
\n\t      information of its own mind’, in order that it
\n\t      should  not act, in exercise of its  executive
\n\t      power, ‘otherwise than in accordance with\t the
\n\t      dictates of justice and equity’ in ordering  a
\n\t      departmental enquiry against its officers.  It
\n\t      was, therefore, a fact finding body meant only
\n\t      to instruct the mind of the Government without
\n\t      producing any document of a judicial nature”.\n<\/p><\/blockquote>\n
It may be mentioned here that in A. Sanjeevi Naidu etc. etc.
\nv.  State  of  Madras & Anr. (4)  this\tCourt  examined\t the
\nposition of an individual Minister who determines matters of
\npolicy and programmes of his Ministry, within the  framework
\nof major policies of the Government, vis-a-vis the officials
\nin  the\t Department in his charge who act on behalf  of\t the
\nGovernment subject to the directions given orally
\n(1)  [1952] S.C.R. 435.\n<\/p>\n
(2)  [1954] I.L.R. Nagpur p. I @ 13.\n<\/p>\n
(3)  [1955] 2 S.C.R. 955.\n<\/p>\n
(4)  [1970] 3 S.C.R. 505 @ 512.\n<\/p>\n
89<\/span><\/p>\n
or  in\twriting by the Minister concerned.   Hence,  it\t may
\nbecome\ta matter of considerable difficulty,  delicacy,\t and
\nimportance, in a particular case, to apportion the blame  or
\nresponsibility\tfor  any  act or  decision,  alleged  to  be
\nwrongful,  between the Minister concerned and the  officials
\nwho work under his directions.\tSuch apportionments could be
\nsafely\tentrusted only to experts who have had\tconsiderable
\njudicial experience and can deal with complete\timpartiality
\nand  dexterity with issues raised.  The moral or  collective
\nresponsibility\twhich  is political is\ta  different  matter
\nwhich  may  no\tdoubt  be  affected  by\t the  reports  of  a
\nCommission  of Inquiry.\t Individual liability may have\teven
\nmore  serious consequences for the Minister  concerned\tthan
\nthe  collective responsibility which carries only  political
\nimplications.\n<\/p>\n
In  State  of Jammu & Kashmir v. Bakshi\t Ghulam\t Mohammad<\/a>(1)
\nthis  Court pointed out that even if Bakshi Ghulam  Mohammad
\nhad ceased to be the Chief Minister of the State of Jammu  &
\nKashmir\t his past actions would not cease to be\t matters  of
\npublic\timportance.  It definitely disapproved the  view  of
\nthe High Court when it said (at p. 407) :\n<\/p>\n
\t      “These  learned  Judges  of  the\tHigh   Court
\n\t      expressed\t the  view that the acts  of  Bakshi
\n\t      Ghulam  Mohammad\twould  have  been  acts\t  of
\n\t      public,  importance  if he was in\t office\t but
\n\t      they  ceased to be so as he was out of  office
\n\t      when  the Notification was issued.  In  taking
\n\t      this   view,   they  appear  to\thave   based
\n\t      themselves  on  the observation made  by\tthis
\n\t      Court in Ram Krishna Dalmia v. Sri Justice  S.
\n\t      R.   Tendolkar<\/a>   that  “the  conduct   of\t  an
\n\t      individual  may assume such a  dangerous\tpro-
\n\t      portion  and  may so prejudicially  affect  or
\n\t      threaten to affect the public well-being as to
\n\t      make such conduct a definite matter of  public
\n\t      importance,   urgently  calling  for  a\tfull
\n\t      enquiry”.\t The learned Judges felt that  since
\n\t      Bakshi  Ghulam Mohammad was out of office,  he
\n\t      had become innocuous; apparently, it was\tfelt
\n\t      that  he\tcould not long threaten\t the  public
\n\t      well-being by his acts and so was outside\t the
\n\t      observation in Dalmia’s case.  We are clear in
\n\t      our  mind\t that this is a misreading  of\tthis
\n\t      Court’s\tobservation.  this  Court,  as\t the
\n\t      learned  Judges  themselves noticed,  was\t not
\n\t      laying   down  an\t exhaustive  definition\t  of
\n\t      matters  of public importance.  What is to  be
\n\t      inquired into in any case are necessarily past
\n\t      acts  and\t it  is because\t they  have  already
\n\t      affected the public well-being or their effect
\n\t      might  do\t so,  that they\t became\t matters  of
\n\t      public  importance.  It is irrelevant  whether
\n\t      the  person who committed those acts is  still
\n\t      in power to be able to repeat them.”\n<\/p><\/blockquote>\n
The  clear implication of the last mentioned  pronouncement,
\nwith  which  I\tfind  myself  in  complete  and\t  respectful
\nagreement,  was that even if a Minister in the\texercise  of
\nhis  official power does acts which may amount\tto  criminal
\noffences, yet, inquiry into them may be made as a matter  of
\npublic importance and not of just Private importance.
\n(1)  [1966] Supp.  S.C.R. 401.\n<\/p>\n
90<\/span><\/p>\n
And,  what  can\t be done when he is out\t of  office  may,  a
\nfortiori, be ordered when he is in office.  This Court\talso
\nsaid there as follows, with which also I entirely agree\t (p.\n<\/p>\n
406) :\n<\/p>\n
\t      ”\t ….  it  is difficult\t to  imagine  how  a
\n\t      Commission  can  be  set up by  a\t Council  of
\n\t      Ministers\t to  inquire into the  acts  of\t its
\n\t      head,  the  Prime\t Minister, while  he  is  in
\n\t      office.  It certainly would be a most  unusual
\n\t      thing  to happen.\t If the rest of the  Council
\n\t      of Ministers resolves to have any inquiry, the
\n\t      Prime  Minister  can be expected\tto  ask\t for
\n\t      their  resignation.   In\tany  case  he  would
\n\t      himself  go  out.\t  If  he  takes\t the   first
\n\t      course,then no Commission would be set up\t for
\n\t      the  Ministers wanting the inquiry would\thave
\n\t      gone.   If  he  went  out\t himself,  then\t the
\n\t      Commission would be set up to inquire into the
\n\t      acts  of a person who was no longer in  office
\n\t      and for that reason, if the learned Judges  of
\n\t      the High Court were right, into matters  which
\n\t      were  not\t of public importance.\t The  result
\n\t      would  be\t that the acts of a  Prime  Minister
\n\t      could  never be inquired into under  the\tAct.
\n\t      We find it extremely difficult to accept\tthat
\n\t      view.  ”\n<\/p><\/blockquote>\n
In P. V. Jagannath Rao & Ors. v. State of Orissa & Ors.<\/a>\t was
\nheld  by  a  Constitution  Bench  of  this  Court  that\t the
\nappointment  of a Commission of Inquiry under section  3  of
\nthe Act with the object of enabling the Government to  frame
\n“appropriate  legislative  or  administrative  measures\t  to
\nmaintain   the\tpurity\tand  integrity\tof   the   political
\nadministration in the State?’ was valid.\n<\/p>\n
Again  in  Krishna  Ballabh Sahay & Ors.  v.  Commission  of
\nEnquiry\t &  Ors.<\/a>  (2) a similar view was taken\tand  it\t was
\nobserved  by this.  Court with reference to the\t charges  of
\ncorruption into the conduct of Ministers (at p. 394)
\n\t      “It  cannot  be stated  sufficiently  strongly
\n\t      that  the public life of persons in  authority
\n\t      must  never admit of such charges\t being\teven
\n\t      framed against them.  If they can be made then
\n\t      an  inquiry  whether to establish them  or  to
\n\t      clear the name of the person charged is called
\n\t      for.\n<\/p>\n
\t      A\t perusal of the grounds assures us that\t the
\n\t      charges are specific, and that records  rather
\n\t      than oral testimony will be used, to establish
\n\t      them.”\n<\/p>\n
I  may also say that I fully agree with the views  expressed
\nby   Kailasam  C.J.,  of  the  Madras  High  Court,  in\t  M.
\nKarunanidhi v. The Union of India & Anr.<\/a>(3)
\nI  may mention that the considerations placed before us\t for
\nassailing  the legislative competence of Parliament,  having
\nbeen  rejected\tby us as quite insubstantial, could  not  be
\nutilised  for “reading down” the provisions of section 3  of
\nthe Act a procedure which may be some-\n<\/p>\n
(1)  [1968] 3 S.C.R. 789.\n<\/p>\n
(2)  [1969] 1 S.C.R. 387.\n<\/p>\n
(3)  A.I.R. 1977 Mad. 192.\n<\/p>\n
91<\/span><\/p>\n
times available for saving a provision from partial or total
\ninvalidity.   “Reading down” is, after all, only  a  logical
\noutcome\t of the principle of constitution Res  Magis  Valeat
\nQuam Pereat (See : Craies on “Statute Law” 6th. ed. p. 103).
\nThe  last  question I propose to advert to  relates  to\t the
\npreliminary  objection\tto the maintainability of  the\tsuit
\nunder  Article 131 of the Constitution on which I share\t the
\nconclusions  of\t Chandrachud  J.  and  of  Bhagwati  J.\t and
\nKailasam  J.  as  against those, with due  respect,  of\t our
\nlearned brethren who have held that the plaintiff should  be
\nnon-suited  on\tthe ground that a suit such as the  one\t now
\nbefore\tus  does  not lie at all under Article\t131  of\t the
\nConstitution.\n<\/p>\n
I  have\t dealt at length with all the arguments\t which\twere
\nadvanced  on  behalf  of the State of  Karnataka  because  I
\naccept as correct the submission of the learned Counsel\t for
\nthe  plaintiff that the case involves consideration  of\t the
\nexercise of governmental powers which vest in the Government
\nof  the State and its Ministers as such vis a vis  those  of
\nthe Central Government. and its Ministers.  They also  raise
\nquestions  relating  to the meaning and the  ambit  and\t the
\napplicability\tof   the  particular   provisions   of\t the
\nConstitution whose operations are of vital interest to every
\nState.\t  Indeed,   the\t interpretations  given\t  to   these
\nprovisions must necessarily be of great concern to the Union
\nas  well.  They are matters which involve the  interests  of
\nthe  whole of the people of India who gave  unto  themselves
\nthe Constitution whose provisions we have interpreted.
\nThe  Union of India, acting through the Central\t Government,
\ncould be said to represent the whole of the people of India.
\nThe individual States, acting through their Governments\t and
\nMinisters,  could  be said to represent the people  of\teach
\nindividual  State  and their  interests.   When\t differences
\narise between the representatives of the State and those  of
\nthe whole people of India on questions of interpretation  of
\nthe Constitution, which must affect the welfare of the whole
\npeople,\t and  particularly that of the people of  the  State
\nconcerned,  it appears to me, with great respect, to be\t too
\ntechnical an argument to be accepted by us that a suit\tdoes
\nnot   lie  in  such  a\tcase  under  Article  131   of\t the
\nConstitution.\n<\/p>\n
According to both sides to the case before us an exercise of
\npowers\tunder  section\t3 of the Act is\t called\t for.\tThey
\ndiffer\tonly on the question whether the Government  of\t the
\nState concerned or the Central Government also, on the facts
\nof  this  case,\t can exercise those  powers.   Their  claims
\nconflict.  There is a lies.  The parties to the dispute\t are
\nbefore\tus.   We had to decide it and we have done  so.\t  It
\nseems  to  me that a distinction between the State  and\t its
\nGovernment  is,\t at the most, one between the whole  and  an
\ninseparable  part  of the whole. It would be  immaterial  as
\nregards\t claims\t on  behalf  of\t either\t the  State  or\t its
\nGovernment  whether the two are distinct  jurists  entities.
\nEven  if  they\tcould  be  distinctly  separate,  which\t  is
\ndoubtful,  the claim of the Government would be that of\t the
\nState.\n<\/p>\n
92<\/span><\/p>\n
In  State of Rajasthan v. Union of India (1) this Court\t has
\nrecently  considered  the scope of Article  131.   There,  I
\nsaid, inter alia, on this question (at p. 1393) :\n<\/p>\n
\t      “I  do  not  think that we  need\ttake  a\t too
\n\t      restrictive  or a hyper-techincal view of\t the
\n\t      State’s  rights to sue for any rights,  actual
\n\t      or fancied which the State Government  chooses
\n\t      to take up on behalf of the State concerned in
\n\t      a suit under Art. 131.”\n<\/p><\/blockquote>\n
It  may\t be, explained here that this  observation  was\t not
\nmeant to lay down more than that there would be presumed  to
\nbe  a  nexus between the interests of the State and  of\t the
\npeople it represents when the Government of the State, takes
\nup   an\t issue\trelating  to  the  interpretation   of\t the
\nConstitution  against an action taken, or, even, as was\t the
\ncase  there, one contemplated by the Central Government.   I
\nwould  like to remove the impression that no such  nexus  is
\nneeded\tif the use of the words “actual or fancied”, in\t the
\nobservations  quoted  above, create it.\t  I  however,  think
\nthat, in the case before us, the nexus between the rival
\nclaims advancedand  the interests of the public of  the
\nState is reasonably made out. It is a different\t matter
\nthat I do not accept the view put forward onbehalf  of\tthe
\nState  of  Karnataka  that  it\talone  and  not\t the   Union
\nGovernment  also has the power to set up a Commission  under
\nsection\t 3  of\tthe, Act on a matter  of  public  importance
\nprimarily concerning the State.\n<\/p>\n
It  has\t to be remembered that Article 131 is  traceable  to
\nsection\t  204\tof  the\t Government  of\t India\t Act.\t The
\njurisdiction  conferred\t by it thus originated in  what\t was
\npart  of the federal structure set up by the  Government  of
\nIndia Act, 1935.  It is a remnant of the Federalism found in
\nthat Act. It   should,\t therefore,   be   widely   and
\ngenerously interpreted for thatreason\ttoo  so\t as   to
\nadvance the intended remedy. It can be invoked,in      my
\nopinion,  whenever  a State and other States  or  the  Union
\ndiffer\ton a question of interpretation of the\tConstitution
\nso  that a decision of it will affect the scope or  exercise
\nof governmental powers which are attributes of a State.\t  It
\nmakes no difference to the maintainability of the action  if
\nthe  powers of the State, which are Executive,\tLegislative,
\nand  Judicial, are exercised through particular\t individuals
\nas they necessarily must be.  It is true that a criminal act
\ncommitted by a Minister,, is no part of his official duties.
\nBut, if any of the organs of the State claim exclusive power
\nto  take  cognizance  of it, the  State,  as  such,  becomes
\ninterested  in\tthe dispute about the  legal  competence  or
\nextent of powers of one of its organs which may emerge.
\nI do not think that the fact that the State acts through its
\nMinisters or officials can affectthe maintainability of\t a
\nsuit under Article 131 of the Constitution. Both    Article
\n166(3) of our Constitution  as well as Section 59(3)of
\nthe Government of India Act of 1935 provided for  allocation
\nof  the business of the Government among the  Ministers\t for
\n“the  more  convenient transaction of  the  business.”\tThis
\nimplies\t that  the  State can act  not\tmerely\tthrough\t its
\nGovernment as a whole
\n(1)  A.I.R. 1977 S.C. 1361.\n<\/p>\n
93<\/span><\/p>\n
but also through its individual Ministers as provided by the
\nrules.\t Section 49(1) of the Government of India  Act\tmade
\nthis position absolutely clear by enacting :\n<\/p>\n
\t      “The  executive authority of a Province  shall
\n\t      be  exercised on behalf of His Majesty by\t the
\n\t      Governor, either directly or through  officers
\n\t      subordinate to him.”\n<\/p><\/blockquote>\n
\t      The  equivalent to that is Article  154(1)  of
\n\t      our Constitution which reads as follows :
\n\t       “154.  Executive\t power\tof  State-.(1)\t The
\n\t      executive\t power of the State shall be  vested
\n\t      in the Governor and shall be exercised by\t him
\n\t      either\tdirectly   or\t through    officers
\n\t      subordinate  to  him in accordance  with\tthis
\n\t      Constitution.”\n<\/p><\/blockquote>\n
In  King-Emperor  v.  Sibnath Banerji &\t Ors.(1)  the  Privy
\nCouncil had held that “a Minister is an officer\t subordinate
\nto  the\t Governor”  for the purposes of Section\t 49  of\t the
\nGovernment of India Act only.  This observation was no doubt
\nrelied upon by this Court in A. Sanjeevi Naidu ,etc. etc. v.
\nState of Madras & Anr.(2) with regard to the position of our
\nMinisters  for\tthe  purposes  of  Article  154(1)  of\t the
\nConstitution.These  provisions,\t far from  establishing\t any
\nantithesis  between the official capacity of a Minister\t and
\nthe State for which he acts, only show that, as a  Minister,
\nhe  is\tan agent or a limb of the Government of\t the  State,
\nand,  therefore, he can be treated as an “officer” for\tpur-
\nposes  of Article 154(1) which corresponds to Section 49  of
\nthe  Government\t of  India  Act.   The\tresult\tis  that   a
\nMinister’s official acts cannot be distinguished from  those
\nof  the State on whose behalf he ;acts.\t With great  respect
\nfor  the  view\tof  my learned brethren\t who  seem  to\thold
\notherwise,  this  feature cannot make a suit  by  the  State
\ntinder\tArticle 131 of the Constitution\t incompetent  merely
\nbecause\t it relates to the exercise of a  Minister’s  powers
\nenjoyed\t by  Virtue  of his office.   There  is\t nothing  in
\nArticle\t 131 of the Constitution itself to debar the  State,
\nwhich  must always necessarily act through its\tofficers  or
\nagents\tor Ministers, from suing the Central Government\t not
\nonly  to protect one of its agents, officers,  or  Ministers
\nfrom  being  proceeded against, in any way, by\tthe  Central
\nGovernment,  but to prefer its own claim to exclusive  power
\nto  deal with him; and, this is what the plaintiff has\tdone
\nby means of the suit before us.\n<\/p>\n
It  is evident that a Minister has been treated, in the\t two
\ncases  cited before us as an “officer” for the very  limited
\npurpose of indicating that the State itself can act  through
\nhim  as he holds an office which enabled him to act for\t it.
\nThey do not equate or assimilate his status or position with
\nthat  of a Government servant.\tIn my opinion, the  Minister
\nof  a State, as the holder of an office provided for by\t the
\nConstitution is, like a Judge of a High Court, a  “dignitary
\nof  State”  to use the expression employed  by\tSir  William
\nHoldsworth  the\t eminent British Constitutional\t lawyer\t and
\njurist, for a High Court Judge.\t His dignity and position is
\nbound  up with that of the State he represents.\t Hence,\t his
\nState is entitled to sue to assert it.\n<\/p>\n
(1)  L.R. 72 I.A. 241 @ 266.\n<\/p>\n
(2)  [1970] 3 S.C.R. 505 @ 512.\n<\/p>\n
94<\/span><\/p>\n
It  may\t be  possible  sometimes  to  distinguish  a  purely
\nindividual   wrongful  or  criminal  act,  committed  by   a
\nMinister,  falling entirely outside the scope of  his  legal
\nauthority, as disconnected with his office.  But, even\tthis
\ncannot,\t in my opinion, disable the State itself from  suing
\nfor theprotection  of its own authority to deal with  the
\nMinister concerned. It is, as I have already indicated,
\na different matter if  we, hold, aswe  have held  here,
\nthat the claim of the State to have exclusive power to\tdeal
\nwith its Minister is not sustainable for some reason.  The
\nright  to  advance a claim, which is all  that\tArticle\t 131
\nprovidesfor,  is to be distinguished from the strength\tof
\nthat claim in law.So long   as the claim is of the  State,
\nthe fact that a Minister, in exercisinggovernmental powers,
\nrepresents  the State, can make no difference whatsoever  to
\nthe maintainability of the suit by the State.
\nI  think  that\tthe State concerned,  which  challenges\t the
\nvalidity of the action of the Central Government against one
\nor  more  of  its Ministers in\trespect\t of  acts  involving
\nexercise  of its governmental powers, would have  sufficient
\ninterest  to  maintain a suit under Article 131\t because  it
\ninvolves  claims  to  what  appertains to  the\tState  as  a
\n“State.”  It may be that, if the effect upon the  rights  or
\ninterests of a State, as the legal entity which\t constitutes
\nthe legally set up and recognised governmental\tOrganisation
\nof the people residing within certain territorial limits  is
\ntooremote, indirect, or infinitesimal, upon the facts of a
\nparticular case, wemay\thold  that it is  not  entitled\t to
\nmaintain a suit under Article 131. But, I do not  think
\nthat we can say that here.\n<\/p>\n
The following cases were cited by the plaintiff’s Counsel  :
\nThe   Governor-General\tin  Council  v.\t The   Province\t  of
\nMadras,(1) United Provinces v. Governor-General in  Council;
\n(2)  Attorney-General for Victoria at the Relation  of\tDale
\nand Ors. v. The Commonwealth & Ors.(3) Attorney-General\t for
\nVictoria  (at  the  Relation of\t the  Victorian\t Chamber  of
\nManufacturers) v. The Commonwealth(4). State of Rajasthan v.
\nUnion of India (supra).\t Except for the last mentioned\tcase
\nthey are not directly helpful on the scope of Article 131 or
\non  the\t right of a State to sue under\tit.   They,  however
\nindicate  the  kind of questions on which  and\tthe  persons
\nthrough\t whom  the units and the Central  authorities  in  a
\nFederation may litigate.\n<\/p>\n
My answers to the three issues framed are\n<\/p>\n
1.   The suit is maintainable.\n<\/p>\n
2.   The Central Government’s notification is valid.\n<\/p>\n
3.   Section 3 of the Act is valid.\n<\/p>\n
On  a fourth supplementary question framed on  facts  placed
\nand  arguments\tadvanced before us, my answer  is  that\t the
\nState  and  Central Government notifications do\t not  relate
\nsubstantially to “the same
\n(1)  [1943] F.C.R. p. 1.\n<\/p>\n
(2)  A.I.R. 1939 F.C. 58.\n<\/p>\n
(3)  71 C.L.P.. 237.\n<\/p>\n
(4)  1943-1934 (2) C.L.R.533.\n<\/p>\n
95<\/span><\/p>\n
matter” within the meaning of proviso (b) to Section 3(1) of
\nthe  Act.  It is, however, made clear that this question  is
\nanswered  by  me on the assumption that there  is  no  legal
\ndefect in the appointment of its own Commission by the State
\nGovernment.    The  validity  of  the\tState\tGovernment’s
\nnotification  was  not challenged before us  on\t any  ground
\nwhatsoever. The views expressed here will not, therefore,
\nbe deemed to have anybearing  on questions  relating  to
\nthe  validity of the State Government’s\t notification  which
\nwere  not  canvassed before us.\t  This\tclarification  seems
\nnecessary  because  the validity of the\t State\tGovernment’s
\nnotification has also been, I understand, challenged in some
\nother proceedings on grounds which can only be considered by
\nus  if aid when they come up before us.\t Consequently,\tthis
\nsuit must be dismissed with costs.\n<\/p>\n
CHANDRACHUD, J.-Consequent upon the result of the  elections
\nheld  to  the Karnataka Legislative Assembly  in  1972,\t the
\nCongress  formed the government with Shri D. Devaraj Urs  as
\nthe  Chief  Minister of the State.  That party was  then  in
\npower at the centre too, but it lost its long held  majority
\nin the 1977 Lok Sabha elections after which the Janata Party
\nformed\tthe  Government\t at the centre.\t  However  in  those
\nelections  to the Lok Sabha, 26 out of 28 seats allotted  to
\nthe State of Karnataka were won by the Congress.
\nCertain\t opposition  members of the  Karnataka\tLegislative,
\nAssembly  submitted to the Union Home Minister a  memorandum
\ncontaining   allegations  of  corruption,  favouritism\t and
\nnepotism  against the Chief Minister, Shri Devaraj Urs.\t  In
\nresponse to a request of the Union Home Minister, the  Chief
\nMinister offered his comments on the allegations but,  while
\nrepelling  the\taccusations  as\t frivolous  and\t politically
\nmotivated, the Chief Minister raised a point which forms the
\nnucleus of the arguments advanced in the suit before us.  He
\ncontended  that\t the,  federal structure  enshrined  in\t the
\nConstitution is the corner-stone of national integrity; that
\nthe  Constitution is the source of the power of\t the  Centre
\nand the States; that the exercise of all powers, whether  by
\nthe  Central  Government or by the State  Governments,\tmust
\nconform\t to  the scheme of distribution\t of  powers  devised
\nunder the federal scheme of our Constitution that the erring
\nministers of State Governments are accountable to the  State
\nlegislature  only; and that, the Central Government  has  no
\nauthority  or  control\tover the government of\ta  State  in
\nrespect\t of matters which are within the  State’s  exclusive
\ndomain,\t save in exceptional times when an emergency  is  in
\noperation.  The Chief Minister asserted that an enquiry into
\nthe charges levelled against him could only be held by or at
\nthe instance of the State Government.\n<\/p>\n
By  a notification dated May 18, 1977 issued  under  section
\n3(1)  of  the  Commissions of Inquiry Act, 60  of  1952\t the
\nGovernmentof   Karnataka  appointed  a\tCommission   of
\nInquiry consisting ofShri  Mir lqbal Hussain, a\t retired
\nJudge of the Karnataka High Court,for\tthe   purpose\t of
\nconducting an inquiry into the allegations specified in\t the
\nnotification.  Within a few days thereafter, on May, 23, the
\nGovernment  of\tIndia issued a notification under  the\tsame
\nAct, appoint-\n<\/p>\n
96<\/span><\/p>\n
ing a Commission of Inquiry consisting of Shri A. N. Grover,
\nretired ,Judge of the Supreme Court, for inquiring into\t the
\ncharges made against the Chief Minister, as described in the
\nnotification.The  validity   of\t  this\t notification\tis
\nchallenged by the State of Karnatakaby the present  suit
\nbrought under article 131 of the Constitution. The Union  of
\nIndia  and  Shri A. N. Grover are impleaded to the  suit  as
\ndefendants 1 and 2 respectively.\n<\/p>\n
The  State,  of Karnataka contends by its  plaint  that\t the
\nCentral\t Government  has  no jurisdiction  or  authority  to
\nconstitute  the Commission in the purported exercise of\t its
\npowers under the Commissionsof Inquiry Act, 1952; that the
\nappointment of the Commission ofInquiry\t by  the  Central
\nGovernment   of\t or  inquiring\tinto   allegations   against
\nministers of the State Government while they continue to  be
\ninoffice    and\t  enjoy\t the  confidence  of  the   State
\nlegislature is destructiveof  the federal  structure  of
\nthe  Constitution and the scheme of distribution  of  powers
\nprovided for under it, that the cabinet system of government
\nunder  which the Council of Ministers is responsible to\t the
\nlegislature  of the State would fail of its purpose  if\t the
\nUnion  executive  were\tto assume to itself_  the  power  to
\ndirect\tan  inquiry  into  allegations\tmade  against  State
\nministers while they are in office; that the provisions con-
\ntained in section 3 of the Act of 1952 cannot be interpreted
\nso  as\tto clothe the Central Government with the  power  to
\nappoint a Commission for inquiring into matters relatable to
\nany of the entries in List II of the Seventh Schedule to the
\nConstitution, in respect of which Parliament has no power to
\nmake  a\t law  and  the Union  executive\t no  power  to\ttake
\nexecutive  action; that such an interpretation would  render
\nsection\t 3 of the Act ultra vires the provisions of Part  XI
\nof  the\t Constitution  which  deals  exhaustively  with\t the
\nrelations  between the Union and the States; and  that,\t the
\nreport\tof  the Inquiry Commission appointed  by  the  Union
\nGovernment  cannot serve any useful purpose as\tthe  Central
\nGovernment is incompetent to take any remedial executive  or
\nlegislative  action  against  the  ministers  of  the  State
\nGovernment or the State Government itself.
\nThese  contentions  are traversed by the Union of  India  by
\nits written statement. It  has,\t in  the  first\t instance,
\nraised a preliminary objection ,,hat thesuit itself  is
\nnot  maintainable  as the appointment of the  Commission  to
\ninquire into the personal conduct of the Chief Minister\t and
\nother ministers does not affect any legal right of the State
\nof  Karnataka.\t It further contends that  the\tnotification
\nissued by the State Government neither covers the  questions
\ncomprised in the notification of the Central Government\t nor
\ndoes  it  cover ail of the matters mentioned in\t the  latter
\nnotification;  that the Central Government is  competent  to
\nconstitute a Commission to inquire into a definite matter of
\npublic\timportance,  namely, the conduct of  a\tminister  of
\nState\tGovernment;  and  that,\t the  appointment   of\t the
\nCommission  is neither destructive of the federal  structure
\nof the Constitution nor of any other basic feature thereof.
\nThree  issues were framed by this Court on these  pleadings.
\nThe  first relates to the maintainability of the  suit,\t the
\nsecond\tto the question whether the notification  issued  by
\nthe Central Government is
\n97<\/span>
\nultra  vires the powers possessed by it under section  3  of
\nthe Act of 1952 and the third to the contention whether,  if
\nsection\t 3  authorises the Central Government to  issue\t the
\nimpugned   notification,  the  section\titself\tis  at\t all
\nconstitutional.\n<\/p>\n
On  the preliminary objection as to the\t maintainability  of
\nthe  suit,  I prefer to adhere to the view which I  took  in
\nState  of  Rejasthan  v. Union of  India,  where  a  similar
\nobjection  was raised by the Union Government to  the  suits
\nfiled  by  the State of Rajasthan and certain  other  States
\nunder  article\t131  of\t the  Constitution,  challenging   a
\ndirective   of\t the  Union  Home  Minister   advising\t the
\ndissolution of State Assemblies. I have had the benefit of
\nperusing the Judgment prepared by brother Untwalia on behalf
\nof himself and Brethren Shinghal and JaswantSingh in  which
\nthey have taken the view that the Commission of Inquiry set-
\nup by the Central Government is not against the State or the
\nState  Government but is against an individual\tminister  or
\nministers  and since the setting up of the  Commission\tdoes
\nnot involve any invasion of the legal rights of the State or
\nthe  State  Government, the suit is not\t maintainable  under
\narticle 131 at the instance of the State of Karnataka.\tI am
\nfree  to  confess that I have considerably profited  by\t the
\njudgment of my learned Brethren because their point of view,
\nwith, respect, is not to be overlooked simply because I have
\nalready expressed a contrary opinion in an earlier decision.
\nBut  having given a fresh and closer thought to the  problem
\nin  the\t light of the view expressed by them  and  a  fuller
\nargument  advanced  in this case by the\t learned  Additional
\nSolicitor-General,  I am inclined to the opinion  that\teven
\ntaking\ta  strictly  legalistic\t view  of  the\tmatter,\t the
\npreliminary  objection\tto the maintainability of  the\tsuit
\nought to be rejected.\n<\/p>\n
The  jurisdiction conferred on the Supreme Court by  article
\n131 of the Constitution should not be tested on the anvil of
\nbanal  rules  which  are applied under\tthe  Code  of  Civil
\nProcedure  for determining whether a suit  is  maintainable.
\nArticle\t 131 undoubtedly confers ‘original jurisdiction’  on
\nthe  Supreme  Court  and  the  commonest  form\tof  a  legal
\nproceeding which is tried by a court in the exercise of\t its
\noriginal  jurisdiction\tis  a suit.   But  a  constitutional
\nprovision,  which  confers exclusive  jurisdiction  on\tthis
\nCourt  to  entertain  disputes of a certain  nature  in\t the
\nexercise  of  its original jurisdiction, cannot\t be  equated
\nwith  a\t provision conferring a right on a  civil  court  to
\nentertain  a  common  suit so as to  apply  to\tan  original
\nproceeding  under article 131 the canons of a suit which  is
\nordinarily triable under section 15 of the Code ofCivil
\nProcedure  by a court of the lowest grade competent  to\t try
\nit. Advisedly,\tthe  Constitution  does\t not  describe\tthe
\nproceeding whichmay  be brought under article 131  as  a
\n‘suit’ and significantly, article 131 uses words and phrases
\nnot commonly employee, for determining the jurisdiction of a
\ncourt  of  first instance to entertain and try a  suit.\t  It
\ndoes not speak of a ’cause of action, an expression of known
\nand  definite legal import in the world of witness  actions.
\nInstead,, it employs the word ‘dispute,’ which is no part of
\nthe  elliptical jargon of law.\tBut above all,\tarticle\t 131
\nwhich  in a manner of speaking is a self-contained  code  on
\nmatters\t falling within its purview, provides expressly\t for
\nthe condition subject to which an action can lie
\n98<\/span>
\nunder  it.  That condition is expressed by the clause :\t “if
\nand in so far as the dispute involves any question  (whether
\nof law or fact) on which the existence or extent of a  legal
\nright\tdepends”.   By\tthe  very  terms  of  the   article,
\ntherefore,  the\t sole  condition which\tis  required  to  be
\nsatisfied  for\tinvoking the original jurisdiction  of\tthis
\nCourt-is  that the dispute between the par-ties referred  to
\nin  clauses (a) to (c) must involve a question on which\t the
\nexistence or extent of a legal right depends.
\nThe  quintessence of article 131 is that there has to  be  a
\ndispute\t between the parties regarding a question  on  which
\nthe  existence\tor  extent  of a  legal\t right\tdepends.   A
\nchallenge  by the State Government to the authority  of\t the
\nCentral\t Government  to\t appoint  a  Commission\t of  Inquiry
\nclearly involves a question on which the existence or extent
\nof the legal right of the Central Government to appoint\t the
\nCommission of Inquiry depends and that is enough to  sustain
\nthe proceeding brought by the State under article 131 of the
\nConstitution.  Far from its being a case of the “omission of
\nthe  obvious”, justifying the reading of words into  article
\n131  which are not there, I consider that  the\tConstitution
\nhas  purposefully  conferred on this  Court  a\tjurisdiction
\nwhich  is  untrammeled by considerations  which\t fetter\t the
\njurisdiction of a court of first instance, which  entertains
\nand  tries suits of a civil nature.  The very nature of\t the
\ndisputes  arising  under article 131 is different,  both  in
\nform and substance, from the nature of claims which  require
\nadjudication in ordinary suits.\n<\/p>\n
The Constitution aims at maintaining a fine balance not only
\nbetween\t the  three organs of power,  the  legislature,\t the
\nexecutive and the judiciary, but it is designed to secure  a
\nsimilar balance between the powers of the Central Government
\nand those of the State, Governments.  The legislative  lists
\nin the Seventh Schedule contain a demarcation of legislative
\npowers\tbetween\t the  Central and  State  Governments.\t The
\nexecutive power of the Central Government extends to matters
\nwith respect to which Parliament has the power to make\tLaws
\nwhile  that of the State extends to matters with respect  to
\nwhich  the  State legislature has the power  to\t make  laws.
\nPart  XI  of the Constitution is devoted  specially  to\t the
\ndelineation  of relations between the Union and the  States.
\nThat  is a delicate relationship, particularly if  different
\npolitical  parties  are in power at the Centre\tand  in\t the
\nStates.\t  The  object of article 131 is to  provide  a\thigh
\npowered\t machinery for ensuring that the Central  Government
\nand the State Governments act within the respective  spheres
\nof  their  authority and do not trespass upon  each  other’s
\nconstitutional functions or powers.  Therefore, a  challenge
\nto the constitutional capacity of the ‘defendant’ to act  in
\nan  intended manner is enough to attract the application  of
\narticle\t 131, particularly when the ‘plaintiff’ claims\tthat
\nright exclusively for itself.  If it fails to establish that
\nright,\tits challenge may fail on merits but the  proceeding
\ncannot\tbe thrown out on the ground that the impugned  order
\nis  not calculated to affect or impair a legal right of\t the
\nplaintiff.\n<\/p>\n
In an ordinary civil suit, the rejection of a right asserted
\nby the defendant cannot correspondingly and of its own force
\nestablish   the\t right\tclaimed\t by  the   plaintiff.\t But
\nproceedings under article 131 are adjudicatory of the limits
\nof constitutional power vested in the
\n99<\/span>
\nCentral and State Governments.\tThe claim that the defendant
\n(the Central Government here) does not possess the requisite
\npower  involves the assertion that the power to appoint\t the
\nCommission of Inquiry is vested exclusively in the plaintiff
\n(the State Government here).  In a civil suit the  plaintiff
\nhas to succeed on the strength of his own title, not on\t the
\nweakness  of his adversary’s because the defendant may be  a
\nrank  trespasser  and  yet he can lawfully hold\t on  to\t his
\npossession  against the whole world except the\ttrue  owner.
\nIf,,  the  plaintiff is not the true owner,  his  suit\tmust
\nfail.\tA  proceeding  under article  131  stands  in  sharp
\ncontrast  with an ordinary civil suit.\tThe  competition  in
\nsuch a proceeding is between two or more governments–either
\nthe  one or the other possesses the constitutional power  to
\nact.   There  is  no third alternative as in  a\t civil\tsuit
\nwherein\t the  right  claimed by\t the  plaintiff\t may  reside
\nneither\t in him nor in the defendant but in a  stranger.   A
\ndemarcation  and definition of constitutional power  between
\nthe rival claimants and restricted to them and them alone is
\nwhat  a proceeding under article 131  necessarily  involves.
\nThat  is  how  in  such\t a  proceeding,\t a  denial  of\t the
\ndefendant’s  right  carries  with it  an  assertion  of\t the
\nplaintiff’s.\n<\/p>\n
Firstly,  therefore,  1. am unable to appreciate that  if  a
\nState Government chaLlenges the constitutional rights of the
\nCentral\t Government to take a particular course\t of  action,
\narticle\t 131  will still not be\t attracted.   Secondly,\t the
\ncontention of the State Government in the present proceeding
\nis  not\t only that the Central Government has  no  power  to
\nappoint\t the  Inquiry  Commission  for\tinquiring  into\t the
\nconduct of State Ministers but that such a right is exclusi-
\nvely  vested in the State Government.  There is,  therefore,
\nnot  only  a  denial of the right  claimed  by\tthe  Central
\nGovernment  but\t an  assertion that  the  right\t exclusively
\nresides\t in the State Government.  In a sense,\tthe  instant
\ncase  stands on a stronger footing than the  Rajasthan\tCase
\nbecause\t there the challenge made by the  State\t Governments
\ncould perhaps be characterised as purely negative in  nature
\nsince  the basic contention was that the Central  Government
\nhad  no power to dissolve the State Assemblies.\t  There\t is,
\ntherefore,  an\tthe greater reason here\t for  rejecting\t the
\npreliminary objection.\n<\/p>\n
The  State  of Karnataka has claimed an\t alternative  relief
\nthat  if  section  3 of the Commissions of  Inquiry  Act  is
\nconstrued as authorising the Central Government to issue the
\nimpugned  notification,\t it  is\t ultra\tvires  as  being  in
\nviolation  of  article\t164(2)\tand  the  ‘federal   scheme’
\nembodied  in the Constitution.\tWhether this  contention  is
\nwell  founded  or not is another matter but it seems  to  me
\ndifficult to hold that the State of Karnataka does not\teven
\nhave  the  legal right to contend that the  provision  of  a
\nparliamentary statute authorising the Central Government  to
\nact in a particular manner is unconstitutional.
\nThe palliative of a writ petition under article 226 which is
\nsuggested  on behalf of the Union Government as a  sovereign
\nremedy\tin  such  matters is hardly  any  substitute  for  a
\nproceeding  under  article 131.\t It is notorious  that\twrit
\npetition has its own limitations and indeed many a  petition
\nunder article 226 is rejected with the familiar quip :\t“Why
\ndon’t  you  file a suit ?” Apart from disputes\tbetween\t the
\nGovernment  of\tIndia and a State  Government,\tarticle\t 131
\ncontemplates other per-\n<\/p>\n
100<\/span><\/p>\n
mutations  and\tcombinations  in  the  matter  of  array  of
\nparties.   A dispute between one or more States\t or  between
\nthe Government of India and a State on one hand and  another
\nState or other States on the other hand cannot appropriately
\nbe decided by a High Court under article 226 and that  could
\nnot have been the intendment of the constitution.   Disputes
\nof  the\t nature described in article 131 are usually  of  an
\nurgent nature and their decision can brook no delay.  It  is
\ntherefore  expedient  in the interest of justice  that\tthey
\nshould,\t as far as possible,, be brought before and  decided
\nby  this  Court\t so  as to obviate  the\t dilatoriness  of  a
\npossible  appeal.  An original proceeding decided  by  this.
\nCourt is decided once and for all.\n<\/p>\n
 For these reasons I reject the preliminary objection raised
\nby the Union Government and hold that the proceeding brought
\nby the State of Karnataka is maintainable under article\t 131
\nof the Constitution.\n<\/p>\n
Another\t point,\t also of a preliminary nature,\tmay  now  be
\ndisposed  of Section 3(1) of the Commissions of Inquiry\t Act
\nauthorises   the  ‘appropriate\tGovernment’  to\t appoint   a
\nCommission  of Inquiry for the purpose of making an  inquiry
\ninto  any definite matter of public importance\tand  perform
\nsuch  functions and within such time as may be specified  in
\nthe  notification.  Clauses (a) and (b) of the\tproviso\t to,
\nsection\t 3 (1) cut down the width of that power with a\tview
\nto  ensuring  that  the Central\t Government  and  the  State
\nGovernments  do not appoint parallel Commissions which\twill
\nsimultaneously\tinquire into the ‘ same matter’.  Since,  in
\nthe instant case, the State of Karnataka had’ appointeda
\nCommission of Inquiry before the Union Government issued the
\nimpugned  notification,\t clause (b) of the proviso  will  be
\nattracted. That\t clause\t says that if a\t Commission  has
\nbeen appointed to inquire into any matter :\n<\/p>\n
\t      “(b)  by\ta  State  Government,  the   Central
\n\t      Government    shall   not\t  appoint    another
\n\t      Commission to inquire into the same matter for
\n\t      so  long\tas the Commission appointed  by\t the
\n\t      State  Government is functioning,\t unless
\n\t      the Central Government is of opinion that\t the
\n\t      scope of the inquiry should be extended to two
\n\t      or more states.”\n<\/p><\/blockquote>\n
The question for consideration is whether the appointment of
\nthe commission of inquiry by the Central Government violates
\nthe injunction contained in this clause.\n<\/p>\n
Considering  the  terms of the notifications issued  by\t the
\nState Government and the Central Government and the  matters
\ninto  which  the  respective  Commissions  are\tdirected  to
\ninquire, it seems obvious that the object and purpose of the
\ntwo inquiries is basically of different character.  The very
\npreambles to the two notifications highlight this difference
\nand show that they are directed to different ends.
\nThe preamble of the Karnataka notification recites :\n<\/p>\n
\t      “WHEREAS\tallegations  have been made  on\t the
\n\t      floor  of the Houses of the State\t Legislature
\n\t      and  elsewhere that irregularities  have\tbeen
\n\t      committed\/excess\tpayments  made\tin   certain
\n\t      matters relating to contracts, grants of land,
\n\t      allotments  of sites, purchase  of  furniture,
\n\t      disposal of food grains etc.
\n\t      101<\/span>
\n\t      NOW  THEREFORE  The  Government  of  Karnataka
\n\t      hereby  appoint the Commission of inquiry\t for
\n\t      the purpose of making an inquiry into the said
\n\t      allegations, particularly specified below
\n\t      The   preamble  of  the\tCentral\t  Government
\n\t      notification on the other hand recites :
\n\t      “Whereas the Central Government is of  opinion
\n\t      that  it is necessary to appoint a  Commission
\n\t      of  Inquiry  for\tthe  purpose  of  making  an
\n\t      inquiry  into  a\tdefinite  matter  of  public
\n\t      importance,  namely,  charges  of\t corruption,
\n\t      nepotism,\t   favouritism\t  or\tmisuse\t  of
\n\t      Governmental power against the Chief  Minister
\n\t      and  certain other Ministers of the  State  of
\n\t      Karnataka, hereinafter specified……….”\n<\/p><\/blockquote>\n
The  terms of reference of the two commissions disclose\t the
\nsame  fundamental  difference.\tThe primary  object  of\t the
\nState\tGovernment  in\tappointing  the\t Commission  is\t  to
\nascertain whether improper or excessive payments were  made,
\nundue favours were shown, irregularity or fraud had occurred
\nin the conduct of official business etc; and secondarily  to
\nfind  out  as to “who are the persons  responsible  for\t the
\nlapses, if any, regarding the aforesaid and to what extent.”
\nOn  the other hand, the commission appointed by the  Central
\nGovernment is specifically directed to inquire “whether\t the
\nChief Minister practised favouritism and nepotism” in regard
\nto  various  matters mentioned in the notification.  It\t is,
\nthere-fore, wrong for the State Government   to contend that
\nthe  Central  Government  has appointed\t the  Commission  of
\nInquiry forthe\tpurpose\t of  inquiring\tinto  the  ‘same
\nmatter’\t into which the Commission of Inquiry  appointed  by
\nthe  State  Govt.  is directed to  inquire.   In  fact,\t the
\nCentral Government notification provides expressly by clause
\n2  (a)\t(ii)  that  the Commission  will  inquire  into\t the
\nallegation  contained in the memoranda submitted by  certain
\nmembers\t of the Karnataka State legislature, “excluding\t any
\nmatter\tcovered\t by the notification of\t the  Government  of
\nKarnataka.”\n<\/p>\n
The  argument  that  the two notifications  cover  the\tsame
\nmatter\tsuffers\t from  a lack  of  recognition\tof  ordinary
\npolitical realities.  It is hardly ever possible, except  in
\nutopian conditions, that the State Government will appoint a
\nCommission  to inquire into acts of corruption,\t favouritism
\nand  nepotism  on  the part of its Chief  Minister.   It  is
\ninteresting  that Sir Thomas More coined the  name  ‘Utopia’
\nfrom the Greek\t(not) and topos (place) which together\tmean
\n“No place.” It is inconceivable that a Commission of Inquiry
\nwill  be  appointed  by\t a  State  Government  without\t the
\nconcurrence  of\t the  Chief Minister and  if  the  political
\nclimate\t is  so hostile that he is obliged to submit  to  an
\ninquiry\t into  his  own conduct, he will  quit\trather\tthan
\nconcur.\t  Indeed,  a Council of Ministers  which,  considers
\nthat  the  conduct  of its Chief Minister and  some  of\t the
\nMinisters  requires examination in a public  inquiry,  shall
\nhave  forfeited the confidence of the legislature and  would
\nordinarily  have  to  tender  its  resignation.\t  Thus,\t the
\nobjection  of the State Government that the notification  of
\nthe  Central  Government offends against clause (b)  of\t the
\nproviso\t to section 3(1) of the Act is\tfactually  unfounded
\nand theoretically unsound.\n<\/p>\n
102<\/span><\/p>\n
Having\t disposed  of  the  objections\twhich  were   of   a
\npreliminary  nature,  it is necessary now  to  consider\t the
\nmerits of the rival contentions on issues 2 and 3.
\nShri Lal Narayan Sinha who appears on behalf of the State of
\nKarnataka, contends that section 3(1) of the Commissions  of
\nInquiry\t Act  should  not be construed\tas  authorising\t the
\nCentral\t Government to appoint a Commission of\tInquiry\t for
\nthe  purpose  of  inquiring into the conduct  of  a  sitting
\nminister  of  a State Government.  It is  impossible,  on  a
\nplain  reading\tof the section, to accept  this\t contention.
\nSection 2(a) (i)    and (ii) of the Act define\t‘appropriate
\nGovernment’ to mean :\n<\/p>\n
(i)the\tCentral\t Government, in relation to  a\tCommission
\nappointed  by  it  to  make  an\t inquiry  into,\t any  matter
\nrelatable to any of the entries enumerated in List I or List
\nII or List III in the Seventh Schedule to the  Constitution;
\nand\n<\/p>\n
(ii)the\t State\tGovernment,  in relation  to  a\t commission
\nappointed by it to make an inquiry into any matter relatable
\nto  any of the entries enumerated in List II or List III  in
\nthe  Seventh  Schedule to the  Constitution.   Section\t3(1)
\nempowers  the ‘appropriate Government’ if it is\t of  opinion
\nthat  it  is  necessary\t so  to do,  and  obliges  it  if  a
\nresolution  in\tthat behalf is passed by the  House  of\t the
\nPeople or the Legislative Assembly of the State as the\tcase
\nmay  be, to appoint a Commission of Inquiry for the  purpose
\nof  making  an inquiry into any definite  matter  of  public
\nimportance.   The constitutional considerations\t for  which,
\nthe  learned  counsel contends that section 3(1)  should  be
\ngiven  a restricted meaning and the minute niceties  of\t his
\nsubmission  will  be considered later.\tBut,  keeping  those
\nconsiderations apart for the moment, I see no  justification
\nfor  reading  down the provisions of section 3(1) so  as  to
\nlimit  the  power of the Central  Government  to  appointing
\nCommissions  of\t Inquiry for inquiring into the\t conduct  of
\npersons in relation to matters concerning the affairs of the
\nUnion  Government only.\t Section 3(1) empowers\tthe  Central
\nGovernment  to\tappoint a commission for making\t an  inquiry
\ninto  any  definite  matter of\tpublic\timportance.   It  is
\ninarguable   that-the\tconduct\t of   ministers\t  of   State
\nGovernments  in\t the purported discharge of  their  official
\nfunctions  is  not a definite matter  of  public  importance
\nwithin\tthe  meaning of section 3(1).  To  what\t extent\t the
\nprinciple   of\tfederalism  will  be  impaired\tby  such   a
\nconstruction  will of course have to be examined  with\tcare
\nbut  I see no substance in the contention that\tthe  Central
\nGovernment does not even possess the power to collect  facts
\nin regard to allegations of corruption made by a section  of
\nthe State legislature against sitting ministers of the State
\nGovernment.   That  power  must\t undoubtedly  be   exercised
\nsparingly  and\twith restraint because under  the  guise  of
\ndirecting  an  inquiry\tunder  section\t3(1),  tile  Central
\nGovernment  cannot interfere with the day-to-day working  of
\nthe, State Government.\tOne cannot also contradict that what
\nappears to be a proper use of power may sometimes contain  a
\nveiled\tabuse  of  power.  howsoever  infinitesimally.\t But
\nstatutory,  construction  cannot  proceed  on  distrust\t and
\nsuspicion  of  those  who  are\tcharged\t with  the  duty  of
\nadministering  laws.  Section 3(1) must, therefore,  receive
\nits proper construction with the reservation that mala fides
\nvitiate all acts.\n<\/p>\n
103<\/span><\/p>\n
Lack  of bona fides was alleged but was not pressed in\tthis
\ncase.\tIn  my opinion, therefore, section  3(1)  cannot  be
\ngiven  a  restricted  meaning, as  canvassed  by  the  State
\nGovernment.\n<\/p>\n
On  this  view, the contention that section 3(1)  should  be
\nread down and the impugned notification should be set  aside
\nas  falling  outside  the scope of that section\t has  to  be
\nrejected.   But\t then it is urged by the State that  if\t the
\nsection\t cannot be given a restricted meaning and has to  be
\nconstrued  widely so as to authorise the Central  Government
\nto  direct  the\t holding of inquiries into  the\t conduct  of
\nsitting\t State\tministers, the provision would\tbe  rendered
\nunconstitutional  for a variety of reasons.   Those  reasons
\nmust now be considered.\n<\/p>\n
It  is\tsaid  in the first place that  if  the\tlanguage  of
\nsection\t 3 (1) is construed widely, it will not only  enable
\nthe Central Government to appoint a Commission of Inquiry to
\ninquire\t into  the  conduct of sitting\tMinisters  of  State
\nGovernments   but  it  will,  applying\tthe  same  rule\t  of
\nconstruction,  also enable the State Government\t to  appoint
\nsimilar\t Commissions of Inquiry to inquire into the  conduct
\nof  the Central Ministers.  This, according to\tthe  State’s
\ncounsel,  would\t offend against the provisions\tof  articles
\n75(3)  and  164(2)  of\tthe  Constitution.   These  articles
\nprovide\t respectively that the Central Council of  Ministers
\nshall be collectively responsible to the House of the People
\nand  the  State Council of Ministers shall  be\tcollectively
\nresponsible  to the Legislative Assembly of the State.\t The
\nargument  is  that  the power to  appoint  a  Commission  of
\nInquiry\t for  the purpose of inquiring into the\t conduct  of
\nsitting\t ministers of another Government is  destructive  of
\nthe  principle\tof collective responsibility  enunciated  in
\nthese  articles.  This argument is said to  receive  support
\nfrom the circumstance that by virtue of article 194 (3),  it
\nis the privilege of the Legislative Assembly of the State to
\nappoint a committee for inquiring into the conduct of any of
\nits   members,\tincluding  a  minister.\t   That\t  privilege,
\naccording  to the learned counsel, is as inviolable  as\t the
\nprinciple of collective responsibility.
\nI  find it impossible to accept this  contention.   Articles
\n75(3) and 164 (2) speak of the collective responsibility  of
\nthe  Council  of Ministers as a body, to the  House  of\t the
\nPeople\tor the Legislative Assembly of the State.   Whatever
\nmay be the findings of a Commission of Inquiry, the  Council
\nof  Ministers,\twhether\t at the Centre\tor  in\tthe  States,
\ncontinues  to be collectively answerable or  accountable  to
\nthe  House  of\tthe  People  or\t the  Legislative  Assembly.
\nIndeed,\t neither the appointment of the Commission nor\teven
\nthe  rejection\tby  the\t Commission of all  or\tany  of\t the
\nallegations  referred to it for its inquiry would  make\t the
\nCouncil\t of  Ministers\tany the\t less  answerable  to  those
\nbodies.\t The object of the two articles of the\tconstitution
\non  which the State of Karnataka relies is to  provide\tthat
\nfor  every  decision taken by the cabinet, each one  of\t the
\nministers  is responsible to the legislature concerned.\t  It
\nis difficult to accept that for acts of corruption, nepotism
\nor  favouritism\t which\tare alleged  or\t proved\t against  an
\nindividual minister, the entire Council of Ministers can  be
\nhold  collectively  responsible to the legislature.   If  an
\nindividual  minister  uses  his office’ as  an\toccasion  of
\npretense for committing acts of corruption, he would be
\n104<\/span>
\npersonally answerable for his unlawful acts and no, question
\nof  Collective, responsibility of the Council  of  Ministers
\ncan  arise  in such a case.  As observed by Hegde  J.  while
\nspeaking  for  a  constitution Bench of\t this  Court  in  A.
\nSanjeevi  Naidu\t etc.  v. State of  Madras  &  Anr.,(1)\t the
\nessence\t of  collective\t responsibility of  the\t Council  of
\nMinisters  is  that  the  cabinet  is  responsible  to\t the
\nlegislature for every action taken in any of the ministries.
\nIn  other words, the principle of collective  responsibility
\ngoverns\t only  those acts which a minister performs  or\t can
\nreasonably be said to have performed in the lawful discharge
\nof his official functions.\n<\/p>\n
The  history of the principle, of collective  responsibility
\nin England shows that it was originally developed as against
\nthe  King.  The ministers maintained a common front  against
\nthe  king,  accepted joint and\tseveral\t responsibility\t for
\ntheir  decisions whether they agreed with them or  not,\t and
\nresigned  in  a\t body if the king refused  to  accept  their
\nadvice.\t In relation to, the British Parliament,  collective
\nresponsibility\tmeans  that the cabinet\t presents  a  common
\nfront.\tIn Melbourne’s famous phrase, ‘the cabinet ministers
\nmust all say the same thing’.  The principle of\t collective,
\nresponsibility perhaps compels ministers to compromise\twith
\ntheir  conscience.  but in matters of policy  they  have  to
\nspeak with one voice, each one of them being responsible for
\nthe decision taken by the cabinet.(2)
\nIn his book on “Constitutional and Administrative Law”\t(Ed.
\n1971,  page  175), S.A. de Smith says  that  the  collective
\nresponsibility\tof  the cabinet to the House of\t Commons  is
\nsometimes  spoken of as a democratic bulwark of the  British
\nConstitution.\tAccording to the learned author,  collective
\nresponsibility\timplies\t that all cabinet  ministers  assume
\nresponsibility\tfor  cabinet decisions and action  taken  to
\nimplement  those decisions.  A minister may disagree with  a
\ndecision or with the manner of its implementation, but if he
\nwishes to express a dissent in public he should first tender
\nhis resignation.\n<\/p>\n
While explaining the principle of collective responsibility,
\nSir  Ivor Jennings in his book “Cabinet\t Government”  (Third
\nEd., 1959 p. 277) says
\n\t      “For  all\t that passes in Cabinet\t (said\tLord
\n\t      Salisbury in 1878) each member of it who\tdoes
\n\t      not  resign  is absolutely  and  irretrievably
\n\t      responsible,  and has no right  afterwards  to
\n\t      say   that  he  agreed  in  one  case   to   a
\n\t      compromise, while in another he was  persuaded
\n\t      by  his  colleagues.  . . It is  only  on\t the
\n\t      principle\t that  absolute\t responsibility\t  is
\n\t      undertaken by every member of the Cabinet who,
\n\t      after  a\tdecision is arrived  at,  remains  a
\n\t      member of it, that the joint responsibility of
\n\t      Ministers to Parliament can be upheld, and one
\n\t      of   the\t most\tessential   principles\t  of
\n\t      parliamentary responsibility established.”
\n(1) [1970] 3 SCR 505, 512
\n(2)Chamber’s  Encyclopaedia,  1973 Ed.\tVol. 2,\t page  736
\nunder the heading Cabinet…. Collective Responsibility’.\n<\/p>\n
105<\/span><\/p>\n
The   learned\tauthor\t says  that   perhaps\tMr.   Joseph
\nChamberlain’s  definition of collective\t responsibility\t was
\nbetter\tsince  he had occasion to study the matter  both  as
\nenfant\tterrible under Mr. Gladstone and in his\t middle\t age
\nunder Lord Salisbury.  According to Mr. Chamberlain.\n<\/p>\n
\t      “Absolute\t frankness in our private  relations
\n\t      and  full discussion of all matters of  common
\n\t      interest…  the decisions freely\t arrived  at
\n\t      should be loyally supported and considered  as
\n\t      the decisions of the whole of the\t Government.
\n\t      of course there may be occasions in which\t the
\n\t      difference is of so vital a character that  it
\n\t      is   impossible  for  the\t minority  ….\t  to
\n\t      continue\ttheir support, and in this case\t the
\n\t      Ministry\tbreaks up or the minority member  or
\n\t      members resign.”\n<\/p><\/blockquote>\n
Thus  the argument that section 3(1) of the Act will  offend
\nagainst the principle of collective responsibility unless it
\nis construed narrowly is without any substance.\t As  regards
\nthe suggested involvement of article 194(3), in the  absence
\nof a specific provision in the Constitution that the conduct
\nof a member of the legislature shall be inquired into by the
\nlegislature  only,  it\tis  impossible\tto  hold  that\t the
\nappointment  of\t a  Commission\tof  Inquiry  under  the\t Act
\nconstitutes  an\t interference  with  the  privilege  of\t the
\nlegislature.  English precedents relating to the  privileges
\nof  the House of Commons, which are relevant  under  article
\n194(3), do not support the State’s contention.
\nThat   disposes\t of  an\t important  limb  of   the   State’s
\nsubmission.   The other contentions of the State  Government
\ndirected  towards showing that the impugned notification  is
\nunconstitutional are these :\n<\/p>\n
\t      (a)   the\t charges contained in  the  impugned
\n\t      notification  relate to corruption,  nepotism,
\n\t      favouritism  and misuse of governmental  power
\n\t      by  the Chief Minister and other ministers  in
\n\t      relation\tto the executive powers\t exercisable
\n\t      directly or through subordinate officers\tfind
\n\t      neither\tthe   Central  Executive   nor\t the
\n\t      Parliament can exercise any control, over\t the
\n\t      State executive, except during an emergency;\n<\/p><\/blockquote>\n
\t      (b)   India being a Union of States one  must,
\n\t      while  interpreting  the\tConstitution,\thave
\n\t      regard  to the essential features and  general
\n\t      scheme   of  our\tfederal\t  or   quasi-federal
\n\t      Constitution in which the powers of the  Union
\n\t      of  India’ and the States are clearly  defined
\n\t      and demarcated.  “To hold otherwise would mean
\n\t      that  the\t Union executive  would\t effectively
\n\t      control  the State executive which is  opposed
\n\t      to   the\t basic\t scheme\t  of   our   Federal
\n\t      Constitution;\n<\/p><\/blockquote>\n
\t      (c)   Neither article 248 of the\tConstitution
\n\t      which  confers exclusive residuary  powers  of
\n\t      legislation on Parliament with respect to\t any
\n\t      matters not enumerated in the Concurrent\tList
\n\t      or  the State List nor the residuary entry  97
\n\t      in List I can include the power to make a\t law
\n\t      vesting\tin   the   Central   Government\t   a
\n\t      supervisory  control over the  State,  Govern-
\n\t      ment;\n<\/p><\/blockquote>\n
\t      106<\/span><\/p>\n
\t      (d)   Entry   94\tin  List  I  is\t  manifestly
\n\t      irrelevant on Parliament’s powers to pass\t the
\n\t      impugned law.  It confers power on  Parliament
\n\t      to legislate on the topic; “Inquiries, surveys
\n\t      and  statistics for the purpose of any of\t the
\n\t      matters”\tin  List  I.  Misuse  of  power\t  by
\n\t      ministers\t of  State  Governments,  which\t  is
\n\t      stated  to  be one of the\t matters  of  public
\n\t      importance dealt with in sect ion 3(1) of\t the
\n\t      Commissions  of  Inquiry Act,  does  not\tfall
\n\t      within  the  scope  of  any  of  the   matters
\n\t      enumerated in List I;\n<\/p><\/blockquote>\n
\t      (e)   Entry  45 of List III :  “Inquiries\t and
\n\t      statistics  for  the  purpose of\tany  of\t the
\n\t      matters  specified  in List II  or  List\tIII”
\n\t      cannot  also  empower Parliament to  pass\t the
\n\t      impugned legislation.  The reason is that\t if,
\n\t      as  contended  by the  Union  Government,\t the
\n\t      essence  of  the notification  issued  by\t the
\n\t      Central  Government  is not  the\ttransactions
\n\t      described\t therein but the misuse of power  by
\n\t      the   Chief  Minister  or\t ministers  of\t the
\n\t      Government of Karnataka, there is no entry  in
\n\t      List II or List III relating to the misuse  of
\n\t      governmental  power  by ministers of  a  State
\n\t      Government;\n<\/p><\/blockquote>\n
\t      (f)   A law conferring power on Parliament  or
\n\t      the  Central  executive to  inquire  into\t the
\n\t      conduct  of  a  sitting minister\tof  a  State
\n\t      Government  in  regard to\t alleged  misuse  of
\n\t      governmental  powers, by an agency  chosen  by
\n\t      the   Central   executive,   is\tbeyond\t the
\n\t      “Legislative” competence of Parliament because
\n\t      in reality, such a law is supplemental to\t the
\n\t      provisions  of  Part  XI, Chapter\t 11  of\t the
\n\t      Constitution  which  deals with  the  adminis-
\n\t      trative  part  of the  relations\tbetween\t the
\n\t      Union  and  the States and would fall  in\t the
\n\t      category\tof Constitutional  law.\t  Parliament
\n\t      has  no power to add to or vary or  supplement
\n\t      the provisions of the Constitution by means of
\n\t      an   ordinary  legislation  except  when\t the
\n\t      Constitution    provides\t to   that    effect
\n\t      specifically;\n<\/p><\/blockquote>\n
\t      (g)   To\tconfer upon the Union executive\t the
\n\t      power  to\t call upon the\tState  executive  to
\n\t      render  explanation of its  executive  actions
\n\t      and  the\tfurther power to  compel  the  State
\n\t      executive to submit to the jurisdiction of  an
\n\t      authority\t chosen by the Union  executive\t for
\n\t      investigating   charges  against\t the   State
\n\t      executive\t  brings   into\t existence   a\t new
\n\t      relationship between the Central executive and
\n\t      the State executive which is not a permissible
\n\t      exercise\tof legislative power.  Such  an\t em-
\n\t      powerment\t can  be  made in  the\texercise  of
\n\t      constituent  power  only after  following\t the
\n\t      procedure\t prescribed  by article 368  of\t the
\n\t      Constitution; and\n<\/p><\/blockquote>\n
\t      (h)   Legislative and administrative relations
\n\t      between  the Union and the States having\tbeen
\n\t      defined  in the Constitution,  the  provisions
\n\t      relating\t thereto  are  exhaustive  of\tthat
\n\t      subject and therefore legislation in
\n\t      107<\/span>
\n\t      regard   to   Centre-State   relationship\t  is
\n\t      prohibited   by  necessary  implication.\t  By
\n\t      providing\t by article 164(2) that the  Council
\n\t      of Ministers shall be collectively responsible
\n\t      to  the Legislative Assembly of the State,  by
\n\t      conferring  on  the  Legislative\tAssembly  by
\n\t      article\t194(3)\tthe  necessary\t powers\t  to
\n\t      effectuate that responsibility, by enumerating
\n\t      the  situations in Part XI, Chapter II  as  to
\n\t      when  the\t Central executive can\tcontrol\t the
\n\t      State executive, and finally by providing\t for
\n\t      emergencies  in  articles\t 355  and  356,\t the
\n\t      Constitution  has\t impliedly  prohibited\t the
\n\t      imposition  of  the  control  of\tthe  Central
\n\t      executive\t over  the State  executive  in\t any
\n\t      other manner.  If an instrument enumerates the
\n\t      things   upon   which  it\t has   to   operate,
\n\t      everything   else\t  is  necessarily   and\t  by
\n\t      implication  excluded from its  operation\t and
\n\t      effect.\n<\/p><\/blockquote>\n
The dominant note of these submissions is one and one only :
\nthat the Central executive cannot, save by a  constitutional
\namendment,  be given power to control the functions  of\t the
\nState  executive  through  the medium  of  a  Commission  of
\nInquiry.  Whether Parliament has the competence to pass\t the
\nimpugned legislation in the exercise of its legislative,  as
\ndistinguished  from constituent power is a separate  matter,
\nbut   before  considering  the\tvalidity  of   the   State’s
\ncontention  in\tthat  behalf, it  is  necessary\t to  examine
\nwhether the assumption underlying that contention is at\t all
\njustified,   namely  that  by  the   impugned\tlegislation,
\nParliament has conferred on the Central Government the power
\nto control the executive functions of the State\t Government.
\nFor   that  purpose  it\t is  necessary\tto  have  a   proper
\nunderstanding  of the scheme and purpose of the\t Commissions
\nof  Inquiry  Act and the true effect of its  more  important
\nprovisions.\n<\/p>\n
The Commissions of Inquiry Act was passed by the  Parliament
\nin  1952  in  order  to\t provide  for  the  appointment\t  of
\nCommissions  of\t Inquiry and for vesting them  with  certain
\npowers.\t  Section 3(1) read with section 2 (a) of  that\t Act
\nempowers,  in so far as is relevant, the Central  Government
\nto  appoint by notification a Commission of Inquiry for\t the
\npurpose\t of  making an inquiry into any definite  matter  of
\npublic\timportance  and\t perform such functions\t as  may  be
\nspecified in the notification.\tThe Commission has thereupon
\nto make the inquiry and perform its functions, one of  which
\nof  course  is\tto  submit its\treport\tto  the\t Government.
\nSection\t 3(4)  requires that the  Central  Government  shall
\ncause  to be laid before the House of the People the  report
\nof  the Commission of Inquiry together with a memorandum  of
\nthe  action taken thereon, within a period of six months  of
\nthe  submission of the report by the commission.  Section  4
\nconfers on the Commission some of the powers possessed by  a
\ncivil  court  while  trying  a\tsuit,  like  enforcing\t the
\nattendance  of witnesses, examining them on oath,  discovery
\nand   production   of  documents,  receiving   evidence\t  on
\naffidavits  requisitioning any public record,  etc.   Having
\nregard\t to  the  nature  of  the  inquiry  and\t the   other
\ncircumstances of the case, the Government can under  section
\n5(1)  direct that all or any of the provisions contained  in
\nsub-sections (2), (3) (4) and (5) of section 5
\n108<\/span>
\nshall  apply to the Commission.\t Some of these\tsub-sections
\nempower\t the  Commission to require any\t person\t to  furnish
\ninformation to the Commission and to enter into any building
\nor  place where any document relating to the subject  matter
\nof the inquiry may be found.  For the purpose of  conducting
\nany   investigation   pertaining  to   the   inquiry,\tthe.
\nCommission  by\tsection 5A can utilise the services  in\t the
\ncase of a Commission appointed by the Central Government, of
\nany   officer  or  investigation  agency  of   the   Central
\nGovernment.\n<\/p>\n
It is clear from these provisions and the general scheme  of
\nthe Act that a Commission of Inquiry appointed under the Act
\nis  a  purely  fact-finding  body  which  has  no  power  to
\npronounce,  a  binding or definitive judgment.\t It  has  to
\ncollect\t facts through the evidence led before it and  on  a
\nconsideration  thereof it is required to submit\t its  report
\nwhich the appointing authority may or may not accept.  There
\nare sensitive matters of public importance which, if left to
\nthe  normal  investigational agencies, can  create  needless
\ncontroversies and generate an atmosphere of suspicion.\t The
\nlarger interests of the community require that such  matters
\nshould\t be  inquired  into  by\t  high-powered\t commissions
\nconsisting  of\tpersons\t whose\tfindings  can  command\t the
\nconfidence  of\tthe people.  In his address  in\t the  Lionel
\nCohen  Lectures, Sir Cyril Salmon speaking on “Tribunals  of
\nInquiry” said :\n<\/p>\n
\t      “In  all countries, certainly in\tthose  which
\n\t      enjoy  freedom  of speech and  a\tfree  Press,
\n\t      moments  occur  when allegations\tand  rumours
\n\t      circulate\t causing  a  nation-wide  crisis  of
\n\t      confidence in the integrity of public life  or
\n\t      about   other   matters\tof   vital    public
\n\t      importance.  No doubt this rarely happens, but
\n\t      when  it\tdoes  it is  essential\tthat  public
\n\t      confidence should be restored, for without  it
\n\t      no   democracy   can   long   survive.\tThis
\n\t      confidence can be effectively restored only by
\n\t      thoroughly   investigating  and  probing\t the
\n\t      rumours  and allegations so as to\t search\t out
\n\t      and  establish the truth.\t The truth may\tshow
\n\t      that  the evil exists, thus enabling it to  be
\n\t      noted  out, or that there is no foundation  in
\n\t      the rumours and allegations by which the pubic
\n\t      has  been disturbed.  In either  case,  confi-
\n\t      dence is restored.”\n<\/p><\/blockquote>\n
A  police investigation is, at its very best,  a  unilateral
\ninquiry into an accusation since the person whose conduct is
\nthe subject-matter of inquiry has no right or opportunity to
\ncross-examine\tthe  witness  whose  statements\t are   being
\nrecorded by the police.\t Section 8C of the Act, on the other
\nband, confers the right of cross-.examination, the right  of
\naudience  and  the right of representation through  a  legal
\npractitioner on the appropriate Government, on every  person
\nreferred  to  in Section 8B and with the permission  of\t the
\nCommission,  on any other person whose evidence is  recorded
\nby the Commission.  Clauses (a) and (b) of Section 8B  refer
\nrespectively   to  persons  whose  conduct  the\t  Commission
\nconsiders  it  necessary to inquire into and  persons  whose
\nreputation,  in the opinion of the Commission, is likely  to
\nbe prejudicially affected by the Inquiry.  It is  undeniable
\nthat the person whose conduct is being inquired into and  if
\nthe  be\t a Chief Minister or a Minister, the doings  of\t the
\ngovernment  itself,  are  exposed to  the  fierce  light  of
\npublicity.   But that is a risk which is inherent  in  every
\ninquiry directed
\n109<\/span>
\nat finding out the truth.  It does not, however, justify the
\nspecious   submission  that  the  inquiry   constitutes\t  an
\ninterference  with  the\t executive functions  of  the  State
\nGovernment or that it confers on the ,Central Government the
\npower  to  control  the functions of  the  State  executive.
\nAfter all, it is in the interest of those against whom\topen
\nallegations  of corruption and nepotism are made  that\tthey
\nshould\thave an opportunity of repelling  those\t allegations
\nbefore a trained and independent Commission of Inquiry which
\nis  not hide-bound by the technical rules of evidence.\t “It
\nis  only  by  establishing the truth  that  the\t purity\t and
\nintegrity  of public life can be preserved” and that is\t the
\nobject\twhich  the  Commissions\t of  Inquiry  Act  seeks  to
\nachieve.\n<\/p>\n
In M. V. Rajwade v. Dr. S. M. Hassan & Ors.,(1) it was\theld
\nby  the Nagpur High Court that section 4 of the\t Act  merely
\nclothes the Commission with certain powers of a civil  court
\nbut does not confer on it the status of a court and that the
\nCommission is only fictionally a civil court for the limited
\npurposes  enumerated  in section 5(4).\tThe  Court  observed
\nthat there is no accuser, no accused and no specific charges
\nfor  trial  before the Commission, nor\tis  the\t Government,
\nunder the law, required to pronounce one way or the other on
\nthe findings of the Commission.. In other words,
\n\t      “The Commission governed by the Commissions of
\n\t      Inquiry  Act, 1952 is appointed by  the  State
\n\t      Government  ‘for\tthe information of  its\t own
\n\t      mind……… it is, therefore, a fact finding
\n\t      body  meant only to instruct the mind  of\t the
\n\t      Government without producing any document of a
\n\t      judicial nature.”\n<\/p>\n
These  observations were extracted and quoted with  approval
\nby this Court in Brajnandan Sinha v. Jyoti Narain.<\/a>(2)
\nIt  is,\t therefore,  clear  that  the  power  conferred\t  by
\nParliament on the Central Government to appoint a Commission
\nof Inquiry under section 3 (1) of the Act for the purpose of
\nfinding\t facts in regard to the allegations  of\t corruption,
\nfavouritism and nepotism against a sitting Chief Minister or
\nministers cannot be held to constitute interference with the
\nexecutive functions of the State Government.  On receipt  of
\nthe  Commission’s report, the Central Government may or\t may
\nnot  take  any\taction, depending upon\tthe  nature  of\t the
\nfindings recorded by the Commission.  If it decides to\ttake
\nany  action. the validity thereof may have to be  tested  in
\nthe light of the-constitutional provisions.  But until\tthat
\nstage  arrives,\t it is difficult to hold  that\tthe  Central
\nGovernment  is exercising any control or supervisory  juris-
\ndiction\t  over\t the  executive\t functions  of\t the   State
\nGovernment.   As observed by this Court in Shri Ram  Krishna
\nDalmia\tv. Shri Justice S. R. Tendolkar & Others,<\/a>  (a)\t“the
\nCommission  has\t no power of adjudication in  the  sense  of
\npassing an order which can be enforced proprio vigore”.
\n(1)  AIR 1954 Nag. 71.\n<\/p>\n
(2) [1955] S.C.R. 955, 975.\n<\/p>\n
(3) [1959] S.C.R. 279, 293.\n<\/p>\n
110<\/span><\/p>\n
Thus, the very assumption on which the State’s counsel,\t has
\nbuilt  up  the\tedifice of his argument seems to  me  to  be
\nfallacious.  The, rejection of that assumption furnishes  at
\nonce  an answer to most of his other submissions but,  since
\nthe  matter  has  been\targued\ton  both  sides\t fully\t and
\nearnestly,  it is desirable to consider all the\t rival\tcon-
\ntentions and set the dispute at rest.\n<\/p>\n
The  next limb of Shri Sinha’s argument is that India  is  a
\nUnion  of States and that one must, while  interpreting\t the
\nConstitution, have regard to the essential features and\t the
\ngeneral scheme of our federal or quasi-federal\tConstitution
\nby  which, the powers of the Union’ of India and the  States
\nare  clearly  defined  and demarcated.\t Quoting  a  learned
\nauthor\ton “Constitutional Law of India” Vol. 1, page  1074,
\ncounsel contends that to hold otherwise would mean that\t the
\nUnion\texecutive  would  effectively  control\t the   State
\nexecutive,  which  is  opposed to the basic  scheme  of\t our
\nfederal Constitution.\n<\/p>\n
The  statement\tfrom the “Constitutional Law  of  India”  on
\nwhich counsel relies is out of context because it occurs  in
\nrelation to the question whether in dismissing the  ministry
\nor  in dissolving the legislature, the Governor acts  as  an
\nagent  of  the\tPresident or under  his\t directions.   While
\nexpressing  the\t opinion that a responsible  Union  ministry
\nwould not be justified in advising the removal of a Governor
\nmerely\tbecause he takes action which does not fall in\tline
\nwith  the policy of the Union ministry, the  learned  author
\nsays  that any other view would vest in the Union  executive
\neffective control over the State executive, which is opposed
\nto the basic scheme of our federal Constitution.  Apart from
\nthe  consideration that the statement relied upon is out  of
\ncontext,  I  have already rejected the submission  that\t the
\nappointment  by\t the Central Government\t of  a\tfact-finding
\nCommission  of\tInquiry for inquiring into  the\t conduct  of
\nsitting\t State\tMinisters can be deemed\t to  vest  effective
\ncontrol\t over the State executive in the Central  executive.
\nCounsel’s  submission shall, therefore have to\tbe  examined
\nkeeping aside this aspect of the matter.\n<\/p>\n
India,\tundoubtedly, is a Union of States and that  is\twhat
\narticle\t  1(1)\tof  our\t Constitution  expressly   provides.
\nWhether\t we describe our Constitution as federal  or  quasi-
\nfederal,  one  cannot ever blind ones vision  to  the  stark
\nreality\t that India is a Union of States.  The\tConstitution
\ncontains  a  carefully\tconceived  demarcation\tof   powers,
\nlegislative and executive, between the Central Government on
\nthe  ons hand and the State Governments on the\tother.\t The
\nbalance of that power ought never to be disturbed, but\tthat
\nis  a different thing from saying that inherent\t or  implied
\nlimitations  should be read into legislative powers or\tthat
\nbecause\t India is a Union of States, one must read into\t the
\nConstitution powers and provisions which are not to be found
\ntherein but which may seem to follow logically from what the
\nConstitution provides for expressly.\n<\/p>\n
111<\/span><\/p>\n
The  first  question  which  one  must\ttackle\tis   whether
\nParliament  has\t the  legislative competence  to  enact\t the
\nCommissions  of\t Inquiry Act, 1952.  This  question,  in  my
\nopinion, is concluded by a judgment of a Constitution ]Bench
\nof  this Court in Shri Ram Krishna Dalmia (supra)  in  which
\nthe  validity of the very Act was challenged in a matter  in
\nwhich  a notification was issued by the\t Central  Government
\nunder section 3 of the Act for inquiring into the affairs of
\ncertain\t  companies.   It  was\theld  by  this\tCourt\tthat
\nParliament  had the legislative competence to pass  the\t law
\nunder  entry  94 of List I and entry 45 of List III  of\t the
\nSeventh\t Schedule of the Constitution.\tEntry 94 of  List  I
\nrelates\t to  “Inquiries,  surveys  and\tstatistics  for\t the
\npurpose of any of the matters” in List I, while entry 45  of
\nList  III  relates  to “Inquiries  and\tstatistics  for\t the
\npurposes of any of the matters specified in List II or\tList
\nIII”. It   is  well-established\t that  entries\tin   the
\nlegislative lists must receivenot a narrow or  pedantic
\nbut a wide and liberal construction and,considered from
\nthat point of view, the word ‘inquiries’ which occurs in the
\ntwo  entries must be held to cover the power to pass an\t Act
\nproviding for appointment of Commissions of Inquiry.  It  is
\nin the exercise of this power that the Parliament has passed
\nthe  Commissions of Inquiry Act, 1952.\tSince the  power  to
\nappoint a Commission to Inquire into the conduct of  sitting
\nministers of State Governments which is comprehended  within
\nsection\t 3(1)  of  the\tAct  does  not\toffend\tagainst\t the
\nprinciple  of  collective  responsibility  ,of\tthe  State’s
\nCouncil of Ministers or against the privileges of the Legis-
\nlative\tAssembly  and since it does not also confer  on\t the
\nCentral\t Government  the  power of control  over  the  State
\nexecutive, the provision must be held to be a valid exercise
\nof the legislative competence of the Parliament.
\nShri Ram Krishna Dalmia (supra) in so far as it decides that
\nthe  Commissions  of  Inquiry Act,  1952  falls\t within\t the
\nlegislative competence of the Parliament in view of entry 94
\nof  List I and entry 45 of List Ill must, with respect,\t be`
\naffirmed and accepted as good law.  I may, however, add that
\nif for any reason it were to appear, which it does not, that
\nthese  entries\tdo not justify the passing of the  Act,\t the
\nresiduary entry 97 of List I will in any- event support\t the
\nlegislative  validity  of the Act.  That  entry\t confers  on
\nParliament  the power to legislate on ‘Any other matter\t not
\nenumerated in List II or List Ill…….. Entry 97 is in the
\nnature of a residuary entry and the words ‘Any other matter’
\nwhich  appear  therein\tmean ‘Any matter  other\t than  those
\nenumerated  in\tList  I’.  If entry 94 does  not  cover\t the
\nimpugned Act, ‘Inquiries’ of the nature contemplated by\t the
\nAct will fall within the description ‘Any other matter’; and
\nif  entry 45 of List III and, admittedly, the whole  of\t the
\nState List are to be kept out of consideration, the Act will
\nrelate to ‘a matter not enumerated in List II or List  III’.
\nShri  Sinha  objected to recourse being had to entry  97  of
\nList  I\t on the ground that it cannot, any more\t than  other
\nentries\t in Lists I and II, confer on Parliament the  power
\nto  make a law vesting in the Central executive\t supervisory
\ncontrol\t over the State executive.  That  contention  having
\nbeen  rejected,\t entry\t97 will in  any\t event\tsustain\t the
\nlegislative validity of the Act.\n<\/p>\n
It  is unnecessary to consider the implications\t of  article
\n248 because that may require an examination of the question,
\nwhich is
\n112<\/span>
\nneedless  here in view of the decision in Shri\tRam  Krishna
\nDalmia, (supra) whether that article confers power which  is
\nnot to be found in article 246(1) read with entry 97 of List
\nI  and whether an affirmative answer to this  question\twill
\nrender entries 1 to 96 of List I otiose.  One may sum up the
\ndiscussion  on\tthe  question  of  Parliament’s\t legislative
\ncompetence  by saying that adopting “the  construction\tmost
\nbeneficial  to\tthe  widest possible  amplitude”  of  powers
\nconferred   by\t the  Constitution  and\t  interpreting\t the
\nlegislative  entries  in “a broad and liberal  spirit”,\t the
\nimpugned  Act  cannot  be  held\t to  suffer  from  want\t  of
\nlegislative  competence,  in  the Parliament  to  enact\t it.
\nEntry 94 of List I, entry 45 of List III and failing  these,
\nentry 97 of List I must sustain the Act.\n<\/p>\n
That  disposes of points (a) to (e) set out  above,  leaving
\nfor consideration points (f), (g) and (h).  For the sake  of
\neasy  reference,  these points may be  summarised  thus\t (i)
\nAdministrative\trelations between the Union and\t the  States
\nare dealt with in Chapter 11 of Part XI of the Constitution;\n<\/p>\n
(ii)  The Commissions of Inquiry Act, as interpreted  above,
\npurports  to supplement the provisions contained in  Chapter
\nII,   Part  XI;\t (iii)\tParliament  cannot  supplement\t any
\nprovision of the Constitution except by an amendment of\t the
\nConstitution; (iv) The Commissions of Inquiry Act creates  a
\nnew  Centre,-State  relationship by vesting in\tthe  Central
\nexecutive  an  added control over the  State  executive\t not
\nprovided  for in the Constitution, and (v) Since the  provi-
\nsions  contained in Chapter 11 of Part XI are exhaustive  of
\nmatters, governing the administrative relations between\t the
\nUnion  and the States, any legislative addition\t thereto  or
\nsupplementing\tthereof\t must  be  held\t to   be   impliedly
\nprohibited.\n<\/p>\n
The  short  answer  to the first four points,  (i)  to\t(iv)
\nabove,\tis  that  though  it  is  true\tthat  administrative
\nrelations between the Union and the States are dealt with by
\nChapter\t II  Part  XI of the  Constitution  and\t though\t the
\nprovisions  contained  therein cannot be altered save  by  a
\nconstitutional\tamendment,  the Commissions of\tInquiry\t Act
\ndoes  not  bring  about\t any  change  in  the\tCentre-State
\nrelationship  as  envisaged  by Part  XI.   The\t Act  merely
\nempowers  the Central Government to appoint a Commission  of
\nInquiry\t for the purpose of collecting facts with a view  to
\ninforming  its own mind; and the report of  the\t Commission,
\nnot  being  binding  on any one, has no force  of  its\town.
\nRevelations before the Commission may conceivably produce an
\nimpact\ton the credibility of the State Government, but\t the
\ninquiry\t is  directed not to the manner in which  the  State
\nGovernment  or\tthe State executive conducts itself  in\t the
\ndischarge of its constitutional functions but to the  manner
\nin which, if at all, its ministers have used their office as
\na  cloak for committing acts of corruption and\tfavouritism.
\nIt is possible that a Commission may accept the\t accusations
\nagainst\t the  minister and in fairness\temphasise  that\t the
\nprivate\t doings of the minister have nothing to do with\t the
\npublic\tadministration\tof the\tStates’\t executive  affairs.
\nIndeed, the Commission may reject the allegations as totally
\nbaseless and frivolous.\t These are all imponderable and they
\ncannot\tinfluence the decision of the basic question  as  to
\nthe  nature of the Commission’s functions.   Therefore,\t the
\ncontention that by empowering the Central
\n113<\/span>
\nGovernment  to appoint a Commission for inquiring  into\t the
\nconduct\t of  the  sitting  ministers  of  State\t Government,
\nParliament  has legislated on the Centre-State\trelationship
\nwhich is a constitutional subject, is without any force.
\nHowever,  it is necessary to say a word about  the  somewhat
\nnovel  argument\t of the State Government that,\tby  ordinary
\nlegislation,   the  Parliament\tcannot\teven  supplement   a
\nconstitutional provision, unless the Constitution  expressly
\nauthorises it to do so.\t Ordinary legislation, as  contended
\nby  the learned Additional Solicitor-General, has to  answer
\nonly two tests : Firstly, the law must be within the  legis-
\nlative competence of the legislature, and secondly, the\t law
\nmust  not  offend  against the provisions  of  Part  III  or
\ninfringe  any other specific provision of the  Constitution.
\nOnce  the  legislative\tcompetence  is\testablished  and  no
\nviolation  of any specific constitutional provision is\tmade
\nout,  the  validity  of the Act cannot be  assailed  on\t the
\nground\tthat  it ‘supplements’ a  constitutional  provision.
\nThe  fallacy  of  the  State’s\targument  consists  in\tthe,
\nassumption  that every law “in respect of” a  subject-matter
\ndealt  with  by the Constitution amounts necessarily  to  an
\namendment  of the Constitution.\t An illustration or two\t may
\nhelp clarify the true position.\t Article 297 of the  Consti-
\ntution\tprovides that all lands , minerals and other  things
\nof value underlying the ocean within the territorial  waters
\nor  the continental shelf of India shall vest in  the  Union
\nand be held for the purposes of the Union.  It is inarguable
\nthat  since  “lands,  minerals and  other  things  of  value
\nunderlying  the ocean within the territorial waters  or\t the
\ncontinental shelf of India” is the subject matter of article
\n297,  no  legislature,\teven  if  it  possesses\t legislative
\ncompetence  to do so, can legislate on that  subject-matter.
\nIt   is\t elementary  that  the\tlegislature  cannot,   while
\nlegislating  on\t a topic enumerated in\tthe  relevant  list,
\nviolate or infringe any provision of the Constitution.\t But
\nso long as there is no such infringement, legislation on the
\nsubject\t dealt\twith  by  article  297\tcannot\tbe  declared
\nunconstitutional  on  the  ground that\tit  supplements\t the
\nprovisions of that article.  Article 299 of the Constitution
\ndeals  with  contracts.\t It seems to me\t equally  inarguable
\nthat  a\t legislation  dealing  with  the  subject-matter  of
\ncontracts,   even   though  not\t  lacking   in\t legislative
\ncompetence, becomes unconstitutional for the reason that  it
\ndeals with the subject-matter of contracts.  The argument of
\nthe  State  in\tthis behalf is therefore  wholly  devoid  of
\nsubstance,  apart from the consideration that  the  impugned
\nlegislation does not bear on the Centre-State relationship.
\nThe  fifth and the last contention is also capable of  being
\ndisposed of with the answer that the Commissions of  Inquiry
\nAct   does  not\t deal  with  the  subject  of\tCentre-State
\nrelationship, directly or indirectly.  There is,  therefore,
\nno  question of its creating a new relationship between\t the
\nUnion  and  the\t States not known  to  the  Constitution  or
\ninconsistent  with that provided for in Chapter II, Part  XI
\nof  the Constitution.  Not only that the pith and  substance
\nof the Act is “Inquiries”, but it does not even incidentally
\nencroach or trespass upon a constitutional field occupied by
\nPart XI.  If it does not touch the subject-matter of Centre-
\nState  relationship, there is no question of  its  impinging
\nupon a subject dealt with by the Consti-\n<\/p>\n
114<\/span><\/p>\n
tution.\t  Therefore, even assuming that legislation  on\t the
\nquestion  of Centre-State relationship is impliedly  barred,
\nthe impugned Act does not fall within the vice of that\trule
\nand cannot, therefore, be pronounced as unconstitutional.
\nAll  the  same,\t it  is necessary  to  examine\tbriefly\t the
\nvalidity of the State’s contention that since the provisions
\nin Chapter II, Part Xi are exhaustive, of matters  governing
\nthe  administrative  relations\tbetween the  Union  and\t the
\nStates,\t any legislative addition thereto, or  supplementing
\nthereof, if impliedly prohibited.  As already observed,\t _if
\na   law\t  is  within  the  legislative-competence   of\t the
\nlegislature,  it  cannot  be invalidated  on  ‘the  supposed
\nground that it. has added something to, or has supplemented,
\na  constitutional  provision  so long  as  the\taddition  or
\nsupplementation\t is not inconsistent with any  provision  of
\nthe Constitution.  I am, therefore, unable to appreciate the
\nrelevance  of  the  State’s reliance  on  the  passage\tfrom
\nCrawford’s  Statutory Construction (Ed. 1940 pages  334-335)
\nto  the effect that if a statute enumerates the things\tupon
\nwhich it has to operate, everything else is necessarily\t and
\nby  implication excluded from its operation and its  effect.
\nAs I have said more than once in my judgment, the one common
\nthread which runs through the argument of the State is\tthat
\nthe Constitution must be deemed to have impliedly prohibited
\nthe imposition of the control of the Central executive\tover
\nthe  State  executive except in emergencies, and  since\t the
\nCommissions of Inquiry Act transgresses that  constitutional
\nprohibition,   it  is  void.   The  very  assumption   being
\nunfounded,  the\t supposed consequence has  to  be  rejected.
\nBesides,  the  doctrine\t of  implied  prohibition  which  is
\nnecessarily  based on the principle of inherent\t limitations
\nhas  been rejected by this Court in the\t Fundamental  rights
\ncase(1)\t and  in Shrimati Indira Nehru Gandhi  v.  Shri\t Rai
\nNarain<\/a>(2).\n<\/p>\n
I  am, therefore, of the opinion that though the suit  filed
\nby the State of Karnataka is maintainable under Article\t 131
\nof   the  Constitution,\t the  notification  issued  by\t the
\nGovernment  of India on May 23, 1977 is within the scope  of
\nsection\t 3(1)  of the Commissions of Inquiry Act,  1952\t and
\nthat the Act is not unconstitutional for any of the  reasons
\nmentioned on behalf of the State Government.  Accordingly, I
\nagree respectfully with the conclusions reached by my  .Lord
\nthe Chief Justice in the case.\n<\/p>\n
BHAGWATI,  J.-I\t entirely  agree  with\tthe  judgment\tjust
\ndelivered  by my learned brother Chandrachud so, far as\t the
\nmerits\tof the claim in the suit are concerned, but  on\t the
\nquestion of maintainability of the suit under Article 131 of
\nthe  Constitution, I would like to express my opinion  in  a
\nseparate judgment, not only because the constitutional issue
\nit raises is one of some importance, but also because I find
\nthat though there was some discussion in regard to the scope
\nand ambit of this article in the judgment delivered by me on
\nbehalf\tof my learned brother Gupta and myself in the  State
\nof Rajasthan
\n(1)[1973] Supp.\t S.C.R. 1,608, 916-917, 977-78.
\n(2)[1976] 2 S.C.R. 347.\n<\/p>\n
115<\/span><\/p>\n
v.   Union of India(1) it did not take into account  certain
\naspects of the, question and a fuller consideration appeared
\nto be clearly necessary.  The facts giving rise to the\tsuit
\nare set out in detail in the judgment pronounced by my\tLord
\nthe  Chief  Justice  and  hence\t it  is\t not  necessary\t  to
\nreiterate-them.\t Suffice it to state that the Suit has\tbeen
\nfiled  by the State of Karnataka against the Union of  India
\nto  quash  a notification issued by the\t Central  Government
\nsetting\t up a Commission to inquire into certain charges  of
\ncorruption and nepotism against the Chief Minister and\tsome
\nother ministers of the State of Karnataka.  The question  is
\nwhether\t the  suit  is maintainable under Art.\t131,  for  a
\npreliminary  objection\tagainst the maintainability  of\t the
\nsuit  has been raised by the _ learned Additional  Solicitor
\nGeneral on behalf of the Union of India.\n<\/p>\n
The  answer  to the question depends primarily on  the\ttrue
\ninterpretation\tof  Art. 131.  This article confers  on\t the
\nSupreme\t Court,\t subject  to the  other\t provisions  of\t the
\nConstitution,\texclusive  original   jurisdiction  in\t any
\ndispute-(a) between the Government of India and one or\tmore
\nStates, or (b) between the Government of India and     any
\nState or States on one side and one or more other States on
\nthe  other, or (c) between two or more States, if and in  so
\nfar as the     dispute involves any question (whether of law
\nor fact) on which the\t existence  or\textent\tof  a  legal
\nright  depends.\t  It  is clear on a plain  reading  of\tthis
\narticle\t that  it does not lay down any particular  mode  of
\nproceeding   for  exercise  of\tthe  original\tjurisdiction
\nconferred  by it.  No doubt, Part III of the  Supreme  Court
\nRules  contemplates  that the Original jurisdiction  of\t the
\nSupreme\t Court under this article shall be invoked by  means
\nof  a suit, but that is not the requirement of\tthe  article
\nand  in interpreting it, we should be careful not  to  allow
\n,our  approach to be influenced by considerations of  ’cause
\nof action’ which are germane in a suit.\t The scope and ambit
\nof the original jurisdiction must be determined on the plain
\nterms of the article without being inhibited by any a priori
\nconsiderations.\n<\/p>\n
Now,  plainly  there are two limitations in  regard  to\t the
\ndispute which can be brought before the Supreme Court  under
\nArticle\t 131.  One is in regard to parties and the other  is
\nin regard to the subject-matter.  The article provides in so
\nmany  terms that the dispute must be between the  Government
\nof  India  and\tone or more States or between  two  or\tmore
\nStates.\t The object of the article seems to be that since in
\na   federal   or   quaasi-federal   structure,\t which\t the
\nConstitution seeks to set up, disputes may arise between the
\nGovernment of India; and one or more States, or between\t two
\nor  more  States,  a  forum  should  be\t provided  for\t the
\nresolution  of\tsuch disputes and that forum should  be\t the
\nhighest\t Court\tin the land, so that final  adjudication  of
\nsuch  disputes could be achieved speedily and  expeditiously
\nwithout\t either party having to embark on a  long,  tortuous
\nand  time consuming journey through a hierarchy\t of  Courts.
\nThe  article  is a necessary concomitant of a federal  or  a
\nquasi-federal  form of Government and it is  attracted\tonly
\nwhen the parties to the dispute are the Government of  India
\nor  one or more States arrayed on either side.\tThis is\t the
\nlimitation  as\tto  parties.  The  other  limitation  as  to
\nsubject-matter flows from the
\n(1)A.T.R. 1977 S.C. 1361.\n<\/p>\n
116<\/span><\/p>\n
words “if and in so far as the dispute involves any question
\n(whether of law or fact) on which the existence or extent of
\na  legal right depends”.  These words clearly indicate\tthat
\nthe dispute on affecting the existence or extent of a  legal
\nright and not a dispute on the political plane not involving
\na  legal aspect.  It was put by Chandrachud, J., very  aptly
\nin his judgment in the State of Rajasthan v. Union of  India
\n(supra)\t when he said : “Mere wrangles\tbetween\t governments
\nhave  no place under the scheme of that article. It is\tonly
\nwhen a legal, as distinguished from a mere political,  issue
\narises\ttouching  upon the existence or extent\tof  a  legal
\nright that the article is attracted.  Hence the suit in\t the
\npresent\t case would obviously not be maintainable unless  it
\ncomplies with both these limitations.\n<\/p>\n
The  contention of the learned Additional Solicitor  General
\non  behalf  of\tthe Union of India was\tthat  the  test\t for
\ndetermining the maintainability of the suit was not  whether
\nthe  right of the Central Government to set up a  Commission
\nof  Inquiry against the, Chief Minister and other  ministers
\nof  the State of Karnataka was questioned in the  suit,\t but
\nwhether\t the  impugned\taction\tof  the\t Central  Government
\ninfringed  any\tlegal  right  of the  State.   Even  if\t the
\nimpugned action of the Central Government were invalid and I
\nmust  assume  it  to  be  so  in  order\t to  determine\t the
\nmaintainability\t of  the suit the question is  as  to  whose
\nlegal  right would be infringed : who would have a cause  of
\naction ? Can the State say that its legal right is infringed
\nand  is\t therefore,  entitled to maintain  the\tsuit  ?\t The
\nlearned\t Additional Solicitor General submitted\t that  since
\nthe  impugned action of the Central Government was  directed
\nagainst the Chief Minister and other ministers of the State,
\nthe  legal  right  infringed  would be\tthat  of  the  Chief
\nMinister  and the concerned ministers and they would have  a
\ncause of action against the Union of India since they  would
\nbe  prejudicially  affected by the executive action  of\t the
\nCentral\t Government which is alleged to be in  contravention
\nof the Constitution and the law.  They have a legal right to
\nimmunity from subjection to the unconstitutional exercise of
\npower by the Central Government and this right can certainly
\nbe enforced by them.  But that would be by way of a petition
\nunder  Article 226 or Article 32, if a fundamental right  is
\ninvolved, and not under Art. 131.  Even the State Government
\nmay be said to have a cause of action on the ground that the
\nimpugned  action  of  the  Central  Government\taffects\t its
\npersonnel,  namely, the Chief Minister and  other  ministers
\nand  the  State Government may legitimately  claim  to\thave
\nsufficient interest to maintain a petition under Art. 226 to
\nchallenge  the impugned action.\t But it cannot file  a\tsuit
\nunder  Article\t131 because it is only the State  which\t can
\nmaintain  such\ta suit and not the  State  Government.\t The
\nlearned\t Additional  Solicitor General\tcontended  that\t the
\nexpression  used  in Article 131 is ‘State’ and\t not  “State
\nGovernment”  and there is a fundamental distinction  between
\n‘State’\t and  ‘State Government’ and it is,  therefore,\t not
\nenough to attract the applicability of Article 131 that\t the
\nState  Government should have a cause of action.  It is\t the
\nState whose legal right must be infringed and who must\thave
\na cause of action in order to invoke the jurisdiction  under
\nArticle 131.  The impugned action of the Central  Government
\nin the present case, argued the learned Additional Solicitor
\nGeneral, affects the legal right of the Chief Minister
\n117<\/span>
\nand  the concerned Ministers and also possibly of the  State
\nGovernment, but it does not infringe the legal right-of\t the
\nState as a legal entity as distinct from the legal right  of
\nits  executive agent, namely, the State Government  and\t the
\nState is, therefore, not entitled to maintain the suit under
\nArticle\t 131.\tThis contention of  the\t learned  Additional
\nSolicitor  General is, in my opinion, not well\tfounded\t and
\ncannot be sustained.\n<\/p>\n
There  are  two fallacies underlying the contention  of\t the
\nlearned\t Additional Solicitor General.\tOne is in drawing  a
\nrather\trigid,\twatertight distinction between\t‘State’\t and
\n‘State\tGovernment’  in the context of Article 131  and\t the
\nother,\tin assuming that it is only where a legal  right  of
\nthe  plaintiff is infringed that the suit can be  maintained
\nby  the plaintiff under that article.  Turning first to\t the
\ndistinction  between  ‘State’ and ‘State Government,  it  is
\ntrue  that theoretically this distinction does exist and  it
\nfinds recognition in sub-.sections (58) and (60) of  section
\n3 of the General Clauses Act, 1897.  The majority judges  in
\nthe  State  of\tRajasthan v. Union  of\tIndia  (supra)\talso
\naccepted  that\tthere is a distinction between\t‘State’\t and
\n‘State\t Government’.\t Willoughby  points  out   in\t“The
\nFundamental  Concepts  of  Public  Law”\t at  page  49:\t“The
\ndistinction   between  the  State  and\tits  Government\t  is
\nanalogous  to  that between a given human individual,  as  a
\nmoral  and  intellectual person, and his  material  physical
\nbody.\tBy  the\t term ‘State’ is  understood  the  political
\nperson\tor entity which possesses the law making right.\t  By
\nthe term ‘Government’ is understood the agency through which
\nthe will of the State is formulated, expressed and executed.
\nThe Government thus acts as the machinery of the State,\t and
\nthose  who operate this machinery-act as the agents  of\t the
\nState’.\t And to the same effect are the observations, of the
\nUnited States Supreme Court in Poindexter v. Greenhow :\t (1)
\n“The State itself is an ideal person, intangible,  invisible
\nand  immutable.\t  The Government is an agent. . .  .  “.  It
\nwould  thus be seen that the State Government is  the  agent
\nthrough which the State exercises its executive power.\tNow,
\nif  the\t State Government is the agent\tthrough\t which\tthe-
\nState  expresses  its will, it is difficult to see  how\t the
\nState  can  be\tsaid to be unconcerned\twhen  any  right  or
\ncapacity   or  lack  of\t it  is\t attributed  to\t the   State
\nGovernment.  It would be wholly unrealistic to suggest\tthat
\nsince  the State Government is distinct from the State,\t any
\naction\tor  capacity or lack of it in the  State  Government
\nwould  not  affect  the State and the  State  would  not  be
\ninterested  in\tit.  This is to ignore\tthe  integral  rela-
\ntionship  between  the ‘State’ and the\t‘State\tGovernment’.
\nAny  action  which  affects  the  State\t Government  or\t the
\nministers  in  their  capacity\tas  ministers-for  in\tthat
\ncapacity  they would be acting on behalf of the\t State-would
\nraise a matter in which the State would be concerned.  It is
\ntrue that analogies and metaphors are apt to mislead and  it
\nwould  be  unsafe  to base an argument\tupon  them,  but  to
\nreinforce what I have said, I may take the analogy given  by
\nWilloughby in the above quoted passage and ask the  question
\n:  if any action or capacity or lack of it is attributed  to
\nthe “material physical body”, would it not be ascribable  to
\nthe individual whose body it is and would he not be affected
\nby it ? I agree with Dr. Rajeev Dhavan and Prof.  Alice
\n(1)  29 Law.  Ed., 185.\n<\/p>\n
118<\/span><\/p>\n
Jacob  when  they say in their forthcoming  article  on\t the
\nAssembly dissolution case namely, the State of Rajasthan  v.
\nUnion  of India that: “Any communication that is made  to  a
\nChief  Minister\t in  his capacity  as  Chief  Minister”\t and
\nequally\t to a minister in his capacity as minister,   ” must
\ncreate a matter which involves the State”.  S. Murtaza Fazal
\nAli, J., in the State of Rajasthan v. Union of India  sought
\nto make a distinction between permanent institutions of\t the
\nState  and  their  changing personnel and  observed  :\t“The
\nquestion  as to the personnel to run these  institutions  is
\nwholly unrelatable to the existence of a dispute between the
\n‘State’\t and  the ‘Government of India’.  It  is  only\twhen
\nthere  is  a  complete abolition of  any  of  the  permanent
\ninstitutions of a State that a real dispute may arise.” I do
\nnot  think that this is a valid distinction for\t determining
\nwhen  a\t dispute  can be said to be one with  the  State  as
\ndistinct   from\t  the  per-sons\t  constituting\t the   State
\nGovernment.  To quote again from the forth-coming article of
\nDR.  Rajeev  Dhawan  and  Prof.\t  Alice\t Jacob:\t “The\thair
\nsplitting  distinction\tcannot\tbe  between  the,  permanent
\ninstitutions of the State and the nonpermanent\tinstitutions
\nof the, State; nor can it be between actions which limit the
\npowers\tof  the officials of the Government of a  State\t and
\nthose that abolish the institutions of the State.  The\thair
\nsplitting distinction is between those actions which can  be
\nattributed  to the State or any official thereof  and  those
\nactions which are personal and not ascribed to the officials
\nin their capacity as officials of the State-A letter sent to
\nthe  Chief  Minister questioning his- capacity or  power  to
\nrule as Chief Minister may not allege lack of confidence  in
\nthe  Chief  Minister  as person, wife,\thusband,  father  or
\nfriend.\t It alleges lack of confidence in the Chief Minister
\nin  his\t capacity  as  Chief Minister.”\t I  find  myself  in
\nagreement  with\t this opinion and I wholly  endorse  it.   I
\nwould,\ttherefore, hold that when any right or\tcapacity  or
\nlack of it is attributed to any institution or person acting
\non  behalf  of the State, it raises a matter  in  which\t the
\nState  is  involved or concerned.  The State would,  in\t the
\ncircumstances, be affected or at any rate interested, if the
\nChief  Minister\t and other ministers in\t their\tcapacity  as
\nsuch,  or to put it differently, in the matter of  discharge
\nof    their   official\t functions,   are    subjected\t  to
\nunconstitutional   exercise   of  power\t  by   the   Central
\nGovernment.   If  the  Central Government were\tto  issue  a
\ndirection  to  the  Chief Minister and\tother  ministers  to
\nexercise  the executive power of the State in  a  particular
\nmanner,\t the  State  would  be\tclearly\t affected  if\tsuch
\ndirection  is  unconstitutional\t and would  be\tentitled  to
\ncomplain against it.  Then is the position any different, if
\nthe  Central  Government,  instead,  proceeds,\twithout\t any
\nconstitutional authority, to inquire how the executive power
\nof  the State is exercised by the Chief Minister  and  other
\nministers  and whether it is exercised in a  proper  manner.
\nThe  State  would  clearly  in such a  case  have  locus  to
\nchallenge   the\t unconstitutional  action  of  the   Central
\nGovernment-\n<\/p>\n
It  may\t also  be noted that, on a  proper  construction  of
\nArticle\t 131, it is not necessary that the plaintiff  should
\nhave  some legal right of its own to enforce, before it\t can
\ninstitute  a suit under that article.  It is not a sine\t qua
\nnon of the applicability of article 131 that there should be
\ninfringement  of  some legal right of the  plaintiff.\tWhat
\narticle\t 131 requires is that the dispute must be one  which
\ninvolves a
\n119<\/span>
\nquestion  “on which the existence or extent of\tlegal  right
\ndepends”.   The\t article does not say that the\tlegal  right
\nmust be of the plaintiff.  It may be of the plaintiff or  of
\nthe  defendant.\t What is necessary is that the existence  or
\nextent\tof the legal right must be in issue in\tthe  dispute
\nbetween the parties.  We cannot construe Article 131 as con-
\nfined to cases where the dispute relates to the existence or
\nextent\tof  the legal right of the plaintiff for to  do\t so,
\nwould  be to read words in the article which are not  there.
\nIt  seems  that because the mode of proceeding\tprovided  in
\nPart  III of the Supreme Court Rules for bringing a  dispute
\nbefore\tthe Supreme Court under Article 131 is a suit,\tthat
\nwe  are\t unconsciously influenced to import  the  notion  of
\n’cause\tof  action,  which  is germane in  a  suit,  in\t the
\ninterpretation\tof Article 131 and to read this\t article  as
\nlimited\t only  to  cases  where\t some  legal  right  of\t the
\nplaintiff is infringed and consequently, it has a ’cause  of
\naction’\t against the defendant.\t But it must  be  remembered
\nthat there is no reference to a suit or ’cause of action’ in
\nArticle\t 131  and that article confers jurisdiction  on\t the
\nSupreme Court with reference to the character of the dispute
\nwhich  may  be\tbrought before\tit  for\t adjudication.\t The
\nrequirement of ’cause of action’, which is so necessary in a
\nsuit,  cannot, therefore, be imported while  construing\t the
\nscope  and ambit of Art 131.  It is no doubt true, that\t the
\njudgment delivered by me in the State of Rajasthan v.  Union
\nof  India  proceeds  on the assumption\tthat  a\t suit  under
\nArticle\t 131  can be Instituted only if some  right  of\t the
\nplaintiff  is infringed, but there was no proper  discussion
\nof this question in the course of the arguments in that case
\nand   on  fuller  consideration,  I  think  that   no\tsuch
\nrestriction  can be imported in the construction of  Article
\n131  so\t as to narrow down the ambit and  coverage  of\tthat
\narticle.  The only requirement necessary for attracting\t the
\napplicability of Article 131 is that the dispute must be one
\ninvolving any question “on which the existence or extent  of
\na legal right” depends, irrespective whether the legal right
\nis claimed by one party or the other and it is not necessary
\nthat  some legal right of the plaintiff should be  infringed
\nbefore\ta  suit\t can be brought\t under\tthat  article.\t The
\nplaintiff  must\t of  course be a party to  the\tdispute\t and
\nobviously  it cannot be a party to the dispute unless it  is
\naffected  by  it.  The plaintiff cannot raise a\t dispute  in
\nregard\tto a matter which does not affect it or in which  it
\nis  not\t concerned.   It  cannot  act  as  a  mere  busybody
\ninterfering with things which do not concern it.  But if the
\nplaintiff  has interest in raising the dispute in the  sense
\nthat  it is affected by the action taken, it can  bring\t the
\ndispute before the Supreme Court under Article 131, even  if
\nno  legal right of its is infringed, provided of course\t the
\ndispute\t is relatable to the-existence or extent of a  legal
\nright.\n<\/p>\n
It  would also be convenient at this stage to consider\twhat
\nis  the meaning of the expression ‘legal right’ as  used  in
\nArticle\t 131.  It is obvious that the word ‘right’  is\tused
\nhere  in  a generic sense and not according to\tits-  strict
\nmeaning.   ‘Right’  in\tits  narrow  sense  constitutes\t the
\ncorrelative  of duty, but in its generic sense\tit  includes
\nnot  only  right  strict to sensu,  but\t “any  advantage  or
\nbenefit conferred upon a person by a rule of law”.  Dias  in
\nhis jurisprudence, 1976 ed., pages 33-34, says that the word
\n‘right’\t has  undergone\t successive shifts  in\tmeaning\t and
\nHohfeld in his “Fundamental Legal Concepts as Applied
\n120<\/span>
\nto  Legal  Reasoning” gives four different meanings  of\t the
\nword  right,.\tOne is right strict to sensu, the  other  is
\nliberty, the third is power and the fourth is immunity.\t  In
\nits  strict sense ‘right’ is defined-as interest  which\t the
\nlaw  protects  by  imposing corresponding  duty\t on  others.
\n‘Liberty’  is  exemption from the right of another  and\t its
\ncorrelative  is\t no-right’ and in the same  way\t ‘power’  is
\nability\t to  change the legal relations of another  and\t its
\ncorrelative   is   liability.\tSimilarly,   ‘immunity’\t  is
\nexemption   from  the  legal  power  of\t another   and\t the
\ncorrelative of immunity is disability.\tTo illustrate, where
\nthere is a right stricto sensu in A, there is a\t correlative
\nduty  in B to do X. Similarly, where A has liberty to do  X,
\nthere is a correlative no-right in B to interfere in  regard
\nto it.\tThe correlative of, power in A is liability in B  as
\nregards\t X and similarly, where there is immunity in A\tfrom
\nthe legal power of B, its correlative is disability in B  as
\nregards X. These are the four different jural  relationships
\nrecognised  by\tlaw  and they are  comprehended\t within\t the
\ngeneric\t term ‘right’.\tNow, there can be no doubt that\t the
\nword  ‘right’ is used in Article 131 in this generic  sense.
\nIf,  for  example,  the\t State\tclaims\tto  be\tentitled  to
\nlegislate  exclusively on a particular matter on the  ground
\nthat  it  falls within List III of the VII Schedule  to\t the
\nConstitution and the Union of India questions this right  of
\nthe  State,  the dispute would be one relating, not  to\t any
\nright  of the State in the strict sense of the term, but  to
\nthe  ‘liberty’ of the State to legislate on such matter\t and
\nit would come directly within the terms of Art. 131.  Even a
\ndispute\t relating  to  the power of the Union  of  India  to
\nabolish\t the legislative assembly of a State or to  dissolve
\nit would fall within the scope and ambit of Art. 131 as held
\nexpressly  by  Chandrachud, J., Gupta, J.,  and\t myself\t and
\nimpliedly  by Beg, C.J., in the State of Rajasthan v.  Union
\nof  India.   What  has, therefore, to be seen  in  order  to
\ndetermine the applicability of Art. 131 is whether there is,
\nany  relational\t legal matter involving\t a  right,  liberty,
\npower or immunity qua the parties to the dispute.  If  there
\nis, the suit would be maintainable, but not otherwise.
\nThe   question\twhich  arises  for  consideration  on\tthis
\ninterpretation\tof Art. 131 is whether there is any  dispute
\nbetween\t the  State  of Karnataka and  the  Union  of  India
\ninvolving  a  question as to the existence or  extent  of  a
\nrelational  legal  pattern within the generic sense  of\t the
\nterm ‘right.  It is true that it may not be possible to\t say
\nthat  by  reason  of  the impugned  action  of\tthe  Central
\nGovernment in setting up a Commission of Inquiry against the
\nChief Minister and other ministers who constitute the  State
\nGovernment, any legal right of the State is infringed,\tbut,
\nas already pointed out above, it is not necessary, in  order
\nto  invoke the jurisdiction of the Supreme Court under\tArt.
\n131,  that the State should be able to show that some  legal
\nright of ots ps breacheds.  That is enough to show that\t the
\naverments in the led, not as a busy body or as a  meddlesome
\ninterloper, but in a real sense in questioning the power  of
\nthe Central Government to set Up such Commission of Inquiry.
\nIf  we\tlook  at the averments in the plaint,  and  for\t the
\npurpose of determining the question of jurisdiction we\tmust
\nproceed on the assumption that the averments are correct, it
\nis clear that according to the claim made by the State,\t the
\nlegislature of the State and the State Government alone have
\npower  to  investigate and control  misuse  of\tgovernmental
\npower by the Chief Minister
\n121<\/span>
\nother ministers of the State and the Central Government\t has
\nno power to inquire into the same or to set up a  Commission
\nof Inquiry or that purpose.  This claim of the State clearly
\nraises a dispute as to the extent of the power of the  State
\nand  the existence of a superior or coordinate power in\t the
\nCentral Government to inquire into the conduct of the  Chief
\nMinister and other ministers of the State in the.  discharge
\nof  their governmental functions.  Such a  dispute  concerns
\nthe  content of the respective powers of the State  and\t the
\nUnion of India and the inter se relationship between the two
\nentities  :and the State is vitally interested in  it.\t The
\nState  is  very much concerned whether the  conduct  of\t its
\ncouncil\t of  ministers\tin  the\t discharge  of\tgovernmental
\nfunctions  can be inquired into only by itself\tthrough\t its
\nown  agency or it can also be subjected to scrutiny  by\t the
\nUnion of India.\t The State would certainly have locus to say
\nthat  the Union of India has no right to encroach  upon\t its
\nexclusive  power to investigate into misuse of\tgovernmental
\npower  by its council of ,ministers.  There can be no  doubt
\nthat, apart from its council of ministers the State can also
\ncompetently  make  a  claim that the  council  of  ministers
\nacting on its behalf is immune from subjection to the  power
\nof  the Central Government to inquire into their conduct  as
\nministers.  This immunity claimed in respect of the  council
\nof  ministers  can  be\tascribed to the\t State\tand  it\t can
\ncertainly  raise  a dispute touching upon the  existence  of
\nthis  immunity.\t  So  far  as dispute as  to  the  scope  of
\nrespective  legislative fields between the Commonwealth\t and
\nthe States in Australia is concerned, it is now well settled
\nas a result of the decision in Attorney General for Victoria
\nv. The Commonwealth(1) that the Attorney-General of a  State
\n,can  sue  for a declaration of the  invalidity\t of  Federal
\nlegislation  as\t an  invasion of a  purely  State  field  of
\nlegislative power and similarly the Attorney-General for the
\nCommonwealth   can  sue\t a  State  in  order  to  obtain   a
\ndeclaration of the invalidity of State legislation where  it
\nencroaches  upon  the  legislative Dower  entrusted  to\t the
\n,Commonwealth.\t The High Court of Australia pointed out  in
\nthis  case  that the position was  correctly  summarised  by
\nGaven  Duffy, C.J., Evatt and Me Tiernan, JJ.  in  Attorney-
\nGeneral\t for  Victoria\tv.  The\t Commonwealth  (2)  in\t the
\nfollowing words : “It must now be taken as established\tthat
\nthe  Attorney-General of a State of the Commonwealth  has  a
\nsufficient   title   to\t invoke\t the   provisions   of\t the
\nConstitution for the purpose of challenging the validity  of
\nCommonwealth  legislation  which extends  to,  and  operates
\nwithin. the State whose interests be represents”.  Now, if a
\nState  has  sufficient title to challenge  the\tvalidity  of
\nUnion legislation on the ground that it interferes with\t the
\nexercise  of  State  legislative power,\t it  must  follow  a
\nfortiori  that\tthe  State would  have\tlocus  to  challenge
\nunconstitutional exercise of power by the Central Government
\nwhich  encroaches upon its exclusive sphere in\trelation  to
\nthe  conduct of its Council of ministers.  The\tState  would
\nalso  be  entitled to challenge the impugned action  of\t the
\nCentral Government as unconstitutional, because it  prevents
\nthe  State from exercising its power to direct inquiry\tinto
\nmatters\t which are specified in the notification  issued  by
\nthe Central Govern-\n<\/p>\n
(1)  71 C.L.R. 237
\n(2)  52 C.L.R. 533.\n<\/p>\n
122<\/span><\/p>\n
ment, by reason of proviso (a) to sub-section (1) of section
\nthe Commissions of Inquiry Act, 1952.  The suit filed by the
\nState against the Union of India must, in the circumstances,
\nbe held to be maintainable under Article 131.
\nSince,\thowever, the claim made by the State in the suit  is
\nnot  sustainable  on  merits as pointed out  by\t my  learned
\nbrother\t Chandrachud in his judgment, I agree with him\tthat
\nthe suit should be dismissed with costs.\n<\/p>\n
UNTWALIA J.-We agree that this suit should be dismissed with
\ncosts.\t We  however regret our inability to concur  in\t the
\nview   expressed   by  Bhagwati\t J.,  in   regard   to\t the
\nmaintainability\t of  the,  suit under, Article\t131  of\t the
\nConstitution.\tFor the reasons stated hereinafter  we\thave
\ncome  to the conclusion that the, suit is not  maintainable.
\nWe have also briefly discussed and decided the other  issues
\nin   the   suit\t on  merits.\tWhile\tgenerally   agreeing
\nrespectfully with the leading judgment of the learned  Chief
\nJustice, we think it advisable. to add a few pages by way of
\nour concurring note.\n<\/p>\n
The first issue in this suit is
\n“Is the suit maintainable ?”\n<\/p>\n
Although the decision of this issue is interlined with other
\nissues\tsettled\t for  adjudication, it\tcan  be\t dealt\twith
\nseparately also.\n<\/p>\n
What, in substance, is this suit filed under Article 131  of
\nthe   Constitution  of\tIndia  ?  Certain   allegations\t  of
\ncorruption,  nepotism  and favouritism in  relation  to\t the
\nadministrative actions of the Chief Minister and some  other
\nMinisters  of  the  State of Karnataka\twere  made  by\tsome
\nlegislators  of\t that  State.  A  memorandum  signed  by  46
\nlegislators  of\t the State containing  the  allegations\t was
\nforwarded  to the Central Government.  Its Home Minister  in
\nhis  letter  dated  April  26,\t1977,  requested  the  Chief
\nMinister  to give information and his comments\tapropos\t the
\nallegations  made.  The Chief Minister, in his reply  letter
\ndated May, 13, 1977, inter alia, challenged the authority of
\nthe  Central Government to call for an explanation and\tmake
\nany  inquiry  in  the matter.  He claimed that\tit  was\t the
\nexclusive  right  of  the  State to do\tso.   It  seems,  to
\nforestall  the appointment of any Commission of\t Inquiry  by
\nthe  Central  Government, the State Government\thastened  to
\nissue a notification on May 18, 1977 to set up some kind  of
\ninquiry\t in  respect of the allegations made,  although,  in
\nterms  the inquiry was not specifically in relation  to\t the
\nvarious\t charges  of misconduct and  maladministration\tmade
\nagainst\t the  Chief Minister and the other  Ministers.\t The
\nnotification  was  issued  by  the  State  Government  under
\nsection\t 3 of the Commissions of Inquiry Act, 1952  (Central
\nAct 60 of 1952) (hereinafter to be referred to as the  Act).
\nShri  Justice  Mir  lqbal Hussain, a retired  Judge  of\t the
\nKarnataka  High Court, was appointed as the sole  member  of
\nthe  Commission\t of Inquiry by the State  Government.\tFive
\ndays  later,  on May 23, 1977, the  Central  Government,  in
\nexercise  of  their  power  under  section  3  of  the\tAct,
\nappointed another Commission consisting of a single  Member,
\nnamely, Shri Justice A. N. Grover,,
\n123<\/span>
\nJudge of the Supreme court of India, to inquire into,- the
\nallegations  in Annexures ‘I’ and ‘II’ to  the\tnotification
\nexcluding,  however, from the latter-“any matter covered  by
\nthe notification of the Government of Karnataka in the Chief
\nSecretariat  DPAR  7  GAN 77, dated  the  18th\tMay,  1977”.
\nThereupon  the of Karnataka filed the present suit  claiming
\ncertain-  relief  mainly on two grounds : (1)  On  a  proper
\ninterpretation\tof  the\t Act the  State\t Government  is\t the
\nappropriate Government and not the Central Government to set
\nup  a Commission of Inquiry; and (2) in the alternative\t the
\nprovisions  in\tthe  Act in so far  as\tthey  authorise\t the
\nCentral\t Government to issue the impugned notification-\t are
\nultravires  the\t Constitution.\tThe first defendant  in\t the
\nsuit  is  the Union of India, the second being\tShri  A.  N.
\nGrover.\t  The  contest is by the first\tdefendant  only\t and
\nhereinafter  in this judgment it will be referred to as\t the
\ndefendant.   In\t substance  and\t effect\t the  claim  of\t the
\ndefendant  is that it has got the legal right to  issue\t the
\nimpugned  notification; the right conferred by Section 3  of
\nthe  Act is not ultravires the Constitution.  The  right  of
\nthe  State of Karnataka to institute the suit under  Article
\n131  is challenged mainly on the ground that the  nature  of
\nthe dispute, in the suit is such that it does not affect any
\nlegal right of the State.\n<\/p>\n
Under  Article\tI of the Constitution, India is a  Union  of
\nStates.\t  The State of Karnataka is one of  the\t constituent
\nunits  of the Union of India.  The concept of State is\tthat
\nby  itself  it is an ideal person, a legal  entity.   It  is
\nintangible,  invisible and immutable.  The Government, in  a
\nsense,\tis an agency through which the will of the State  is
\nformulated,  expressed and executed.  Both  the\t expressions
\nhave  been  separately defined in the General  Clauses\tAct,
\n1917.  In relation to the existence of a dispute between the
\nUnion of India on the one hand and one or more States on the
\nother, the expression used in Article 131 for the former  is
\nthe Government of India, signifying that the dispute may  be
\nwith  the  Government of India but the other  party  to\t the
\ndispute\t must  be  the State only and not any  limb  of\t the
\nState-the  Government, this Legislature or-  the  Judiciary.
\nArticle\t 300  is  an  enabling\tprovision  to  describe\t the
\nGovernment  of India in a suit as the Union of India and  to
\nenable\tthe Government of a State to sue or. be sued in\t the
\nname  of  the State.  If there is an invasion an  the  legal
\nright of a State the agency through which the action will be
\ncommenced  may\twell  be the Government of  the\t State.\t  An
\ninroad\tupon  the right of the Government  may,\t in  certain
\ncircumstances,\tbe  an inroad upon the legal  right  of\t the
\nState.\t Article 300, therefore, merely prescribes the\tmode
\nof  describing a party to the suit.  The real answer to\t the
\nquestion  of maintainability, however, has got to  be  found
\nfrom  the  words  of  Article  131  itself.   The  following
\nconditions must exist for invoking the original jurisdiction
\nof the Supreme Court under the said Article
\n\t      (1)   The\t  dispute   must  be   between\t the
\n\t      Government of India and one or more States  or
\n\t      between\t two or more States; and
\n\t      124<\/span>
\n\t      (2)   The\t dispute must involve  any  question
\n\t      whet law or of fact on which the existence  or
\n\t      extent the legal-right depends.\n<\/p>\n
There  is some departure in this regard from the  correspond
\nprovision of Section 204 of the Government of India Act,  19
\nwhich is not necessary to be pin-pointed here.\tIn  specific
\nterms  has not been stated in the Article as to whose  legal
\nright  the question involved in the dispute must relate\t and
\nin  what  respect.   Chandrachud  J.,  in  this\t regard\t has
\nexpressed  his opinion\tin the case of State of Rajasthan  &
\nOrs. v. Union of India( 1) at page 1396 as follows
\n\t      “It is sufficient in order that its provisions
\n\t      may  apply that the plaintiff,  questions\t the
\n\t      legal or constitutional right asserted by\t the
\n\t      defendant,  be it the Government of  India  or
\n\t      any other State”.\n<\/p>\n
The  learned Chief Justice in his leading judgment  did\t not
\ndecide\tthis question.\tThe other five Judges including\t one
\nof us (Untwalia J.) took a contrary view.  Yet, Bhagwati and
\nGupta  JJ.  on the facts of that case held  that  the  legal
\nright of the State, the plaintiff, had been infringed.\t The
\nother three, even on merits, expressed an opposite view.  If
\nwe  may\t say so with great respect, we are unable  to  agree
\nwith  the  view\t aforesaid,  expressed\tby  Chandrachud\t  J.
\nOrdinarily  and\t generally, in any suit\t including  the\t one
\nunder Article 131 the competition is between the legal right
\nof  the\t plaintiff and the defendant.\tBut  primarily,\t and
\nalmost invariably, the plaintiff has to establish his  legal
\nright in order to succeed in the suit.\tAs against the claim
\nof  the\t plaintiff, if the legal right of the  defendant  is
\nestablished,  the suit is bound to fail.  But on failure  of
\neither to establish his own legal right, the suit will still
\nfail   because\tthe  plaintiff\tcannot\tsucceed\t unless\t  he
\nestablishes his legal right.  This proposition of law is  so
\nclear  and axiomatic that the expression-“the  existence  or
\nextent of a legal right” used in Article 131 undoubtedly  is
\nmeant to bring about this result.  It was neither necessary,
\nnor perhaps advisable, to state further in the article\tthat
\nthe  dispute  must involve any question on which  the  legal
\nright of the plaintiff must depend.  It is matter of  common
\nexperience that more often than not absence of a legal right
\nin  one party helps the other party to establish  its  legal
\nright and vice versa.\n<\/p>\n
In  the\t case of King-Emperor v. Sibnath Banerji  &  Ors.(2)
\nLord  Thankerton opined at page 266 that “a Minister  is  an
\nofficer\t subordinate to the Governor within the\t meaning  of
\nthe  Government\t of  India Act, 1935.”\tThe  same  view\t was
\nexpressed by Hegde J., in the case of A. Sanjeevi Naidu etc.
\netc.  v. State of Madras and Anr.(3), with reference to\t the
\nprovisions of the Constitution.\n<\/p>\n
In  the\t present  case the inquiry set- up  by\tthe  Central
\nGovernment is not against the State or the State Government.
\nIt  is against the Chief Minister and some other  Ministers.
\nwho are officers of the State.\n<\/p>\n
(1)  A.I.R. 1977 S.C. 1361.\n<\/p>\n
(2)  72 Indian Appeals, 241.\n<\/p>\n
(3)  [1970] 3 S.C.R., 505.\n<\/p>\n
125<\/span><\/p>\n
It  may be open to them to, take the plea in an\t appropriate
\nproceeding, such as a writ petition under Article 226 of the
\nConstitution, ,that the action of the Central Government  is
\nlegal  and ultra vires.\t Under Article 131A  (introduced  by
\nthe  42nd Amendment), the question of vires of section 3  of
\nthe Act may then have to be referred for the decision of the
\nSupreme\t Court\tby  the\t High Court.  But  that\t in  no\t way
\nentitled  the State to invoke the original  jurisdiction  of
\nthe Supreme Court under Article 131.  The submission made by
\nMr. Lal Narayan Sinha on behalf of the plaintiff-State\tthat
\nthe  legal  right  of  the State has  been  invaded  by\t the
\nimpugned  notification, is not correct.\t  Counsel  submitted
\nthat  it is only the States right to order an inquiry  under
\nsection\t 3 of the Act against its Ministers  acting  through
\nits  Government, that the Central Government has  no  right,
\nthat  it  has put an impediment in the right of\t the  State,
\nGovernment to modify or issue a subsequent notification\t for
\nthe  purpose  of enlarging or clarifying the  scope  of\t the
\ninquiry\t and that it has, thus affected the legal  right  of
\nthe  State.  We find no substance in this  argument.   There
\nmay be a competition between the power of one authority\t and
\nthe other, here in this case between the Central  Government
\nand the State Government.  But unless the power exercised by
\none  authority\tbrings about a dispute\timpinging  upon\t the
\nlegal  right of the other authority, the latter cannot\tcome
\nunder Article 131 and say that merely because it was  within
\nits  power  to\tdo so its legal right  is  affected  by\t the
\nillegal\t exercise of the power by the other authority.\t The
\nsaid  exercise\tof the power must directly or  by  necessary
\nimplication affected the legal right of the other authority.
\nWe may support the proposition by an illustration.  Suppose,
\nthe  Central Government, in pursuance of a law made  by\t the
\nParliament  in respect of an: Entry in List II,, say,  Entry
\n8, relating to, intoxicating liquors, makes an order against
\na person residing in or an officer of any State.  The  order
\nwill  be  obviously  bad, as having  been  issued  under  an
\ninvalid law made by the Parliament.  Who can challenge\tthis
\norder  ? Obviously the person affected or aggrieved  by\t the
\norder.\tIf the order does not affect the legal right of\t the
\nState  or the State Government (for the purpose\t of  testing
\nthe argument, the two may be equated), can the State file  a
\nsuit  under  Article 131 merely because the order  has\tbeen
\nmade  against  its resident in accordance with a  law  which
\nencroached upon the exclusive legislative field of the State
\n? The answer, in our ,opinion, must be in the negative.\t  In
\nthe  instant case if the stand on merits taken on behalf  of
\nthe   State   Ministers\t in  correct,  then   the   impugned
\nnotification is an invasion on their legal right.  They can’
\npress  into  service the power of the  State  Government  to
\norder an
\ninquiry\t and  challenge the impugned notification,  but\t the
\nsaid notification can in no way be said to have affected  or
\nrestrained  the State Government from giving effect  to\t its
\nnotification.\n<\/p>\n
\t      Some  help may be derived from the  definition
\n\t      of  the word “State’ given at page  856-57  of
\n\t      Vol. 81 Corpus, Juris Secundum. It says :\n<\/p>\n
\t      “The word ‘State’ has various meanings, but as
\n\t      used  in\tthe federal  Constitution,  acts  of
\n\t      congress, and State statutes,
\n\t      126<\/span>
\n\t      it  has a definite, fixed, and  certain  legal
\n\t      meaning  as designating a member of the  Union
\n\t      in contradistinction to the United States as a
\n\t      nation…………………………..
\n\t      The  State is a legal entity, and is  entitled
\n\t      to  the  fundamental rights,  privileges,\t and
\n\t      immunities belonging to every legal entity.”
\nIf a restricted meaning were not to be given to the scope of
\nthe  suit  which  can  be  filed  under\t Article  131,\tvery
\nanomalous,  and sometimes absurd, results may follow and  it
\nwill  be difficult to put a dividing line and a stop to\t the
\nvery  wide  scope  of  the  suit  resulting  from  such\t  an
\ninterpretation.\t Any action taken by the Central  Government
\neither\tunder  the  Act or otherwise.  against\tany  citizen
\nresiding in, or an officer of the State could be  challenged
\nby institution of a suit under Article 131 by the State\t on’
\nthe  ground  that the action of the  Central  Government  is
\nultra vires and Without any legal right.  The argument\tthat
\nthe  State  is\tinterested  in\tprotecting  its\t people\t and
\nofficers  when their legal right has been illegally  invaded
\nby the Central Government and, therefore, it has a locus  to
\ninvoke\tArticle 131, in our opinion, is too obviously  wrong
\nto be accepted.\n<\/p>\n
As  we\thave  said above, a Minister is an  Officer  of\t the
\nState.\tAn order affecting him cannot confer a right of suit
\non the State under Article 131.\t So the present suit, in our
\nopinion,  is not maintainable.\tWe, however, do not  propose
\nto non-suit the plaintiff on that ground alone, and  proceed
\nto discuss the other issues.\n<\/p>\n
The  other two issues framed for consideration in this\tsuit
\nare in the following terms :\n<\/p>\n
\t      “2.   Is the impugned notification ultra vires
\n\t      the  powers  of the Central  Government  under
\n\t      Sec. 3 of the Commissions of Inquiry Act ?\n<\/p><\/blockquote>\n
\t      3.    If\tsection\t 3  of\tthe  Commissions  of
\n\t      Inquiry Act authorises the Central  Government
\n\t      to  issue\t the impugned notification,  is\t the
\n\t      Section itself unconstitutional ?”\n<\/p><\/blockquote>\n
Both  these issues may conveniently be dealt with  together.
\nSeveral\t points\t of view were canvassed by Mr.\tLal  Narayan
\nSinha for the plaintiff with his usual clarity and precision
\nbut,  at times, because of the inherent difficulties of\t the
\npoints involved and the case being one of first\t impression,
\nhe  was obliged to change and modify his line  of  argument.
\nMr. Soli Sorabjee, the learned Additional Solicitor General,
\ncombated  the  arguments  of the  plaintiff  very  ably\t and
\nsuccinctly.   Eventually, the main points of attack  of\t the
\nplaintiff were crystallized in the following terms\n<\/p>\n
\t      1.    Our\t  Constitution\tis  of\t a   Federal
\n\t      character\t clearly defining and  dividing\t the
\n\t      legislative and the executive functions of the
\n\t      Centre  and  the\tStates\tand  their  inter-se
\n\t      relationship.-  The judicial functions of\t the
\n\t      Judiciary are in a well-defined and demarcated
\n\t      separate compartment..\n<\/p>\n
\t      127<\/span><\/p>\n
\t      2.    Except  to the extent permitted by\tthe,
\n\t      Constitution  the Centre cannot encroach\tupon
\n\t      the  legislative\tor executive  field  of\t the
\n\t      State.\n<\/p>\n
\t      3.    The\t Act does not and  cannot  authorise
\n\t      the Centre to set up a, Commission of  Inquiry
\n\t      against the State Executive; Section 3 must be
\n\t      read    down   to\t  save\t it   from    ‘being
\n\t      constitutionally invalid.\n<\/p>\n
\t      4.    If\tit be not possible to read down\t the
\n\t      Act  in the manner suggested then the  Act  is
\n\t      invalid in so far as it authorises the  Centre
\n\t      to set up a Commission of Inquiry against\t the
\n\t      State Executive.\n<\/p>\n
\t      5.    Such  a  law is beyond  the\t legislative
\n\t      competence  of  the  Union  Parliament  as  in
\n\t      substance\t and  in effect it  violates  either
\n\t      expressly or by necessary implication  certain
\n\t      provisions  of  the  Constitution,  its  basic
\n\t      scheme,  or the fundamental back-bone  of\t the
\n\t      Centre-State relationship as enshrined in\t the
\n\t      Constitution.\n<\/p>\n
\t      6.    The\t law having the effect as  aforesaid
\n\t      will  really be a constitutional law  bringing
\n\t      about  an amendment in the Constitution  which
\n\t      is  obviously  not  permissible;\tan  ordinary
\n\t      legislation unless expressly permitted by\t the
\n\t      provision\t of the Constitution cannot  in\t any
\n\t      way amend the Constitution.\n<\/p>\n
\t      7.    The\t  Act  is  beyond  the\t legislative
\n\t      competence  of  the Central Parliament  if  it
\n\t      means authorisation by the Central  Government
\n\t      of  any machinery for making inquiries in\t the
\n\t      executive\t actions of the State Government  or
\n\t      the  Chief  Minister  or\tany  other  Minister
\n\t      either collectively or individually.\n<\/p>\n
\t      8.    Strictly speaking the subject-matter  of
\n\t      the present inquiry is not covered by the\t Act
\n\t      if  it  be held that it has  been\t enacted  in
\n\t      exercise of the power of the Parliament  under
\n\t      Entry  94 of List I, Entry 45 of List  III  or
\n\t      the  Residuary  Entry 97 of List I  read\twith
\n\t      Article 248 of the Constitution.\n<\/p>\n
\t      9.    Lastly  it was also submitted  that\t the
\n\t      scope, of the two inquiries one set up by\t the
\n\t      State  Govt. & the other by the Central  Govt.
\n\t      are more or less the same.  Almost all matters
\n\t      of  inquiry are over-lapping  and,  therefore,
\n\t      the,  impugned  notification is  bad  on\tthat
\n\t      account too.\n<\/p>\n
We  proceed  to\t  discuss and consider briefly,\t as  far  as
\npossible,  the propositions aforesaid, but not\tstrictly  in
\nthe order we have set out above.\n<\/p>\n
128<\/span><\/p>\n
Strictly  speaking,  our Constitution is not  of  a  federal
\ncharacter  where separate, independent and sovereign  States
\ncould  be  said to have joined to form a nation\t us  in\t the
\nUnited\tStates of America or as may be the position in\tsome
\nother countries of the World.  It is because of. that reason
\nthat sometimes it has been characterised as quasi-federal in
\nnature.\t  Leaving the functions of the Judiciary  apart,  by
\nand large the legislative and the executive functions of the
\nCentre\tand  the States have been defined  and\tdistributed,
\nbut, even so, through it all runs an overall thread or\trein
\nin  the\t hands\tof  the Centre\tin  both  the  fields.\t The
\nParliament  has\t the  exclusive authority  to  legislate  on
\nmatters\t enumerated in List I. So has the State\t Legislature
\nthe exclusive legislative power with respect to the  various
\nentries\t in List II.  Both have concurrent powers in  regard
\nto  the\t entries  of  List  III.   The\tresiduary  power  in
\naccordance  with  Article 248 and Entry 97 of List  I,\tlies
\nwith the Central Parliament.  It has got a predominant\thand
\nin  respect  of\t the matters in the concurrent\tlist  as  is
\napparent  from\tArticle 254.  Article 249 confers  power  on
\nParliament  to\tlegislate with respect to a  matter  in\t the
\nState  List, in the national interest.\tWhen a\tproclamation
\nof emergency is in operation as provided for in Article 250,
\nthe  Parliament has got the power to legislate with  respect
\nto  any matter in the State List.  Some inroad in the  State
\nlegislative  field  by\tthe  Centre  is\t permissible   under
\ncircumstances  mentioned  in  Articles\t252  and  253.\t  As
\nprovided for in Article 254 in some situations, the State is
\nunder an obligation to reserve a Bill for the  consideration
\nof  the President and receive his assent before it  is\tmade
\ninto a law.\n<\/p>\n
“It  shall be the duty of the Union to protect\tevery  State
\nagainst external aggression and internal disturbance and  to
\nensure\tthat the Government of every State is carried on  in
\naccordance with the provisions of this Constitution”.  (vide
\nArt.  355,  emphasis supplied). In case of  failure  of\t the
\nconstitutional machinery in States, provision has been\tmade
\nin Article 356 for the Centre to assume legislative and exe-
\ncutive powers but not the powers vested in or exercisable by
\na  High\t Court of a State.  The effect\tof  proclamation  of
\nemergency  under  Article 352 is to  enlarge  the  executive
\npower of the Union and extend it to the giving of  direction
\nto  any State as to the manner in which the executive  power
\nthereof\t is to be exercised as provided for in Article\t353.
\nThere  could  not have been, for obvious reasons,  any\tsuch
\nprovision in regard to the administration of the Centre.
\nThe  administrative  relations between the  Centre  and\t the
\nStates\tare  by\t and large governed  by\t the  provisions  of
\nChapter II of Part XI of the Constitution.  While  providing
\nin  Article  256 that “two executive power  of\tevery  State
\nshall be so exercised as to ensure compliance with the\tlaws
\nmade by Parliament and any existing laws which apply in that
\nState”,\t it is significant to note that it has further\tbeen
\nengrafted  therein that “executive power of the Union  shall
\nextend\tto the giving of such directions to a State  as\t may
\nappear\tto the Government of India to be necessary for\tthat
\npurpose.”  The\tcontrol\t of the Union  over  the  States  in
\ncertain\t cases\thas been provided for in Article  257.\t Mr.
\nSinha  pointedly referred to Article 258A introduced in\t the
\nConstitution  by the Constitution (Seventh  Amendment)\tAct,
\n1956, to lend support to his
\n129<\/span>
\nargument.  But, in our opinion, instead of strengthening the
\npoint  as  urged,  it weakens it because  the  said  Article
\nprovides:\n<\/p>\n
\t      “258A.\tPower  of  the\tStates\tto   entrust
\n\t      functions\t  to   the    Union.-Notwithstanding
\n\t      anything in the Constitution, the Governor  of
\n\t      a\t  State\t may,  with  the  consent   of\t the
\n\t      Government    of\t India,\t   entrust    either
\n\t      conditionally   or  unconditionally  to\tthat
\n\t      Government  or  to its officers  functions  in
\n\t      relation to any matter to which the  executive
\n\t      power of the State extends.”\n<\/p><\/blockquote>\n
of  course,  the Governor of a State would  mean  the  State
\nGovernment  or the Council of Ministers and it is not  meant
\nto  authorise the Governor to act in his discretion in\tthis
\nregard.\n<\/p>\n
We may now refer to some other characteristics and  features
\nof our Constitution to demonstrate the weak character of our
\nfederal structure and the controlling hand of the Centre  on
\nStates in certain matters.  Some of the salient ones are the
\nfollowing :\n<\/p>\n
\t      1.    The Governor of a State is appointed  by
\n\t      the   President  and  holds  office   at\t his
\n\t      pleasure.\t  Only in some matters he has got  a
\n\t      discretionary  power  but in  all\t others\t the
\n\t      State  administration is carried on by him  or
\n\t      in  his name by or with the aid and advice  of
\n\t      the  Ministers.\tEvery  action,\teven  of  an
\n\t      individual  Minister,  is the  action  of\t the
\n\t      whole Council and is governed by the theory of
\n\t      joint and collective responsibility.  But\t the
\n\t      Governor\tis there, as the head of the  State,
\n\t      the Executive and the Legislature, to,  report
\n\t      to the Centre about the administration of\t the
\n\t      State.\n<\/p><\/blockquote>\n
\t      2.    Making    a\t   departure\tfrom\t the
\n\t      corresponding  provision in the Government  of
\n\t      India Act, Entry 45 in List III of the Seventh
\n\t      Schedule empowers the Parliament to  legislate
\n\t      on  the  subject of “inquiries……  for\t the
\n\t      purpose  of  any of the matters  specified  in
\n\t      List II” also besides List III, and List I  as
\n\t      mentioned\t in  Entry  94 of  that\t List.\t The
\n\t      constituent   power   of\tamendment   of\t the
\n\t      Constitution  lies with the  Parliament  under
\n\t      Article 368 providing for concurrence by\thalf
\n\t      the number of the States in certain matters.\n<\/p><\/blockquote>\n
\t      3.    Article 2 empowers the Parliament by law
\n\t      to  admit\t into the Union, or  establish,\t new
\n\t      States  on  such terms and  conditions  as  it
\n\t      thinks fit.\n<\/p><\/blockquote>\n
\t      4.    Parliament is also empowered by  Article
\n\t      3 to make law for the formation of new  States
\n\t      and  alteration of areas, boundaries of  names
\n\t      of existing States.\n<\/p><\/blockquote>\n
Such is the nature of our federal structure.
\nIn State of West Bengal v. Union of India<\/a>(1) in the majority
\njudgment  delivered by B. P. Sinha, C.J., the character\t and
\nnature of
\n(1)[1964] 1 S.C.R. 371.\n<\/p>\n
130<\/span><\/p>\n
our  federal  structure, has been discussed from  pages\t 396
\nonwards.   The\tlearned Chief Justice observed at  page\t 397
\nthat in our Constitution the supreme authority of the Courts
\nto  interpret  the  Constitution and  to  invalidate  action
\nviolative of the Constitution is to be found in full  force.
\n“The  exercise\tof powers legislative and executive  in\t the
\nallotted  fields is hedged in by numerous  restrictions,  so
\nthat  the powers of the States are not coordinate  with\t the
\nUnion  and are not in many respects independent”.   At\tpage
\n398   it  is  observed\t:  “The\t political  sovereignty\t  is
\ndistributed  between, as we will presently demonstrate,\t the
\nUnion  of  India and the States with greater  weight-age  In
\nfavour of the Union”.\n<\/p>\n
If  any\t Article of the, Constitution in terms\tpermits\t the
\nCentre\tto encroach upon the legislative and  the  executive
\nfield  of the State, as some of the Articles do, then  there
\ncould  be no doubt that the encroachment is perfectly  legal
\nand valid.  If, however, either the law or the action  taken
\nunder it makes an inroad on the executive power of the State
\nin  express violation of any provision of  the\tConstitution
\nor, even assuming, as was argued by Mr. Sinha, violating the
\nprovisions  of\tthe Constitution by  necessary\timplication,
\nthen  such  a law or the action taken  thereunder  would  be
\ninvalid.   The\tConstitution does not permit the  Centre  to
\nviolate it in any matter.\n<\/p>\n
But  in\t order to appreciate as to whether the\tAct  or\t the
\naction taken by the Centre under Section 3 thereof has\tgone
\nagainst\t the Constitution either expressly or  by  necessary
\nimplication,  one  has\tto appreciate  the  nature  of.\t the
\nprovisions   made  and\tthe  scope  and\t  functions.of\t the
\nCommission  in question.  The extent of the executive  power
\nof  the Union is co-extensive with the legislative Power  of
\nthe  Parliament.  The position in respect of  the  executive
\npower of the State is identical (‘vide’ Articles 73 and\t 162
\nrespectively).\t Entry\t94 in the Union\t List  empowers\t the
\nParliament to legislate concerning inquiries for the purpose
\nof  any of the matters in that list, that is to say, if\t any
\nkind  of inquiry is necessary for any kind of  purpose\tcon-
\nnected with any of the matters in List I then the Parliament
\nis empowered to make a law for the setting up of a machinery
\nor a Tribunal for the purpose of the said inquiry.  List  II
\ndoes  not  contain any such entry.  Then comes Entry  45  in
\nList III which has already been alluded to.  This authorises
\nboth  the  Central  and the State  Legislatures,  of  course
\nsubject\t to  the other provisions of the  Constitution\te.g.
\nArticle\t 254, to enact law for the purpose of providing\t for
\nthe  machinery\tof inquiry for the purposes of\tany  of\t the
\nmatters\t specified in List II and List III.  It has been  so
\nheld in the case of Shri Ram Krishna Dalmia v. Shri  Justice
\nS.  R.\tTendolkar  &  Ors.<\/a>(1) where  Das  C.J.\thas  lucidly
\ndiscussed  the\tmatter, if we say so with great\t respect  at
\npages 289-291.\n<\/p>\n
Empowering  the\t Central Legislature to make a law  for\t the
\npurpose\t of  inquiry in regard to the matters  specified  in
\nList II is in no sense empowering it to legislate  vis-a-vis
\nsuch  matters.\tIt is only for the purpose of achieving\t the
\nobject of the inquiry to be set up in regard
\n(1)  [1959] S.C.R. 279.\n<\/p>\n
131<\/span><\/p>\n
to  the matters enumerated in List III.\t The purpose may  be
\nas  a  matter  of  policy in  relation\tto  the\t legislation
\nproposed  to be passed by the various States or may be\twith
\nregard\tto  their  executive  actions  taken  apropos\tsuch
\nmatters.   We may just. illustrate our view by referring  to
\nEntry  6  of  List  II., The.\tState  Legislature  has\t the
\nexclusive  authority  to  legislate on\t“public\t health\t and
\nsanitation;  hospitals and dispensaries”; of course,  within
\nthe territory of that State.  The executive power being\t co-
\nextensive,  the\t hospitals may be  established\tand  doctors
\nappointed therein by the State Government either in  accord-
\nance  with  the\t law made in that regard  or  even  in\tpure
\nexercise  of  the  executive  power.   If  there  has\tbeen
\ncorruption,  nepotism, favouritism or  maladministration  in
\nconnection  with  the  said executive action  of  the  State
\nGovernment,  the law made under Entry 45 of  the  Concurrent
\nList  can undoubtedly cover an inquiry in such matters.\t  It
\nneither\t interferes with the legislative power of the  State
\nnor with its executive action.\tA mere inquiry under the Act
\nby a Commission appointed thereunder which is a fact-finding
\nbody, is for the purpose of finding the facts.\tNo body is a
\nprosecutor;  no\t body  is an accused; all  are\tinvited\t and
\nwelcomed  by  the  Commission  to  assist  it  to  find\t the
\nnecessary facts within the scope of the inquiry set up.
\nIn  passing  we may also refer to Entry 8 of List I  in\t the
\nSeventh\t Schedule to the Constitution.\tIt is in respect  of
\n“Central  Bureau.  of Intelligence and\tInvestigation.”\t The
\nCentral\t Parliament is therefore ,competent to legislate  on
\nthis topic and the Central Government can make an  executive
\norder\tasking\tthe  Central  Bureau  of  Intelligence\t and
\nInvestigation to make any enquiry in relation to the acts of
\ncommission  and omission whether amounting to an offence  or
\nnot  of any person including any officer or Minister of\t any
\nState.\tIt that be so, will it be reasonable to say that the
\nCommission appointed by the Central Government under the Act
\ncannot\tbe  appointed for finding facts in relation  to\t the
\nallegations made against the Minister of a State ? Obviously
\nnot.\n<\/p>\n
It was strenuously submitted on behalf of the plaintiff that
\nno  such  fact-finding Inquiry Commission could\t be  set  up
\nagainst\t  the  Judiciary  either  Subordinate\tor   Higher.
\nReference was made to the cases of The State of West  Bengal
\nv.  Nripendra Nath Bagchi,<\/a>(1) and Shamsher Singh &  Anr.  v.
\nState of Punjab (2) in support of this proposition.  But the
\nexclusion of the inquiry under the Act against the Judiciary
\nis  based on entirely different principles.  So far  as\t the
\nSubordinate  Judiciary is concerned, inquiry of this  nature
\nwill be impermissible on the. basis of the express  language
\nof Article 235 as interpreted by this Court in the two cases
\nreferred to above and in various others.  The setting up  of
\nsuch  an  inquiry against a High Court Judge  or  a  Supreme
\nCourt  Judge  will be barred because of\t the  constitutional
\nprovisions  contained in clauses (4) and (5) of Article\t 124
\nread  with Article 218.\t As a matter of fact  in  accordance
\nwith  clause (5) of Article 124 the Parliament\thas  enacted
\nthe Judges Inquiry Act, 1968 (Act 51 at 1968).
\n(1)[1966] 1 S.C.R. 771.\n<\/p>\n
(2)[1975] 1 S.C.R. 841,
\n132<\/span>
\nAs  already pointed out, in an inquiry set up under the\t Act
\nthere  is no prosecution, no framing of a formal charge,  no
\naccused\t before\t the  Commission of Inquiry.   There  is  no
\nexercise of any supervisory or disciplinary jurisdiction  by
\nthe  Central Government against the State Government by\t the
\nappointment of a Commission, nor is there any usurpation  of
\nany  executive\tfunction of the State.\t Reference  in\tthis
\nconnection may be made to the following cases
\nM.   V.\t Rajwade  v. Dr. S. M. Hasan & Ors,  (1)  Brajnandan
\nSinha  v. Jyoti Narayan<\/a>(2) Shri Ram Krishna Dalmia  v.\tShri
\nJustice S. R. Tendolkar & Ors,<\/a> (3) State of Jammu &  Kashmir
\nv.  Bakshi Ghulam Mohammad<\/a>; (4) P.  V. Jagannath Rao &\tOrs.
\nv.  State of Orissa & Ors<\/a>;(5) and Krishna Ballabh Sahay\t and
\nOrs. v. Commission of Enquiry & Ors.<\/a>(6) The Centre, however,
\nmust be and is concerned with and interested in knowing\t and
\nascertaining  facts as regards the allegations made  against
\nany  Chief Minister, Minister or any other Officer  of\tthe.
\nState Government.\n<\/p>\n
Now  let  us  proceed  to examine  the\tmatter\ta  bit\tmore
\ncarefully  with reference to the other arguments of Mr.\t Lal
\nNarayan\t Sinha.\t Counsel submitted that neither the  Council
\nof  Ministers  nor  any individual  Minister  is  under\t the
\ndisciplinary  control of the Central Government, Setting  up
\nof a Commission of Inquiry to find facts in relation to\t the
\nalleged misconduct or maladministration of the Ministers is,
\nin substance and effect, an exercise of disciplinary control
\nover them.  He further submitted that the State\t Legislature
\nto whom the Ministers are responsible is competent to set up
\nan  inquiry against them in accordance with the\t powers\t and
\nprivileges  as provided for in Article 194.  It may  be\t so.
\nIt  may\t well be, as further argued by Mr. Sinha,  that\t not
\nonly  the State Legislature but the State Government  itself
\nis  competent  to appoint a Commission\tof  Inquiry  against
\nitself\tor  its\t Ministers  and\t officers.   But  it  sounds
\nincongruous  and highly anomalous that the State  Government
\nwould think of instituting an inquiry against itself.  It is
\nequally strange to think that the Ministers in power,  while
\nremaining  in office, would set up a Commission\t of  Inquiry
\nfor  inquiring into their alleged misdeeds in the matter  of
\nadministration\tof  the\t State.\t We  shall  assume  for\t the
\npurpose\t of  argument  that  legally  and  technically\t the
\nposition  is  correct.\t Even so, how does it  lead  to\t the
\nconclusion  that their power is exclusive and  excludes\t the
\npower  of the Central Government under the Act?\t We fail  to
\nfind any words in any of the Articles of the Constitution to
\nindicate  that\tthe power of the State\tLegislature  or\t the
\nState Government in this matter is exclusive.  It may be co-
\nextensive.  and such a situation is  undoubtedly  postulated
\nand provided for in the proviso appended to sub-section\t (1)
\nof section 3 of the Act.  Although technically and literally
\nthe Ministers are appointed by the Governor and hold  office
\nat his pleasure, in reality, in the constitutional set up of
\nour parliamentary democracy, the Governor in his  discretion
\ncannot by
\n(1) [I.L.R.] 1954, Nagpur 1.(2) [1955] 2 S.C.R. 955.
\n(3) [1959] S.C.R. 279.\t (4) [1066] 1 Suppl. S.C.R. 401.
\n(5) [1968] 3 S C.R 789.\t (6) [1969]  1\t1 S.C.R. 387.\n<\/p>\n
133<\/span><\/p>\n
himself\t set up a Commission of Inquiry against the  sitting
\nMinisters,  nor\t can  the President direct  him\t to  do\t so-
\nemergency  provisions  in  Part\t XVIII\tapart.\t What\tthen
\nexcludes  the  power of the Central Government to set  up  a
\nCommission  of\tInquiry for finding facts in regard  to\t the
\nalleged maladministration of the Ministers or officers of  a
\nparticular  State.   Government?   After  ascertainment\t  of
\nfacts,\tfurther action may follow or be taken in  accordance
\nwith  the  provisions of the Constitution or the  law.\t But
\nsurely the Act does not, nor could it, provide for any\tkind
\nof  disciplinary action such as removal or suspension  of  a
\nMinister  in  office by the Centre on ascertainment  of\t the
\ntruth  of the alleged facts- against him-provisions  in\t the
\nEmergency  Chapter apart.  If it were otherwise\t undoubtedly
\nit will be encroaching upon he power of the State Government
\nor  the State Legislature.  India is a single country  as  a
\nwhole.\t The nation is one and one alone.  Leaving also\t the
\nspecial\t provisions of Article 370 in relation to the  State
\nof Jammu & Kashmir, there is no dual citizenship; there\t are
\nno. different nationalities.\n<\/p>\n
While  assailing the impugned notification Mr.\tLal  Narayan
\nSinha  has strenuously contended that Article 164(2) of\t the
\nConstitution   which   makes  the   Council   of   Ministers
\ncollectively responsible to the Legislative Assembly of\t the
\nState  indicates  that\ta  Minister  is\t in  no\t other\t way
\nresponsible, answerable or accountable for anything that  he
\ndoes  while  in\t office and he cannot  be  subjected  to  an
\ninquiry\t  under\t the  Commissions  of  Inquiry\tAct.\tThis
\ncontention  is based on a misconception of the\ttrue  import
\nand meaning of the doctrine of collective responsibility and
\nas such cannot be countenanced.\t The following discussion on
\nthe  subject in “Representative and Responsible\t Government”
\nby A. H. Birch will be found useful in this connection :-\n<\/p>\n
\t      “Ministerial accountability to Parliament\t has
\n\t      two aspects : the collective responsibility of
\n\t      Ministers\t for the policies of the  Government
\n\t      and  their individual responsibility  for\t the
\n\t      work  of\ttheir departments.   Both  forms  of
\n\t      responsibility  are  embodied  in\t conventions
\n\t      which   cannot  be  legally  enforced.\tBoth
\n\t      conventions  were developed during  the  nine-
\n\t      teenth century, and in both cases the practice
\n\t      was   established\t before\t the  doctrine\t was
\n\t      announced (page 131).”\n<\/p><\/blockquote>\n
In  “Government\t and  Law” by T. C. Hartlay  and  J.  A.  C.
\nGriffith,   the\t position  in  regard  to   the\t  collective
\nresponsibility\tof Ministers to the Legislature\t is  tersely
\nstated as under
\n\t      “Ministers   are\tsaid  to   be\tcollectively
\n\t      responsible.   This  is  off-en  elevated\t  by
\n\t      writers to the level of a ‘doctrine’ but is in
\n\t      truth  little more than a\t political  practice
\n\t      which    is   commonplace\t  and\t inevitable.\n<\/p>\n
\t      Ordinarily,  Ministers form  the\tgovernmental
\n\t      team,   all  being  appointed  by\t the   Prime
\n\t      Minister from one political party.  A  Cabinet
\n\t      Minister deals with his own area of policy and
\n\t      does  not\t normally have much to do  with\t the
\n\t      area of other Ministers.\tCertainly no Cabinet
\n\t      Minister\twould  be  likely  to  make   public
\n\t      statements which impugned
\n\t      134<\/span>
\n\t      on the work of another Minister’s\t department.
\n\t      On   a   few  important  issues,\t policy\t  is
\n\t      determined  by the Cabinet  after\t discussion.
\n\t      Collective  responsibility means that  Cabinet
\n\t      decisions bind all Cabinet Ministers, even  if
\n\t      they  argued  in\tthe  opposite  direction  in
\n\t      Cabinet.\t But this is to say no more  than  a
\n\t      Cabinet  Minister\t who  finds  himself  in   a
\n\t      minority must either accept the majority\tview
\n\t      or  resign.  The team must not be weakened  by
\n\t      some  of\tits members making clear  in  public
\n\t      that  they  disapprove  of  the\tGovernment’s
\n\t      policy.\tAnd  obviously\twhat  is  true\t for
\n\t      Cabinet Ministers is even more true for  other
\n\t      Ministers.  If they do not like what the\tteam
\n\t      is  doing,  they\tmust either  keep  quiet  or
\n\t      leave” (page 60).\n<\/p>\n
Dealing with the collective responsibility of the Council of
\nMinisters  to the Legislative Assembly of the State,  Sarkar
\nC. J., speaking for the Court said at page 405 as follows in
\nState of Jammu and Kashmir v. Bakshi Ghulam Mohammad<\/a>(1) :\n<\/p>\n
\t      “Section 37 talks of collective responsibility
\n\t      of  Ministers  to\t the  Legislative  Assembly.
\n\t      That only means that the Council of  Ministers
\n\t      will  have  to stand or fall  together,  every
\n\t      member being responsible for the action of
\n\t      any other.”\n<\/p><\/blockquote>\n
From  the above, it is crystal clear- that the\tdoctrine  of
\ncollective responsibility on which Mr. Lal Narayan Sinha has
\nso  heavily  leaned  does not grant immunity  to  the  State
\nMinisters  from\t being subjected to the\t provisions  of\t the
\nCommissions  of Inquiry Act and the plaintiff can derive  no
\nhelp from it.\n<\/p>\n
If the Act is really a constitutional law as understood\t and
\nexplained  by  eminent scholars, surely the  Parliament\t has
\ntransgressed  its  limits  in enacting such a  law.   It  is
\naxiomatic  that the amendment of the Constitution cannot  be
\nallowed\t except as provided for in Article 368.\t  There\t are
\ncertain\t exceptions to it.  Examples of exceptions are\tvery
\nfew.  Numerous such examples given by Wanchoo J., as he then
\nwas,  in Golak Nath(2) case, at page 827, if we may  say  so
\nwith  great  respect, are not quite  accurate.\t The  powers
\ngiven  to a particular Legislature under any of the  Entries
\nin  the respective Lists of the Seventh Schedule or  by\t any
\nparticular Article of the Constitution are ,of the same kind
\nand  quality;  as for example, when Articles 10,  59(3)\t and
\n65(3) speak about a law to be made by the Parliament then it
\nis  not\t conferring a power in the Parliament to  amend\t the
\nConstitution.\tThe  power is an ordinary  legislative\tone.
\nBut  there  are\t a few Articles in the\tcatalogue  given  by
\nWanchoo\t J., which empower the Parliament, in substance\t and
\nin   effect,  to  amend\t a  particular\tprovision   of\t the
\nConstitution  by an ordinary legislative procedure and\tthat
\nnecessitated an express provision to say that no such law as
\naforesaid shall
\n(1)  [1966] Suppl.  S.C.R. 401.\n<\/p>\n
Section\t 37  or\t the  Constitution  of\tJammu  and   Kashmir
\ncorresponds to Article 164 of the Constitution of India,
\n(2) [1967] 2 S.C.R. 762.\n<\/p>\n
135<\/span><\/p>\n
be  deemed  to be an amendment of the Constitution  for\t the
\npurposes of Article 368 vide, for example, Articles 4(2) and
\n169(3).\t Although the law made under clause (1) of Article 4
\nand clauses (1) and (2) of Article 169 will be tantamount to
\nan amendment of the Constitution, by a legal fiction clauses
\n(2)  and (3) of the said Articles respectively provide\tthat
\nsuch  law  shall  not be deemed to be an  amendment  of\t the
\nConstitution  and  the procedure prescribed by\tArticle\t 368
\nwill not be necessary to be followed.\n<\/p>\n
A quotation from Hood Phillips’ Constitutional Law was given
\nto us by Mr. Sinha to say:\n<\/p>\n
\t      “The Constitutional Law of a State is the\t law
\n\t      relating\tto  the constitution of\t that  State
\n\t      (Page 1).\t The Constitution of a State is\t the
\n\t      system  of laws, customs and convention  which
\n\t      define the composition and powers of organs of
\n\t      the  State and regulate the relations  of\t the
\n\t      various State organs to one another and to the
\n\t      private citizen.” (p. 4)
\nIt is not necessary to multiply the quotations.\t In no sense
\nthe impugned law is a constitutional, law.\n<\/p><\/blockquote>\n
Mr.  Sinha  also contended that an ordinary  law  cannot  go
\nagainst the basic scheme or the fundamental back-bone of the
\nCentre-State relationship as enshrined in the  Constitution.
\nHe put his argument in this respect in a very ingenious\t way
\nbecause he felt difficulty in placing it in a direct  manner
\nby  saying  that an ordinary law cannot\t violate  the  basic
\nstructure  of the Constitution.\t In the case of Smt.  Indira
\nNehru  Gandhi  v.  Shri\t Rai  Narain<\/a>(1)\t such  an   argument
\nexpressly  rejected by this Court.  We may rest\t content  by
\nreferring  to  a passage from the judgment  of\tour  learned
\nbrother Chandrachud J., at pages 669-670 which runs thus :\n<\/p>\n
\t      “The  Constitutional  amendments may,  on\t the
\n\t      ratio  of\t the  Fundamental  Rights  case,  be
\n\t      tested  on the anvil of basic structure.\t But
\n\t      apart  from the principle that a case is\tonly
\n\t      an authority for what it decides, it does\t not
\n\t      logically follow from the majority judgment in
\n\t      the  Fundamental\tRights\tcase  that  ordinary
\n\t      legislation must also answer the same test  as
\n\t      a\t constitutional\t amendment.   Ordinary\tlaws
\n\t      have to answer two tests for their validity  :
\n\t      (1  ) The law must be within  the\t legislative
\n\t      competence  of the legislature as defined\t and
\n\t      specified\t in  Chapter  1,  Part\tXI  of\t the
\n\t      Constitution  and\t (2)  it  must\tnot   offend
\n\t      against the provisions of Articles 13 (1 ) and
\n\t      (2)  of the Constitution.\t ‘Basic\t structure’,
\n\t      by the majority judgment, is not a part of the
\n\t      fundamental  rights nor indeed a provision  of
\n\t      the Constitution.\t The theory of basic  struc-
\n\t      ture  is\twoven out of the conspectus  of\t the
\n\t      Constitution   and  the  amending\t  power\t  is
\n\t      subjected\t to it because it is  a\t constituent
\n\t      power.   ‘The power to a mend the\t fundamental
\n\t      instrument  cannot carry with it the power  to
\n\t      destroy its essential features this, in brief,
\n\t      is the arch of the theory
\n\t      (1)   [1976] 2 S.C.R. 347.\n<\/p><\/blockquote>\n
\t      136<\/span><\/p>\n
\t      of basic structure.  It is wholly out of place
\n\t      in   matters  relating  to  the  validity\t  of
\n\t      ordinary laws made under the Constitution.”\n<\/p><\/blockquote>\n
The  doctrine of “implied prohibition”, relied upon  by\t Mr.
\nSinha,\tlids  repeatedly  been rejected\t by  the  Courts  in
\nEngland, Australia and by this Court.  There is a  veritable
\nroll call of such cases.  We may just refer to a few :\tWebb
\nand  Outrim,  (1)  followed in The  Amalgamated\t Society  of
\nEngineers  and\tThe Adelaide Steamship Company\tLimited\t and
\nothers(2) wherein at page 150 it has been stated :\n<\/p>\n
\t      “The doctrine of “implied prohibition” against
\n\t      the  exercise of a power once  ascertained  in
\n\t      accordance    with    ordinary\trules\t  of
\n\t      construction,  was definitely rejected by\t the
\n\t      Privy Council in Webb v. Outrim, (1907)  A.C.,
\n\t      81″.\n<\/p><\/blockquote>\n
Reference may also be made to The State of Victoria and\t The
\nCommonwealth of Australia. (8) These and many earlier  cases
\nof  this  Court\t were all considered  and  the\tdoctrine  of
\n“implied    prohibition’   was\t definitely   rejected\t  by
\noverwhelming   majority\t  in  the  case\t of   His   Holiness
\nKesavananda  Bharati Sripadagalavaru v. State of  Kerala,<\/a>(4)
\npopularly  known  as Fundamental Rights case.  We  may\tjust
\nrefer  to  the\tobservations of Palekar\t J.,  at  page\t608,
\nDwivedi J., at page 916 and Chandrachud J., at page 977.  To
\nthe same effect is the view expressed by Ray J., as, he then
\nwas,  Khanna  J.,  and others.\tThe  power  granted  to\t the
\nCentral Legislature under Entry 45 of the Concurrent List is
\nclear and explicit I for passing a law of inquiry in  regard
\nto any of the matters in List II.  That being so, the  power
\ncannot\t be   curtailed\t  on  the   doctrine   of   “implied
\nprohibition”.  As a matter of fact one had to search in vain
\nthe basis for even applying this doctrine in this, case.
\nWynes  in  his\tbook “Legislative,  Executive  and  Judicial
\nPowers\tin Australia,” Fourth Edition has said at  pages  12
\nand 13:\n<\/p>\n
\t      “The  only  way  in  which  the  Court   could
\n\t      determine\t whether  the prescribed  limits  of
\n\t      legislative power had been exceeded or not was
\n\t      “by looking to the terms of the instrument  by
\n\t      which,  affirmatively, the legislative  powers
\n\t      were  created, and by which  negatively,\tthey
\n\t      are restricted.”\n<\/p><\/blockquote>\n
\t       ……………………………………..
\n\t      “The  effects  of\t the  Engineers’  case\tupon
\n\t      Commonwealth State relations are considered in
\n\t      Chap.   IX.   What is  important\tfor  present
\n\t      purposes are the principles of  interpretation
\n\t      there  laid  down and acted upon\tever  since.
\n\t      The rejection of the doctrines of mutual\tnon-
\n\t      interference and State reserved powers has had
\n\t      a profound effect upon the Constitution
\n\t      (1)   (1907)A.C. 81.\n<\/p><\/blockquote>\n
\t      (2)   28 Commonwealth Law Reports, 129.
\n\t      (3)   122 Commonwealth Law Reports 353.
\n\t      (4)   [1973] Suppl.  S.C.R. 1.\n<\/p><\/blockquote>\n
\t      137<\/span><\/p>\n
\t      inevitably leading to what Professor Sawer has
\n\t      described as an “expansive” interpretation  of
\n\t      federal  powers.\t For it\t followed  from\t the
\n\t      principle\t   that\t  Dominion   and    Colonial
\n\t      Legislative  powers are plenary  (a  principle
\n\t      from which the High Court has never  deviated)
\n\t      and  an interpretation of specific  grants  of
\n\t      power read in their entirety without regard to
\n\t      a\t reservation  of all  non-specified  powers,
\n\t      that the enumerated powers of the Commonwealth
\n\t      were  to be read in their full  sense  subject
\n\t      only  to\tthe  prohibitions  expressly  or  by
\n\t      implication set upon them in the\tConstitution
\n\t      itself.\t And  the  express   provision\t for
\n\t      supremacy of Commonwealth over State laws\t in-
\n\t      the  event of conflict completed the  process;
\n\t      as   Dixon  C.  J.  remarked  in\t 1947,\t the
\n\t      Commonwealth  is\tbound to be  in\t the  better
\n\t      position,\t because  it  is  a  Government\t  of
\n\t      enumerated powers.”\n<\/p><\/blockquote>\n
There is, in our opinion, no justification for reading\tdown
\nthe  provisions of the Act, viz.  Sections 2 and 3, nor\t are
\nthe   said  provisions\t,constitutionally  invalid  on\t any
\naccount.\n<\/p>\n
It  is\tnot  necessary for us to discuss or  deal  with\t any
\ndetail the last submission made on behalf of the  plaintiff.
\nIt  was\t a faint, weak and hesitant argument to\t escape\t the
\nCommission of Inquiry appointed by the Centre.\tThe  grounds
\nof  mala tides, somewhat vaguely and faintly alleged in\t the
\nplaint,\t could not be and were not, pressed at the  time  of
\nthe hearing of the suit.  What was, however, argued for\t our
\nconsideration  was that the two inquiries-one set up by\t the
\nState  earlier and the other appointed by the Centre  later-
\nare  almost one and the same; they cannot be allowed  to  go
\nside  by  side.\t  However the fact that\t the  Commission  of
\nInquiry appointed by the Centre is for the purpose of making
\nan  inquiry  into the definite matter of  public  importance
\nwithin\tthe meaning of Section 3(1) of the Act could not  be
\nand  was not disputed.\tThe only point debated\twas  whether
\nanother\t Commission appointed by the Central  Government  to
\ninquire\t into  the same matter for which  a  Commission\t had
\nalready been set up by the State Government is violative  of
\nproviso\t (b) to section 3(1).  But there is no substance  in
\nthis  argument.\t  Firstly,  the notification  of  the  State
\nGovernment  has\t not in terms appointed any  Commission\t for
\ninquiry\t into the matters of alleged  corruption,  nepotism,
\nfavouritism  and maladministration of the Chief Minister  or
\nany  other  Minister of the Government\tof  Karnataka.\t The
\nitems  specified  in clauses (I) to (XXXII) are said  to  be
\n“irregularities committed or excess payments made in certain
\nmatters\t relating to contracts, grant of land, allotment  of
\nsites, purchase of furniture, disposal of food-grains  etc.’
\nIn  none of those clauses it is mentioned as to who is\tsaid
\nto   be\t responsible  for  the\talleged\t irregularities\t  or
\nmaladministration.   There  is no reference to\tany  alleged
\nmisconduct,  corruption\t or maladministration of  the  Chief
\nMinister or of any other Minister.  The last clause (XXXIII)
\nis very vaguely and conveniently worded.  It says-
\n“Who  are  the persons responsible for the lapses,  if\tany,
\nregarding the aforesaid and to what extent ?”\n<\/p>\n
138<\/span><\/p>\n
The  terms  of reference in the Notification issued  by\t the
\nCentre is to inquire into the specific matters enumerated in
\nAnnexure 1, none of Which is covered by the notification  of
\nthe  State Government, as for example, item I of Annexure  I
\nreads thus
\n\t      “Whether\t the   Chief   Minister\t   practised
\n\t      favouritism and nepotism by appointing his own
\n\t      brother,\tShri D. Komparaj Urs, as a  Director
\n\t      of   the’\t Karnataka  State  Film\t  Industries
\n\t      Development Corporation in place of Shri R. J.
\n\t      Rebello, Chiet Secretary to the Government, in
\n\t      1974, and later as Director-in-Charge with the
\n\t      powers  to  exercise  all the  powers  of\t the
\n\t      Managing Director.’
\nIn  regard to the specific matters in Annexure II there\t may
\nbe found some common matters which are the subject-matter of
\ninquiry by the State Government but then, as we have already
\nstated,\t in  regard  to\t the  matters  in  Annexure  II\t the
\nnotification in clear terms excludes ,any matter covered  by
\nthe  notification of the Government of Karnataka dated\t18th
\nMay,  1977.   The  Grover Commission,  therefore,  would  be
\ncompetent  to exclude such matters from the purview  of\t its
\ninquiry.\n<\/p>\n
KAILASAM,  J.-This suit is filed by the State  of  Karnataka
\nagainst\t the  Union of India through the  Secretary  to\t the
\nGovernment  of India, and Shri A. N. Grover,  Commission  of
\nInquiry\t to  inquire into charges of  corruption,  nepotism,
\nfavouritism  and  misuse of governmental power\tagainst\t the
\nChief Minister and other Ministers of the State of Karnataka
\nunder  Article\t131  of the  Constitution  of  India.\tThe,
\nreliefs prayed for in the suit are :\n<\/p>\n
\t      (a)   to\tdeclare that ‘the  notification\t No.
\n\t      SO.    No.   365(E)   dated   May\t  23,\t1977
\n\t      constituting  the\t Commission  of\t Inquiry  in
\n\t      purported\t exercise of powers under Section  3
\n\t      of the Commissions of Inquiry Act as  illegal,
\n\t      ultra  vires;  and  unconstitutional  and\t not
\n\t      authorised by law;\n<\/p><\/blockquote>\n
\t      (b)   to\tdeclare that the provisions  of\t the
\n\t      Commissions  of  Inquiry\tAct,  1952  do\t not
\n\t      authorise the Central Government to constitute
\n\t      a\t Commission of Inquiry in regard to  matters
\n\t      falling  exclusively within the sphere of\t the
\n\t      State’s legislative and executive power; or\n<\/p><\/blockquote>\n
\t      (c)   in\tthe  alternative, declare  the\tsaid
\n\t      provisions  of the Commissions of Inquiry\t Act
\n\t      as   ultra  vires\t both  the  terms   of\t the
\n\t      Constitution as well as the federal  structure
\n\t      implicit\tand  accepted  as  inviolable  basic
\n\t      feature of the Constitution;\n<\/p><\/blockquote>\n
\t      (d)   for\t a perpetual injunction\t restraining
\n\t      the  respondents\tfrom acting  or\t taking\t any
\n\t      further  steps  in furtherance  of  the  noti-
\n\t      fication\tNo. S.O. No. 365(E) dated 23rd\tMay,
\n\t      1977.\n<\/p><\/blockquote>\n
The facts of the case briefly are : The Union Home  Minister
\naddressed a communication dated April 26, 1977 to the  Chief
\nMinister  of  the State of Karnataka enclosing a copy  of  a
\nmemorandum  of\tallegations purporting to  be  submitted  by
\ncertain\t members  of the opposition party in  the  Karnataka
\nState Legislature seeking his comments thereon.\n<\/p>\n
139<\/span><\/p>\n
The Chief Minister of the State of Karnataka replied to\t the
\nUnion  Home Minister on May 13, 1977 answering\tthe  various
\nallegations  and charges.  The Chief Minister  of  Karnataka
\nalso questioned the powers of the Central Government to\t ask
\nfor  the comments of the State Government.  On May 18,\t1977
\nthe   State  Government\t by  a\tnotification   appointed   a
\nCommission of Inquiry under section 3(1) of the\t Commissions
\nof Inquiry Act, 1952 to inquire into various allegations and
\nirregularities\tspecified  in the notification.\t  The  Chief
\nMinister  also\taddressed a letter on May 18,  1977  to\t the
\nUnion Home Minister informing him on the appointment of\t the
\nCommission.  On May 23, 1977 by a notification the Union  of
\nIndia  appointed  another  Commission  of  Inquiry  for\t the
\npurpose of inquiring into charges of corruption, favouritism
\nand misuse of governmental power against the Chief  Minister
\nand other Ministers of the State of Karnataka.
\nIn  this  suit\tthe  action  of\t the  Union  Government\t  in
\nconstituting  a Commission of Inquiry under section 3(1)  is
\nchallenged  as\tillegal, ultra vires  and  unconstitutional.
\nThe  contention of the State Government is that the  Central
\nGovernment  has no jurisdiction or authority  to  constitute
\nthe  Commission\t of Inquiry in the exercise  of\t its  powers
\nunder  the Commissions of Inquiry Act, 1952.  The  plaintiff
\ncontended  that the impugned notification is destructive  of
\nthe  federal  structure of the Constitution  and  scheme  of
\ndistribution of powers that the Constitution does not confer
\nany  supervisory  or  disciplinary  control  by\t the   Union
\nexecutive  over\t the State Government or its  Ministers\t and
\nthat  the Constitution does not vest the Central  Government
\nwith any general supervisory or inquisitorial power over the
\nfunctioning  of the State Governments within the  respective
\nfields.\t As the matter in dispute affects the legal right of
\nthe State it was submitted that a suit under Article 131  of
\nthe Constitution is maintainable in the Supreme Court.
\nOn  behalf of the 1st defendant, the Union of India, it\t was
\naverred\t that  the  suit by the State of  Karnataka  is\t not
\nmaintainable  in as much as the impugned notification  dated
\nMay  23,  1977\tdoes not affect the  plaintiff\tState.\t The
\ninquiry\t against the Chief Minister and the other  Ministers
\nis  against  individuals  and  not  against  the  State\t  of
\nKarnataka.  There being no dispute between the Government of
\nIndia and the State, a preliminary objection was taken\tthat
\nthe  suit  was\tnot maintainable under Article\t131  of\t the
\nConstitution.\t The  various  pleas  put  forward  by\t the
\nplaintiff were denied and it was submitted that the impugned
\nnotification  was  well\t within the powers  of\tthe  Central
\nGovernment  and\t that  there had  been\tno  infringement  or
\ninterference with the State’s executive functions.
\nOn the pleadings the following issues were framed\n<\/p>\n
1.   Is the suit maintainable?\n<\/p>\n
2.   Is the impugned notification ultra vires the powers’ of
\nthe Central Government under section 3 of the Commissions of
\nInquiry Act ?\n<\/p>\n
3.   If\t section  3  of\t the  Commissions  of  Inquiry\t Act
\nauthorises  the\t Central Government to\tissue  the  impugned
\nnotification. is the section itself unconstitutional?\n<\/p>\n
140<\/span><\/p>\n
The  main  question involved in the suit is one\t of  Centre-
\nState relationship and whether the impugned notification  is
\nwithin the powers of the Central Government under section  3
\nof   the  Commissions  of  Inquiry  Act.    Though   certain
\nallegations  are made in the plaint that the impugned  order
\nwas mala fide it was not pressed during arguments.  So\talso
\nthe power of the State Government to appoint a commission of
\ninquiry is not challenged.  It is therefore not necessary to
\ngo  into the reasons which induced the State  Government  to
\nappoint\t a commission of inquiry.  Before dealing  with\t the
\nvarious\t contentions of the counsel on behalf of  the  State
\nand  the Central Government it is necessary to set  out\t the
\nbackground  and the relevant provisions of the\tConstitution
\ndealing with the Centre-State relationship and the scope  of
\nthe Commissions of Inquiry Act, 1952.\n<\/p>\n
The  British Crown assumed sovereignty over India from\tEast
\nIndia Company in 1858 and the British Parliament enacted the
\nfirst statute for the governance of India Act, 1858 (21 & 22
\nVict.,\t106).\tThe Act provided absolute  imperial  control
\nwithout\t any popular participation in the administration  of
\nthe country.  The powers of the Crown were exercised by\t the
\nSecretary  of  State  for India assisted  by  a\t Council  of
\nMembers.   Subsequently the Indian Councils Act, 1861,\t1892
\nand 1909 were passed.  Later on the Government of India Acts
\n1912 and 1915 were passed by the British Parliament.
\nThe Government of India Act, 1919, was the first step  taken
\nby the British Government for, increasing the association of
\nIndians\t in every branch of administration and\tthe  gradual
\ndevelopment  of self governing institutions with a  view  to
\nprogressive realisation of responsible government in British
\nIndia.\tThe Government of India Act, 1919 introduced for the
\nfirst  time dyarchy in the provinces.  The central  subjects
\nwere  exclusively  kept\t under the control  of\tthe  Central
\nGovernment.    The  provincial\tsubjects were  divided\tinto
\n‘transferred’ and ‘reserved’  subjects.\t\t Transferred
\nsubjects  were administered by the Governor with the aid  of
\nMinisters  while reserved subjects were administered by\t the
\nGovernor    and\t  his\tExecutive   Council   without\t any
\nresponsibility to the Legislature.  By Devolution Rules made
\nunder the Government of India Act, 1919 a separation of\t the
\nsubjects  of administration into Central and Provincial\t was
\nmade.\tTo some extent the relation of central control\tover
\nthe  provinces\twas  relaxed.  Under the  Act  of  1919\t the
\nprovinces  were\t delegates  of the centre  and\tthe  central
\nlegislature retained the power to legislate for the whole of
\nIndia\trelating  to  any  subject.   The  passing  of\t the
\nGovernment of India Act, 1935 introduced for the first\ttime
\na  change in the from of the Government i.e. the  Government
\nwhich  was unitary under the Government of India  Act,\t1919
\ngave  way to a federation with the provinces and the  Indian
\nState as the units.  Under the unitary system the  provinces
\nwere  under  the administrative as well as  the\t legislative
\ncontrol of the Central Government.  The Governor-General  in
\nCouncil was the keystone of the whole constitutional edifice
\nand  the, British Parliament discharged\t its  responsibility
\nthrough\t the Secretary of State and the Governor-General  in
\nCouncil.\n<\/p>\n
The  intention of the Government of India Act. 1 35  was  to
\nunite the provinces and the Indian States into a  federation
\nunder the Crown.\n<\/p>\n
141<\/span><\/p>\n
The  unitary  State  was  to be\t broken\t into  a  number  of
\nautonomour, provinces deriving their authority directly from
\nthe  Crown instead of from the Central Government  and\tthen
\nbuilding them up into a federal structure in which both\t the
\nfederal and provincial governments Would get Powers directly
\nfrom  the Crown.  The basis of the change is the  resumption
\ninto the hands of the Crown all rights, authority and juris-
\ndiction in or over the territories of the British India\t and
\nredistribution of the powers between the Central  Government
\nand   the   provinces.\t  Though   the\t federal   structure
\ncontemplated under the Government of India Act, 1935 did not
\ncome  into existence as the Indian States ,refused to,\tjoin
\nthe  federation, so far as the provinces were  concerned  it
\ntook  effect.\tThe Government of India\t Act,  1935  divided
\nlegislative  powers between the Central and  the  provincial
\nLegislatures  and within ‘its defined sphere, the  Provinces
\nwere no longer delegates of the Central Government but\twere
\nautonomous units of administration.  The Government of India
\nassumed the role of the federal government.  With regard, to
\nprovincial  governments\t the  executive\t authority  of\t the
\nprovinces  was\texercised by the Governor on behalf  of\t the
\nCrown  and  not ,is a subordinate of  the  Governor-General,
\nwith the advice of Ministers responsible to the Legislature.
\nIn  the centre the executive authority was vested  with\t the
\nGovernor  General  and\twith regard  to\t reserved  subjects,
\ndefence, external affairs, etc., the Governor General was to
\nact  in\t his  discretion,  with\t the  help  of\t counsellors
\nappointed   by\t him  without  being  responsible   to\t the
\nLegislature.   Governor-General was to act on the advice  of
\nthe  Council  of  Ministers who\t were  responsible,  to\t the
\nLegislature  with  regard to subjects  other  than  reserved
\nsubjects.  The Governor General was to act under the control
\nand  directions\t of  the Secretary of  State  regarding\t his
\nspecial responsibilities.  The Government of India Act, 1935
\ndistributed  the powers between the federal legislature\t and
\nthe  provincial governments by having (i) Federal List\tover
\nwhich the Federal Legislature had exclusive powers of legis-
\nlation;\t (ii)  A Provincial List over which  the  Provincial
\nLegislature   had  exclusive  jurisdiction;  and   (iii)   A
\nConcurrent  List over which both the Federal and  Provincial
\nLegislatures  bad  competence.\tThe ‘Federal  law  prevailed
\nover  a Provincial law if there was any repugnancy  and\t the
\nresiduary  power  of legislation under the 1935\t Act  vested
\nwith   the   Governor-General.\t Under\t the   scheme,\t the
\nlegislative  powers  of\t both  the  central  and  provincial
\nlegislatures were subject to various limitations and  either
\nof them was not a sovereign legislature.  Another feature of
\nthe  1935 Act was that the Federal Court was set lip  mainly
\nfor  determining  the  disputes between the  units  and\t the
\nfederation.    The  separation\tof  legislative\t powers\t  as
\nFederal.   Provincial and Concurrent Lists and the  division
\nof  powers  between  the centre and the\t provinces  and\t the
\nsetting up of the Federal Court under the 1935 Act were\t all
\nadopted in the Constitution of India.\n<\/p>\n
The  Indian Independence Act 1947 was passed as\t an  interim
\nmeasure\t before the coming into force of  the  Constitution.
\nThe ,object of the Indian Independence Act, 1947 as  amended
\nby  Adaptation Orders was to make provisions for an  interim
\nConstitution until the Constituent Assembly could draw up  a
\nfuture Constitution.  Indian Independence Act. 1947  altered
\nthe  constitutional position by declaring that\twith  effect
\nfrom August 15, 1947 the suzerainty of the
\n142<\/span>
\nBritish\t Crown over the Indian States would lapse  and\tfrom
\nthat   date   United  Kingdom  would  cease  to\t  have\t any
\nresponsibility\t in  respect  of  the  Government   of\t the
\nterritories   included\tin  British  India.    The   Central
\nLegislature  of India ceased to exist from August 14,  1947.
\nThe Constituent Assembly came into existence for framing  of
\nthe   Constitution  and\t also  functioned  as  the   Central
\nLegislature  of the Dominion.  The new Constitution  adopted
\nthe  bulk of the provisions of the Government of India\tAct,
\n1935.\tThe  provisions relating to distribution  of  powers
\nbetween\t the units and the centre were adopted and  in\tfact
\nextended.  The. constitution-makers gave up the unitary bias
\nand  adopted detailed provisions regarding the\tdistribution
\nof powers and functions between the Union and the States  in
\nall  aspects of their administrative and  other\t activities.
\nInter-state  relations,\t co-ordination and  adjudication  of
\ndisputes amongst the States were also provided for.
\nThe  Indian  Constitution cannot be described as  a  federal
\nConstitution as the Indian Federation is not a result of  an
\nagreement by various States and the territorial integrity of
\nthe  States  is\t not guaranteed as the\tterritories  of\t the
\nStates can be changed or a State completely abolished  under
\nArticle\t 4 of the Constitution.\t But it has to be  borne  in
\nmind  that  after the lapse of paramountly  of\tthe  British
\nCrown,\tthe Indian States which acceded to the\tDominion  of
\nIndia  were  brought  within  the  union  envisaged  by\t the
\nConstitution.\tThe  Indian  States  which  acceded  to\t the
\nDominion  were brought under the federal system on the\tsame
\nfooting\t as  other  Units  of  the  Federation,\t namely\t the
\nProvinces.   The position of the States in the\tConstitution
\nis in several respects subordinate to the Central Government
\nin that the formation of the federation was not as a  result
\nof  any\t treaty between the States and the  federation,\t and
\nthat  the  State may be reformed  or  altogether  eliminated
\nunder  Art. 4 of the Constitution.  Though the\tConstitution
\ndivides\t executive power between the Union and\tthe  States,
\nthe  States, are bound to execute certain directions of\t the
\nUnion.\t The executive power regarding the laws made by\t the
\nUnion  hi the Concurrent subjects will be exercised  by\t the
\nStates\tunless\tthe  Parliament\t direct%  otherwise  and  as
\nregards\t the  Union  subjects the  Union  may  delegate\t its
\nexecutive  functions  to a State either\t by  legislation  by
\nParliament  or by consent of the State Government.  It is  a
\nduty of the State to execute the Union law and the executive
\npower  of the State must be exercised in such manner as\t not
\nto  interfere with the executive power of the union and\t the
\nState  shall be under the direction of the  union  regarding
\nthe  Union laws.  The failure of the State to carry out\t the
\ndirections of the Union would empower the Union to supersede
\nthe State Government by assuming to itself the powers of the
\nState  Government.   These features  make  the\tConstitution
\nstrictly not a federal constitution.  It has been  variously
\ncalled\tas quasi-federal or federal in structure or  federal
\nsystem\twith  a\t strong\t central  bias.\t  But  whether\t the
\nConstitution is recognised as federal or not the position of
\nthe  States is distinctly recognised.  Under Art.  I of\t the
\nConstitution  of  India, India shall be a Union\t of  States.
\nWithout\t States there can be no Union.\tHistorically as\t the
\nPrincely  Indian  States  joined the  Union  and  for  other
\nreasons\t the  State  as\t an  entity  was  recognised.\tThe,
\n,Constitution  is the source of power for the Union as\twell
\nas the States.\n<\/p>\n
143<\/span><\/p>\n
While under the Government of India Act, 1935 the source  of
\npower for the Federal and the Provincial Government was\t the
\nCrown, under the Constitution of India, the source of  power
\nfor the States as well as the Union is the Constitution.  In
\nits  own  field i.e. as regards the power conferred  on\t the
\nState,\tit is supreme so also the Central, Government.\t But
\nin  determining\t what are the powers of the  Union  and\t the
\nState  one  has to look into the  Constitution\tand  nowhere
\nelse.\tThe  States  are not the delegates  of\tthe  Central
\nGovernment  and the ,Central Government cannot exercise\t any
\npower  over  the  State which is not  provided\tfor  in\t the
\nConstitution.\n<\/p>\n
Part  V of the Constitution deals with the  Union.   Chapter
\ndeals  with  the  Executive,  Chapter  11  with\t Parliament,
\nChapter\t III  with  Legislative\t Powers\t of  the  President,
\nChapter\t IV  the  Union Judiciary :and Chapter\tV  with\t the
\nComptroller  and Auditor-General of India.  Part VI  of\t the
\nConstitution  deals with the States.  Chapter I is  General,
\nChapter 11 deals with the Executive, Ch.  III with the State
\nLegislature.\tCh.   IV  with\tlegislative  Power  of\t the
\nGovernor, Ch.  V with the High Courts in the States and\t Ch.
\nVI  with  Subordinate  Courts.\t Part  XI  deals  with\t the
\nRelations between the Union and the States. ,Ch.  I of\tPart
\nXI  deals  with Legislative Relations  and  distribution  of
\nLegislative  Powers while Ch.  II deals with  Administrative
\nRelations  ‘between the Union and the States.  A few of\t the
\nArticles  in these ,Chapters will be referred to  in  detail
\nlater.\t But  it is sufficient at this stage  to  note\tthat
\nwhile Part V is assigned to the Union executive and Part  VI
\nto the, States, Part XI deals with the Relations between the
\nUnion  and the States.\tThe distribution of  powers  between
\nthe  Union and the States can be discerned from the  various
\nprovisions  of\tthe  Constitution.   A\tmachinery  is\talso
\nprovided   for,\t  for  settling\t their\t disputes   in\t the
\nConstitution.\tIn  the distribution of powers it  is  clear
\nthere  is strong tilt in favour of the Union.  According  to
\nthe  Constitution, the Union can assume powers of the  State
\nGovernment  by\ttaking over the State  Administration  under
\ncertain contingencies provided for in the Constitution.\t But
\nthe  Union  Government cannot claim any power which  is\t not
\nvested\tin  it\tunder the provisions  of  the  Constitution.
\nThere is no overriding power with the Union Government.\t  It
\ncannot\tdeal with the State Government as its delegate,\t for
\nthe  source of power for the Union as well as the State,  is
\nthe  Constitution and the Union Government cannot claim\t any
\npowers\t over  the  State  which  are  not  found   in\t the
\nConstitution.\n<\/p>\n
The  nature  of our Constitution has been discussed  by\t the
\nSupreme Court in a few decisions which may be referred to at
\nthis stage.  In Atiabari Tea Co. Ltd. v. The State of  Assam
\n& Others,<\/a>(1) Gajendragadkar J. as he then was, in construing
\nArt. 301 observed : “We must adopt a realistic approach\t and
\nbear  in  mind the essential features of the  separation  of
\npowers\ton  which our Constitution rests.  It is  a  federal
\nconstitution  which we are interpreting, and so that  impact
\nof Art.\t  301  must be judged accordingly”. The\t matter\t was
\ndealt with by S.    K.\tDas J. in the  Automobile  Transport
\n(Rajasthan) Ltd v. The
\n(1)  [1961] 1 S.C.R. 809.\n<\/p>\n
(2)  [1963] 1 S.C.R. 491.\n<\/p>\n
144<\/span><\/p>\n
State  of Rajasthan and Others.(2) The learned\tJudge  after
\ntracing\t the history of the’ Indian Constitution observed  :
\n“The  evolution\t of afederal structure\tor  a  quasi-federal
\nstructure  necessarily\tinvolved,  in  the  context  of\t the
\nconditions  then prevailing, a distribution of powers and  a
\nbasic part of our Constitution relates to that\tdistribution
\nwith  the three legislative lists in the  Seventh  Schedule.
\nThe  Constitution  itself says by Art.\tI that\tIndia  is  a
\nUnion  of States and in interpreting. the  Constitution\t one
\nmust  keep in view the essential structure of a\t federal  or
\nquasi-federal  Constitution, namely, that the units  of\t the
\nUnion have also certain powers as has the Union itself.” The
\nlearned’ Judge further observed : “In evolving an integrated
\npolicy on this subject our Constitution-makers seem to\thave
\nkept in mind three main, considerations which may be broadly
\nstated thus : first, in the larger interests of India  there
\nmust  be free flow of trade, commerce and intercourse,\tboth
\ninter-State and intra-State; second, the regional interests.
\nmust  not be ignored altogether; and third, there must be  a
\npower of’ intervention by the Union in any case of crisis to
\ndeal with particular problems that may arise in any part  of
\nIndia.”\t rhe  learned  Judge  concluded\t :  “Therefore,\t  in
\ninterpreting the relevant articles in PartXIII we must\thave
\nregard\tto the general scheme of the Constitution  of  India
\nwith  special  reference to Part III  (Fundamental  Rights),
\nPartXII\t (Finance,  Property etc. containing Arts.  276\t and\n<\/p>\n
286) and their inter-relation to Part XIII in the context of
\na federal or quasi-federal constitution in which the  States
\nhave  certain powers including the power to  raise  revenues
\nfor  their  purposes by taxation.” The\tdecision,  is  clear
\nauthority  for the proposition that the essential  structure
\nof   Indian  Government\t is  of\t federal  or   quasi-federal
\ncharacter, the units havingalso certain powers as the  Union
\nitself.\n<\/p>\n
On  this aspect the learned Solicitor-General very  strongly
\nrelied on certain passages in State of West Bengal v.  Union
\nof  India,,<\/a> (1) in the Majority judgment delivered by  Sinha
\nC. J. Referring to Art. 4of the Constitution which  empowers
\nthe Parliament by legislation to alter the territory of\t the
\nState or abolish it altogether Sinha C. J. observed :  “When
\nthe  Parliament\t is  invested with authority  to  alter\t the
\nboundaries  of any State and to diminish its areas so as  to
\neven  destroy a State with all its power and  authority,  it
\nwould  be  difficult to hold that the  Parliament  which  is
\ncompetent  to  destroy\ta  State  is,  on  account  of\tsome
\nassumption   as\t to  absolute  sovereignty  of\tthe   State,
\nincompetent  effectively to acquire by legislation  designed
\nfor  that  purpose  the\t property owned\t by  the  State\t for
\nGovernmental  purposes.” The learned Chief Justice,  further
\nobserved that “Even if the, Constitution were heldto be
\na federal and the States regarded qua the Unionas  sovereign
\nthe  power  of\tthe Union to legislate\tin  respect  of\t the
\nproperty Situate    in\t  the\tState\t would\t  remain
\nunrestricted.”\tThe Court was, considering an Act passed  by
\nthe,  Parliament,  the Coal Bearing Areas  (Acquisition\t and
\nDevelopment)  Act,  1957,  enabling the Union  of  India  to
\nacquire\t certain  coal bearing areas in the  State  of\tWest
\nBengal.\t The State filed a suit contending that the Act\t did
\nnot apply to lands vested in or owned by the State and\tthat
\nif it applied to such lands the-\n<\/p>\n
(1)  (1964] 1 S.C.R. 371.\n<\/p>\n
145<\/span><\/p>\n
Act was beyond the legislative competence of the Parliament.
\nThe,  decision\tas  far\t as  it\t holds\tthat  even  if\t the
\nConstitution were held to be a federal Constitution and\t the
\nStates regarded qua the Union as sovereign, the power of the
\nUnion  to legislate in respect of the property would  remain
\nunrestricted,  may be right as falling within power  of\t the
\nParliament under Entry 42, List III aid Entries 52 and 54 of
\nList  I.  But with very great respect the  observation\tthat
\n“the   Constitution  of\t India\tis  not\t truly\tFederal\t  in
\ncharacter  …. that only those powers which  are  concerned
\nwith  the  regulation of local Problems are  vested  in\t the
\nStates”\t is  not in accordance with the\t decisions  of\tthis
\nCourt  in  Atiabari  Tea Co. Ltd. v. The State\tof  Assam  &
\nOthers<\/a> (supra) and the Automobile Transport (Rajasthan) Ltd.
\nvs.  the  State of Rajasthan and Others (supra) which  is  a
\ndecision  of  a Bench of seven Judges of  this\tCourt.\t The
\nobservation  of the Court that from the powers conferred  on
\nthe  Parliament\t under Art. 4 it cannot be held that  it  is
\nincompetent  for  the Parliament to acquire  by\t legislation
\nthe,  property\towned  by the States on the  theory  of\t the
\nabsolute sovereignty of the, States, cannot be understood as
\nhaving laid down that the States have no sovereignty even in
\ntheir  own sphere or that Parliament has any  overriding  or
\nsupervening powers.  The observation of Subba Rao
\nJ.   as\t he  then was in the dissenting\t judgment  that\t the
\nIndian\t Constitution  accepts\tthe  federal   concept\t and
\ndistributes  the  sovereign powers  between  the  coordinate
\nconstitutional\tentities, namely, the Union and\t the  States
\nand that this concept implies that one cannot encroach\tupon
\nthe  Governmental  functions  or  instrumentalities  of\t the
\nother,\tunless the Constitution expressly provides for\tsuch
\ninterference,  is in accordance with the. accepted  view  of
\nthis Court.  It is unfortunate that the earlier decisions of
\nthis  Court in Atiabari Tea Co. Ltd. v. The State  of  Assam
\nand Others and the Automobile Transport (Rajasthan) Ltd.<\/a>  v.
\nThe  State of Rajasthan and Others were not brought  to\t the
\nnotice of the Court. In Special Reference No. 1 of  1964(1),
\ndealing\t with  the  Centre-State  relationship\tthis   Court
\nobserved:\n<\/p>\n
\t      “Our  Legislatures  have\tundoubtedly  plenary
\n\t      powers, but these powers are controlled by the
\n\t      basic  concepts  of the  written\tConstitution
\n\t      itself   and  can\t be  exercised\twithin\t the
\n\t      legislative    fields   allotted\t to    their
\n\t      jurisdiction  by\tthe three  Lists  under\t the
\n\t      Seventh  Schedule; but beyond the\t Lists,\t the
\n\t      Legislatures cannot travel.  They can no doubt
\n\t      exercise\ttheir plenary legislative  authority
\n\t      and discharge
\n\t      their  legislative functions by virtue of\t the
\n\t      powers  conferred\t on  them  by  the  relevant
\n\t      provisions of the Constitution; but the  basis
\n\t      of  the  power  is  the  Constitution  itself.
\n\t      Besides,\tthe  legislative  supremacy  of\t our
\n\t      Legislatures   including\tthe  Parliament\t  is
\n\t      normally\tcontrolled  by the  provisions\tcon-
\n\t      tained  in part III of the  Constitution.\t  If
\n\t      the  Legislatures step beyond the\t legislative
\n\t      fields  assigned\tto them,  or  acting  within
\n\t      their respective fields, they trespass on\t the
\n\t      fundamental rights of the citizens in a manner
\n\t      not   justified  by  the,\t relevant   articles
\n\t      dealing  with  the  said\tfundamental  rights,
\n\t      their  legislative actions are, liable  to  be
\n\t      struck down by courts
\n\t      (1)   [1965] 1 S.C.R. 413.\n<\/p><\/blockquote>\n
\t      146<\/span><\/p>\n
\t      in  India.   Therefore,  it  is  necessary  to
\n\t      remember\tthat  though our  Legislatures\thave
\n\t      plenary  powers,\tthey  function\twithin\t the
\n\t      limits prescribed by the material and relevant
\n\t      provisions of the Constitution.”
\n\t      It was further observed:\n<\/p><\/blockquote>\n
\t      “In a democratic country governed by a written
\n\t      Constitution, it is the Constitution which  is
\n\t      supreme  and sovereign.  It is no\t doubt\ttrue
\n\t      that  the Constitution itself can be,  amended
\n\t      by  the  Parliament,  but\t that  is   possible
\n\t      because  Art. 368 of the\tConstitution  itself
\n\t      makes  a\tprovision  in that  behalf  and\t the
\n\t      amendments of the Constitution can be  validly
\n\t      made   only   by\t following   the   procedure
\n\t      prescribed  by the said article.\t That  shows
\n\t      that  even  when the  Parliament\tpurports  to
\n\t      amend the Constitution, it has to comply\twith
\n\t      the  relevant  mandate  of  the\tConstitution
\n\t      itself.”\n<\/p><\/blockquote>\n
The political _development of British India took the form of
\ndismantling a unitary Constitution and introducing a federal
\nscheme through Devolution Rules and the Government of  India
\nAct, 1935. Our Constitution accepted a federal scheme though
\nlimited\t in extent having regard to the regional  interests,
\nresources,  language and other diversities existing  in\t the
\nvast subcontinent.  These facts have been taken into account
\nby the Constitution-makers and a limited federalism was made
\na  part of the Constitution by Art. 1 itself providing\tthat
\nIndia  shall be a Union of States.  Effect is given to\tthis
\nintention  by  separation  of the  Lists  and  by  providing
\nlegislative and executive power to the Union and the  States
\nin  separate chapters of the Constitution.   This  principle
\nhas been accepted by the- Supreme Court in the decisions  in
\nAtiabari  Tea Co. Ltd.\tV. The State of Assam &\t Others\t and<\/a>
\n‘the  Automobile Transport (Rajasthan) Ltd. v. The State  of
\nRajasthan  and Others<\/a> cited earlier.  The observations\tmade
\nin the West Bengal case (supra) which have been referred  to
\nalready are not in conformity with the otherwise  consistent
\nview  of the Supreme Court that the Constitution is  supreme
\nand that the Union as well as the States will have to  trace
\ntheir  powers  from the provisions of the  Constitution\t and
\nthat the Union is not supreme and the States are not  acting
\nas delegates of the Union.\n<\/p>\n
It  may\t be useful to refer to the views  expressed  by\t the
\nSupreme Court in the Kesavananda (1) and Election (2)  cases
\non this subject.  The question that arose in those cases was
\nhow  far the Constitution could be amended.  In\t Kesavananda
\ncase, the majority was of the view that the basic  structure
\nof  the\t Constitution cannot be amended. The  Election\tcase
\nproceeded on the basis of Kesavananda’s case that the  basic
\nstructure could not be amended.\t The learned counsel for the
\nplaintiff Mr. Lal Narain Sinha made it very clear that he is
\nnot inviting the Court to find any undefined basic structure
\nbut is confining his arguments to point out that the federal
\nstructure  in the limited sense is an integral part  of\t the
\nConstitution  and that the Union Government is\tnot  supreme
\nand it has no power apart from what is found
\n(1)  [1973] Supp.  S.C.R. 1.\n<\/p>\n
(2)  [1976] 2 S.C.R. 347.\n<\/p>\n
147<\/span><\/p>\n
in the Constitution.  In Kesavananda case it was held by the
\nmajority  that\tArt. 368 does not enable the  Parliament  to
\nalter\tthe  basic  structure  or  the\tframework   of\t the
\nConstitution.  Chief Justice Sikri in discussing as to\twhat
\nis  the\t basic structure of the Constitution  held  that  it
\nconsisted  of (1) Supremacy of the Constitution, (2)  Repub-
\nlican  and  democratic\tform  of  Government,  (3)   Secular
\ncharacter  of  the Constitution, (4)  Separation  of  powers
\nbetween\t legislatures,\texecutive and  judiciary’,  and\t (5)
\nFederal character of the Constitution.\tFor the purposes  of
\nthe  present  discussion it is unnecessary to  go  into\t the
\nquestion  as. to whether the federal structure as  found  in
\nthe Constitution could be amended or not as it is sufficient
\nto note that it is recognised that the States do  constitute
\nan   integral\tpart  of  the  Constitution   having   their
\nlegislative  and  executive  powers and\t that  these  powers
\ncannot be interfered with by the Union Government unless  in
\naccordance with the provisions of the Constitution.
\nBefore\tdealing\t with  the position of\tthe  States  in\t the
\nConstitution,  it  has\tto  be borne in\t mind  that  in\t the
\ndistribution  of  powers between the Union  and\t the  States
\nthere is a strong bias in favour of the Union.\tIn the event
\nof  an Emergency the federal Government can  convert  itself
\ninto a unitary one.  The Union Government can supersede\t the
\nstate  Government which refused to carry out its  directions
\nas are authorised under Art. 365 of the Constitution.  While
\nthe  Union Government is given powers to give directions  in
\ncertain specified matters under Articles 256 and 257, when a
\nProclamation of Emergency is made under Art. 352, the  power
\nof  the\t Union\texecutive to give directions  to  the  State
\nGovernment  will  extend to any matter and  the\t legislative
\npower  of the Union Parliament. will extend to\tmatters,  in
\nthe State List under Art. 250.\tThere are provisions in\t the
\nConstitution conferring wider powers on the Union in case of
\nFinancial  Emergency. The executive authority of  the  Union
\nbecomes\t enlarged enabling the Union to give  directions  to
\nthe   State  requiring\tfinancial  discipline.\t The   Union
\nParliament  can\t assume\t the  legislative  powers  over\t any
\nsubject\t included  in the State List by a  Resolution  under
\nArt.249\t if  such legislation is necessary in  the  national
\ninterest.  Whenever the State Government cannot be,  carried
\nout  in accordance with the provisions of  the\tConstitution
\nthe  President is empowered to take over and the  Union\t can
\nassume\tthe executive and.  Legislative powers of the  State
\nunder  Art.  356.   Though there is  a\tdivision  of  powers
\nbetween\t the  Union and the States there  is  provision\t for
\ncontrol by the Union Government both over the administration
\nand legislation of the State.  These are provided for  under
\nArt. 201 which empowers the President to disallow any  State
\nLegislation  which is reserved for his consent.\t A  duty  is
\ncast upon the States by the Constitution under Arts. 256 and
\n257 to execute the Union laws.\tThe executive power of every
\nState  shall  be so exercised as not to interfere  with\t the
\nexecutive  power of the Union and that in these matters\t the
\nStates\tshall be under the directions of the  Union.   These
\npowers are specifically mentioned in the Constitution and it
\nis not disputed that the Union Government can exercise them.
\nThe  question that arises for consideration is\twhether\t the
\nUnion Government can order an inquiry into the\tGovernmental
\nfunctions  of the State which is not specifically  conferred
\non the Union by the
\n148<\/span>
\nConstitution.\tIle  preliminary  objection  of\t the   Union
\nGovernment that it is not the State but only the  Government
\nof  the\t State or the Ministers that are aggrieved  will  be
\ndealt  with  in due course.  The position of the  States  is
\nindicated  in Art.  I which declares that India shall  be  a
\nUnion  of States and the States and the territories  thereof
\nshall  be  as  specified  in  the  First  Schedule  and\t the
\nterritory  of  India shall comprise the territories  of\t the
\nStates, the Union territories and such other territories  as
\nmay be acquired.  Part VI of the Constitution deals with the
\nStates.\t Art. 154(1) vests the executive power of the  State
\nin  the Governor and provides that it shall be exercised  by
\nhim  either directly or through officers subordinate to\t him
\nin accordancewith the Constitution.  Art. 162 provides\tthat
\nsubject to the provisions of the Constitution the  executive
\npower  of the State shall extendto the matters with  respect
\nto  which  the Legislature of the State has  power  to\tmake
\nlaws.  There is a proviso to Art. 162 which provides that in
\nany matter with respect to which the Legislature of a State-
\nand Parliament have power to make laws, the executive powers
\nof  the\t State\tshall be subject to,  and  limited  by,\t the
\nexecutive power expressly conferred by this Constitution  or
\nby any law made by Parliament upon the Union or\t authorities
\nthereof.  Art. 163 provides that the-re-, shall be a Council
\nof Ministers with the Chief Minister at the head to aid\t and
\nadvise\tthe  Governor  in the  exercise\t of  his  functions.
\nexcept.\t in  so far as he is by or under  this\tConstitution
\nrequired  to  exercisehis functions or any of  them  in\t his
\ndiscretion  under  Art.\t 164 the  Chief\t Minister  shall  be
\nappointed  by the Governor and the other Ministers shall  be
\nappointed by the Governor on the advice of the Chief  Minis-
\nter.   It  further provides that the  Ministers\t shall\thold
\noffice\tduring the pleasure of the Governor and the  Council
\nof  Ministers  shall.  be collectively\tresponsible  to\t the
\nLegislative Assembly of the StateChapter III deals with\t the
\nState  Legislature.   Art. 168 relates\tto  constitution  of
\nlegislatures in the States.  This Chapter confers  executive
\npowers\tof the State in the Governor who shall\texercise  it
\nwith the aid and advice of the Council of Ministers with the
\nChief  Minister at the head.  It is also provided  that\t the
\nexecutive  power of the State shall extend to  matters\twith
\nrespect\t to which the legislature of the State has power  to
\nmake laws.  So far as the executive and legislative power of
\nthe  State is concerned it is absolute subject only  to\t the
\nother  provisions  of  the  Constitution  Part\tXI  of\t the
\nConstitution deals with relations between the Union and\t the
\nstates : Ch.  I with legislative relations and Ch.  II\twith
\nadministrative relations between the Union and’ the  States.
\nThe scheme for the distribution of legislative power between
\nthe  Union  and\t the States has been  taken  over  from\t the
\nGovernment of India Act, 1935 and Arts. 245 and 246 more  or
\nless reproduce sections 99 and 100 of the 1935 Act.  Article
\n245  (1)  provides  “Subject  to  the  provisions  of\tthis
\nConstitution, Parliament may make laws ?or the whole or\t any
\npart  of  the territory of India, and the Legislature  of  a
\nState may make laws for the whole or any part of the State”.
\nArt.  246 confers on the Parliament the exclusive  power  to
\nmake laws with respect to, any of the matters enumerated  in
\nList  I\t of the Seventh Schedule.  The\tLegislature  of\t the
\nState  has  exclusive power to, make laws for the  State  in
\nrespect\t of  any matters enumerated in List  II\t i.e.  State
\nList.  The Parliament and the Legislature of the State shall
\nhave power tomake laws with respect to any matter enumerated
\nin List III i.e. Con–\n<\/p>\n
149<\/span><\/p>\n
current\t List.\t It is important to note  that\tthe,  powers
\nconferred  under  Articles 245 and 246 are  subject  to\t the
\nprovisions of the Constitution.\t Therefore the laws made  by
\na   Legislature\t may  not  be  valid  for  either  lack\t  of
\njurisdiction  in  respect of the subject matter\t or  on\t the
\nground that they violate the provisions of the Constitution.
\nThe  residuary\tpower  of legislation is  conferred  on\t the
\nParliament under Art. 248 which provides that the Parliament
\nhas  exclusive\tpower to make any law with  respect  to\t any
\nmatter not enumerated in the concurrent List or in the State
\nList.\tUnder Art. 246 (1) and (2) and Art. 254 (1)  when  a
\nState law is in conflict with the State law or repugnant  to
\nUnion  law which Parliament is competent to enact the  Union
\nlaw  shall  prevail and the State law shall be void  to\t the
\nextent of repugnancy.  But an attempt should be made to\t see
\nwhether the conflict could be avoided by construction.\tIf a
\nreconciliation\tis  impossible only then the  federal  power
\nshould\tprevail.  Article 248(1) and Entry 97 in List  I  of
\nthe Seventh Schedule make it clear that the residuary  power
\nis  with  the  Parliament and when a  matter  sought  to  be
\nlegislated  is\tnot  included in List II  or  List  III\t the
\nParliament  has\t power\tto make laws with  respect  to\tthat
\nmatter\tor tax.\t But function of the Lists is not to  confer
\npowers\t on  the  Legislature.\t They  only  demarcate\t the
\nlegislative  field.   The Federal Court,  in  The  Governor-
\nGeneral in Council v. The Raleigh Investment Co.(1) observed
\nthat  “the purpose of the List was not to create  or  confer
\npower  but  only  to distribute to  federal  and  provincial
\nlegislatures  the powers which had been conferred by ss.  99
\nand 1 00 of the Act”.While approving the observations of
\nthe  Federal Court in Union ofIndia  v. ff. S.\tDhillon
\n(2) the majority for\t whom Chief Justice Sikrispoke held
\nthat “It (Art. 248) is framed in   the\t  widest    possible
\nterms.On  its  terms the only question to be  asked’  is
\nis the matter soughtto\tbe legislated included in  List
\nII  or\tin  List  III or is the\t tax  sought  to  be  levied
\nmentioned  in List II or in List III  No question has to  be
\nasked  about List I. If the answer is in the negative,\tthen
\nit  follows  that  Parliament has power to  make  laws\twith
\nrespect\t to that matter or tax.” But this  observation\tdoes
\nnot  decide the question whether the  residuary\t legislative
\npower  of the Union includes a right to direct inquiry\tinto
\nthe governmental functions of the State for as laid down  by
\nthe Federal Court in the Governor-General in Council v.\t The
\nRaleigh\t Investment Co. the purpose of the Lists is  not  to
\ncreate\tor  confer  powers and the  powers  conferred  under
\nArticles  245 and 246 are subject to the provisions  of\t the
\nConstitution.  As there is no provision in the\tConstitution
\nconferring   on\t the  Union  the  power\t to  supervise\t the
\ngovernmental  functions\t of the State the reference  to\t the
\nLists will not solve the problem.\n<\/p>\n
The  crux of the, controversy is while the, Karnataka  State
\nwould contend that relation between the Union and the States
\nis a subject matter of the Constitution and is not a subject
\ncovered by any of the three Lists, the contention on  behalf
\nof  the Union Government is that the notification  does\t not
\ncontravene   any   of  the  specific   provisions   of\t the
\nConstitution  and as such the legislative competence of\t the
\nUnion cannot be questioned.  While on behalf of the State of
\nKarnataka it is submitted that the power to inquire into the
\nconduct of a Minister
\n(1)  [1944] I .C R. 229, 26 1.\n<\/p>\n
(2)  [1972] 2 S.C.R. 33.\n<\/p>\n
150<\/span><\/p>\n
who  is\t responsible  to the Legislature is  only  with\t the
\nLegislature  of the, State, the submission on behalf of\t the
\nUnion  is  that the power of the Union is  not\tspecifically
\ntaken away by any of the provisions of the Constitution\t and
\ntherefore the contemplated inquiry is within the  competence
\nof  the\t powers, of the Union.\tAccording to  the  Solicitor
\nGeneral, the right question to ask is “Does the\t legislation
\nprovide\t for  some  matter  which  runs\t counter  to  or  is
\ninconsistent  with or brings about a change in the  existing
\nprovisions  of\tthe  Constitution in such  manner  that\t the
\noriginal  and  the  amended  provisions\t are  different\t and
\ninconsistent  ?”  If it does so then it can be\tregarded  as
\namendment  howsoever  it  may  be  brought  about  i.e.\t  by
\naddition,  variation  or  repeal.  At the,  same  time\tmare
\nenactment  of  provisions  which  are  not  in\tany   manner
\nqualitatively  inconsistent with the existing provisions  of
\nthe   Constitution   but  deal\twith  certain\taspects\t  of
\nlegislative  topics  or a Constitutional subject,  does\t not
\npostulate exercise of constituent power for amendment of the
\nConstitution.\tIn support of his contention that unless  an
\nexpress provision of the Constitution is contravened the law
\ncan  not be questioned on the ground of implied\t prohibition
\nthe  learned  counsel  relied  on  Webb\t v.  Outrim.(1)\t The
\nquestion  that\tarose for decision by the Privy\t Council  in
\nthat  case  was whether the respondent, an  officer  of\t the
\nAustralian Commonwealth, resident in Victoria and  receiving
\nhis official salary in that State, is liable to be  assessed
\nin  respect thereof for income tax imposed by an Act of\t the
\nVictorian Legislature. It  was\tnot contended  before  the
\nCourt that the restriction on the powersof the Victoria
\nConstitution  is  enacted by any express  provision  of\t the
\nCommonwealth  Constitution Act but was argued that  inasmuch
\nas the imposition of an income-tax might interfere with\t the
\nfree  exercise of the legislative or executive power of\t the
\nCommonwealth, Such interference must be impliedly  forbidden
\nby  the Constitution of the Commonwealth, although  no\tsuch
\nexpress prohibition can be found therein.  The Court held  :
\n“The enactments to which attention has been directed do\t not
\nseem  to  leave any room for implied  prohibition.”  It\t was
\nfurther\t held  that “It is impossible to  suppose  that\t the
\nquestion  now  in  debate was left to  be  decided  upon  an
\nimplied\t prohibition when the power to enact laws  upon\t any
\nsubject\t whatsoever was before the Legislature.”  The  basic
\nprinciples of construction of the Constitution are laid down
\nby  Lord Selbourne in R v. Burah (2) which is  accepted\t and
\napplied\t by Earl Lorebum L. C. in Attorney-General  for\t the
\nProvince  of Ontario and Others v. Attorney General for\t the
\nDominion of ‘Canada and another. (3) The rule laid down in R
\nv.  Burah  is  that  “when a  question\tarises\twhether\t the
\nprescribed  limits have been exceeded the only way in  which
\nit  can\t be  done  is  by looking  into\t the  terms  of\t the
\ninstrument  by\twhich affirmatively the\t legislative  powers
\nwere  created and by which negatively they  are\t restricted.
\nIf  what  has been done is legislation\twithin\tthe  general
\nscope ,of the affirmative words which give the power and  if
\nit  violates no express, condition or restriction  by  which
\nthat power is limited, it is not for any court of justice to
\ninquire, further, or to enlarge constructively
\n(1)  [1907] A.C. 81.\n<\/p>\n
(2)  [1878] 3 A.C. 889.\n<\/p>\n
(3)  [1912] A.C. 571 at 583.\n<\/p>\n
151<\/span><\/p>\n
those  conditions and restrictions”.  In 1912 A. C.  571  it
\nwas  held  that\t “if  the  text\t is  explicit  the  text  is
\nconclusive,  alike in what it directs and what\tit  forbids.
\nWhen the text is ambigious, as, for example. when the  words
\nestablishing two mutually exclusive jurisdictions are,\twide
\nenough\tto bring a particular power within either,  recourse
\nmust  be  had  to the context and scheme of  the  Act.”\t The
\ndecision  of  the Australian High Court in  The\t Amalgamated
\nSociety of Engineers v. The Adelaide Steamship Company\tLtd.
\nand  Others, (1) in which it was held that the\tdoctrine  of
\nimplied\t prohibition  against, the exercise  of\t power\tonce
\nascertained  in\t accordance  with ordinary  rules  of  cons-
\ntruction  was  rejected\t by the Privy  Council\tin  Webb  v.
\nOutrim.\n<\/p>\n
The  decision in The State of Victoria v. The  Common-wealth
\nof  Australia  (3)  was referred to  but  as  that  decision
\nreiterates the principles laid down in R. v. Burah (4) it is
\nnot  necessary to refer to it.\tThe principle laid  down  is
\nthat if what has been done is legislation within the general
\nwords  which  give the power and if it violates\t no  express
\ncondition  or  restriction by which that power\tis  limited,
\nthen  it is not for the court of justice to inquire  but  it
\ncannot be understood as meaning that the word ‘express’ does
\nnot exclude what is necessarily implied. In Liyanage v. R(5)
\nthe  Privy  Council while interpreting the  Constitution  of
\nCeylon held that the Constitution did not expressly vest the
\njudicial  power exclusively in the judiciary but, that\tfact
\nwas   not  decisive  as\t the  scheme  of  the\tConstitution
\nparticularly the provisions relating to the judiciary viewed
\nin the light of the fact that the judicial power had  always
\nbeen  vested in courts, held that the judicial power  vested
\nexclusively  in\t the judiciary.\t To the same effect  is\t the
\ndecision  of  this  Court in The State\tof  West  Bengal  v.
\nNripendra Nath Bagchi<\/a> (6).  The question that arose in\tthat
\ncase  was whether the inquiry ordered by the Government\t and
\nconducted by an Executive Officer of the Government  against
\na District and Sessions Judge contravened the provision-, of
\nArticle\t 235  of the Constitution which vests  in  the\tHigh
\nCourt  the  control over the District Court and\t the  courts
\nsubordinate thereto.  The Court construed the word ‘control’
\nused  in  Article 235 as including disciplinary\t control  or
\njurisdiction  over District Judges.  Relying on the  history
\nwhich  lay behind the enactment of these articles the  Court
\ncame to the conclusion that ‘control’ was vested in the High
\nCourt  to effectuate a purpose, namely, the securing of\t the
\nindependence  of  the subordinate judiciary  and  unless  it
\nincluded disciplinary control as well, the very object would
\nbe frustrated.\tIt also took into account the fact that\t the
\nword ‘control’ is accompanied by the word ‘vest’ which is  a
\nstrong\tword  which showed that the High Court is  made\t the
\nsole custodian of the control over the judiciary.  The Court
\nobserved : “This aid to construction (the history which lies
\nbehind the enactment) is admissible because to find out\t the
\nmeaning\t of a law, recourse may legitimately be bad  to\t the
\nprior  state of the law, the evil sought to be\tremoved\t and
\nthe  process by which the law was evolved.” Though there  is
\nno
\n(1)  28 C.L.R. 129.\n<\/p>\n
(2)  [1907] A.C. 81,
\n(3)  122 C.L.R. 353.\n<\/p>\n
(4) Supra.\n<\/p>\n
(5)[1967] A.C. 259.\n<\/p>\n
(6)[1966] 1 S.C.R. 771.\n<\/p>\n
152<\/span><\/p>\n
express provision in the Article conferring the disciplinary
\ncontrol\t and  jurisdiction over the District  judge  it\t was
\nimplied\t from  the  wording of\tthe  Article.\tReading\t the
\ndecision of the Privy Council in Liyanage v. R. (Supra)\t and
\nthe  decision of this Court in the State of West  Bengal  v.
\nNripendra  Nath Bagchi (Supra), the<\/a> word ‘express’ in R.  v.
\nBurah  (Supra)\tshould\tbe construed as\t including  what  is
\nnecessarily  implied.  Taking into account the\thistory\t and
\nthe  scheme  of\t the  Constitution  the\t safeguards  in\t the
\nConstitution  regarding\t the States have necessarily  to  be
\nimplied,  though  it is conceded on behalf of the  State  of
\nKarnataka  that no particular provision of the\tConstitution
\nhas been expressly modified, amended or altered.
\nThe  extent of the executive power of the Union is found  in
\nArt. 73 and that of the State is given in Art. 162.  In Part
\nXI,   Chapter  II,  which  deals  with\tthe   administrative
\nrelations between the Union and the States Articles 256\t and
\n257  list  the obligations of the States and the  Union\t and
\ncontrol\t of  the  Union over the States\t in  certain  cases.
\nArticle 256 provides that the executive power of every State
\nshall be so exercised as to ensure compliance with the\tlaws
\nmade by Parliament and any existing laws which apply in that
\nState, and the executive power of the Union shall extend  to
\nthe  giving of such directions to a State as may  appear  to
\nthe  Government of India to be necessary for  that  purpose.
\nUnder  this  Article it is obligatory on every State  to  so
\nexercise  its  executive power as to ensure  the  compliance
\nwith the laws made by the Parliament and the executive power
\nof the Union shall extend to giving such instructions to the
\nState  as  are necessary for that purpose.   Article  257(1)
\nprovides that the executive power of every State shall be so
\nexercised as not to impede or prejudice the exercise of\t the
\nexecutive power of the Union, and the executive power of the
\nUnion  shall  extend to the giving of such directions  to  a
\nState  as  may\tappear\tto the Government  of  India  to  be
\nnecessary  for\tthat purpose.  Sub-article (2)\textends\t the
\npower\tof  the\t Union\tto  giving  directions\tas  to\t the
\nconstruction  and  maintenance\tof  means  of  communication
\ndeclared  in  the direction to be of  national\tor  military
\nimportance sub-article (3) extends the power of the Union to
\nthe giving of directions to a State as to the measures to to
\nbe  taken  for\tthe protection of the  railways\t within\t the
\nState.\tBy 42nd Amendment to the Constitution Art. 257A\t was
\nintroduced  by\twhich Government of India  is  empowered  to
\ndeploy\tany armed force of Union or any other force  subject
\nto  the\t control  of the Union for dealing  with  any  grave
\nsituation of law and order in any State.  Sub-article (2) of
\nArticle 257A provides that any Armed Force or other force or
\nany contingent or unit thereof replayed under clause (1)  in
\nany  State shall act in accordance with such  directions  as
\nthe  Government\t of  India may issue  and  shall  not,\tsave
\notherwise  provided  in such directions, be subject  to\t the
\nsuperintendence\t or control of the State Government  or\t any
\nofficer\t or authority subordinate to the  State\t Government.
\nNo reliance was placed by the, Government of India on any of
\nits inherent or overriding powers.  Except in cases referred
\nto  in articles 256 and 257 and 257A, the Constitution\tdoes
\nnot provide for the Union Government to give any  directions
\nto the State Government.  Though under Article 355 it  shall
\nbe  the\t duty of the Union to protect  every  State  against
\nexternal aggression and internal disturbance, it was thought
\na constitutional amendment was necessary to enable the Govt.
\nof India to deploy
\n153<\/span>
\narmed forces to deal with grave situation of law and  order.
\nAs there is no specific Article in the Constitution enabling
\nthe   Union  Government\t to  cause  an\tinquiry\t  into\t the
\ngovernmental  functions\t of the State the  power  cannot  be
\nassumed by ordinary legislation but resort must be bad to  a
\nconstitutional amendment.\n<\/p>\n
In  I. C. Golak Nath & Ors. vs.\t State of Punjab &  Anr.,(1)
\nWanchoo\t J. has stated “The Constitution is the\t fundamental
\nlaw and no law passed under mere legislative power conferred
\nby   the   Constitution\t can  affect  any  change   in\t the
\nConstitution unless there is an express power to that effect
\ngiven  in  the\tConstitution itself.  But  Subject  to\tsuch
\nexpress\t  power\t given\tby  the\t Constitution  itself,\t the
\nfundamental law, namely the Constitution, cannot be  changed
\nby  a law passed under the legislative provisions  contained
\nin the Constitution as\tan legislative Acts passed under the
\npower  conferred  by the Constitution must  conform  to\t the
\nConstitution.\tThere  are  a  number  of  articles  in\t the
\nConstitution  which expressly provide for amendment by\tlaw,
\nas  for example, 3, 4, 10, 59(3), 65(3), 73(2),\t 97,  98(3),
\n106,  120(2),  135, 137, 142(1), 146(2), 148(3),  149,\t169,
\n171(2),\t 186, 187(3), 189(3), 194(3), 195,  210(2),  221(2),
\n225,  229(2),  239(1), 241(3), 283(1) and  (2),\t 285(2),287,
\n300(1), 313, 345, 373, Sch.  V. cl. 7 and Sch.\tVI, cl. 21”.
\nArt.  2\t enables  the Parliament by law to  admit  into\t the
\nUnion,\t or  establish,\t new  States  on  such\tterms\tland
\nconditions  as\tit  thinks  fit\t and  Art.  3  enables\t the
\nParliament  by law to form new States and alteration of\t the
\nareas  or  boundaries  of any State and\t the  names  of\t the
\nexisting  States.  Article 4 provides that laws\t made  under
\nArticles  2  and 3 shall contain such  pro-visions  for\t the
\namendment  of the First Schedule and the Fourth\t Schedule-as
\nmay be necessary to give effect to the provisions of the law
\nand  may  also\tcontain such  supplemental,  incidental\t and
\nconsequential  provisions as Parliament may deem  necessary.
\nSub-article  (2)  of  Art. 4 provides that no  such  law  as
\naforesaid  shall  be  deemed  to, be  an  amendment  of\t the
\nConstitution for the purposes of Article 368.  So also\tArt.
\n169(1)\tenables\t the Parliament by law to  provide  for\t the
\nabolition  of  the Legislative Council of a State  and\tSub-
\narticle (3) provides that no such law as aforesaid shall  be
\ndeemed\tto  be\tan amendment of\t the  Constitution  for\t the
\npurposes  of Article 368.  Similar provisions are  found  in
\nSchedule V, cl. 7 and Schedule VI, cl. 21 where the law made
\nby  Parliament\tis  deemed not to be  an  amendment  of\t the
\nConstitution  for the purposes of Art. 368.  So far  as\t the
\nother  Articles mentioned above are concerned  the  Articles
\nthemselves  enable  the\t Parliament  to\t make  law  for\t the
\npurposes  mentioned in the various Articles.  Regarding\t the
\nArticles  in which no- power is conferred on the  Parliament
\nto  make laws, Parliament cannot add to the Constitution  by
\nordinary law making process.\n<\/p>\n
The Union Government relied on Entry 94 in List I and  Entry
\n45  in List III in the Seventh Schedule as empowering it  to
\nenact the Commissions of Inquiry Act, 1952, and to issue the
\nimpugned notification.\tEntry 94 in List I runs as follows :
\n“94.   Inquiries, surveys and statistics for the Purpose  of
\nany of the matters in this List.”\n<\/p>\n
(1)  11967] 2 S.C.R. 762.\n<\/p>\n
154<\/span><\/p>\n
Entry 45 in List III, Concurrent List, is as follows :
\n“45.   Inquiries and statistics for the purposes of  any  of
\nthe matters specified in List II or List III.”
\nAs  Entry 94 in List I is confined to matters in List I\t the
\nlearned Solicitor General rightly did not rely on that Entry
\nbut  relied  mainly  on.  Entry 45 in List  Ill.   Entry  45
\nenables the Union to make laws for inquiries for the purpose
\nof any of the matters specified in Lists II & III i.e. State
\nList  and the Concurrent List.\tThe question that arises  is
\nwhether the word ‘inquiries’ would include the power to make
\ninquiry into misuse of the governmental powers by the  Chief
\nMinister and the other Ministers of a State Government while
\nin  office.  The golden rule of interpretation is  that\t the
\nwords  should  be  read\t in  their  ordinary,  natural\t and
\ngrammatical   meaning\tand  in\t construing   words   in   a
\nConstitution  conferring legislative power the most  liberal
\nconstruction  should be put upon the words so that they\t may
\nhave  effect  in their widest amplitude.  But this  rule  is
\nsubject\t to certain exceptions.\t It  is found  necessary  to
\nprevent\t conflict  between  two\t exclusive  jurisdictions  a
\nrestricted  meaning may be given to the words.\tThe  Federal
\nCourt  in Re the Central Provinces and Berar Sales of  Motor
\nSpirit and Lubricants Taxation Act, 1938 (Central  Provinces
\nand  Berar Act No. XIV of 1938) ( in Re A Special  Reference
\ntinder Section 213 of the Government of India Act, 1935) (1)
\nin construing the expressions “duties of excise” in Entry 45
\nof  List  I-in the Seventh Schedule and “taxes\ton  sale  of
\ngoods” in Entry 48 of List II i.e. the State List, held that
\nthe  conflict  could be resolved by  giving  the  expression
\n“duties\t of  excise” a restricted meaning, namely  that\t the
\nduty  of  excise is a tax on manufacture  or  production  of
\ngoods.\tThus it is permissible to, give a restricted meaning
\nin  construing the language of conflicting  provisions.\t  In
\nMadras\tv. Gannon Dunkerly & Co. (Madras) Ltd.<\/a> (2),  it\t was
\nheld  that though in construing a legislative  entry  widest
\nconstruction  must  be\tput  on\t the  words  used,  as\t the
\nexpression  “sale  of goods” was a term\t of  well-recognised
\nlegal  import  in the general law; relating to the  sale  of
\ngoods  and  in\tthe legislative practice  relating  to\tthat
\ntopic,\tit must be interpreted in Entry 48, List II, Sch.  7
\nof  the\t Act as having the same meaning as in  the  Sale  of
\nGoods  Act.   The  rule that in construing the\twords  in  a
\nConstitution  most liberal construction should be  put\tupon
\nthe  words  is\tnot a universal rule as\t is  seen  from\t the
\njudgment  of Lord Blackburn in River Wear  Commissioners  v.
\nAdamson(3)  where Lord Blackburn expressed his view that  in
\ninterpreting  the  words,  the object is  to  ascertain\t the
\nintention expressed by the words used and that the object of
\ninterpretation of documents and statutes is to ascertain  of
\nthe intention of them that made it”.  Lord Coke in  Heydon’s
\ncase  applied  the  principle which was laid  down  by\tLord
\nBlackburn.  In R.M.D. Chamarbaugwalla v. The Union of  India<\/a>
\n(4) “I Venkatarama Ayyar J. cited with approval the rule  in
\nHeydon’s case and added that the principles laid down
\n(1)[1939] F.C.R. 18.\n<\/p>\n
(2)[1959] S.C.R. 379.\n<\/p>\n
(3)[1877] S A.C. 743.\n<\/p>\n
(4)(1957] S.C.R. 930.\n<\/p>\n
155<\/span><\/p>\n
are  well-settled and have been applied in  Bengal  Immunity
\nCo.  Ltd.  V.  State  of Bihar<\/a>(1),  and\t observed  that\t the
\nlegislative  history of the impugned law showed\t that  prize
\ncompetitions  involving skill had presented no\tproblems  to
\nthe  legislatures, and that having regard to  that  history,
\nand also the language, used hi the Act, the definition must,
\nby  construction,  be  limited to prize\t competitions  of  a
\ngambling  nature.   Thus there is ample\t authority  for\t the
\nproposition  that  in interpretation of\t statutes  the\tmain
\nobject\tis  to ascertain. the “intention of them  that\tmade
\nit”.\n<\/p>\n
It  is therefore necessary to discern the intention  of\t the
\nParliament in enacting the Commissions of Inquiry Act, 1952.
\nThe inquiry under Entry 45 is for the purpose of any of\t the
\nmatters\t specified in List II or List III.  It is seen\tthat
\ninquiry\t into  the  misconduct\tin  exercising\tgovernmental
\nfunctions  by  the  Chief  Minister of\ta  State  cannot  be
\ndiscerned  from any of the entries in List II or  List\tIII.
\nEntry  45  is in the Concurrent List and if a law  could  be
\nenacted by the Parliament empowering the Union Government to
\nconduct\t an  inquiry  into the misuse  of  the\tgovernmental
\nfunctions  by a Minister of State, it cannot be denied\tthat
\nthe  State  Government\twill have  the\tpower  to  legislate
\nempowering  the State to inquire into the misuse of  govern-
\nmental\tpowers\tby a Union Minister relating to\t matters  in
\nList II and List III. Obviously\t  the  powers\tconferred
\nunder Entry 45 cannot be construedin  such manner,  for\t it
\ncould never have been intended. Otherwisethe result will
\nnot be conducive to the harmonious functioning ofthe  Union
\nand  the States.  This circumstance is a  strong  indication
\nthat Entry 45 in List III ‘inquiries’ should not be given  a
\nwide  meaning  as  conferring on the  Union  and  the  State
\nGovernments  powers  to enact a provision to embark  on\t an,
\nenquiry\t as to the misuse of the Governmental powers by\t the
\nother.\n<\/p>\n
The provisions of the Commissions of Inquiry Act, 1952,\t Act
\n60  of 1952 will now be examined.  The preamble of the\tAct,
\nis as follows :-\n<\/p>\n
“An Act to provide for appointment of Commissions of Inquiry
\nand for vesting such Commissions with certain powers.”
\nSection\t 2 defines the “appropriate Government”\t as  meaning
\nthe Central Government in relation to a Commission appointed
\nby  it to make an inquiry into any matter relatable  to\t any
\nof-the\tentries enumerated in List I or List II or List\t III
\nin  the Seventh Schedule to the Constitution and  the  State
\nGovernment,  in relation to a Commission appointed by it  to
\nmake  an  inquiry into any matter relatable to\tany  of\t the
\nentries\t enumerated  in List II or List III in\tthe  Seventh
\nSchedule to the Constitution.  Section 3(1) provides for the
\nappointment of Commission.  It runs as follows:\n<\/p>\n
\t      “3. (1) The appropriate Government may, if  it
\n\t      is of opinion that it is, necessary so to\t do,
\n\t      and  shall, if a resolution in this behalf  is
\n\t      passed by the House of the People or,
\n\t      (1)[1955] 2 S.C.R. 603.\n<\/p><\/blockquote>\n
\t      156<\/span><\/p>\n
\t      as  the case may be, the Legislative  Assembly
\n\t      of the State, by notification in the  Official
\n\t      Gazette,\tappoint a Commission of Inquiry\t for
\n\t      the  purpose  of making an  inquiry  into\t any
\n\t      definite\tmatter\tof  public  importance\t and
\n\t      performing such functions and within such time
\n\t      as  may be specified in the notification,\t and
\n\t      the  Commission  so appointed shall  make\t the
\n\t      inquiry and perform the functions\t accordingly
\n\t      :”\n<\/p><\/blockquote>\n
The proviso to section 3(1) bars the State Government except
\nwith  the  approval  of the Central  Government\t to  appoint
\nanother\t Commission to inquire into the same matter  when  a
\nCommission   appointed\t by  the   Central   Government\t  is
\nfunctioning and bars the Central Government from  appointing
\na commission from inquiring into the same matter so long  as
\nthe   Commission  appointed  by\t the  State  Government\t  is
\nfunctioning  unless the scope of the inquiry is extended  to
\ntwo  or\t more States.  Under section  3(1)  the\t appropriate
\nGovernment may appoint a commission but shall appoint one if
\na  resolution is passed by the House of the People  or,\t the
\nLegislative  Assembly of the State as the case may be.\t The
\npurpose\t of  the commission is to make an inquiry  into\t any
\n“definite matter of public importance?’.
\nThe  Parliament under the Act has delegated its\t legislative
\nfunctions  to the appropriate Government and  has  conferred
\nthe  discretion\t to  appoint a commission if it\t is  in\t its
\nopinion\t necessary  to do so and make it obligatory  on\t the
\nGovernment to appoint a commission if there is a  resolution
\nby the Legislature concerned.  The purpose of appointment of
\nthe  commission is for making an inquiry into  any  definite
\nmatter\tof public importance.  There is no mention or  guid-
\nance  as  to  the person against whom an inquiry  is  to  be
\nconducted.   In the proviso which bars the State  Government
\nfrom  appointing  the commission to inquire  into  the\tsame
\nmatter\twhen already the Central Government has appointed  a
\ncommission  and\t vice versa, it is clear  that\tthe  section
\ncould  not have contemplated the appointment by the  Central
\nGovernment of a commission to inquire into the abuse of\t the
\npower  by the State Government being aware of the fact\tthat
\nsuch  a\t construction would enable the State  Government  to
\nappoint a commission to inquire into the misuse of the power
\nof the Central Government in any of the matters relating  to
\nLists  11 and III.  Such a construction would  not  reflect,
\nthe intention of the Parliament.  Before dealing fully\twith
\nthe  scope of the powers of the appropriate Government as  a
\ndelegate  and  the construction that has to be\tput  on\t the
\nscope of appointment of a commission of inquiry ‘under\tthis
\nsection, it is necessary to notice other relevant provisions
\nof  the\t Act.\tSubsection (4) of  section  3  requires\t the
\nappropriate  Government\t to  lily before the  House  of\t the
\nPeople\tor  the\t House of the Legislative  Assembly  of\t the
\nState,\tthe report of the commission on the inquiry made  by
\nthe  commission\t together with a memorandum  of\t the  action
\ntaken thereon, with a period of six months of the submission
\nof   the  report  by  the  Commission  to  the\t appropriate
\nGovernment.   Subsection  (4)  therefore  contemplates\tsome
\naction to be taken by the appropriate Government.  Section 4
\ndeals  with the powers of a commission.\t It shall  have\t the
\npowers of a civil court while trying the suit under the Code
\nof Civil Procedure, 1908, in respect of matters
\n157<\/span>
\nmentioned in the section.  Section 5 enables the  Commission
\nto require any person to furnish information on the  subject
\nmatter\tof the inquiry and any person so required  shall  be
\ndeemed\tto  be\tlegally bound to  furnish  such\t information
\nwithin\tthe meaning of sections 176 ;and 177 of\t the  Indian
\nPenal  Code.   The  Commission may also\t cause\t:search\t and
\nseizure\t of books of account and documents or take  extracts
\nor  copies  therefrom so far as they  are  applicable.\t The
\ncommission  is\tdeemed\tto be a\t civil\tcourt,\tfor  certain
\npurposes mentioned in sub-sections (4) and (5) of section 5.
\nSection\t 5A empowers the commission to utilize the  services
\nof certain officers in the case of a commission appointed by
\nthe  Central  Government  of any  officer  or  investigation
\nagency\tof  the Central Government or any  State  Government
\nwith the concurrence of the Central Government or the  State
\nGovernment,  as\t the  case  may be, or\tin  the\t case  of  a
\nCommission appointed by the State Government of any  officer
\nor  investigation agency of the State Government or  Central
\nGovernment  with the concurrence of the State Government  or
\nthe Central Government, as the case may be.  The  commission
\nmay  summon  and enforce the attendance of  any\t person\t and
\nexamine\t him,  require the discovery and production  of\t any
\ndocument, and requisition any public record or copy  thereof
\nfrom any office.  Section 8-B provides that if at any  stage
\nof inquiry the commission considers it necessary to  inquire
\ninto  the conduct of any person and is of opinion  that\t his
\nreputation  is\tlikely to be prejudicially affected  by\t the
\ninquiry\t  the  commission  shall  give\tto  that  person   a
\nreasonable  opportunity of being heard and section 8-C\tcon-
\nfers a right of cross-examination and representation by\t the
\nlegal practitioner to persons referred to in section 8-B  of
\nthe Act.\n<\/p>\n
Reading\t the  Act as a whole the Commission  is\t given\twide
\npowers\t,of inquiry compelling Pie attendance  of  witnesses
\nand  persons  who are likely to\t be  prejudicially  affected
\ngiving them a right of cross-examination.  When a report  is
\nsubmitted  by  the  Commission,\t section  3(4)\tcontemplates
\naction to be, taken by the appropriate Government.
\nWhile  considering  the scope of Entry 45 in  List  III\t and
\nparticularly the, word ‘inquiries’ it has been found that in
\nthe context a restricted meaning should be given and if\t the
\nword  is  given\t a wide meaning as to an  inquiry  into\t the
\ngovernmental  action of the State or the Union, as the\tcase
\nmay  be, it would not be conducive to the smooth running  of
\nthe  Constitution.   Under  section  3\tthe  Parliament\t has
\nconferred the power on the appropriate Government to appoint
\na commission of inquiry to inquire into any definite  matter
\nof  public  importance.\t  On  behalf of\t the  Union  it\t was
\nsubmitted   that  the  words  “definite\t matter\t of   public
\nimportance?’  would embrace the inquiry into the  misuse  of
\nthe  governmental functions of the State and in\t support  of
\nthis contention several decisions were cited.
\nIn  M.\tY.  Rajwade v. Dr. S. M.  Hasan\t and  others(1)\t the
\nquestion  arose as to whether a commission  appointed  under
\nthe  Commissions of Inquiry Act, 1952. has the status  of  a
\ncourt.\tThe High Court at Nagpur held that the Act does\t not
\nconfer on it the status of a Court.\n<\/p>\n
(1)I.L.R. [1954] Nag. 1.\n<\/p>\n
158<\/span><\/p>\n
The  facts  of the case are that the  Government  of  Madhya
\nPradesh\t  appointed  a\tcommission  of\tinquiry\t under\t the
\nCommissions of Inquiry Act, 1952, with Hon’ble Shri  Justice
\nB.  K.\tChoudhuri as the sole member.\tThe  Commission\t was
\nasked to inquire ‘and report whether\n<\/p>\n
(i)  the firing was justified\n<\/p>\n
(ii) excessive force was used; and\n<\/p>\n
(iii)after  the\t firing adequate action\t was  taken  to
\nmaintain  peace\t and  order,  to  prevent  recrudescence  of
\ntrouble\t and to give adequate medical and other aid  to\t the
\ninjured.\n<\/p>\n
Dealing\t with the nature of the inquiry the court held\tthat
\nthe  commission in question was obviously appointed  by\t the
\nState  Government  for the information of its own  mind,  in
\norder that it should not act,, in exercise of its  executive
\npower,\totherwise  than in accordance with the\tdictates  of
\njustice\t and  equity,  in ordering  a  departmental  inquiry
\nagainst its officers.  It was therefore a fact finding\tbody
\nmeant  only to instruct the mind of the\t Government  without
\nproducing any document of a judicial nature.  So far as\t the
\nscope  of  the inquiry in the case was\tconcerned  it  falls
\nstrictly  within  section  3 as the  inquiry  related  to  a
\ndefinite matter of public importance and not an inquiry into
\nthe misuse of governmental functions of a Chief Minister  or
\na  State  Minister.   On  the  facts  of  the  case  it\t was
\nappropriate  that the court found that it was merely a\tfact
\nfinding\t body meant to instruct the mind of the\t Government.
\nIn  Branjnandan Sinha v. Jyoti Narain<\/a>(1) the  Supreme  Court
\nconsidered  the\t question whether the  Commission  appointed
\nunder  the Public Servants (Inquiries) Act, 1850, is  not  a
\ncourt  within  the meaning of the Contempt  of\tCourts\tAct,
\n1952.  The Court approved the view taken by the Nagpur\tHigh
\nCourt that the Commission was only a fact finding Commission
\nmeant only for instruct the mind of the Government and found
\nthat a Commission under the Public Servants (Inquiries) Act,
\n1850,  is  not a court. In Shri Ram Krishna  Dalmia  v\tShri
\nJustice S. R. Tendolkar and Others(2) the Central Government
\nappointed a Commission of Inquiry to inquire into and report
\nin  respect of certain companies mentioned in  the  schedule
\nattached  to the notification and in respect of\t the  nature
\nand extent of the control and interest which certain persons
\nnamed  in the notification exercised over  these  companies.
\nThe   validity\tof  the\t Commissions  of  Inquiry  Act\t was
\nquestioned.   The Supreme Court held that the Act was  valid
\nand  intra  vires  and\tthe  notification  was\talso   valid
\nexcepting  the words “as and by way of securing\t redress  or
\npunishment’ in clause 10 thereof which went beyond the scope
\nof the Act.  The Court also held that the Act does not dele-
\ngate  to the Government any arbitrary or uncontrolled  power
\nand  does  not offend Article 14 of the\t Constitution.\t The
\nCourt  further\tobserved that the discretion  given  to\t the
\nGovernment  to set up a commission of inquiry is  guided  by
\nthe policy laid down in the Act and the executive action  is
\nto  be\ttaken only when there exists a\tdefinite  matter  of
\npublic\timportance into which an inquiry is necessary.\t The
\nfacts of the case are that the Central Government  appointed
\na Commission
\n(1)[1955] S.C.R. 955.\n<\/p>\n
(2)[1959] S.C.R. 279.\n<\/p>\n
159<\/span><\/p>\n
of  Inquiry  under section 3 of the Commissions\t of  Inquiry
\nAct,  1952,  to\t inquire  and  report  in  respect  of\t the
\nadministration of the affairs of companies specified in\t the
\nschedule and other matters mentioned in clauses (2) to\t(11)
\nof the Order.  The inquiry under clause (3) is regarding the
\nnature\tand  extent  of the control,  direct  and  indirect,
\nexercised  over such companies and firms or any of  them  by
\nShri  R. K. Dalmia and 3 others, their relatives,  employees
\nand  persons  connected with them.  Under  clause  (10)\t the
\ninquiry\t was against any irregularities, frauds or  breaches
\nof  trust etc. and required the Commission to recommend\t the
\naction\twhich  in the opinion of the  Commission  should  be
\ntaken as and by way of securing redress and arrangement\t or’
\nto  act\t as a preventive in future cases.  This\t Court\theld
\nthat  the Commission in the case was merely  to\t investigate
\nand record its findings and re,commendations without  having
\nany  power  to\tenforce them.  It was further  held  that  a
\nportion\t of  last  part of cl. (10) which  called  upon\t the
\nCommission  of\tInquiry to make\t recommendations  about\t the
\naction\tto  be taken as and by way of  securing\t redress  or
\npunishment  cannot  be\tsaid  to  be  at  all  necessary  or
\nancillary to the purpose of the Commission.  The Court\theld
\nthat  the  words  “as  and by way  of  securing\t redress  or
\npunishment”  clearly  go outside the scope of the  Act,\t and
\nsuch  a\t provision was not covered by  the  two\t legislative
\nentries in the Constitution and should therefore be deleted.
\nConsidering  the  scope of section 3 it\t observed  that\t the
\n“answer\t is  furnished\tby the statute\titself\tfor  section
\nindicates  that\t the appropriate Government  can  appoint  a
\nCommission  of\tInquiry only for the purpose of\t an  inquiry
\ninto  any  definite matter of public importance\t and  to  no
\nother matter.  In other words, the subject matter of inquiry
\ncan  only  be of a “definite matter of\tpublic\timportance”.
\nRebutting the contention on behalf of the appellant that the
\ndelegation of the authority to the appropriate Government is
\nunguided  and  uncontrolled, the Court\tobserved  that\t“the
\nexecutive action of setting up a Commission of Inquiry\tmust
\nconform\t to the condition of the- section, that is  to\tsay,
\nthat there must exist a definite matter of public importance
\ninto which an inquiry is, in the opinion of the\t appropriate
\nGovernment, necessary or is required by a resolution in that
\nbehalf passed by the House of the People or the\t Legislative
\nAssembly of the State”.\t The Court proceeded to observe that
\nif  the Parliament had declared with sufficient clarity\t the
\npolicy and laid down the principles for the guidance of\t the
\nexercise of the powers conferred on the appropriate  Govern-
\nment  it cannot be said that an arbitrary  and\tuncontrolled
\npower had been delegated to the appropriate Government.\t  On
\nthe  facts of the case before the Court the  conclusion\t was
\nreached that the power was exercised within the policy\tlaid
\ndown  by  the Parliament and the guidance  afforded  by\t the
\npreamble  and  section 3 of the Act.  The decision  was\t not
\ndealing with a case in which the inquiry is ordered into the
\nmisuse of governmental functions of the Chief Minister of  a
\nState exercising the executive functions of the State.\t The
\nCourt also rejected the plea on behalf of the appellant that
\nthe  Act  and  conduct of individual persons  can  never  be
\nregarded as definite matter of public importance,  observing
\nthat  the  act and conduct of individuals  may\tassume\tsuch
\ndangerous  proportions as may well affect the  public  well-
\nbeing and thus become a definite matter of public import-\n<\/p>\n
160<\/span><\/p>\n
ance. An inquiry into “definite matter of public importance”
\nmay  be\t incidental  or ancillary to  such  inquiry  require
\ninquiring  into the conduct of persons.\t Section  8-B  which
\nwas  introduced by an amendment by Act 79 of  1971  provides
\nthat if at any stage of the inquiry the Commission considers
\nit necessary to inquire into the conduct of any person or is
\nof opinion that the reputation of any person is likely to be
\nprejudicially affected by the inquiry, the Commission  shall
\ngive to that person a reasonable opportunity of being  heard
\nin the inquiry and to produce evidence in his defence.\t The
\namendment  would indicate the procedure to be adopted if  in
\nthe  course of the inquiry it becomes necessary\t to  inquire
\ninto  the  conduct of any person.  This would  suggest\tthat
\nprincipally  the inquiry is as regards a matter of  definite
\npublic importance.  It may be that in some cases the conduct
\nof  individuals\t may  become a\tdefinite  matter  of  public
\nimportance  as\tlaid down in R. K. Dalmias  case.   But\t the
\ndecision does not conclude the point that has arisen in this
\ncase,\tnamely\twhether\t the  definite\tmatter\t of   public
\nimportance)  should be construed as to include the right  to
\ninquire\t into  the abuse of governmental  functions  by’  a,
\nState  Government when no such intention could have been  in
\nthe minds (if the Parliament.\n<\/p>\n
In  State of Jammu and Kashmir v. Bakshi Ghulam\t Mohammad(1)
\nthe   State  Government\t of  Jammu  and\t Kashmir  issued   a
\nnotification  under  section  3 of  the\t Jammu\tand  Kashmir
\nCommission of Inquiry Act, 1962, setting up a commission  to
\ninquire into the wealth acquired by the first respondent and
\ncertain specified members of his family during his period of
\noffice.\t It may be noted +that the Commission of Inquiry was
\nset up by the State Government after Bakshi Ghulam  Mohammad
\nresigned and ceased to be, the Chief Minister of the State.
\nTwo  of\t the three Judges of the High Court  took  the\tview
\nthat,  the matter referred to was not of  public  importance
\nbecause\t on  the  date of  the\tnotification  Bakshi  Ghulam
\nMohammad did not hold any office in the Government and\tthat
\nthere was no evidence of public agitation in respect of\t the
\nconduct\t complained  of and that showed that they  were\t not
\nmatters\t of public importance.\tThe Supreme  Court  rejected
\nthe  view  taken  by  the High\tCourt  observing  :  “It  is
\ndifficult  to  imagine how a Commission can be set up  by  a
\nCouncil\t of Ministers to inquire into the acts of its  head,
\nthe  Prime  Minister, while he is in office.   It  certainly
\nwould be a most unusual thing to happen.. If the rest of the
\nCouncil of Ministers resolves to have any inquiry, the Prime
\nMinister  can be expected to ask for their resignation.\t  In
\nany  case, he would himself go out.  If he takes. the  first
\ncourse, then no Commission would be set up for the Ministers
\nwanting\t the  inquiry  would  have gone.   If  he  went\t out
\nhimself, then the Commission would be set up to inquire into
\nthe  acts  of a person who was no longer in office  and\t for
\nthat  reason, if the learned Judges of the High\t Court\twere
\nright,\tinto  matters which were not of\t public\t importance.
\nThe result would be that the acts of a Prime Minister  could
\nnever be inquired into under the Act.  We find it  extremely
\ndifficult to accept that
\n(1)  [1966] Supp.  S.C.R. 401.\n<\/p>\n
161<\/span><\/p>\n
view.”\tThe decision of the Court is that the  inquiry\tinto
\nthe  past  and which have affective  the  public  well-being
\nwould be matters of public importance and it was  irrelevant
\nwhether\t the  person who committed those acts  is  still  in
\npower  to be, able to repeat them.  The pronouncement is  an
\nauthority  for the proposition that inquiry into the acts  a
\nperson who had ceased to be a Chief Minister may continue to
\nI a matter of public importance.\n<\/p>\n
It  Bakshi’s  case the inquiry %,as directed  by  the  State
\nGovernment  against  the  conduct  of  an  erstwhile   Chief
\nMinister of the State.. Thus Court rejected the,  contention
\nthat  the inquiry against a person is outside the  scope  of
\nsection\t 3  of\tthe  Commissions of  Inquiry  Act.   It\t was
\ncontended  before  this Court relying on section 10  of\t the
\nJammu  and Kashmir Commission of Inquiry Act, 1962 that\t the
\ninquiry\t  directed  into  the  conduct\tof  Bakshi   Cjhulam
\nMohanunad  was outside the scope of the Act.  Section 10  of
\nthe Jammu and Kashmir Act is similar to the present sections
\n8-B  and 8-C of the Commissions of Inquiry Act,\t 1952.\t The
\nsection\t states\t that  if at any stage of  the\tinquiry\t the
\nCommission  considers  it  necessary  to  inquire  into\t the
\nconduct\t of any person or is of opinion that the  reputation
\nof any person is likely to be prejudicially affected by\t the
\ninquiry\t  the  Commission  shall  give\tto  that  person   a
\nreasonable opportunity of being heard in the inquiry and  to
\nproduce\t evidence in his defence.  Basing on the wording  of
\nthe  section it was submitted that the inquiry\tis  normally
\nonly  into  a  definite\t matter\t of  public  importance\t and
\ninquiries  into\t the conduct of a person can arise  only  as
\nincidental or ancillary to such an inquiry.  As the  section
\ncontemplates the necessity of inquiry into the conduct of  a
\nperson\tarising\t at any stage of  the  Inquiry\tCommission’s
\nproceedings,  it  was submitted that the  inquiry  into\t the
\nconduct of a person is only incidental.\t This Court rejected
\nthe contention on the ground that section 3 which permits  a
\nCommission  of\tInquiry to be appointed is  wide  enough  to
\ncover  an inquiry into the conduct of an individual  and  it
\ncould  not  be natural reading of the Act to  cut  down\t the
\nscope of section 3 by an implication drawn from section\t 10.
\nThis  observation was, as the subsequent sentence  makes  it
\nclear,\tmade in rejecting the plea that section 10 does\t not
\napply  to  a  person whose conduct  comes  up  directly\t for
\ninquiry\t before\t a  Commission set up under  section  3.  In
\nBakshi’s  case\tas  the inquiry was  ordered  by  the  State
\nGovernment  into  the affairs of a Chief  Minister  who\t had
\nceased\tto  be in office, the Court was not called  upon  to
\nconsider  the  question\t whether the  Union  Government\t can
\nappoint a commission of inquiry into the conduct of a  Chief
\nMinister   of\ta  State  in  office   which   implies\t the
\ndetermination\tof  Centre-State  relationship\t under\t the
\nConstitution. In this case the appointment was by the  State
\nGovernment against the erstwhile Chief Minister.  Apart from
\nthis  question\tit  is\tseen  that  if\tsection\t 3  of\t the
\nCommissions  of Inquiry Act, 1952 is construed\tas  enabling
\nthe appointment of a commission of inquiry into the  conduct
\nof  a  State  Chief Minister in office it  would  result  in
\nempowering the Central Government which is a delegate of the
\nParliament  to\texercise the powers which would\t never\thave
\nbeen contemplated by the Parliament, for as already  pointed
\nout  the result of such construction would be  inviting\t the
\nState Government to appoint a commission of inquiry
\n162<\/span>
\nto  the\t conduct of Central Ministers regarding\t matters  in
\nList II and List III.  It is significant to note that  after
\nBakshi’s  case\twas decided by the Supreme  Court  in  1966,
\namendments were introduced to the Commissions of Inquiry Act
\nby Act 79 of 1971.  Section 8-B ins as follows :-\n<\/p>\n
\t      “8B.   If,  at any stage of the  inquiry,\t the
\n\t      Commission,-\n<\/p><\/blockquote>\n
\t      (a)considers  it necessary to inquire  into
\n\t      the conduct of any person; or\n<\/p><\/blockquote>\n
\t      (b)is of opinion that the reputation of any
\n\t      person is likely to be prejudicially  affected
\n\t      by  the inquiry, the Commission shall give  to
\n\t      that person a reasonable opportunity of  being
\n\t      heard  in the inquiry and to produce  evidence
\n\t      in his defence :\n<\/p><\/blockquote>\n
\t      Provided\tthat nothing in this  section  shall
\n\t      apply  where the credit of a witness is  being
\n\t      impeached.”\n<\/p><\/blockquote>\n
No  doubt, there was corresponding section, section  10,  of
\nthe  Jammu & Kashmir Commission of Inquiry Act, 1962,  which
\nwas  considered in Bakshi’s case by the Supreme\t Court,\t and
\nthe Court had held that section 1 0 was also applicable to a
\ncase  in  which the conduct of a person was  directly  under
\ninquiry.  It observed that the scope of section 3 cannot  be
\ncut  down  by  an implication drawn  from  section  10.\t The
\nsubsequent  amendment of the Act by introduction of  section
\n8-B which provides that if at any stage of the inquiry,\t the
\nCommission  considers  it  necessary to\t inquire,  into\t the
\nconduct of any person, or is of opinion that the  reputation
\nof  any\t person is likely to be\t prejudicially\taffected  by
\nenquiry would indicate that the Parliament was aware, of the
\nconsequence  of\t such wording, and intended the\t Act  to  be
\napplicable  in\tthe main to any definite  matter  of  public
\nimportance  while  an inquiry into the\taffairs\t of  persons
\nwould be permissible if it arose-as incidental or  ancillary
\nto   such   inquiry.   This  construction  appears   to\t  be
\njustifiable,  for otherwise section 3 would have the  result
\nof  empowering\tthe delegate i.e. the Union  Government,  to
\norder an inquiry into the affair of the Chief Minister of  a
\nState  and  inviting  the  same\t treatment  from  the  State
\nGovernment.\n<\/p>\n
The  decision  in P. V. Jaganmohan Rao & Ors.  v.  State  of
\nOrissa\t&  Ors.(1) also relates to the\tappointment  by\t the
\nState Government of a Commission of Inquiry into the conduct
\nof  the\t Chief\tMinister and Ministers who  ceased  to\thold
\noffice\ton the date of the notification in regard to the  in
\nregularities committed during the tenure of their office and
\nit does not relate to the Commission of Inquiry appointed by
\nthe  Central  Government  to  inquire  into  the  abuse\t  of
\ngovernmental  functions\t by  the Chief\tMinister  and  other
\nMinisters.\n<\/p>\n
It will be, seen on an examination of the cases cited  above
\nthat  in  no  case the Central\tGovernment  bad\t ordered  an
\ninquiry into the abuse of powers by the State Chief Minister
\nin office.  It is stated that an inquiry was ordered by\t the
\nCentral Government against Pratap Singh
\n(1)[1968] 3. S.C.R. 789.\n<\/p>\n
163<\/span><\/p>\n
Kairon,\t a  State Chief Minister, while in  office  but\t the
\nvalidity  of  such  an ,order was not  questioned  before  a
\ncourt.\tThe Sarkaria Commission
\nwas appointed by the Central Government to inquire into\t the
\nconduct\t of the Chief Minister when lie ceased to hold\tthat
\noffice and the President took over the administration of the
\nTamil  Nadu  State.   While in\toffice\tthe  Chief  Minister
\nquestioned  the Union Government’s power to appoint  such  a
\nCommission.\n<\/p>\n
The  impugned  notification by the  Central  Government\t was
\nchallenged  on\tthe ground that it is in  violation  of\t the
\nproviso\t to section 3(1) of the Commissions of Inquiry\tAct.
\nUnder  the proviso when a State Government has\tappointed  a
\ncommission  of\tinquiry, the Central  Government  shall\t not
\nappoint\t another commission to inquire into the same  matter
\nfor  so\t long  as  the commission  appointed  by  the  State
\nGovernment is functioning, unless the Central Government  is
\nof opinion that the scope of the inquiry should be  extended
\nto  two\t or more States.  In this case it is  common  ground
\nthat  the  State Government had appointed  a  Commission  of
\nInquiry\t earlier.  The scope of the inquiry ordered  by\t the
\nCentral\t Government does not extend to two or ,more  States.
\nIn  the\t circumstances\tthe notification  is  sought  to  be
\nsupported  by  the Central Government on the plea  that\t the
\ninquiry ;does not relate to the “‘same matter” and therefore
\nthe  validity  of  the notification  cannot  be\t challenged.
\nReading section 3(1) along the proviso, it is apparent\tthat
\nthe  intention\tof  the Act is to  en.able  the\t appropriate
\nGovernment  i.e.  the  Central or the  State  Government  to
\nappoint a Commission of Inquiry for the purpose of making an
\ninquiry into any definite matter of public importance.\t The
\nCentral\t Government  can  appoint a commission\tto  make  an
\ninquiry\t into  any matter relatable to any  of\tthe  Entries
\nenumerated  in\tList I, List II or List III of\tthe  Seventh
\nSchedule of the Constitution while the State Government\t can
\nappoint a commission to inquire into any matter relatable to
\nany of the entries enumerated in List II and List III of the
\nConstitution.  As both the Central Government and the  State
\nGovernment  have  power to appoint a commission\t of  inquiry
\nrelating  to  entries in List II and List  III\tthere  might
\narise occasions when there may be overlapping.\tIn order  to
\navoid  such  a contingency provisos (a) and (b)\t to  section
\n3(1) enact that when the Central Government has appointed  a
\ncommission  of\tinquiry\t the  State  Government\t ‘shall\t not
\nappoint\t another commission to inquire into the same  matter
\nwithout\t the approval of the Central Government-,as long  as
\nthe  commission\t appointed  by\tthe  Central  Government  is
\nfunctioning  and  the Central Government shall\tnot  appoint
\nanother\t commission to inquire into the same matter as\tlong
\nas  the\t commission  appointed by the  State  Government  is
\nfunctioning.   These  provisions  are  for  the\t purpose  of
\navoiding any conflict by the two Governments appointing\t two
\nseparate  commissions to inquire into the same matter. in  a
\nspeech made by the Minister for Law Shri C. C. Biswas  while
\nintroducing  the Bill on August 6, 1952 in the Rajya  Sabha,
\nhe explained the provisions of section 3 and its  underlying
\npurposes as follows :\n<\/p>\n
\t      “Then  there is also the question whether\t and
\n\t      bow far there may be overlapping inquiries  by
\n\t      the  Centre appointing Commission on  its\t own
\n\t      and a State also a commission of
\n\t      164<\/span>
\n\t      its  own to deal with the ‘same matter.\tThat
\n\t      is dealt with here in the proviso.  The danger
\n\t      of overlapping is avoided by providing that if
\n\t      there is a Commission appointed-by the Central
\n\t      Government  already functioning then  it\twill
\n\t      not be open to a State Government, except with
\n\t      the approval of the
\n\t      Centre,  to  appoint  another  commission\t  to
\n\t      inquire into the
\n\t      same matter.  Similarly, if there is already a
\n\t      Commission  appointed  by a  State  Government
\n\t      functioning with respect to a matter which  is
\n\t      within  the jurisdiction of the State it\twill
\n\t      not  be  open  to the  Central  Government  to
\n\t      override\t the  State  Commission\t except\t  in
\n\t      certain  circumstances  which  are  indicated,
\n\t      that  is, unless the Central Government is  of
\n\t      the  opinion that the scope of inquiry  should
\n\t      be  extended to two or more States.   Then  of
\n\t      course this will be done, obviously not  with-
\n\t      out  reference to the State.  So as  you\twill
\n\t      see, Sir, provision is made in this clause for
\n\t      avoiding\tconflict between the Centre and\t the
\n\t      State.”\n<\/p><\/blockquote>\n
It  will  be  seen that the provisos were  enacted  for\t the
\npurpose\t of  avoiding  conflict between the  Union  and\t the
\nState.\t The  very  object of the proviso to  section  3  is
\ndefeated  by the construction sought to, be put upon by\t the
\nUnion  Government.   The objection to the appointment  of  a
\ncommission  by the Union Government when there is already  a
\ncommission appointed by the State functioning is ‘sought  to
\nbe  got over by the Union on the plea that by  the  impugned
\nnotification  the. inquiry is not directed against the\tsame
\nmatters\t for which the State: has appointed a commission  of
\ninquiry.   In the written statement filed on behalf  of\t the
\nUnion of India it is contended that the matters. referred to
\nthe  Grover  Commission of Inquiry appointed  by  the  Union
\nGovernment  are those which are not covered by the terms  of
\nreference of the Hussain Commission of Inquiry appointed  by
\nthe  Government\t of  Karnataka and that Annexure  I  to\t the
\nnotification  dated  May  23, 1977  lists  such\t allegations
\ncontained in the Memorandum dated April 11, 1977 as are\t not
\nat  all\t included in the terms of reference of\tthe  Hussain
\nCommission  of\tInquiry and that  relating  to\tallegations,
\ncontained  in  Annexure II the said  allegations  stipulated
\nthat the Grover Commission of Inquiry will inquire into\t the
\nsaid  allegations  excluding  any  matter  covered  by\t the
\nnotification  of the Government of Karnataka dated  May\t 18,
\n1977.  It was submitted that while the matter referred to by
\nthe  State Government is regarding  various  irregularities,
\nthe inquiry directed by the Central Government is for making
\nan  inquiry on charges of corruption, nepotism,\t favouritism
\nor  misuse of governmental power against the Chief  Minister
\nand certain other Ministers of the State of Karnataka.\t The
\nnotification of the Karnataka: State Government appointing a
\nCommission of Inquiry runs as follows:\n<\/p>\n
\t      “Whereas\tallegations  have been made  on\t the
\n\t      floor  of the Houses of the State\t Legislature
\n\t      and elsewhere that irregularities have ,\tbeen
\n\t      committed\/excess\tpayments  made\tin   certain
\n\t      matters relating to contracts, grant of  land,
\n\t      allotment\t of  sites, purchase  of  furniture,
\n\t      disposal of food grains, etc.;\n<\/p><\/blockquote>\n
\t      165<\/span><\/p>\n
\t      Whereas the State Government is of the opinion
\n\t      that  It is necessary to appoint a  Commission
\n\t      of   Inquiry   to\t inquire   into\t  the\tsaid
\n\t      allegations;\n<\/p><\/blockquote>\n
\t      NOW  THEREFORE,  in  exercise  of\t the  powers
\n\t      conferred\t by sub-section (1) of section 3  of
\n\t      the Commissions of Inquiry Act, 1952  (Central
\n\t      Act  60 of 1952) the Government  of  Karnataka
\n\t      hereby appoint Justice Shri Mir Iqbal Hussain,
\n\t      Retired  Judge of the Karnataka High Court  to
\n\t      be the Commission of Inquiry………….”\n<\/p><\/blockquote>\n
The  plea  on  behalf of the State is that  the\t inquiry  is
\ndirected against all the allegations that have been made  on
\nthe  floor  of\tthe Houses of  the  State  ]Legislature\t and
\nelsewhere  and\tthe  charges therefore\tcomprehend  all\t the
\nmatters\t that  are  found  in  the  impugned   notification.
\nFurther\t it  was submitted that as the commission is  to  go
\ninto and determine as to who are the persons responsible for
\nthe  lapses  the inquiry would include charges\tagainst\t the
\nChief Minister also.  As the purpose of the two provisos  to
\nsection\t 3(1)  is  to avoid conflict, the  words  “the\tsame
\nmatter”\t  in   the   provisos  should  be   given   a\twide
\ninterpretation\tand only matters that are not  referable  to
\nthe  subject  matter  of  the  inquiry\tby  the\t  Commission
\nappointed  by  the State can be taken over  by\tthe  Central
\nGovernment.   We  were not called upon to go  into  the\t two
\nnotifications  and determine which item in the\tnotification
\nof.  the  Central  Government is not covered  by  the  State
\nGovernment  notification.  In giving a wider meaning to\t the
\nwords  ‘the same matter’ with a view to avoid conflict,\t the
\ncontention of the Central Government that the inquiry  into-
\nthe  conduct of the Chief Minister about the  same  incident
\nwill make it a different matter cannot be accepted.
\nThe  contention as to the maintainability of the suit  under
\nArticle\t 131  of  the Constitution may\tnow  be\t considered.
\nArticle 131 is as follows:\n<\/p>\n
\t      “Subject\t  to   the   provisions\t  of\tthis
\n\t      Constitution,  the Supreme Court shall to\t the
\n\t      exclusion\t of any other court,  have  original
\n\t      jurisdiction in any dispute-\n<\/p><\/blockquote>\n
\t      (a)   between the Government of India and\t one
\n\t      or more States, or\n<\/p><\/blockquote>\n
\t      (b)…………..\n<\/p><\/blockquote>\n
\t      (c)between two or more states,
\n\t      If andin\tso far as the dispute  involves
\n\t      any question (whether of lawor   fact)   on
\n\t      which the existence or extent of a legal right  depends:\n<\/p><\/blockquote>\n
The  point  is\twhether the dispute  involves  any  question
\nwhether of law or fact on which the existence or extent of a
\nlegal  right of the State depends.  In other Words,  a\tsuit
\nwould  be  maintainable if there is any\t infringement  of  a
\nlegal  right of the State.  The submission on behalf of\t the
\nUnion  Government is that what is affected is not the  legal
\nright  of  the\tState  but  if at  all\tthat  of  the  State
\nGovernment or the Ministers concerned.\tMinisters may have a
\ncause of action in which case the remedy will be by way of a
\npetition under Article 226.  If the State
\n166<\/span>
\nGovernment  feels aggrieved they can also take action  under
\nArticle\t 226  but  unless the legal right of  the  State  is
\naffected recourse to Art. 131 cannot be had.  Relying on the
\nGeneral\t Clauses Act and the distinction that is  maintained
\nin  the\t Constitution  between\tthe  State  and\t the   State
\nGovernment  it\twas submitted that the State  itself  is  an
\nideal  person intangible, invisible, and immutable, and\t the
\nGovernment  is\tits  agent.   In  order\t to  appreciate\t the
\ncontentions  of the parties it is necessary to refer to\t the
\nrelevant  articles  of the Constitution\t to  determined\t the
\nquestion as to whether any of the legal rights of the State
\nis affectedPart\t VI of the Constitution relates\t to  the
\nStates and Art. 154 providesthat  the executive\t power\tof
\nthe State shall be vested in the Governorand  shall   be
\nexercised  by  him either directly or through  the  officers
\nsubordinate  to\t him in accordance  with  the  Constitution.
\nArticle\t 162 provides that subject to the provisions of\t the
\nConstitution  the executive power of the State shall  extend
\nto the matters with respect to which the Legislature of\t the
\nState has power to make laws.  In other words the  executive
\npower  of  the State is co-extensive  with  the\t legislative
\npower  of the State.  The executive power of the State\twill
\nbe exercised by the Governor with the aid and advice of\t the
\nChief Minister and other Ministers of the State.   According
\nto  the\t impugned  notification\t Commission  of\t Inquiry  is
\nappointed  for\tthe  purpose of making\tan  inquiry  into  a
\ndefinite  matter  of public importance,\t namely\t charges  of
\ncorruption, nepotism, favouritism or misuse of\tgovernmental
\npower against the Chief Minister and certain other Ministers
\nof the State of Karnataka.  The inquiry therefore is amongst
\nother things regarding the misuse of the governmental  power
\nagainst the Chief Minister and other Ministers of the State.
\nThe  executive function of the State which is vested in\t the
\nGovernor is exercised by him with the aid and advice of\t the
\nChief  Minister and the Council of Ministers.  The power  is
\nalso exercised by the Governor either directly or indirectly
\nthrough\t officers subordinate to him in accordance with\t the
\nConstitution.\tThe governmental functions of the State\t are
\nperformed  by the Governor as required by  the\tConstitution
\nwith the aid and advice of the Ministers The scope  of\t the
\nenquiry\t would\tinevitably involve the\tfunctioning  of\t the
\nexecutive of the State.\t The plea of the State Government is
\nthat its  powers  are derived from the Constitution and\t its
\nexistence  and\tits exercise of powers as executive  of\t the
\nState  is  guaranteed by the Constitution,  and\t the  Centre
\ncannot interfere with ‘such exercise of executive functions.
\nThe  question involves the extent of the executive power  of
\nthe  State  and\t any interference with\tthat  power  by\t the
\nCentral\t Government  would  affect the legal  right  of\t the
\nState.\t The plea on behalf of the Union Government is\tthat
\nArt.  154 contemplates the exercise by the Governor  of\t his
\nexecutive  power  through  officers subordinate\t to  him  in
\naccordance  with the Constitution.  The submission  is\tthat
\nwhen the powers are exercised through Ministers who. accord-
\ning to the learned counsel for the respondent, are  officers
\nthe rights of such Ministers or officers are only interfered
\nwith and not the legal rights of the State.  Further it\t was
\nsubmitted  that State is different from the Government of  a
\nState and if any action of the State or the Ministers of the
\nState  is  questioned  the State as ‘such  cannot  have\t any
\ngrievance.  When the exercise of the executive functions  of
\nthe  State  through its officers is interfered with  by\t the
\nCentral Government it cannot be said that the legal right of
\nthe State is not affected.\n<\/p>\n
167<\/span><\/p>\n
Strong\treliance,  was placed by the Union Government  on  a
\nrecent\tdecision of the Supreme Court in State of  Rajasthan
\nand  Others v. Union of India.(1) The States  of  Rajasthan,
\nMadhya\tPradesh, Punjab, Bihar, Himachal Pradesh and  Orissa
\nfiled  suits under Art. 131 of the Constitution against\t the
\nUnion of India challenging a directive contained in a letter
\ndated  April 18, 1977 issued by the Union Home\tMinister  to
\nthe  Chief  Ministers  of the  States  as  unconstitutional,
\nillegal,  and  ultra  vires of the Constitution\t and  for  a
\ndeclaration    that   the   plaintiffs\t States\t  are\t not
\nconstitutionally  or legally obliged to comply with or\tgive
\neffect\tto the directive contained in the said letter.\t The
\npower  of  the\tCentral Government  to\tdissolve  the  State
\nAssemblies  was\t questioned.  A\t preliminary  objection\t was
\nraised to the maintainability of the suit on the ground that
\nno  legal  rights of the State were infringed and  that\t the
\nState  is different from the State Government and if at\t all
\nany  one was aggrieved it was the State Government  and\t not
\nthe State.  Chief Justice Beg observed that even if there be
\nsome  grounds  for making a distinction\t between  a  State’s
\ninterests  and\trights and those or it,, Government  or\t its
\nmembers,  the  Court need not take a too  restrictive  or  a
\nhyper-technical\t view of the State’s rights to sue  for\t any
\nrights,\t actual,  or  fancied, which  the  State  Government
\nchooses\t to  take up on behalf of the State concerned  in  a
\n‘suit  under Art. 131.\tMr. Justice Chandrachud was  of\t the
\nview that when the States question the constitutional  right
\nof the Union Government to dissolve the State Assemblies  on
\nthe  rounds mentioned in the Home Minister’s letter  to\t the
\nChief Ministers a legal, not a political, issue arising\t out
\nof the existence and extent of a legal right squarely arises
\nand  the suits cannot be thrown out as falling\toutside\t the
\npurview of Art. 131.  The learned Judge proceeded to express
\nhis view as follows:\n<\/p>\n
\t      “The  legal  right of the States\tconsists  in
\n\t      their  immunity, in the sense of freedom\tfrom
\n\t      the  power of the-Union Government.  They\t are
\n\t      entitled,.  under\t Art. 131,  to\tassert\tthat
\n\t      right  either  by contending in  the  absolute
\n\t      that  the Centre ham no power to dissolve\t the
\n\t      Legislative    Assemblies\t   or\t with\t the
\n\t      qualification  that  such a  power  cannot  be
\n\t      exercised on the ground stated”.\n<\/p><\/blockquote>\n
Bhagwati and Gupta JJ. were of the view that the exercise of
\nthe power in the case would affect the constitutional  right
\nof  the\t State\tto  insist that the  federal  basis  of\t the
\npolitical structure set up by the Constitution shall not  be
\nviolated  by  an unconstitutional, assault  under  Art.\t 356
\n(1,).\tAs the suit sought to enforce a legal right  of\t the
\nState  arising under the Constitution the suit could not  be
\nthrown out in limine as being outside the scope and ambit of
\nArt.  131.  Goswami and Untwalia JJ. were of the  view\tthat
\nthe  legal right must be that of the State.  When the  ‘Home
\nMinister  asks the Chief Minister of the Government  of\t the
\nStates\tto advice the Governors to dissolve the\t Legislative
\nAssemblies  and\t the Chief Ministers decline to\t accept\t the
\nadvice it is not a dispute between the State on the one hand
\nand the
\n(1)[1978] 1 S.C.R. 1.\n<\/p>\n
168<\/span><\/p>\n
Government  of\tIndia on the other.  It is  a  real  dispute
\nbetween\t the Government of the State and the  Government  of
\nIndia.\tIt is no doubt a question of life and death for\t the
\nState  Government but not so far the State as legal  entity,
\nas even after the dissolution of the Assembly the State will
\ncontinue to have a government for the time being as provided
\nfor in the Constitution.  Fazal Ali, J. was of the view that
\nthe mere fact that letters were sent to the State Government
\ncontaining gratuitous advice would not create any dispute if
\none did not exist before nor would such a course of  conduct
\nclothe the State Government with a legal right to call for a
\ndetermination under Art. 131 as the State did not possess  a
\nlegal  right.  The State Government who have raised  dispute
\nare not covered by the word ‘State appearing in Art. 131 and
\ntherefore  the\tsuits were not maintainable on\tthat  ground
\nalso.  It will be seen that four of the seven Judges were of
\nthe view that the suits are maintainable though Bhagwati and
\nGupta  JJ.  were  of the view that  there  is  a  difference
\nbetween\t the State and the State Government.   Whatever\t the
\nquestion that might have risen regarding the dissolution  of
\nthe  Assemblies, in the present case the dispute relates  to
\nthe  functioning  of  the State in exercise  of\t the  powers
\nconferred  under  the  Constitution and\t the  State’s  legal
\nrights\tare affected.  The preliminary\tobjection  therefore
\nfails.\n<\/p>\n
To sum up taking into account the history of the development
\nof  the\t Indian\t Constitution and its  scheme  the  impugned
\nnotification impinges on the right of the State to  function
\nin  its limited sphere.\t Further, the impugned\tnotification
\nis beyond the powers conferred on the Union Government under
\nSection 3 of the Commissions of Inquiry Act, 1952.  In\tthis
\nview  the question whether section 3 of the  Commissions  of
\nInquiry Act, 1952 is ultra vires of the power of  Parliament
\nor not does not arise.\n<\/p>\n
it  is\tnecessary  that\t Commission  of\t Inquiry  should  be
\nappointed  in order to maintain and safeguard the purity  of
\nthe Union and the State administration.\t But such Commission
\nof  Inquiry  should  be strictly  in  accordance  with\tthe,
\nConstitution  and  should  not\taffect\tthe  Centre-‘  State
\nrelationship.\tThe proposal now pending  before  Parliament
\nfor  appointment of Lok Pal to conduct such inquiries  is  a
\nmove  in the right direction, if  sufficient  constitutional
\nsafeguards are provided for the institution of Lok Pal.
\nIn view of the Judgment the first issue whether the suit  is
\nmaintainable  is answered ‘in the affirmative.\tUnder  Issue
\nNo. 2 the impugned notification is ultra vires of the powers
\nof  the Central Government conferred on it by Section  3  of
\nthe  Commissions of Inquiry Act.  In this view Issue  No.  3
\ndoes not arise for consideration The suit has to be  decreed
\nas prayed for.\n<\/p>\n
\t\t\t   ORDER
\nIn  accordance\twith the view of the majority, the  Suit  is
\ndismissed with costs.\n<\/p>\n
P.B.R.\n<\/p>\n
169<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Karnataka vs Union Of India & Another on 8 November, 1977 Equivalent citations: 1978 AIR 68, 1978 SCR (2) 1 Author: M H Beg Bench: Beg, M. Hameedullah (Cj), Chandrachud, Y.V. (Cj), Bhagwati, P.N., Untwalia, N.L. & Shingal, P.N., Singh, Jaswant & Kailasam, P.S. PETITIONER: STATE OF KARNATAKA Vs. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-144455","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Karnataka vs Union Of India & Another on 8 November, 1977 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-vs-union-of-india-another-on-8-november-1977\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Karnataka vs Union Of India & Another on 8 November, 1977 - 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