http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 161  

PETITIONER: STATE OF KARNATAKA

       Vs.

RESPONDENT: UNION OF INDIA & ANOTHER

DATE OF JUDGMENT08/11/1977

BENCH: BEG, M. HAMEEDULLAH (CJ) BENCH: BEG, M. HAMEEDULLAH (CJ) CHANDRACHUD, Y.V. ((CJ) BHAGWATI, P.N. UNTWALIA, N.L. SHINGAL, P.N. SINGH, JASWANT KAILASAM, P.S.

CITATION:  1978 AIR   68            1978 SCR  (2)   1  1977 SCC  (4) 608  CITATOR INFO :  R          1984 SC1675  (11)  RF         1989 SC 714  (19)

ACT: Constitution  of India 1950-Art. 131-Scope of-Commission  of Inquiry  appointed  by  the  Central  Government  under  the Commissions of Inquiry Act, 1932 to inquire into allegations of  corruption, favouritism and nepotism against  the  Chief Minister of a State-Suit filed by the State under Art.  131- If  maintainable-Central Government, if could  constitute  a Commission  of  Inquiry against sitting Chief  Minister  and Ministers   of  the  State  Government-Action   of   Central Government,  if  destructive  of federal  structure  of  the Constitution  and distribution of powers between the  Centre and  the  States-If  subverts the  principle  of  collective responsibility under which Ministers are responsible only to the State Legislature-If violates privileges of the  members of the Assembly under Art. 194(3). Commissions of Inquiry Act, 1952 validity of-Section 3-Scope of-If s. 3 ultra vires Part XI of the  Constitution-Inquiry- Purpose  and scope of"Definite matter of public  importance" meaning of.

HEADNOTE: Article  131 of the Constitution of India provides that  the Supreme  Court  shall  have  original  jurisdiction  in  any dispute  :  (a) between the Government of India and  one  or more  States;  or (b) between Government of  India  and  any State or States on one side and one or more other States  on the  other; or (c) between two or more States if and  in  so far as the dispute involves any question (whether of law  or fact)  on  which the existence or extent of  a  legal  right depends. A  memorandum alleging corruption, favouritism and  nepotism against  the  Chief Minister of the State of  Karnataka  was submitted  to the Union Homo Minister by certain  opposition members of the State Assembly.  The Chief Minister  repelled

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 161  

the allegations as frivolous and politically motivated.   By a  notification  dated  May 18, 1977  the  State  Government appointed under s.. 3(1) of the Commissions of Inquiry  Act, 1952, a one man commission presided over by a retired  judge of   the  Karnataka  High  Court  for  inquiring  into   the allegations specified in the notification.  By  notification dated May 23, 1977, the Government of India appointed  under s.  3(1) of the Commissions of Inquiry Act, 1952, a one  man commission  presided over by a retired judge of the  Supreme Court  to  enquire into the charges made against  the  Chief Minister  excluding "any matter covered by the  notification of  the  Government  of Karnataka".   Thereupon,  the  State Government filed in this Court a suit under Art. 131 of  the Constitution.  On the pleadings of the parties, three issues were  framed  by this Court.  These were : (1) Is  the  suit maintainable ? (2) Is the impugned notification ultra  vires the  powers  of  the Central Government under s.  3  of  the Commissions of Inquiry Act, 1952 ? (3)  Even     if      the notification  falls  within  sec. 3 of  the  Commissions  of Inquiry Act    is the section itself unconstitutional ? It  was contended on behalf of the plaintiff that : (1)  the Central  Government  has  no jurisdiction  or  authority  to constitute  the  Commission  of  Inquiry  in  the  purported exercise of its powers under the Act; (2) the action of  the Central Government in appointing the Commission against  the Ministers  of  the State Government is  destructive  of  the federal  structure  of the Constitution and  the  scheme  of distribution  of powers between the Centre and  the  States; (3)  under the Cabinet system of government the  Council  of Ministers  is  responsible to the Legislature  for  all  its actions  and the inquiry ordered by the  Central  Government against the State Ministers, while they are in office  would subvert  the  principle  of  collective  responsibility   of Ministers to the Legislature; (4)  by  virtue of Art  194(3) it is the privilege of the Assembly (and not of 2 any  other body) to appoint a Committee for  inquiring  into the conduct of any of its members; (5) interpretation of  a. 3  of the 1952 Act in such a way as to empower  the  Central Government  to  appoint  a  Commission  for  inquiring  into matters  relating  to any of the entries in List II  of  the Seventh Schedule to the Constitution-would make a. 3 itself ultra  vires the provisions of Part XI of the  Constitution; and  (6)  since  on  the basis of  the  report  the  Central Government  cannot take any action against the Ministers  of the  State  Government such a Commission  cannot  serve  any useful purpose. On the other hand, the defendant (Central Government) raised preliminary objections as to the maintainability of the suit on  the  ground that the appointment of  such  a  Commission does- not affect any legal right of the State; and.(2)  also that  the  Central Government is competent to  constitute  a Commission  to  inquire  into a definite  matter  of  public importance, (3) that, furthermore, its notification does not cover any of the matters mentioned in the State Government’s notification, namely, the conduct of Ministers of the  State Government. (Per majority Beg, C.J. Chandrachud, Bhagwati and  Kailasam, JJ) (Untwalia, Shinghal and Jaswant Singh, JJ dissenting) The suit is maintainable. G. C. J. 1(a)  The State concerned, which challenges the validity  of the action of the Central Government against one or more  of its  Ministers in respect of acts involving exercise of  its

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 161  

governmental  powers,  would  have  sufficient  interest  to maintain a suit under Art. 131 because it involves claims to what appertains to the State is a "State." [94 C-D] (b)  The  case  involves consideration of  the  exercise  of governmental  powers  which vest in the  Government  of  the State  and  its  Ministers as such vis-a-vis  those  of  the Central  Government  and  its  Ministers.   It  also  raises questions  relating  to the meaning and the  ambit  and  the applicability   of   the  particular   provisions   of   the Constitution whose operations are of vital interest to every State.   Interpretations  given  to  those  provisions  must necessarily be of great concern to the Union as well. (91 C- D] (c)  The   Union  of  India,  acting  through  the   Central Government,  could  be said to represent the  whole  of  the people  of  India.  The individual  States,  acting  through their Governments and Ministers, could be said to  represent the  people  of each individual State and  their  interests. When  differences arise between the representatives  of  the State  and those of the whole people of India, on  questions of interpretation of the Constitution, which must affect the welfare  of the whole people, and, particularly that of  the people  of  the  State concerned, it  is  too  technical  an argument  to  be  accepted that a suit does  not  lie  under Article 131 of the Constitution. [91 E-P] (d)  Article  131 can be invoked whenever a State and  other States  or the Union differ on a question of  interpretation of the Constitution so that a decision of it will affect the scope   or  exercise  of  governmental  powers   which   are attributes  of  a  State.  It makes  no  difference  to  the maintainability  of  the action if the powers of  the  State which   are  executive,  legislative,  and-   judicial   are exercised through particular individuals. [92 F-G] (e) The distinction between the State and its Government is, at the most,one between the whole and an inseparable part of the whole.It  would be immaterial as regards claims  on behalf of either the State or itsGovernment  whether   the two are distinct juristic entities.  Assuming that these are distinctly  separate entities, the claim of  the  Government would be that of the State. [91 H] (f)The  fact that the State acts through its Ministers  or officials cannot affect% the maintainability of a quit under Art. 131 of. the Constitution.  Article 166(3) provides  for allocation of the business of the Government            ,be Ministers  for  "the  more  convenient  transaction  of  the business".  that  the State cannot act  merely  through  its Government as a whole but also 3 through  its individual Ministers as provided by the  rules. Articles  166(3)  and  154(1),  far  from  establishing  any antithesis  between the official capacity of a Minister  and the State for which he acts, only show that, as a  Minister, he is an agent or a limb of the Government of the State and, therefore,  he can be treated as an officer for purposes  of Art.  154(1).  The result is that a Ministers official  acts cannot  be  distinguished from those of the State  on  whose behalf  he  acts.   There  is nothing in  Art.  131  of  the Constitution  itself to debar the State, which  must  always necessarily act through its officers or agents or Ministers, from suing the Central Government not only to protect one of its  officers,  agents  or Ministers  from  being  proceeded against,  by the Central Government, but to prefer  its  own claim to exclusive power to deal with him and     this    is what the plaintiff has done by means of the suit. [92 H;  93 D]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 161  

State of Rajasthan v. Union of India A.I.R. 1977 S.C.  1361, King Emperor V.     Sibnath  Benerji & Ors, 72 LA.  241  and Sanjeevi Naidu etc. etc. v. State of Madras & Anr. [1970]  3 S.C.R. 505 referred to. The  Governor-General in Council v. The Province of  Madras, [1943]  FCR  1,  United  Provinces  v.  Governor-General  in Council,  AIR 1939 FC 58, Attorney-General for  Victoria  at the Relation of Dale and Ors. v. The Commonwealth & Ors., 71 C.L.R.  237  and Attorney-General for Victoria  (At  the  ,- elation  of the Victorian Chamber of Manufacturers)  v.  The Commonwealth 1933-1934 (2) C.L.R. 533 held inapplicable. The Central Government’s notification is valid. [94 G] 2(a) A perusal of the two notifications shows that while the State  notification is meant to set up the commission  which has to enquire whether the veil worn by certain transactions is  correct  in  form  and  covers  it  fully,  the  Central Government  notification  is  clearly meant  to  enable  the Commission appointed by it to tear down the veil of apparent legality   and  regularity  which  may  be  worn   by   some transactions.  It cannot be said that the two  notifications would  be  covering  "the same matter"  as  contemplated  by proviso   (b)  to  s.  3(1)  of  the  Act.   If  the   State notification  is  meant only to  superficially  scratch  the ,surface  of  the  allegations  made  whereas  the   Central Government  notification is meant to probe into the crux  or the  heart of what may or may not have gone wrong  with  the body  politic  in  the State, this Court could  not  be  too technical  or  astute in finding reasons to  hold  that  the subject-matter  of  the two inquiries is  substantially  the same. [36 G-H] (b)Since  the two notifications authorise  inquiries  into matters  which  are substantially different  in  nature  and object, the inquiry of the Central Commission cannot be said to be barred by reason of the State Government  notification under proviso (b) to s. 3 (1 ) of the Act even if, in  order to  deal  with  a  substantially  different  subject-matter, central  areas of fact or rules governing  the  transactions may  be  common.   If  the  objectives  are  different   the examination  of common areas of fact and law  for  different purposes will be permissible. [39 B] 3(a) The obvious intention behind the 1952 Act is to  enable the  machinery  of democratic Government  to  function  more efficiently  and effectively.  It could hardly be  construed is an Act meant to thwart democratic methods of  Government. [44 E] (b)In  all  democratic  countries  when  allegations   and rumours circulate causing crisisof   confidence  in   the integrity  of public life or about other matters  of  public importance, it is essential that public confidence should be restored   and   this  can  be  done  only   by   thoroughly investigating and probing the rumours and allegations.  Such an inquiry might reveal either that the evil exists or  that there is no force in the rumours.  In either case confidence is restored. [40 H] (c)In England, the Tribunal of Inquiry (Evidence) Act 1921 was   passed   "to   displace  the   procedure   of   Select Parliamentary  Committees  which  till then  were  used  "to investigate  alleged  wrong doing in high places".   Such  a method of investigation by a political Tribunal was found to be wholly unsatisfactory ’because such bodies could never be free from party political influences.  When 4 reports of these committees came to be debated in the  House of  Commons, the House was divided on party-lines and  by  a majority   exonerated   the  ministers   from   all   blame.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 161  

Therefore, investigation by a political tribunal on  matters causing  grave public disquiet had been discredited and  the 1921   Act  was  passed  for  setting  up   some   permanent investigating  machinery.  Even in the United States,  where the system of Congressional Committees is still in vogue, ad hoc tribunals (such as the Warren Commission) are  appointed to   avoid   a  matter  being  referred   to   Congressional Committees.         This clearly, shows that, in  democratic countries,  not  only does modem practice  but  statute  can provide for inquiries of the kind which are to be  conducted under  the 1952 Act.  The proceedings of the Commission  can only  result  in  a report which is to be  laid  before  the Legislature  concerned under s. 31(4) of the Act.   The  Act contains  no provision for giving effect to the findings  of the Commission or for enforcing any order which can be  made by the Commission. [41 C-H; 44 E] 4.  The  question whether a State Government  or  its  Chief Minister  is  or  is not carrying out the  trust  which  the constitutional  power  places  in  the  hands  of  a   State Government  and  its head for the  purposes  of  determining whether any exercise of extraordinary powers under Art.  356 is  called  for  or not. is a matter which  lay  within  the powers  of the Central Government.  What is contemplated  by Art.  356  when  it  speaks of  the  "satisfaction"  of  the President  from  a  report of the  Governor  "or  otherwise" whether  a  particular  situation has arisen  in  which  the Government of the State can be carried on in accordance with the  provisions of the Constitution is a matter which  would be  of  public  importance.   If  the  President  deems   it necessary to give the State Government or its Chief Minister an opportunity of being heard before an impartial Commission of  Inquiry constituted under the Act, it could not be  said that such I mode of exercise of power under Art. 356 is  not fully  covered  by  what  is  necessarily  implied  in   the provisions of the Constitution, that is, the Power to  order an inquiry for the purposes of the satisfaction required  by Art. 356. [48 F-H] 5(a)  Provisions of either Art. 75(2) or Art. 164(2)  cannot operate  as  bars against the institution  of  inquiries  by Commissions set up under the Act.  To infer such bars  would be  to  misunderstand  the object as well as  the  mode  and sphere of operation of these articles as also the  purposes, scope,  and function of Commissions to be set up  under  the Act. [53 H] (b)’The   Council  of  Ministers,   though   theoretically appointed  by the Governor, is collectively  responsible  to the  Legislative Assembly of the State.  But his  collective responsibility does rot abridge or truncate the power of the Central Government to appoint a Commission under s. 3 of the Act.   Collective  responsibility has a scope  and  mode  of operation which are very different from those of an  inquiry under  s.  3  of the Act even though  the  same  or  similar matters   may  some  times  give  rise  to  both.    Matters investigated  under s. 3 of the Act may have no  bearing  on any collective responsibility.  The sphere of inquiry  under s.  3  is  very  different from  that  in  which  collective responsibility  functions.  While the object  of  collective responsibility  is  to  make the  whole  body  of  Ministers collectively  or vicariously responsible for acts of  others even  if  an  individual  minister  may  not  personally  be responsible, the inquiry under s. 3 has been ordered by  the Central Government to determine who is actually  responsible for certain actions and what will be the motive behind them. [50 F]

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 161  

(c)Inasmuch as the Council of Ministers is able to stay in office  only  so,  long  as it  continues  the  support  and confidence of a majority of the Members of the  Legislature, the  whole Council of Ministers is  politically  responsible for the decisions and policies of each of the Ministers  and of  his department.  So far is the Ministry’s  answerability to the Legislative Assembly is concerned. the whole Ministry has to be treated as one entity.  The purpose of Art. 164(2) which  embodies this Principle, is not to find out facts  or to  establish the actual responsibility of a Chief  Minister or any other Minister or Ministers for particular  decisions or  governmental acts.  The principle of individual as  well as  collective  ministerial  responsibility  can  work  most efficiently  only  when cases requiring proper  sifting  and evaluation of evidence and discussion of questions: involved have   taken  place  in  proceedings  before  a   Commission appointed under s.  3 of the, Art. [51 F-G) 5 6(a)  The  only sanction for the enforcement  of  collective responsibility  is  the  pressure  of  public  opinion.,  In England,  the principle operators as a of convention  backed by  political  judgment, but for us this  principle  in  our Constitution itself [Arts. 75(2) and 164(2)].   Nevertheless here  also  it depends upon convention and  public  opinion, particularly   as  reflected  in  Parliament  or  in   State Legislatures,  for  its effectiveness.   The  principle,  of collective   responsibility  also  exists   separately   and independently from the legal liability of a Minister holding an office in the Union or a State Government. [52 H] (b)An  investigation  by a Commission  of  inquiry  should facilitate or help the formation of sound public opinion.  A Minister’s  individual actions, however, do not  bring  into operation  the principle of collective responsibility  where his  colleagues in the Government cannot reasonably be  held guilty of dereliction or breach of any duty. [53 C-D] Constitutional Law-Wade & Phillips 8th Edn. p. 87. Constitutional and Administrative Law Prof.  S. A. de Smith, pp. 170-179 referred to. 7.A  Commission of Inquiry has an orbit of action of  its own  within which it can move so as not to conflict with  or impede  other  forms  of  action or  modes  of  redress.   A Commission of Inquiry is meant to explore and discover  real facts. It  is neither a substitute for action in a  court of law nor can its report orfindings  relieve  courts   of their duty.  The appointment of a Commission isgenerally a  confession  of want of sufficient evidence to  take  the, matter toa  court combined with an attempt to  satisfy  the public  need  and desire to discover what  had  really  gone wrong and how and where, if possible. [53 G-H] 8.There  is  no force in the  contention  that  Ministers answerable to the Legislature are governed by a separate law which exempted them from liabilities under the ordinary law. Articles 194 and 105 which deal with powers, privileges  and immunities  of  each House as well as its  Members,  do  not apply  to legislative powers of Parliament or of  the  State Legislatures.   The powers" meant to be indicated  in  these Articles  are powers which depend upon or are necessary  for the conduct of business of each House. [57 B-C] 9(a)  The Constitution could not mention and  exhaust  every conceivable topic of legislation and it is precisely to meet such  a  situation  that Art. 248, read with  Entry  97  was inserted.  Therefore, Art. 248 read with Entry 97 of List  I will fully cover s. 3 of the Act even if Entry 94 of List  I does  not.   The  term ’constitutional law  can  be  neither clearly  nor exhaustively defined.  A Constitution could  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 161  

expected to contain only the basic frame-work., It is not  a part  of its nature to exhaustively deal with  all  matters. It is well accepted that nit all constitutional law need  be written.  There can be no clear-cut distinction between what could  or  should  and  what could  not  or  should  not  be comprehended within the body of rules called  constitutional law.   In  practice,,  what is embodied even  in  a  written constitution depends sometimes on the peculiar notions of  a people.   It reflects their views about what should be  con- sidered  so basic or fundamental as to find a place  in  the constitutional  document.   To  expect the  content  of  the Constitution  to be so all-embracing as to deal  with  every conceivable topic of legislation exhaustively so as to leave no room for doubt is to expect the humanly impracticable, if not  the impossible.  The most that could be  expected  from the  human  foresight of Constitution-makers  is  that  they should  Provide for the residual power of legislation  which could   cover   topics   on  which   Parliament   or   State legislatures could legislate even though the legislation may not  be  easily assignable to any specific  entry.   Such  a provision  our Constitution-makers did make. [61 H; 59  G-H; 61 B-C; D-E] (b)The  term ’inquires’ as used in Entry 94 of List I  and Entry  45  of  List III, without any  limitations,  is  wide enough to embrace every kind of inquiry, whether a  criminal offence  by  any one is disclosed or not by  facts  alleged. Entry  45  in  List  III  must  include  inquires  to  cover allegations against all persons which bring them within  the sphere of Entry I of List III relating to criminal law.  All that "inquires" covered by Entry 45 require is that they 6 must be "for the purpose of any of the matters specified  in List  II or List III". The language used........ any of  the matters  specified. .  " is broad enough to  cover  anything reasonably  related to any of the enumerated items  even  if done by holders of ministerial offices in the States.  Other subjects  will  be  found in List II.   Even  assuming  that neither Entry 94 List I nor Entry 45 of List III would cover inquires  against Ministers in the States, relating to  acts connected  with  the exercise of ministerial  powers.   Art. 248, read with Entry 97 of List I, must necessarily cover an inquiry  against Ministers on matters of public  importance, whether  the allegations include violations of criminal  law or not.  A contrary view would have the wholly  unacceptable consequence  of  placing  Ministers  in  State   Governments practically above the law. [63 C-E] (c)Since the powers conferred by s. 3 upon the Central and State   Governments,  including  the  power   to   institute inquiries  of  the  kind  set  up  under  each  of  the  two Notifications,  are  covered by the  express  constitutional provisions,   no  question  of  any  exclusion,  either   by necessary implication or by any principle, supposed to  form a  part  of  or  to flow from the  basic  structure  of  the Constitution, can rise here.  Nor is it possible to so  read down  and interpret s. 3 of the Act as to exclude  from  its purview  inquiries  of  the kind instituted  under  the  two notifications.   To do so would be to give an  incentive  to possible misuse and perversion of governmental machinery and powers for objects not warranted by law.  Such powers  carry constitutional  obligations  with  them.   They  are  to  be exercised  like the powers and obligations of  trustees  who must not deviate from the purposes of their trusts.  Whether a  Minister has or his not abused his powers and  privileges could be best determined by fair and honest people  anywhere only after a just and impartial inquiry has taken place into

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 161  

complaints  made against him so that its results  as  before them. [64 A-C] (d)  There  is  no  room for applying  the  rule  Expression Union.v Est Exclusion Alterius to exclude what falls  within in   expressly  provided  legislative  entry.   Before   the principle  can  be applied at all, the Court  must  find  an express  mode  of  doing something that  is  provided  in  a statute  which, by its necessary implication, could  exclude doing  of  that very thing and not something  else  in  some other  way.   Far  from  this  being  the  case  here,   the constitution-makers   intended  to  cover  the   making   of provisions  by Parliament for inquiries for various  objects which,  may  be  matters of public  importance  without  any indications of any other limits except that they must relate to subjects found in the List. [64 H] Colquhoun v. Brooks, [1888] Q.B.D 52 @ 65 referred to. (e)The proposition that what is not specifically mentioned in the Constitutionmust   be  deemed  to  be   deliberately excluded from its purview so that nothingshort   of    a constitutional amendment could authorise legislation upon it is  really  to invent a "Casus Omissus" so as to  apply  the rule  that, where there is such a gap in the law, the  Court cannot  fill it.  The rule, however, is equally  clear  that the  Court  cannot so interpret a statute as  to  produce  a casus   omissus  where  there  is  really  none.    If   the Constitution itself provides for legislation to fill what is sought  to be construed as a lacuna, legislation seeking  to do  this cannot be held to be void because it  performs  its intended  function by an exercise of an expressly  conferred legislative   power.   In  declaring  the  purpose  of   the provisions  so made and the authority for making it,  Courts do  not supply an omission or fill up a gap at all.   It  is Parliament which can do so and his done it. [65 A-B] The Mersey Docks and Harbour Board v. V. Henderson Brothers, [1888] 13 A.C. 595 @ 602 referred to. 10(a)  The  written Constitution by its very nature  as  the embodiment  of  the ’fundamental law of the  land  makes  it imperative for Courts to determine the meaning of its  parts in keeping with its broad and basic purposes and objectives. It  must be read as a whole, and construed in  keeping  with its  declared  objects  and  its  functions.   Although  the Courts, acting in exercise of judicial power. may supplement those  parts where the letter of the Constitution is  silent or  may  leave room for its development by  either  ordinary legislation 7  or judicial interpretation, they cannot nullify, defeat, or distort  the  reasonably clear Meaning of any  part  of  the Constitution in Order to give expression to some theories of their   own  about  the  broad  ’or  basic  scheme  of   the Constitution.   This  must  be done with  reference  to  the express provisions of the Constitution.  The dubiousness  of expressions  used  may be cured by Courts  by  making  their meanings  clear and definite, if necessary, in the light  of the  broad and basic purposes set before themselves  by  the Constitution-makers.   The power of judicial  interpretation cannot extend to laying down what is in direct conflict with express  provisions  of the Constitution.- Nor  can  express provisions be curtailed by importing limits based on a  mere theory of limitations on legislative powers. [66 C-G] (b)  In  the matter of interpretation of. the  Constitution, in a long line of decisions, this Court has held that  where two constructions are possible, the Court should adopt  that which  will implement and discard that which will  ,stultify the apparent intentions of the Constitution-makers, that the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 161  

Court  should adopt a construction which  harmonizes  rather than  one which produces a conflict between its  provisions, the  construction  which will ensure smooth  and  harmonious working of the Constitution and eschew the other which  will lead to absurdity or give rise to practical inconvenience or make well-established    provisions of existing law nugatory that the plenitude of power to legislate,    indicated by  a legislative  entry has to be  given as wide and  liberal  an interpretation as is reasonably possible. If  a subject does not fall within a   specifically  demarcated field found  in List II or List III, it would fall in List I,     apparently because of the amplitude of the residuary field indicated by Entry 97, List I. Legislative entries only denote fields  of operation  of legislative power which is actually  conferred by one of the articles of the Constitution.  This Court  has also rejected argument that the wide range given to Entry 97 of  List  I, read with Art. 248 of the  Constitution,  would destroy  the  federal  structure of  our  Republic.   On  an application  of  a  similar test, the powers  given  to  the Central Government by s. 3 of the Act, could not be held  to be  invalid on the ground that the federal structure of  the State is jeopardized. [68 C; E; 69 C; 70 B & D] A.   K.  Gopalan v. State  of Madras [1950] SCR 88 & 119  to 120.  ,State of Bihar v. Kameshwar Singh, [1952] SCR  889  & 980-81, I. C. Golaknath v. State of Punjab [1967] 2 SCR  762 @  791, K K. Kochuni v. State of Madras & Kerala,  [1960]  3 SCR 887 & 905, Mohd.  Hanif v. State of Bihar     [1959] SCR 629  @ 648, State of M.P. v. Ranojirao Shinde, [1963] 3  SCR 489,  Prem  Chand Garg v.  Excise  Commissioner,  U.P.[1963] suppl.1 SCR    885  @  911  Devadasan  v.  Union  of  India, [19647] 4 SCR 680 @ 695 Keshvananda     Bharati   v.   State of  Kerala,  [1973] 4 SCC 225 @ 426, (=1973 Suppl.1  SCR  1) Sakal  Papers (P) Ltd. v. Union of India. [1962] 3  SCR  842 Jagannath Baksh     Singh v. State of U.P., [1963] 1 SCR 220 @ 228-229 and Union of India v. R. S. Dhillon, [1972] 2  SCR 33 referred to. (c)  Whenever  the  doctrine  of basic  structure  has  been expounded   or  applied  it  is  only  as  a   doctrine   of interpretation of the Constitution as it actually exists and not of a Constitution which could exist only subjectively in the  minds of different individuals as mere  theories  about what  the Constitution is.  The doctrine did not add to  the contents of the Constitution.  It did not, in theory, deduct anything  from what was there.  It only  purported_to  bring out  and explain the meaning of what was already there.   It was,  in fact, used by ill the Judges for this purpose  with differing  results  simply  because  their  assessments   or inferences as to what was part of the basic structure in the Constitution  differed.  This is the correct  interpretation of the doctrine of the basic structure of the  Constitution. It should only be applied if it is clear, beyond the  region of  doubt,  that what is put forward as a  restriction  upon otherwise clear and plenary legislative power is there as  a Constitutional imperative. [ 86 G-H] (d)  If this is the correct view about the basic  structure, as  a  mode of interpreting the Constitution  only,  the  so called federalism as a fetter on legislative power must find expression  in  some express provision to be  recognised  by Courts.   A  majority of Judges who decided  the  Keshvanand Bharati’s case have not treated "federalism" as part of  the basic  structure  of the Constitution and none of  them  has discussed  the extent of the "federal" part of  this  struc- ture.   It  is  not  enough  to point  out  Art.  1  of  the Constitution-to emphasise that 8

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 161  

our  Republic is a "Union" of States.  The word "Union"  was used in the context of the peculiar character of our federal Republic  revealed  by its express provisions.  One  has  to find  from other express provisions what this ’Union’  means or  what is the extent or nature of "federalism" implied  by it.    The  Constitution  itself  does  not  use  the   word "federation"  at  all.  It is not possible to  discover  any such  fetter  which  could.,  by  a  necessary  implication, prevent Parliament from enacting s. 3 of the Act. [87 B-D] Per Chandrachud, J. The preliminary objection to the maintainability of the suit ought  to be rejected.  The proceeding brought by the  State of   Karnataka  is  maintainable  under  Art.  131  of   the Constitution. [100 C] (a)  The jurisdiction conferred on the Supreme Court by Art. 131 of the Constitution should not be tested on the anvil of rules  which are applied under the Code of  Civil  Procedure for   determining  whether  a  suit  is   maintainable.    A constitutional    provision    which    confers    exclusive jurisdiction  on  this  Court to  entertain  disputes  of  a certain nature in the exercise of its original jurisdiction, cannot be equated  with a provision conferring a right on  a civil court to entertain a    common suit so as to apply  to an original proceeding under Art. 131 the canons  of a  suit which  is ordinarily triable under s. 15 of the C.P.C. by  a court of  the  lowest  grade  competent  to  try  it.    The Constitution does not describe a   proceeding under Art. 131 as  a suit but uses words and phrases commonly employed  for determining the jurisdiction of a court of first instance to entertain  and try a suit.  It does not speak of a cause  of action;  instead it employs the word "dispute".  Above  all, Art. 131 is a self-contained code on matters falling  within its  purview.   By the very terms of the Article,  the  sole condition required to be satisfied for invoking the original jurisdiction  of this Court is that the dispute between  the parties  referred  to in clauses (a) to (c) must  involve  a question  on which the existence or extent of a legal  right depends. [97 E-H] (b)  The quintessence of Art. 131 is that there has to be  a dispute  between the parties regarding a question  on  which the  existence  or  extent  of a  legal  right  depends.   A challenge  by the State Government to the authority  of  the Central  Government  to  appoint  a  Commission  of  Inquiry clearly involves a question on which the existence or extent of the legal right of the Central Government to appoint  the Commission of Inquiry depends and that is enough to  sustain the  proceeding brought by the State under Art. 131  of  the Constitution.   The Constitution has purposefully  conferred on  this  Court  a jurisdiction  which  is  untrammelled  by considerations  which fetter the jurisdiction of a court  of first  instance which entertains and tries suits of a  civil nature.   The very nature of the dispute arising under  Art. 131 is different both in form and substance from the  nature of claims which require adjudication in ordinary suits.  [98 B-D] (c)  Part XI of the Constitution is devoted specially to the delineation  of relations between the Union and the  States. The  object  of  Art.  131 is  to  provide  a  high  powered machinery  for ensuring that the Central Government and  the State Governments act within the respective spheres of their authority   and   do   not  trespass   upon   each   other’s constitutional functions or powers, Therefore, a,  challenge to the constitutional capacity of the defendant to act in an intended manner is enough to attract the application of Art. 131  particularly  when  the  plaintiff  claims  that  right

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 161  

"exclusively for itself. [98 F-G] (d)  A  proceeding under Art. 131 stands in  sharp  contrast with  an  ordinary civil suit.  While in an  ordinary  civil suit  rejection of a right asserted by the defendant  cannot correspondingly  and  of its own force establish  the  right claimed  by  the plaintiff, proceedings under Art.  131  are adjudicatory of the limits of constitutional power vested in the  Central or the State Governments.  In a civil suit  the plaintiff  has to succeed on the strength of his own  title; the  competition in a proceeding under Art. 131  is  between two  or more Governments.  There is no third alternative  as in  a civil suit wherein the right claimed by the  plaintiff may  reside  neither in him nor in the defendant  but  In  a stranger.   A demarcation and definition  of  constitutional power between the 9 rival  claimants  and restricted to them and them  alone  is what a proceeding under Art. 131 necessarily involves. [98 H JUDGMENT: (e)  There is no force in the defendant’s contention that if a  State Government challenges the constitutional rights  of the  Central  Government  to take  a  particular  course  of action, Art. 131 will not be attracted.  The contention  ,of the State Government is not only that the Central Government has no power to appoint  the    Inquiry    Commission    for enquiring into the conduct of State Ministers     but   that such  right is exclusively vested in the  State  Government. There is, therefore, not only a denial of the right  claimed by  the Central Government but an assertion that  the  right exclusively resides in the State Government. [99 D-E] State of Rajasthan v. Union of India A.I.R. 1977 S.C.I.  361 referred to. (f)  A  writ  under Art. 226 is hardly a  substitute  for  a proceeding  under Art. 131.  A dispute between one  or  more States or between the Government of India and a State on the one  hand  and another State or other States on  the  other, cannot  properly be decided by a High Court under Art.  226. More,over,  disputes  of the nature described  in  Art.  131 being usually of an urgent nature should be decided by  this Court  to  obviate dilatoriness of a possible  appeal.   The original  proceeding  is decided once and for  all  by  this Court. [100 A_B] 2.   The  notification issued by the Central  Government  is within the scope of s.   3(1) of the Act.  The objection  of the State Government that it offends against cl. (b) of  the proviso  to  s. 3(1) of the Act is factually  unfounded  and theoretically unsound. [114 F; 101 H] (a)  It is wrong to contend that the Central Government  has appointed  the  Commission  of Inquiry for  the  purpose  of inquiring into the same matter into which the Commission  of Inquiry  appointed  by the State Government is  directed  to inquire. [101 E] (b)  Considering  the terms of the notifications  issued  by the  State  Government and the Central  Government  and  the matters  into which the respective Commissions are  directed to inquire, it is obvious that the object and purpose of the two inquiries is basically different.  The primary object of the  State  Government in appointing the  commission  is  to ascertain whether improper or excessive payments were  made, undue  favours  were  shown,  irregularities  or  fraud  had occurred  in  the  conduct of  official  business  etc;  and secondly to find out as to who are ’the persons  responsible for the lapses, if any, regarding the aforesaid and to  what extent".  On the other hand, the Commission appointed by the Central  Government  is  specifically  directed  to  inquire

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 161  

"whether  the  Chief  Minister  practiced  favouritism   and nepotism"  in  regard to various matters  mentioned  in  the notification. (100 G; 101 D-E] (c)  Moreover,  it  is hardly ever possible that  the  State Government will appoint a Commission to inquire into acts of corruption,  favouritism  and nepotism on the  part  of  its Chief Minister. [101 G] 3(a)  On  a  plain  reading of s. 3(1) of  the  Act,  it  is impossible  to bold that the section cannot be construed  as authorising  the Central Government to appoint a  Commission of Inquiry for the purpose of inquiring into the conduct  of a sitting Minister of a State Government. [102 B] (b)  Section  3(1)  cannot be given  a  restricted  meaning. There is no justification for reading down the provisions of the section to limit the power of the ’Central Government to appointing  a Commission of Inquiry for inquiring  into  the conduct  of  persons in relation to matters  concerning  the affairs of the Union Government only.  The section  empowers the Central Government to appoint a Commission for making an inquiry  into any definite matter of public importance.   It is inarguable that the conduct of Ministers of State Govern- ments in the purported discharge of their official functions is not a definite matter of public importance.  Further,  it cannot  be  said that the Central Government does  not  even possess the power to collect facts in regard to 10 allegations  of  corruption made by a section of  the  State Legislature   against   sitting  Ministers  of   the   State Government. [102 E-F] (c)  The  argument  that  s. 3(1) will  offend  against  the principle   of  collective  responsibility  unless   it   is construed  narrowly is without substance.  Whatever may  the findings  of  the  Commission of  Inquiry,  the  Council  of Ministers whether at the Centre or in the States,  continues to be collectively answerable or accountable to the House of the  People  or  the  ’Legislative  Assembly.   Neither  the appointment of the Commission nor even the rejection by  the Commission  of all or any of the allegations referred to  it for its inquiry would make the Council of Ministers any  the less  answerable  to those bodies.  The object  of  Articles 75(3) and 164(2) of the Constitution is to provide that  for every  decision  taken  by  the  Cabinet  each  one  of  the Minister-  is responsible to the Legislature concerned.   It is difficult to accept that for acts of corruption, nepotism or  favouritism  which  are alleged by  members  against  an individual Minister, the entire Council of Ministers can  be held  collectively  responsible to the Legislature.   If  an individual  Minister  uses  his office  as  an  occasion  or pretense  for  committing acts of corruption,  he  would  be personally answerable for his unlawful acts and no  question of collective responsibility of the Council of Ministers can arise in such a case. [105 C; 103 F-H] (d)  The essence of collective responsibility of the Council of  Ministers  is  that the Cabinet is  responsible  to  the Legislature for every action taken in any of the ministries. In  other words the principle of  collective  responsibility governs  only  those acts which a Minister performs  or  can reasonably be said to have performed in the lawful discharge of his official functions. [104, B] A.   Sanjeevi Naidu etc. v. State of Madras & Anr., [1970] 3 SCR 505, 512 referred to. (e)  In   the  absence  of  a  specific  provision  in   the Constitution  the  conduct of a member  of  the  Legislature shall  be  inquired  into by the  Legislature  only,  it  is impossible  to hold that the appointment of a Commission  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 161  

Inquiry  under  the Act constitutes  interference  with  the privileges of the Legislature.  English precedents  relating to the privileges of the House of Commons which are relevant under Art. 194(3) do not support the States contention. [105 D] (f)  The  power  conferred  by  Parliament  on  the  Central Government to a Commission of Inquiry under s. 3 (1 ) of the Act  for  the purpose of facts in regard to  allegations  of corruption, favouritism and nepotism against a sitting Chief Minister  or Ministers cannot be held to  constitute  inter- ference with the executive functions of the State Government or  that it confers on the Central Government the  power  to control the functions of the State executive. [109 F-G] (g)  An examination of the provisions and scheme of the  Act shows that a Commission appointed under the Act is purely  a fact finding body with no power to pronounce a binding or  a definitive  judgment.  The larger interest of the  community requires that sensitive matters of public importance  should be enquired into by a high-powered Commission whose findings can  command the  confidence of the people.  If, on  receipt of  the report, the Central Government decides to  take  any action  the validity thereof may have to be decided  in  the light  of  the constitutional provisions.  But,  until  that stage  arrives,  it is difficult to hold  that  the  Central Government   is  exercising  any  control   or   supervisory jurisdiction over the executive functions of the State.  108 B-C] (h)  The impugned Act cannot be held to suffer from want  of legislative competence in the Parliament to enact it.  Entry 94 of List I, Entry 45 of List III and failing these,  Entry 97 of List I must sustain the Act. [112 B] (i)  In  Shri  Ram  Krishna Dalmia v.  Shri  Justice  S.  R. Tendolkar and others this Court held that Parliament had the legislative  competence  to pass the law under Entry  94  of List  I  and Entry 45 of List III of the  Seventh  Schedule. The  word "Inquiries" occurring in the two Entries  must  be held  to  cover  the  power to  paw  an  Act  providing  for appointment of Commissions of Inquiry.  Since 11 the  power  to  appoint a Commission  of  Inquiry  into  the conduct  of sitting Ministers of State Governments does  not offend against the principle of collective responsibility or against  the  privileges of the Legislative  Assembly,  and, since it does not also confer on the Central Government  the power  of  control over the State executive,  the  provision must  be  held to be a valid exercise  of  the  legislative, competence of the Parliament. [111 B-C] Shri  Ram Krishna Dalmia v. Shri Justice S. R.  Tendolkar  & Others, [1959] SCR 279, 293 approved. M.   V. Rajwade v. Dr. S. M. Hassan & Ors., AIR 1954 Nag. 71 and  Brajnandan Sinha v. Jyoti Narain, [1955] SCR  955,  975 referred to. (j)  Entry 97 is in the nature of a residuary entry and  the words  "any  other matter" which appear therein,  mean  "any matter other than those enumerated in List I".  If entry 94, List  I  does  not cover the Act, inquiries  of  the  nature contemplated  by  the Act will fall within  the  description "any other matter" occurring in entry 97 of List I. If entry 45  of List III and ’,he whole of the State List are  to  be kept out of consideration, the Act will relate to "a  matter not enumerated in List II or List III [11 G] (k)  The   contention   that  by  empowering   the   Central Government  to appoint a Commission for inquiring  into  the conduct  of the sitting Ministers of the  State  Government, Parliament has legislated, on the Centre-State  relationship

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 161  

which  is  a constitutional subject, is without  any  force. The Act merely empowers the Central Government to appoint  a Commission  of Inquiry for collecting facts with a  view  to informing  its own mind and the report of the Commission  is not binding on any one.  If a law is within the  legislative competence  of the legislature, it cannot be invalidated  on the  supposed ground that it has added something to, or  has supplemented,  a  constitutional provision so  long  as  the addition  or  supplementation is not inconsistent  with  any provision of the Constitution. [113 A; 112 F-G; 114 C-D] (1)  Not  only  that the pith and substance of  the  Act  is "inquiries"  but it does not even incidentally  encroach  or trespass upon the constitutional field occupied by Part  XI. If  it  does not touch the subject  matter  of  Centre-State relationship, there is no question of its impinging     upon a  subject  dealt with by the Constitution.   Even  assuming that   legislation   on  the  question   of   Centre   State relationship is impliedly barred, the impugned Act does  not fall within the vice of that rule and cannot, therefore,  be pronounced as unconstitutional. [113 H] Per Bhagwati, J. concurring The  suit  filed under Art. 131 of the Constitution  by  the State   of   Karnataka  against  the  Union  of   India   is maintainable. [122 B] 1.   The    State    would   have   locus    to    challenge unconstitutional exercise of power by the Central Government which encroaches upon States exclusive sphere in relation to the  conduct  of  its Council of Ministers.   By  reason  of provision (a) to s. 3(1) of the Commissions of Inquiry  Act, 1952, it could challenge the impugned action of the  Central Government because it prevents the State from exercising its power  to  direct  inquiry into  matters  specified  in  the notification issued by the Central Government. [121 H] 2.   (a)  The  claim of the State that its  Legislature  and Government  alone  have  power to  investigate  and  control misuse of governmental power by the Chief Minister and other Ministers  of the State and that Central Government  has  no power to enquire into the same or to set up a Commission  of Inquiry for that purpose, clearly raises a dispute as to the extent  of  the power of the State and the  existence  of  a superior  or co-ordinate power in the Central Government  to inquire  into  the conduct of the Chief Minister  and  other Ministers   of   the  State  in  the  discharge   of   their governmental functions.  Such a dispute concerns the content of the respective powers of the State and the Union of India and  the inter se relationship between the two entities  and the  State is vitally interested in it.  The State  is  very much  concerned  whether  the  conduct  of  its  Council  of Ministers in the discharge of governmental functions can  be enquired 12 into  only  by  itself  through its own  agency  or  can  be subjected  to  scrutiny by the Union of  India.   The  State would  have  locus  to say that the Union has  no  right  to encroach upon its exclusive power to investigate into misuse of  governmental power by its Council of  Ministers.   Apart from   the  Council  of  Ministers,  the  State   can   also competently  make  a claim that the  Council  of  Ministers, acting on its behalf, is immune from subjection to the power of  the Central Government to enquire into their conduct  as Ministers.  This immunity claimed in respect of- the Council of Ministers can be ascribed to the State and the State  can raise  a  dispute  touching  upon  the  existence  of   this immunity. [121 B-E] Attorney-General for Victoria v. The Commonwealth, 71 C.L.R.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 161  

237  and Attorney-General for Victoria v. The  Commonwealth, 52 C.L.R. 533 referred to. (b)  The two limitations in regard to a dispute which can be brought before the Supreme Court under Art. 131 are  parties and subject matter.  The object of the Article is that since in a federal or quasi-federal structure disputes. may  arise between  the Government of India and one or more  States  or between  two or more States, a forum should be provided  for the resolution of such disputes and that forum should be the highest  court in the land.  Article 131 is  attracted  only when the parties to the dispute are the Government of  India or  one  or  more  States  arrayed  on  either  side.    The limitation  as to subject matter is contained in  the  words "if  and  in  so far as the dispute  involves  any  question whether  of law or fact on which the existence or extent  of legal  right depends" which indicates that the dispute  must be  one affecting the existence or extent of a  legal  right and  not  a dispute on the political plane not  involving  a legal aspect. [115 G-H] State of Rajasthan v. Union of India, A.I.R. 1977 S.C.  1361 referred to. (c)  There  are two fallacies in the argument based  on  the distinction  between  State and State Government  :  one  in drawing  a  rather rigid,  water-tight  distinction  between State and State Government and the other in assuming that it is only where the legal right of the plaintiff is  infringed that the suit can be maintained under Art. 131. (117 B-D] (d)  Although  theoretically  a distinction  exists  between State and State Government (and this finds recognition in s. 3(58)  and  s.  3(60)  of the  General  Clauses  Act,  1897) constitutional   authorities  have  pointed  out  that   the distinction  is  analogous  to that between  a  given  human individual  as  a  moral and  intellectual  person  and  his material  physical body.  By the term ’State’ is  understood the  political  person or entity which  possesses  the  law- making right and by the term ’Government’ is understood  the agency  through which the will of the State  is  formulated, "pressed  and  executed.  The Government thus  acts  as  the machinery of the State and those who operate this  machinery act  as the agents of the State. Again, the State itself  is an ideal person, intangible, invisible and immutable and the Government  is  its agent.  If the State Government  is  the agent through which the State expresses its will, the  State cannot be said to be unconcerned when any right or  capacity or  lack  of it is attributed to the State  Government.   It would be wholly unrealistic to suggest that since the  State Government  is  distinct  from  the  State,  any  action  or capacity  or  lack of it in the State Government  would  not affect  the State and the State would not be  interested  in it.  To do this would be to ignore the integral relationship between  the  State and the State  Government.   Any  action which affects the State Government or the Ministers in their capacity  as  ministers would raise a matter  in  which  the State would be concerned. [117 D-H] (e)  When any right or capacity or lack of it is  attributed to any institution or person acting on behalf of the  State, it  raises  a  matter  in which the  State  is  involved  or concerned.   The  State  would,  in  the  circumstances,  be affected  or, at any rate, interested if the Chief  Minister and other Ministers in their capacity as such that is in the matter  of  discharge  of  their  official  functions,   are subjected  to  unconstitutional  exercise of  power  by  the Central Government.  If the Central Government were to issue a  direction  to the Chief Minister and other  Ministers  to exercise  the executive power of the State in  a  particular

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 161  

manner,  the  State  would  be  clearly  affected  if   such direction  is  unconstitutional  and would  be  entitled  to complain against it. if 13 the  Central Government proceeds Without any  constitutional authority to enquire how the executive power of the State is exercised  by  the Chief Minister and  other  Ministers  and whether it is exercised in a proper manner, the State  would clearly  have  a  locus to  challenge  the  unconstitutional action of the Central Government. [118 E-G] (f)  It  is not a sine qua non of the applicability of  Art. 131 that there should be infringement of some legal right of the  plaintiff  before  it can institute a  suit  under  the Article.  What the Article requires is that the dispute must be one which involves a question "on which the existence  or extent of legal right depends".  The legal right may be that of the plaintiff or of the defendant.  In other words,  what is  necessary is that the existence or extent of  the  legal right  must be in issue in the dispute between the  parties. [118 H] (g)  Article  131 does not lay down any particular  mode  of proceeding   for  exercise  of  the  original   jurisdiction conferred   by  it.   Although  the  Supreme   Court   Rules contemplate  that  the original jurisdiction  of  the  Court under this Article shall be invoked by means of a suit  that is  not the requirement of the Article.  While  interpreting the  Article  one  is perhaps  unconsciously  influenced  to import  the notion of cause of action which is germane in  a suit  and read this Article as limited only to  cases  where some   legal  right  of  the  plaintiff  is  infringed   and consequently it has a cause of action against the defendant. But  there is no reference to a suit or cause of  action  in Art. 131.  That Article confers jurisdiction on the  Supreme Court  with reference to the character of the dispute  which may be brought before it for adjudication.  The  requirement of cause of action, which is so necessary in a suit,  cannot be  imported  while construing the scope and ambit  of  Art. 131. (115 E & 119 B-C] (h)  The  only  requirement  necessary  for  attracting  the applicability  of Art. 131 is that the dispute must  be  one involving any question "on which the existence or extent  of a  legal  right" depends irrespective of whether  the  legal right  is  claimed by one party or the other and it  is  not necessary  that some legal right of the plaintiff should  be infringed  before a suit can be brought under that  Article. [119 E-F] (i)  The word "right" is used in Art. 131 in a generic sense and  not  according to its strict meaning.  A right  in  its narrow sense constitutes the correlative of duty, but in its generic  sense includes not only right strict to  sense  but "any advantage or benefit conferred upon a person by a  rule of law." The word "right" has four different meanings :  (i) Right  stricto  sensu; (ii) liberty, (iii) power;  and  (iv) immunity.   In  its  strict  sense  ’right’  is  defined  as interest  which the law protects by  imposing  corresponding duty  (in others.  "Liberty" is exemption from the right  of another  and  its  correlative is " no  right";  "power,  is ability  to  change the legal relations of another  and  its correlative is liability.  "Immunity" is exemption from  the legal  power of another and its correlative  is  disability. [119 H & 120 A] (i)  The  word  ’right’ is used in Art. 131 in  the  generic sense.   If  the State claims to be  entitled  to  legislate exclusively  on  a particular Matter on the ground  that  it falls  within  List  II  of  the  Seventh  Schedule  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 161  

Constitution and the Union of India questions this right  of the  State,  the dispute would be one relating, not  to  any right  of the State in the strict sense of the term. but  to the ’liberty’ of the State to legislate on such matters  and it would come directly within the terms of Art. 131.  Even a dispute  relating  to  the power of the Union  of  India  to abolish  the legislative assembly of a State or to  dissolve it  would  fall within the scope and ambit of  Article  131. [120 C-D] State of  Rajasthan  v.  Union of India,  A.I.R.  1977  S.C. 1361, Attorney-General for    Victoria v. The  Commonwealth. 71 C.L.R. 237 and Attorney-General for  Victoria   v.    The Commonwealth, 52 C.L.R. 533 referred to. Untwalia, Shinghal and Jaswant Singh, JJ. (Dissenting) The suit is not maintainable. [126 D] 14 (a)  The State by itself is an ideal person, a legal entity, unchangeable,  invisible and immutable.  The  Government  is the   agency  through  which  the  will  of  the  State   is formulated, expressed and executed. [123 E] (b)  In  relation to the existence of a dispute between  the Union of India on the one hand and one or more States on the other,  the  expression used in Art. 131 for the  former  is Government of India signifying that the dispute may be  with the  Government of India but the other party to the  dispute must  be  the  State only and not any  limb  of  the  State, namely,  the  executive, the legislature or  the  judiciary. Article  300  of  the Constitution  which  states  that  the Government of India may sue or be sued by the name of  Union of India and the Government of a State may sue or be sued by the.  name of the State is only an enabling  provision.   An inroad  upon  the right of the Government  may,  in  certain circumstances,  be  an inroad upon the legal  right  of  the State, and if there is any invasion on the legal right of  a State the agency through which action will be commenced, may be  the  Government  of  the  State.   Article  300   merely prescribes the mode of describing a party to the suit.   But the real answer to the maintainability of the suit is to  be found from Art. 131 itself. [123 F-G] (c)  Article  131  does not specifically state  whose  legal right  the question involved in the dispute must  relate  to and in what respect.  To say that for the application of the Article  it is sufficient that the plaintiff  questions  the legal or constitutional right asserted by the defendant  may not  be correct.  Ordinarily and generally in any  suit  the competition is between the legal right of the plaintiff  and the defendant.  But primarily the plaintiff has to establish his  legal  right to succeed in the suit. if  the  defendant establishes  his  legal right, the suit  fails.   If  either party fails to establish the legal right, yet the suit fails because  the plaintiff cannot succeed unless he  establishes his legal right.  The expression "the existence or extent of a legal right used in Art. 131 is meant to bring about  this result.   It  was neither necessary nor advisable  to  state further  in  the Article that the dispute must  involve  any question  on  which the legal right of  the  plaintiff  must depend. (124 B; E-F] (d)  It  is well-established that a Minister is  an  officer subordinate  to  the Governor.  The enquiry set up  in  this case  is not against the State or the State Government,  but against the Chief Minister and other Ministers to whom it is open  to  move  the  High  Court  under  Art.  226  of   the Constitution and the High Court would then have referred the question of vires of the Act to the Supreme Court under Art. 131A.  But, that in no way entitles the State to invoke  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 161  

original  jurisdiction of the Supreme Court under Art.  131. [125 A-B] State  of  Rajasthan & Ors. v. Union of India,  A.I.R.  1977 S.C. 1361, King Emperor v. Sibnath Banerji & Ors., 72 Indian Appeals,  241  and A. Sanjeevi Naidu etc. etc. v.  State  of Madras and Anr., [1970] 3 S.C.R. 505 referred to. (e)  There is no force in the contention that it is only the State  Government and not the Central Government  which  has the  right  to  order an enquiry under s. 3.  There  may  be competition  between  the power of one  authority.  (Central Government)  and another (State Government), but unless  the power  exercised  by one authority brings  about  a  dispute impinging  upon  the  legal right of the  other  party,  the latter  cannot  come  under Art. 131  and  say  that  merely because it was within its power to do so, its legal right is affected  by the illegal exercise of the power by the  other party.  The exercise of power must directly or by  necessary implication  affect  the  legal right of  the  other  party. Suppose for example, if Parliament passes a law under  Entry 8 (intoxicating liquors) in List II and in pursuance of that law, makes an order against a resident in a State, the order is  bad as having been issued under an invalid law  made  by Parliament.   The State Government, in such a  case,  cannot file a suit under Art. 131 merely because the order had been made against its resident under a law which encroached  upon the legislative field of the State.  In the instant case the concerned ministers can challenge the impugned  notification but the notification can in no way be said to have  affected or restrained the State Government from giving effect to its notification. [125 B; D-G] 15 (f)  Moreover, if a restricted meaning were not to be  given to  the scope of the suit which can be filed under Art.  131 very anomalous results may follow.  Any action taken by  the Central  Government under the Act or otherwise  against  any citizen  residing  in  or an officer of a  State,  could  be challenged  by institution of a suit under Art. 131  by  the State  on  the  ground  that  the  action  of  the   Central Government  is ultra vires and without any legal  right.   A Minister, being an officer of the State, the order affecting him  cannot confer a right of suit on the State  under  Art. 131. [126 B-C] (Concurring with the majority) 2(a)  There  is  no  justification  for  reading  down   the provisions    of   the   Act   nor   are   the    provisions constitutionally invalid on any account. [137 C] (b)  The  Indian Constitution is not federal  in  character, but has been characterised as quasi-federal in nature.  Even though the executive and legislative functions of the Centre and  States  have been defined and distributed,  there  runs through  it all a thread or rein in the hands of the  Centre in  both the fields.  Apart from the  exclusive  legislative power  of  the Centre and the States, both  have  concurrent powers of legislation in regard to the entries of List  III. The  residuary  power lies with the  Parliament  (Art.  248, Entry  97 of List I).  Parliament has a predominant hand  in respect  of matters in the concurrent list (Art.  254).   In certain circumstances, Parliament has power to legislate  on matters in the State List (Articles 249, 250, 252 and  253). Article  256 provides, inter alia, that the executive  power of  the Union shall extend to the giving of such  directions to  a State as may appear to the Government of India  to  be necessary for that purpose.  There are also other  important features  which demonstrate the weak federal  structure  and the  controlling  hand of the Centre over the  States.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 161  

Governor  is appointed by the President and holds office  at his  pleasure.  He reports to the Centre from time  to  time about the administration of the State.  Entry 45 in List  II empowers  the  Parliament  to legislate on  the  subject  of inquiries for the purpose of any of the matters specified in List  II.  Parliament has power to admit into the Union,  or establish,  new States (Art. 2) and can make a law  for  the formation  of  new  States  and  alteration  of  areas   and boundaries if existing States (Art. 3). [128 A-D; 129 C-E] State of West, Bengal v. Union of India [1964] 1 S.C.R.  371 referred to. (c)  The  law made under Entry 45 of List III can  cover  an inquiry   in   matters   like   corruption,   nepotism    or maladministration  in  any  executive action  of  the  State Government.   Such  an enquiry neither interferes  with  the legislative  power  of  the State  nor  with  its  executive action.  An inquiry under the Act by a Commission  appointed thereunder, which is a fact finding body, is for the purpose of  finding the facts.  It cannot be said that a  Commission appointed by the Central Government under the Act cannot  be appointed  for finding facts in relation to the  allegations made against a Minister of a State. [131 B-C] (d)  In  an  enquiry  set  up under the  Act,  there  is  no prosecution,  no  framing  of a formal  charge,  no  accused before the Commission of Inquiry and there is no exercise of any supervisory or disciplinary jurisdiction by the  Central Government  against  the State Government nor is  there  any usurpation  of  any executive function of  the  State.   The Centre is concerned with and interested only in knowing  and ascertaining facts as regards the allegations made against a Chief  Minister, Minister or any other officer of the  State Government. [132 A-B; C] (3)  It  may be true to say that the Ministers of the  State Government  are  not under the disciplinary control  of  the Central  Government.   But  it  would  be  incongruous   and anomalous to say that it is only the State Government  which is  competent  to appoint a Commission  of  Inquiry  against itself  or  its  Ministers.   It  is  not  likely  that  the Ministers,   while  remaining  in  office,  would   set   up Commissions  of  Inquiry for enquiring  into  their  alleged misdeeds  even  if it is assumed that this is  possible,  it does  not  lead  to  the  conclusion  that  their  power  is exclusive  and excludes the power of the Central  Government under  the  Act.  There is nothing in  the  Constitution  to indicate  that  the power of the State  Legislature  or  the State Government is exclusive.  It may be co-extensive 16 and  such a situation is postulated and provided for in  the proviso to s. 3(1) of the Act.  There is nothing in the  Act or the Constitution which excludes the power of the  Central Government  to  set up a Commission of Inquiry  for  finding facts  in  regard to the alleged  maladministration  of  the State.   After  ascertaining the facts, further  action  may follow in accordance with the provisions of the Constitution or  the  law.   The Act does not provide  for  any  kind  of disciplinary action against a Minister. [132 F-H] (4)  The  doctrine  of collective  responsibility  does  not grant  immunity to the State Ministers from being  subjected to  the  provisions of the Commissions of Inquiry  Act.   In truth, it is little more than a political practice which  is commonplace  and  inevitable.  All that  it  means  is  that Cabinet  decisions bind all Cabinet Ministers even  if  they argued  in the opposite direction in the Cabinet,  and  that the team must not be weakened by some of its members  making clear  in  public that they disapprove of  the  Government’s

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 161  

policy.   It only means that the Council of  Ministers  will have   to  stand  or  fall  together,  every  member   being responsible for the action of any other. [134 E] "Representative and Responsible Government" by A. H. Birch. "Government and Law" by T.C. Hertley and J. A. C. Griffith. State of Jammu and Kashmir v. Bakshi Ghulam Mohammad, [1966] Suppl. S.C.R. 401 referred to. (5) The power granted to Parliament under Entry  45 of  List III is clear and explicit for passing a law for inquiries in regard  to any of the matters in List II. That being so  the power   cannot  be  curtail  by  the  doctrine  of   implied prohibition.   The  doctrine  of  implied  prohibition   was definitely  rejected by Courts in England and Australia  and by  an  overwhelming  majority of this  Court  in  Kesavanda Bharati’s  case.  The  only way in  which  the  Court  could determine whether the prescribed limits of legislative power had  been exceeded or not is by looking to the terms of  the instrument by which affirmatively the legislative power  was created and by which negatively they are restricted. [136E] Smt.   Indira  Nehru  Gandhi v. Shri Rai  Narain,  [1976]  2 S.C.R.  347, Webb v. Outrim [1907] A.C. 81  The  Amalgamated Society  of  Engineers and The  Adelaide  Steamship  Company Limited  and Others, 28 Commonwealth Law Reports, 129.   The State  of  Victoria and The Commonwealth of  Australia,  122 Commonwealth  Law Reports, 353 and His Holiness  Kesavananda ’Bharati  Sripadagalavaru v. State of Kerala, [1973]  Suppl. S.C.R. 1 referred to. (6)  There is no substance in the argument that a commission appointed by the Central Government to inquire into the same matter for which a commission had already been set up by the State  Government  is violative of s. 3(1) (b) of  the  Act. The notification of the State Government has not, in  terms, appointed any commission for inquiring into the matter-,  of alleged   corruption,   nepotism,   favouritism   and   mal- administration  of the Chief Minister or any other  Minister of the Government.  The items referred to for inquiry by the State  Commission were "irregularities committed  or  excess payments  made  in certain matters  relating  to  contracts, grant of loan, allotment of sites, purchase IT of furniture, disposal  of foodgrains, etc." In none of those clauses,  is it  mentioned as to the person responsible for  the  alleged irregularities or maladministration.  There is no  reference to  any alleged misconduct, corruption or  maladministration of  the Chief Minister or any other Minister.  In  contrast, the  terms  of reference in the notification issued  by  the Centre is to enquire into the specific matters enumerated in Annexure  I, one of which is covered by the notification  of the  State  Government.  In regard to  specific  matters  in Annexture II, there may be some common matters which are the subject-matter  of enquiry by the State Government.  but  in regard to matters in Annexure II, the notification in  clear terms excludes any matter covered by the notification of the State  Government.  The Commission appointed by the  Central Government,  therefore, would he competent to  exclude  such matters from the purview, of its enquiry. [137 E-F] 17 Per Kailasam, J. (concurring) 1(a)  The  suit is maintainable.  When the exercise  of  the executive  functions  of the State through its  officers  is interfered with by the Central Government, it cannot be said that  the legal right of the State is not affected. [168  G; 167 Al (b)  The executive powers of the State will be exercised  by the  Governor with the aid and advice of the Chief  Minister and other Ministers, The power is exercised either  directly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 161  

or  indirectly through officers subordinate to the  Governor in  accordance  with  the provisions  of  the  Constitution. According  to  the impugned notification the  Commission  of Inquiry  was appointed for the purpose of making an  inquiry into a definite matter of public importance, namely, charges of  corruption, nepotism, favouritism and misuse of  govern- mental power levelled against the Chief Minister and certain other Ministers ,of the State.  Therefore, the scope of  the inquiry-  would  inevitably involve the functioning  of  the executive  of  the State.  The dispute in the  instant  case relates  to the functioning of the State in exercise of  the powers  conferred under the Constitution and so. the  States legal rights are affected. [166 D-F] State  of  Rajasthan  v. Union of India  AIR  1977  SC  1361 referred to. (c)  The  Government  of  India  Act,  1858,  provided  only absolute imperial control without any popular  participation in the administration. The Government of India Act 1919, for the  first time introduced dyarchy in the Provinces.   Under this Act the Provinces were delegates of the Centre and  the Central  legislature retained the power to legislate on  any subject  for  the whole of India.  The Government  of  India Act, 1935 changed the unitary nature of the Government under the 1919 Act into a federal structure and made the Provinces as  units.  The 1935 Act divided legislative powers  between the centre and the provinces; the Federal list comprising of subjects  over which the federal legislature  had  exclusive powers  of  legislation, the Provincial List  comprising  of subjects   over  which  the  Provincial   legislatures   had exclusive jurisdiction and the Concurrent List comprising of subjects   over  which  both  the  Federal  and   Provincial legislatures had power to make laws.  Under the Constitution the  States,  in several respects, are  subordinate  to  the Central  Government in that the formation of the  federation was not as a result of any treaty between the States and the Federation.  There are various features of the  Constitution which  make it strictly not federal.  It has variously  been described as quasifederal or federal in structure or federal system  with  a  strong  central bias.   In  the  scheme  of distribution  of  powers between the Union and  the  States, there  is  a strong tilt in favour of the  Union.   For  the purpose  of  settling disputes between the  Centre  and  the States a machinery is also provided for in the ,Constitution itself. [140 C; 141 C; 142] (d)  In determining what the respective powers of the Centre and  the States are, one has to look into the  Constitution. Since  the  States  are not the  delegates  of  the  Central Government  and  the source of power both for the  Union  as well  as  the  States being  the  Constitution  itself,  the Central Government cannot exercise any power over the States which is not provided for in the Constitution.  There is  no overriding power with the Union Government. [143 B] Atiabari Tea Co. Ltd. v. The State of Assam & Ors. [1961]  1 SCR 809, Automobile Transport (Rajasthan) Ltd. v. The  State of  Rajasthan  [1963] 1 SCR 491.  State of  West  Bengal  v. Union of India [1964] 1 SCR 371 and Kesavanand Bharti [1973] Sapp.  S.C.R. I referred to. (e)  Under  Article  254(1)  when a law made  by  the  State Legislature is In conflict with any provision of law made by Parliament  or  to any provision of any  existing  law  with respect  to one of the matters enumerated in the  Concurrent List, then the law made by Parliament shall prevail and  the State law shall be void to the extent of repugnancy. [149 C] (f)  Before  declaring a law as repugnant an attempt  should be made to see whether   the  conflict could be  avoided  by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 161  

construction. [149 C] (g)  Article  248(1) and Entry. 97 in List I of the  Seventh Schedule  make  it clear that the residuary  power  is  with Parliament and when a matter sought 18 to  be  legislated  is not included in List II  or  List  II Parliament  has  power  to make laws with  respect  to  that matter  or  tax.  But the function of the Lists  is  not  to confer  powers on the legislature; they only  demarcate  the legislative  field.   Since  there is no  provision  in  the Constitution conferring on the Union the power to  supervise the  governmental  functions of the State reference  to  the Lists will not solve, the problem raised in this case.  [149 C-D] The  Governor General in Council v. The  Raleigh  Investment Co.  [1944]  F.C.R.  229, 261 and Union of India  v.  H.  S. Dhillon [1972] 2 SCR 33 referred to. (b)  The well accepted basic principles of  construction  of the Constitution as laid down by decided cases are that when a  question arises whether the prescribed limit  shave  been exceeded, the only way in which it can be done is by looking into the terms of the instrument by which affirmatively  the legislative powers were  created  and  by  which  negatively they  are restricted.  If what has been done is  legislation within the general scope of the affirmative words which give the  power,  and  if  it  violates  no  express  conditioner restriction by which     that  power is limited, it  is  not for  any Court of justice to inquire further or  to  enlarge constructively those conditions and restrictions.If the text is  explicit  the  text is conclusive.   When  the  text  is ambiguous, recourse must be had to the context and scheme of the  Act.  Yet another well-accepted aid to construction  is that   the  history  which  lies  behind  an  enactment   is admissible  because  to  find out the meaning  of  the  law, recourse  may legitimately be had to the prior state of  the law, the evil sought to be remedied and the process by which the law was evolved. [150 H; 151 A] (i)The  golden rule of interpretation that  in  construing words  in a Constitution conferring legislative  power,  the most  liberal  construction should be put  upon  the  words, admits  of certain exceptions.  If it is found necessary  to prevent  conflict  between  two  exclusive  jurisdictions  a restricted  meaning may be given to the words.  Further,  in interpreting  the words of a statute the main object  is  to ascertain  the intention expressed by the words  used,  that is, to ascertain "the intention of them that made it."  [154 F-G] R.v.  Burah [1878] 3 A.C. 889 and Attorney-General  for  the Province of Ontario and Others. v. Attorney-General for  the Dominion  of Canada and Another [1912] A.C. 571 at 573,  The Amalgamated  Society of Engineers v. The Adelaide  Steamship Company  Ltd.  & Ors. 28 C.L.R. 129, Webb v.  Outrim  [1907] A.C.  81.  The  State of Victoria v.  The  Common-Wealth  of Australia, 122 C.L.R. 353, Liyange v. R. [1967] A.C. 259 and The State of West Bengal v. Niripendra Nath Bagchi [1966]  1 SCR 771 referred to. (j)Articles  256 and 257 list the obligations of the  States and  the Union and control of the Union over the  States  in certain cases.  Article 257(A) (introduced by 42nd Amendment of  the  Constitution) empowers the Government of  India  to deploy any armed forces of the Union or any other force  for dealing  with  any grave situation of law and order  in  any State.   Except in cases referred to in these Articles,  the Constitution  does not provide for the Union  Government  to give any directions to the State Government.  As there is no

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 161  

specific  article  in the Constitution  enabling  the  Union Government  to  cause  an  inquiry  into  the   governmental functions  of  the  State the power  cannot  be  assumed  by ordinary   legislation   but  resort  must  be  had   to   a constitutional amendment. [152 C-D; F; H] (k)The  Constitution  being the fundamental  law,  no  law passed under mere legislative power can effect any change in the  Constitution unless there is an express power  to  that effect given in he Constitution itself.  There are a  number of  articles  which expressly provide for amendment  of  the Constitution by law.  But where no power is conferred on the Parliament  to make laws, it cannot add to the  Constitution by ordinary law making process. [153 C] I.C.  Golak Nath & Ors. v. State of Punjab & Anr.  [1967]  2 S.C.R. 762 referred to. (1) Entry 45 in List III (Enquiries........ for the purposes of  any  of the matters specified in List II  or  List  III) should not be given a wide meaning as, 19 conferring  on the Union and the State Government powers  to enact  a provision to embark on an inquiry as to the  misuse of the governmental powers by the other. [155 C-D] River  Wear  Commissioners  v. Adamson [1877]  2  A.C.  743, R.M.D. Chamarbaugwalla v. The Union of India [1957] SCR  930 and Bengal Immunity Co. Ltd. v. State of Bihar [1955] 2  SCR 603 referred to. (m)The  power conferred under Entry 45 List III cannot  be construed in such a manner as to lead to the conclusion that if a law enacted by Parliament empowers the Union Government to  conduct  an  inquiry into  the  misuse  of  governmental functions by a Minister of State Government, the State  will have  the power to legislate empowering it to  enquire  into the  misuse  of  governmental powers  by  a  Union  Minister relating  to  matters in List III.  Such  an  interpretation would not be conducive to the harmonious functioning of  the Union and the States. [155 D-E] (n)The decisions on which the Union Government relied  for the  proposition that the words "definite matter  of  public importance"  would  embrace an inquiry into  the  misuse  of governmental  functions  of the State, do not  support  that contention. In  M.  V. Rajwade v. Dr. S.  M.  Hassan  and Others the commission appointedwas  only a  fact-finding body meant to instruct the mind of the Government andthe scope  of  the inquiry fell within s. 3 as it related  to  a definite matter ofpublic  importance  and not  an  inquiry into  the  misuse  of  governmental  functions  of  a  Chief Minister or a State Minister.In Shri Ram     Krishna  Dalmia v.  Shri  Justice S. R. Tendolkar and others,, it  was  held that  the  act and conduct of individuals  may  assume  such dangerous  proportions as may well affect the  public  well- being   and  thus  become  a  definite  matter   of   public importance.   But  neither  decision  concludes  the   point arising  in ’this case, namely, whether the words  "definite matter  of  public  importance" should be  construed  as  to include the right to inquire into the abuse of  governmental functions by a State Government.  Again in State of Jammu  & Kashmir v. Bakshi Ghulam Mohammad which is an authority  for the  proposition that inquiry into the acts of a person  who had  ceased  to  be a Chief Minister may continue  to  be  a matter  of  public importance it was held that  the  inquiry into the past acts which have affected the public well-being would be matters of public importance and it was  irrelevant if the person who committed those acts was still in power to be able to repeat them. [158 A-H] Shri  Ram Krishna Dalmia v. Shri Justice S. R.  Tendolkar  &

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 161  

Others [1959] SCR 279, State of Jammu and Kashmir v.  Bakshi Ghulam Mohammad, [1966] Supp.  SCR 401 and M. V. Rajwade  v. Dr.  S.  M.  Hassan  & Others I.L.R.  [1954]  Nag.   I  held inapplicable. (Dissenting) 2.The impugned notification impinges on the right of  the State  to function in its limited sphere and is  beyond  the powers of the Central Government under s. 3 of the Act. [168 G] (a)If  s.  3 of the Commissions of Inquiry  Act,  1952  is construed  as  enabling the appointment of a  Commission  of Inquiry  into the conduct of a Chief Minister in office,  it would result in empowering the Central Government which is a delegate  of  the Parliament to exercise  the  powers  which would  never have been contemplated by the Parliament.   The result  of such a construction would amount to inviting  the State Government to appoint Commissions of Inquiry into  the conduct  of Central Ministers regarding matters in  List  II and List III. [161 H] (b)Section 3(1) read with the proviso makes it clear  that the  intention  of  the Act is  to  enable  the  appropriate Governments that is, the Central or the State Government  to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance.   The Central  Government  can  appoint a Commission  to  make  an inquiry  into  any matter relatable to any  of  the  Entries enumerated  in  List I, List II or List III of  the  Seventh Schedule of the Constitution while the State Government  can appoint a Commission to inquire into any matter relatable to any of the Entries enumerated in List II and List III of the Constitution.  As both the Central Govern- 20 ment  and  the  State Government have  power  to  appoint  a Commission  of  Inquiry relating to Entries in List  II  and List  III  there  might arise occasions when  there  may  be overlapping.  In order to avoid such a contingency  provisos (a)  and  (b)  to  s.  3(1)  enact  that  when  the  Central Government has appointed a Commission of Inquiry, the  State Government  shall not appoint another Commission of  Inquiry into  the  same matter without the approval of  the  Central Government  so  long  as the  Commission  appointed  by  the Central Government is functioning and the Central Government shall  not appoint an,other Commission to inquire  into  the same matter as long as the Commission appointed by the State Government  is  functioning.  These provisions are  for  the purpose  of  avoiding any conflict by  the  two  Governments appointing two separate commissions to inquire into the same matter. [163 D-F-] (c)In the instant case the Court is not called upon to  go into  the two notifications and determine which item in  the notification of the Central Government is not covered by the State Government’s notification. [168 G]

& ORIGINAL JURISDICTION : Original Suit No. 8 of 1977. L.   N. Sinha, R. N. Byra Reddy, Adv.  Genl., S. C. Agarwal, Vinoo Bhagatand Narayan Metter, for the Plaintiff. S.   N.  Kacker, Solicitor General, Soli J. Sorabjee,  Add1. Solicitor General, R. N. Sachthey, E. C. Agarwala and Girish Chandra, for Defendant No. 1. The following Judgments were delivered by BEG, C.J.-"India, that is Bharat, shall be union of States’. The  very  first  mandate  of  the  first  article  of   our

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 161  

Constitution  to which we owe allegiance thus prohibits,  by necessary  implication,  according to the plaintiff  in  the original  suit  now  before  us under  Article  131  of  the Constitution  of India, any  constitutionally  unjustifiable trespass  by  the Union Government upon the  domain  of  the powers  of  the  States.   The  State  of  Karnataka,   has, therefore, sued for a declaration that it notification dated 23-5-1977   (hereinafter   referred  to  as   ,rho   Central Notification)  constituting  a  Commission  of  Inquiry   in purported  exercise  of its powers under Section  3  of  the Commissions of Inquiry Act, 1952 (hereinafter referred to as ’the Act’), is illegal and ultravirus.  This declaration  is sought on one of two alternative grounds : firstly, that the Commissions  of Inquiry Act, 1952, does not  "authorise  the Central Government to constitute a Commission of Inquiry  in regard  to matters falling exclusively within the sphere  of the State’s legislative and executive power", and, secondly, that  if  the  provisions of the Act do  cover  the  Central Government   Notification,   they   are   ultra-vires    for contravention  of "the terms of the Constitution as well  as the federal structure implicit and accepted as an inviolable basic  feature of the Constitution".   Consequentially,  the plaintiff  seeks  a  perpetual injunction  to  restrain  the respondents,  the Union of India and Shri A. N. Grover,  the one-man Commission of Inquiry into "  charges of corruption, nepotism,  favouritism  and misuse  of  Governmental  power, against the Chief Minister and other Ministers of the  State of  Karnataka", from acting under the  Central  Government’s notification. 21 The plaintiff State’s case is : that, the Congress Party was returned  by the electors by a majority at an election  held in  the  State  in  1972; that the  majority  party  in  the legislature  elected Shri Devraj Urs as its leader who  then formed  his  Government as required by Article  163  of  the Constitution;  that, the Government thus installed, by  what must  be  deemed to be the will and decision  of  the  State Legislature,  continues  to  enjoy  the  confidence  of  the legislature and is in office; that, in the recent Lok  Sabha elections,  the  Congress party headed by  Shri  Devrai  Urs achieved  a  resounding success by having won 26 out  of  28 seats  so  that the Janata party, which is in power  at  the Centre,  must  be  deemed  to  have  been  rejected  by  the electorate, but it is indirectly, through the appointment of a  Central  Commission of Inquiry trying  to  discredit  the Congress  Party and its leaders in the State  of  Karnataka, and,  thereby, interfering with the democratic machinery  of control  and  supervision  of the Government  of  the  State provided by the Constitution itself. On  26th April, 1977, the Union Home Minister sent a  letter to  the  Chief  Minister  of  the  State  communicating  the allegations  contained in a Memorandum submitted by  certain members  of  the  opposition party in  the  Karnataka  State Legislatures and asked him to make his comments.  The  Chief Minister  gave a reply dated 13th May, 1977 a copy of  which was attached to the plaint. The Chief Minister, in his reply, complains that "slanderous propaganda  has been unleashed without any  verification  of the truth or otherwise of the allegations or past history of most  of  the charges".  He points out that  broadcasts  and press reports had given him an intimation of the allegations sent  to him even before they were received by him with  the Home  Minister’s letter.  The Chief Minister said :  "It  is reasonable  to presume that the object of this  campaign  of slander  is  mainly  to tarnish the image  of  the  Congress

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 161  

party,  my  colleagues and myself in an effort to  gain,  if possible,  power  for your party in  the  State  immediately after  your party was totally rejected by the electorate  of the   State  in  the  recent  Lok  Sabha  elections".    The insinuation was that the whole object of manipulated charges against  the  Chief  Minister  was to  vilify  him  and  his Government  and to bring him down in the estimation  of  the public so as to destroy the support which the Congress party had  from the people of the State. it was thus a  charge  of malice in fact. The Chief Minister also admitted, in his letter to the Union Home  said to be embodied in our Constitution and  described them  as  "the comer-stone of national  unity  and  national integrity". He asserted : "the constitution is the source of all power for the various organs of the Centre and the State and  all actions and exercise of all power under any of  the statutes  either by the Centre or by the State must  conform to  and  be subordinated to the scheme  of  distribution  of powers, legislative and executive, under the Federal  Scheme of the Constitution". The Chief Minister also admitted in his letter to the  Union Home Minister, that the Constitution "in certain exceptional circumstances pro- 22 vides  for  the  Centre making inroads  into  the  exclusive domain  of  the State Legislature or the  State  executive". But,   lie  denied  that  the   exceptional   circumstances, expressly provided for in the Constitution, for interference by the Centre, existed in the instant case. Evidently,  the Chief Minister meant that there was no  room for  invoking the emergency provisions under Article 356  of the  Constitution which provides for the assumption  by  the President of India of any of the functions of the Government and  by the Union Parliament of the functions of  the  State Legislature, provided "the President is satisfied on receipt of a report from the Governor of a State or Otherwise that a situation  has arisen in which the Government of  the  State cannot be carried on in terms of the Constitution". The Chief Minister also invokes the aid of the principles of democracy which, according to him, permeate the whole scheme of the Constitution, so that Chief Ministers and other State Ministers  can  be  called  to account  only  by  the  State Legislature to which they are responsible.  He asserted that "the Cabinet system of Government is a basic feature of  the Indian Constitution".  This implies, according to him,  that all  control  over ministerial actions vests  in  the  State Legislatures only and not in the Union Government,  subject, of course, to exceptions expressly provided.  With regard to the actions of the State Government, he complained that  the assumption of inquisitorial or supervisory functions by  the Union Government at the instance of "an extra constitutional agency,  however high, would destroy the basic character  of the   Cabinet  system  of  Government  and  would  rob   the legislature   of   the  State  and  its   people,   of   the constitutionally guaranteed right of having a Government  of their choice subject to their control".  He claimed that the State had exclusive right to investigate charges relating to matters falling "within exclusive domain of the State  under the  Constitution".   He  warned  against  the  dangers   to national  interest  by undue interference with  the  federal scheme contemplated by the Constitution. The Chief Minister, after having emphatically asserted  what he conceived to be the object of the proceedings against him and  his  constitutional rights, very  properly  offered  to place all the material having a bearing upon the 36  charges

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 161  

out of which he admitted that 23 related to him.  He offered to clear himself of these charges. lie pointed out that 4 of the charges related to his colleagues and had been discussed in the legislature.  He also said that 3 charges had already been  enquired into by the former Prime Minister.   He  said that  be  did not want these to be reopened.  He  cited  the speech of Shri Om Mehta, a former Minister of State, in  the Lok  Sabha, on 5th May 1976, where it was stated  that  some memoranda   bad   been  sent,  containing   allegations   of corruption  and  misuse  of power  made  against  the  Chief Minister and other ministers of Karnataka by some members of the Legislative Assembly, as long ago as 1973.  According to that  statement, there were 99 allegations out of  which  16 concerned  the  Chief Minister personally.  Shri  Mehta  was said to have declared that the allegations against the Chief Minister  were  found to lack substance  after  the  settled procedure 23 of  inviting  comments from the Chief  Minister  Iliad  been observed.   The  Chief Minister then dealt  at  considerable length with the individual charges. In the plaint before us, it was pointed out that charges  of the  nature  now referred to the one man Commission  by  the Central  Government had been made over since 1972  elections both on the floor of the Legislature and elsewhere.  It also said that they had been explained and answered on the  floor of   the   Legislature  repeatedly.   The   Chief   Minister complained that the same allegations had been repeated after a new Government had assumed office at the Centre. It  was also asserted in the plaint that, in order to  allay any suspicion in the ’minds of the public in-the State, and, in  view  of the continued agitation for a  judicial  probe, and,  in accordance with the highest and best traditions  of Government, the State Government, by a notification, dated 1 8th  May,  1977,  appointed a Commission  of  Inquiry  under Section  3(1) of the Commissions of Inquiry Act,  1952.   ’A copy  of  the  notification  of  the  State  Government  was attached to the complaint.  It was alleged that a copy of it had also been sent to the Home Minister ,on 18th May, 1977. One  of the submissions by the plaintiff is that  the  State Government notification dated 18th May, 1977, appointing its own   Commission  to  inquire  into  all  the  matters   and irregularities,  to  which additions could be  made  and  of which further particulars could be provided, covers all that could  be enquired into by the Grover Commission  under  the notification  dated  23rd  May,  1977,  which   specifically excludes  matters  covered  by  the  Karnataka  Government’s notification  dated 18th May, 1977.  Reliance is  placed  on proviso  (b) to Section 3(1) of the Act which prohibits  the Central  Government from appointing another Commission "  to inquire  into  the  same matter for so  long  as  Commission appointed by the State Government is functioning, unless the Central  Government,  is of opinion that the  scope  of  the inquiry should be extended to two or more States". The written statement filed on behalf of the Union of  India raises  2 preliminary objections as follows  before_replying seriatim  to the paragraphs in the plaint.  The  preliminary objections are :               "1. The suit by the State of Karnataka is  not               maintainable   inasmuch   as   the    impugned               notification  S.O. No. 365(E) dated  23rd  May               1977  constituting the Commission  of  inquiry               does  not  affect  the  plaintiff-State.    By               impugned notification a Commission of  Inquiry               under section 3 of the Commissions of  Inquiry

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 161  

             Act,  1952,  has  been  constituted  for   the               purpose of making an inquiry into the  charges               of   corruption,  nepotism,  favouritism   and               misuse of Governmental power against the Chief               Minister and certain other Minister’,; of  the               State Karnataka specified in the notification.               The inquiry is against the Chief Minister  and               certain other Ministers as individuals and not               against  the State of Karnataka.  The  inquiry               is rather               24               in the interest of State that such corruption,               nepotism, favouritism should not exist in  the               State.  The State of Karnataka is not directly               interested in the inquiry proposed to be  held               against  the Chief Minister and certain  other               Ministers  of  the  State.   The   individuals               occupying  the  office of Chief  Minister  and               Ministers are distinct from the State it".               2.Article 131 of the Constitution of India               gives  original jurisdiction to  the  Hon’ble,               Supreme  Court  in  any  dispute  between  the               Government  of  India and one or  more  States               etc., if the dispute involves any question  of               law  or fact or which the existence or  extent               of  a  legal right depends.   There  being  no               dispute  between the Government of  India  and               the  State,  the  suit  is  not  maintainable.               There is no legal right of the plaintiff-State               to Me the present suit." The  Union  of  India  denied that the  matters  now  to  be enquired  into  by  the  Grover  Commission  constituted   a resuscitation of previous charges and allegations which  had been  disposed  of.  Mala fides in the  institution  of  the Commission  of  Inquiry  is denied.   The  validity  of  all provisions  of the Act is staunchly defended.   The  Inquiry ordered  by the Central Government is, its  asserted,  quite competent   and   not  covered  by  the   State   Government notification.   It  is  denied that the  federal  scheme  or democratic  principles  embodied in the Constitution  are  ’ affected  by the institution of a Commission of  Inquiry  of the  kirict  set  up.   It is  submitted  that  the  Central Government  Commission of Inquiry was ordered to  enable  an appropriate and completely impartial fact finding process to take  place  so that either the Central  Government  or  any other  authority  or  even members of  the  public  may,  in accordance with democratic principles, act in a manner which is  constitutionally  proper and fully  justified.   In  any case,  the  conduct of the Chief Minister of  a  State  with regard  to affairs of State and the manner in which he  used his  official position were, according to Union  Government, matters   of  public  importance  into  which  the   Central Government  was  quite  competent to  order  impartial  fact finding inquiries in public interest. On  the  above set of pleadings, the following  issues  were framed this Court : "1.  Is the suit maintainable ? 2.   Is the impugned notification ultra vires the powers  of the Central Government under section 3 of the Commissions of Inquiry Act ? 3.   If  Section 3 of the Commission of Inquiry  Act  autho- rises   the  Central  Government  to  issue   the   impugned notification, is the Section itself unconstitutional An  important  preliminary question to be decided,  for  the reasons  already indicated, concerns the nature of  the  two

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 161  

inquiries,  one the State Government and another  instituted by  the Central Government.  If the two notifications  cover substantially "the same matter", it may 25 not  be necessary to deal with other questions at all.   The parties have very fully argued their cases on this  question even  through no separate or specific issue has been  framed on it.  Both the parties have raised this issue specifically in their pleadings.  They have argued on the assumption that a decision on it is implied in the trial of other issues  in the  case.  We will, therefore, take it up first  separately as  a  preliminary question which we  should  decide  before taking  up other matters in issue.  A determination of  this question  has  an important bearing on  matters  argued  for purposes of deciding each of the three issues framed  above. Even if the question was not directly or indirectly involved in the decision of each of the three issues framed above,  a decision on it seems necessary for clearing the ground for a correct  approach to the whole case.  It is certainly not  a question  we could abstain from deciding simply  because  no specific  issue was framed separately on it at  the  outset. Although, in view of the fact that the question has been put in  issue  and so understood and very fully  argued  by  the parties,  a separate and specific issue need not  be  framed upon  it, yet, because of the crucial importance of  it,  we formulate it now separately and specifically as follows : Do both  the State and the Central Government inquiries  relate to  the  ’same matter within the meaning of proviso  (b)  to Section  3(1)  of  the Act so as to bar an  inquiry  by  the Central or Union Government so long as the State  Commission is  functioning?  The State Government’s notification  dated 18-5-1977, reads as under "Government of Karnataka" Karnataka  Government Secretariat Vidhana Soudha  Bangalore, May 19, 1977 NOTIFICATION WHEREAS  allegations  have  been made on the  floor  of  the Houses   of  the  State  Legislature  and   elsewhere   that irregularities  have been committed/excess payments made  in certain  matters  relating  to contracts,  grants  of  land, allotment of sites, purchase of furniture, disposal of  food grains, etc. : WHEREAS  the State Government is of the opinion that  it  is necessary to appoint a Commission of Inquiry to inquire into the said allegations : NOW, THEREFORE, in exercise of the powers conferred by  sub- section (1) of Section 3 of the Commissions of Inquiry Act,, 1952  (Central Act 60 of 1952) the Government  of  Karnataka hereby appoint Justice Shri Mir Iqbal Hussain, Retired Judge of the Karnataka High Court to be the Commission of  Inquiry for  the  purpose  of  making  an  inquiry  into  the   said allegations,  particularly specified below and to  submit  a report  thereon to the State Government within a  period  of four months from the date of this Notification :- 26 I.Whether improper or excessive payment was made to  M/s. Nirmala Engineering Construction Company in respect of  tile contracts awarded to them by the Government of Karnataka and the Karnataka Urban Water Supply and Drainage Board for lift irrigation or water supply scheme ? 11.Whether  any improper or excessive payment was made  to M/s.   Balaji  Engineering and Construction Works  Ltd.,  in respect of the contracts awarded to them for- (1)  the  construction  of the right bank earth dam  of  the Hemavathi Project from change No. 7890 to 8510.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 161  

(2)  the construction of the right bank irrigation sluice of the Hemavathi Dam; (3)  the construction of the left bank irrigation sluice  of the Hemavathy Dam; (4)  the  construction of the masonry dam of  the  Hemavathy Project  from  Chainage  No. 4400  to  5740’  including  the overflow section and the protective works; (5)  the  construction of the spillway dam of the  Hemavathy Project; (6)  the  construction  of the masonry dam  of  the  Harangi Project ? III. Whether any improper or excessive payment was made or  undue  favour  shown to  M/s.   Nechipadam  Construction Company  in respect of the contract awarded to them for  the construction  of  the Hemavathy right Bank  Earth  Dam  from chainage 2025m. to 2405m. and chainage 1750m. to 2025m ? IV.Whether  any improper or excessive payment was made  or undue  favour  shown to M/s.   Shankaranarayan  Construction Company in respect of the contracts awarded to them for- 0 (1)  the  construction of the combined Board  Administrative Division Building; (2)  the  construction of the right bank earthen portion  of the Hidkal Dam in the two reaches from 10,000 to 11,000  and 11,100 to 14,700 ? V.Whether  any improper or excessive payment was made  or undue  favour  shown  to  M/s.   EICIL  in  respect  of  the contracts awarded to them for- (1)  the construction of the head race tunnel from the  Bom- manhalli pick up dam to the surge point; (2)  the  construction  of the surge tank and  the  pressure shaft ? VI.   Whether any undue favour was shown to  M/s.   Ghansham Commercial  Co. Ltd., in the sale of 25,000 tonnes of  bajra at the rate of Rs. 73.50, per quintal in 1972 ? 27 VII. Whether  any  undue  favour  was  shown  to   m/s. Krishna  Flour  Mills in respect of the lease  of  the  land next- to its premises, measuring 200x200’ for a period of 30 years ? VIII. Whether any improper or excessive payment was made or  any  undue favour was shown to M/s.   Shah  Construction Company  in the settlement of their claims for the  contract awarded to them for the construction of the Almatti Dam ? IX.Whether  any undue favour was shown to  M/s.   Poornima Electronics  in the placing of orders on them for supply  of electronic equipments like Intercome etc. ? X.Whether there was any disappropriation or fraud in  the dealings  of  the State  Co-operative  Marketing  Federation during the period 1971-72 and 1972-73 ? XI.Whether  any  undue  favour  has  been  shown  by   the Government  or the KSTRC in leading out the building in  the KSRTC bus stand at Mysore for a Canteen at Mysore ? XII. Whether  any undue favour was shown by  Government or  the KSTRC in leasing out resting rooms in the  KSRTC  in Mysore to Shri Prem Kumar ? XIII. Whether   the   funds  of  the   Agro   Industries Corporation were wrongly diverted to the Gadag  Co-operative Textile Mills, Hulkoti, Gadag, Dharwar district ? XIV. Whether  undue favour was shown to  M/s.   Navrasa Fertilizers  in purchasing fertilisers and  whether  payment was made even without receipt of the stock ? XV.Whether site on J.C. Road was leased to Shri M. B.  Lal and  N. V. Venkatappa contrary to the interests of the  City of Bangalore Municipal-Corporation?

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 161  

XVI. Whether the grant of land in S. No. 15 of Bommena- halli  Village,  Nelamangala Taluk, Bangalore  District  was made contrary to rules ? XVII.  Whether sites in Rajmahal Vilas and Palace Orchard’s layouts were irregularly allotted’? XVIII. Whether  the  purchase of one thousand  tonnes  of paddy fromTamil  Nadu by Shri Atheeq Ahmed,  Proprietor of the MandyaRice  Mills,  Mandya at the instance  of  the State Governmentand the subsequent disposal thereof were adverse to the interests of the State ? XIX. Whether the contract for the preparation of models and  designs  for  the re-modelling of  the  K.  R.  Market, Bangalore  was  irregularly  awarded to  M/s.   Karekar  and Sundaram ? 3-1042 SCI/77 28 XX.Whether  the  conversion of land owned by  Shri  C.  M. Dinshaw  and family in Narasipura Village,  Bangalore  North Taluk  (known as ’Dinshaw Estate’) as non-agricultural  land was not in accordance with the rules ? XXI. Whether  any irregularities or improprieties  have been  committed in the administration of the Karnataka  Film Development Corporation since 1971 ? XXII. Whether  the  cement  or steel  allotted  for  the construction  of the Government Harijan Hostel  building  in Bangalore City was diverted to other purposes ? XXIII. Whether  orders for the purchase of furniture  for the  Health Department for the years 1972-73,  1973-74  were placed  at  exorbitant  rates with firms  who  were  neither furniture dealers nor approved PWD contractors/suppliers ? XXIV. Whether  essentiality certificates  for  stainless steel  were  issued  to bogus firms  or  fictitious  persons during the period 1st March 1974 to 30th June 1974 ? XXV. Whether the purchase of Fargo and Bedford  Chassis by  the KSRTC in August 1972 was against  the  Corporation’s interests ? XXVI. Whether the appointments of agents, sub-agents and dealers  during the years 1967-77 by the  Visvesvaraya  Iron and  Steel Ltd., Bhadravathi for the distribution  of  Steel and cement were adverse to the Company’s interests ? XXVII. Whether the appointments of agents, sub-agents and dealers  for  the years 1967-77 by the  Mysore  Paper  Mills Ltd., Bhadravathi for the distribution of paper were adverse to the Company’s interests ? XXVIII. Whether improper or excessive payment was made  to Shri  M. S. Ramaiah, contractor, in respect of the  contract awarded  to him for the construction of the  Talakalele  dam and its appurtenant works, which form part of the Sharavathi Valley Project. XXIX. Whether there were any defects in the construction of  Talakalele Dam owing to bad design, use of  sub-standard materials  caused by negligence or wilful commission of  the contractor or any individual ? XXX. Whether  unjust or excessive payment was  made  to M/s.  Tarapore & Co., in respect of the contract awarded  to them for the rock fill work both up and down stream, in  the Lingannamakki earthen dam? XXXI. Whether there was any irregularity or  impropriety in  the grant of 3000 acres of land in Periyapatna Taluk  to M/s.  Oriental Aromatics ? 29 XXXII.    Whether any favour was shown to Shri Bhooma  Reddy in thematter  of  award of the right to retail  vend  of liquors in the year1968 ? XXXIII.   Who are the persons responsible for the lapses, if

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 161  

any regarding the aforesaid and to what extent ? By order and in the name of the Governor of Karnataka. Sd./- G. V. K. RAO, Chief Secretary to the Government To The  Compilor,  Karnataka Gazette, for publication  of  this Notification  in a Gazette Extraordinary and supply  of  200 copies. COPY to: All Secretaries to Government, The  Registrar,  High  Court of Karnataka  with  a  covering letter." The Central Government Notification dt. 23-5-1977 reads as follows :- "THE GAZETTE OF INDIA EXTRAORDINARY PART II-SECTION 3-SUB-SECTION (ii) MINISTRY OF HOME AFFAIRS DEPARTMENT OF PERSONNEL & A.R. NOTIFICATION New Delhi, the 23rd May, 1977 S.C.365(E)-Whereas the Central Government is of opinion that it  is necessary to appoint a Commission of Inquiry for  the purpose  of  making  an inquiry into a  definite  matter  of public importance, namely’ charges of corruption,  nepotism, favouritism or misuse of Government power against the  Chief Minister  and  certain  other  Ministers  of  the  State  of Karnataka, hereinafter specified; Now,  therefore  in  exercise of  the  powers  conferred  by section  3  of the Commissions of Inquiry Act, 1952  (60  of 1952),  the Central Government hereby appoints a  Commission of Inquiry consisting of a single member, namely, Shri A. N. Grover, retired Judge of the Supreme Court of India. 30 2. The terms of reference of the Commission shall be as,. follows :- (a)  to inquire into the following allegations, namely:--               (i)   such of the allegations contained in the               memorandum;  dated 11th April, 1977,  received               from  some  Members  of  the  Karnataka  State               Legislature   and  addressed  to   the   Prime               Minister as are specified in Annexure 1;.               (ii)such of the allegations contained in the               memoranda   aforesaid  as  are  specified   in               Annexure II, but excluding any matter  covered               by  the  notification  of  the  Government  of               Karnataka in the Chief Secretariat No. DPAR  7               GAM 77, dated the 18th May, 1977;               (b)   to   inquire  into   any   irregularity,               impropriety or contravention of law other than               those  specified in the said  notification  of               the  Government of the State of Karnataka,  on               the  part  of any person in  relation  to  any               matter   referred   to  in   the   allegations               aforesaid;               (c)   to  inquire into any other matter  which               arises   from,   or  is  connected   with   or               incidental   to,   any   act,   omission    or               transaction  referred  to in  the  allegations               aforesaid;               Explanation-In    the   Annexures   to    this               notification,  "Chief  Minister"  means   Shri               Devraj Urs, the Chief Minister of the State of               Karnataka.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 161  

             3.    The headquarters of the Commission  will               be at New Delhi. 4.The  Commission will complete its inquiries and  report to  the  Central  Government on or before  the  1st  day  of December, 1977. 5.And whereas the Central Government is of opinion having regard  to  the  nature of the inquiry to  be  made  by  the Commission and other circumstances of the case, that all the provisions of sub-section (2), sub-section (3),  sub-section (4) and sub-section (5), of section 5 of the Commissions  of Inquiry Act, 1952 (60 of 1952) should be made applicable  to the  Commission, the Central Government hereby  directs,  in exercise  of the powers conferred by subsection (1)  of  the said section 5, that all the provisions of the said sub-sec- tion  (2), (3), (4) and (5) of that section shall  apply  to the Commission. ANNEXURE I 1.Whether  the Chief Minister practiced  favouritism  and nepotism by appointing his own brother, Shri D Kamparaj Urs, as  a  Director  of  the  Karnataka  State  film  Industries Development  Corporation  in place of Shri  R.  J.  Rebello, Chief  Secretary  to the Government, in 1974, and  later  as Director-in-charge  with  the  powers to  exercise  all  the powers of the Managing Director. 2.Whether  the  Chief Minister had  directed  auction  of excise shops out of turn in five districts on the eve of the recent Lok Sabha 31 Elections  in  the  month of February,  1977,  With  corrupt motives although the auctions were due in the month of  May, 1977,  and  whether  this  was  done  with  the  object   of collecting funds for the Elections. 3.Whether the Chief Minister had released Rs. 50.60 lakhs to  buy "Understanding Science" from I.B.H.  overruling  the decision  of the Sub-Committee constituted for  the  purpose under the Chairmanship of the Chief Minister and also  over- ruling the orders of the concerned Minister. 4.Whether  the  Chief  Minister  was  guilty  of   shielding corrupt,  officers,  in  particular, two,  officers  of  the public   Works  Department,  namely,  Shri  Seshagiri   Rao, Assistant Engineer, and Shri Shivanna, a Clerk, against whom prosecution  orders  were passed by the  Government  on  the basis  of the recommendations of the  Vigilance  Commission. Whether the Chief Minister on his own revised the order  and withdrew the prosecution for any consideration. 5.Whether Shri Hanumantha Reddy, Superintending Engineer, was promoted as Chief Engineer by the Chief Minister against the  recommendation  of  the Vigilance  Commission  that  he should  be demoted and certain amounts should  be  recovered from him and whether the Chief Minister also over-ruled  the orders of the concerned Minister and whether such  action,of the Chief Minister was for any Consideration. 6.Whether  the  following  payments  were  made  to  M/s. Shankaranarayana Construction Co. :- (i)  an  ex-gratia payment of Rs. 6.37 lakhs  in  Malaprabha Project; (ii) excess payment to the tune of Rs. 12.00 lakhs in Ghata- prabha Project with an intention to favour the contractors. 7.Whether  any misappropriation of funds and  fabrication of  accounts of the Social Welfare Department was made  with the  connivance of the then Minister Shri N. Rachaih to  the extent  of  Rs.  30.00  lakh-  and  whether  any  fraud  was practised in connection with the said matter. 8.Whether  appointment was made of fictitious persons  as dealers  in sandal soap by Mysore Sales International  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 34 of 161  

the  orders  of  the Chief Minister  and  the  Minister  for Industry  and  payment was made of hugs amounts  by  way  of commission. 9.   Whether gross misuse of powers and position was made by Shri H.M. Channa Bassappa, formerly Minister-in-charge of Public  works  Department and Electricity (now  Minister  of Health)  in  converting The residential site  which  he  got allotted  to him by the Trust Board into a  commercial  site and starting a company with his family members as directors. 32 10.Whether any favouritism was shown or whether there was. any  corruption  in the purchase of new types  and  in  body building  contract  for the new chassis by  Karnataka  State Road Transport Corporation under the undue influence of  the Chief  Minister  and the Minister for  Transport  Shri  Aziz Sait. 11.Whether  there  was any nepotism  and  favouritism  and misuse  of power by the Chief Minister and the  Minister  of Transport  in  the  matter of  nationalisation  of  contract carriages and wilfully benefiting certain parties with  whom the Chief Minister’s second son-in-law was a partner. 12.Whether any favouritism was shown in the nomination  of Shri  K.  V.  Rao as a member of the  Karnataka  State  Road Transport  Corporation Board against the provisions  of  the Act. 13.Whether  an  undue  favour was shown  to  M/s.   Balaji EngineeringConstruction Company by accepting the  tender for construction ofhouses    under   Housing   and    Urban Development Corporation’s Low Income Group Scheme in  Dumlur Lay-out  by  the Bangalore Development Authority,  which  is under the administrative control of the Chief Minister. 14.Whether  allotment of 20 acres of land was made to  the three sons ofthe Finance Minister, Shri M. V. Ghorpade, in contravention of landgrant  rules and the provisions  of the Land Reforms Act and the Land Revenue Acts. 15.   Whether  any  misuse of power was  committed,  or  any corruption  committed  by Shri D. K.  Naikar,  Minister  for Municipal  Administration, with regard to the grant of  land to Boroda Textile Milles in Hubli-Dharwar Corporation Area. ANNEXURE II Whether  the  Chief Minister or any other  Minister  of  the State  of   Karnataka was guilty  of  corruption,  nepotism, favouritism  or misuse of governmental power  in  connection with all or any of the following matters, namely :-               (1)   Grant  of 20 acres of  Government  land,               reserved    for   grazing   of    cattle               in Hommanahalli, Nelamangala taluk,  Bangalore               District,  to  the  son-in-law  of  the  Chief               Minister, Shri M. D. Nataraj, in violation  of               the  provisions of the Land Revenue  Code  and               disregarding  the  claims of  local  Scheduled               Caste applicants;               (2)   Allotment  of  4  large  valuable  house               sites in the most posh locality of  Bangalore,               Raj Mahal Vilas Extension, to Shri Devaraj Urs               and his family members in supersession of  the               rightful claims of other applicants;               (3)   Undue  favours shown to  Messrs  Nirmala               Engineering Construction Company, by releasing               Government funds.               33               in  spite  of  the  fact  that  the  concerned               Minister has taken a decision to prosecute the               firm  on the basis of the  recommendations  of               the Vigilance Commissions.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 35 of 161  

             (4)   Excess  payment  of Rs. 98.88  lakhs  to               Messrs   Balaji   Engineering   Company,    in               Hemavathi  Project,  in contravention  of  the               terms of the contract with a view to favouring               the contractor;               (5)   Under favour shown to Messrs  Nechipadam               Construction Company in Hemavathi Project,  by               accepting the highest tender with an intent to               benefit  the contractors and involving  excess               payment to the extent of Rs. 3.5 lakhs;               (6)   Excess payment of Rs.  1 crore to Messrs               TICIL Contractors, in Kali Hydel Project,  for               the benefit of the contractors;               (7)   Whether   about  5,000  tons  of   rice,               purchased by the Government of Karnataka  from               the  Tamil Nadu Government  on  government-to-               government  basis, was allowed to be  marketed               by  a  private party, Shri H. R.  Athu  Ahmed,               without  the knowledge of the Food  Department               instead  of  the  Mysore  State   Co-operative               Marketing  Federation as was  earlier  agreed,               with the sole intent of benefiting the private               party;               (8)   Undue  favour  shown  to  a   fictitious               cooperative society in regard to conversion of               270 acres of agricultural land called  Dinshaw               Estate   into  ;non-agricultural  purpose   in               violation  of the mandatory provisions of  the               Land Reforms Act and the Land Revenue Act;               (9)   Whether  undue favour was shown  to  one               Ghanshyam in the sale of 2500 tons of Bajra at               the  rate of Rs. 73.50 p. per quintal  without               calling   for   tenders  and   allowing   Shri               Ghanshyam  to sell the Bajra in the  State  of               Maharashtra  at  the rate of  Rs.  125.00  per               quintal   during  the  time  of   drought   in               Karnataka.               (10)  Whether   undue  favour  was  shown   or               concession              was   made   to   M/s.               Karakar and Sundaram, Architects, in regard to               the preparation of designs for remodelling the               K.  R. Market in supersession of the order  of               the concerned Minister.               (11)  Whether  undue  favour  was  shown,   or               concession was made to M/s.  Shah Construction               Co., Contractors, in Upper Krishna Project  at               Alamatti.               (12)  Whether  undue favour was shown to  M/s.               Krishna flour Mills in granting valuable  land               in  Bangalore City, which land was  meant  for               children’s  park, at a nominal rent  by  over-               ruling the orders of the concerned Minister.               34               (13)  Whether  there was any  misappropriation               of   funds   of  the  Karnataka   State   Film               Industries Development Corporation to the tune               of  Rs. 10.00 lakhs, when the  Chief  Minister               himself  was the Chairman of that  Corporation               and  whether the business of the  Corporation,               its members, creditors or any other person  or               otherwise   for  a  fraudulent   or   unlawful               purpose.               (14)  Whether  any undue favour was  shown  to               M/s.  Poornima Electronics, Bangalore, in  the               purchase of electronic equipment (intercom) by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 36 of 161  

             superseding the recommendation of the Head  of               the  Department  and orders of  the  concerned               Minister.               (15)  Whether  any  misappropriation  of   the               funds  of  the  Karnataka  State  Co-operative               Marketing Federation to the extent of  several               crores  of  rupees  was made  by  Shri  H.  S.               Srikantiah,  Minister of State for Home,  when               he  was the President of that  Federation  and               whether  the  business of the  Federation  was               conducted   with   intent  to   defraud   that               Federation,  its  members, creditors,  or  any               other person or otherwise for a fraudulent  or               unlawful purpose.               (16)  Whether  any undue favour was  shown  by               Shri  Satya Pal by the Minister  of  Transport               Shri  Mohamed  Ali,  by  accepting  the   once               rejected  tender of Shri Satya Pal in  leasing               out  its  building for  canteen  in  Karnataka               State  Road Transport Corporation  Bus  Stand,               Mysore, and whether any undue favour was shown               by  the same Minister to Shri Satya Pal’s  son               Shri  Prem Kumar, in leasing out its  retiring               rooms  of the Karnataka State  Road  Transport               Corporation in Mysore.               (17)  Whether  any undue favour was  shown  to               four firms, namely, All India Agencies, Vidyut               Engineering   Co.,  Trishul  Enterprises   and               Mysore  Woods, in purchasing furniture  valued               at  Rs.  29.00  Lakhs in  1973-74  under  I.P.               Project  by the Minister for Health,  Shri  H.               Siddaveerappa.               (18)  Whether  any undue favour was  shown  by               the   Minister   of  State   for   Small-scale               Industries,  Shri  Koulajgi in  1974,  in  the               issue  of Essentiality Certificate to  parties               many of which are fictitious and bogus.               (19)  Whether  undue favour was shown  by  the               Chief Minister and the Minister of  Transport,               Shri  Aziz Sait in 1973-74, to M/s.  Fargo  in               buying  150 chassis against the advice of  the               Chief  Mechanical  Engineer of  the  Karnataka               State Road Transport Corporation.               (20)  Whether  any undue favour was  shown  by               the   Minister  of  Industries,  Shri  S.   M.               Krishna,  in  allotting of paper,  cement  and               steel  of the, State-owned Industries to  Non-               traditional dealers/agents including his  kith               and kin.               35               (21)  Whether  an excess payment of Rs.  30.00               lakhs  was  made  to  M/s.    Shankaranarayana               Construction   Company   in  regard   to   the               construction of combined Board  Administrative               Building  Complex at Bangalore over and  above               the contract rates.               (22)  Whether  any excess payment was made  to               M/s.   Balaji Engineering Company to the  tune               of Rs. 80.00 lakhs in Harangi Project with  an               intent to favour the contractor.               (23)  Whether  Shri  K.  H.  Patil,  the  then               Minister  for  Agriculture  and  Forest,   was               guilty  of  any  misuse  of  power  or   undue               favouritism  in  relation to  Hukkeri  Textile               Mills or Gadage Co-operative Textile Mills, or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 37 of 161  

             both.               (24)  Whether  any undue favour was  shown  or               any corruption committed by Shri Chikke Cowda,               the  then  Minister for Animal  Husbandry  and               Agriculture  in relation to the payment  of  a               sum of Rs. 3.00 lakhs to M/s.  Navarasa Ferti-               lizers.               (25)  Whether  there was any misuse  of  power               and corruption committed by Shri D. K. Maikar.               Minister   for  Municipal  Administration   in               connection with the allotment of land on  J.C.               Road  to  Shri  M.  B.  Lal  and  Shri  M.  V.               Venkatappa.               (No. 375/16/77-AVD-III)               R.    K. TRIVEDI               Secretary The  first thing that strikes one, on a bare reading of  the two  notifications is that, whereas the  State  Notification seems  scrupulously to avoid any mention of  any  particular act  or part of any individual whatsoever, the whole  object of  the  Central  Government notification  seems  to  be  to inquire into the correctness of the allegations made against the  Chief  Minister  of  the  State  principally  and  into allegations    against    other    specified     individuals incidentally.  The objects and subject matter of the Central Government   notification  become  clearer  by  looking   at Annexures  1 and 2 of it giving particulars of  transactions :to be investigated.  The first five items of Annexure 1 and separate transactions in each of which the Chief Minister of the  State is himself alleged to have played  the  principal role   in   such  a  way  as  to  indicate   his   exclusive responsibility.   In  other transactions, such as  in  items ,10,  1  1  and 13, the Chief Minister is  shown  as  having participated   with   ,Others.   And,   in   the   remaining transactions  mentioned,  the allegations do not  place  the responsibility  on any particular individual, but they  seem designed to elicit the truth of allegations of  favouritism, nepotism,  and  misuse  of  power  against  whoever  may  be responsible.    Annexure   2  of  the   Central   Government notification  begins  by a statement which  shows  that  its object  is to determine whether the Chief Minister  or  ,any other Minister of the Government of the State of Karnataka, 36 indulged in nepotism, favouritism, or misuse of Governmental powers in a number of transactions which are listed as items 1  to  25 there.  On the other hand,  the  State  Government notification,  without mentioning the persons who  might  be responsible  for  any  excessive or  improper  payments,  or favouritism, or misappropriation, or irregularity,  mentions certain contracts in favour of various companies, or parties under  32  heads.   It then states, as a  separate  item  of inquiry, the question as to who were the persons responsible in  the lapses, if any, mentioned earlier.  In other  words, apart from their parts in certain lapses the  responsibility of  the  Chief  Minister  or  any  other  Minister  of   the Government  of Karnataka could not be inquired into  by  the Commission appointed under the State notification.  And, all that the State notification seems to empower its  Commission to enquire into, with regard to transactions mentioned there is  whether there was any excessive payment or  irregularity involved.   Hence, it speaks of responsibility for  "lapses" as  though  one  could assume that there  was  no  dishonest motive.  The emphasis, in the State notification, is on  the question  of observance or non-observance of  rules  coupled with  the  question whether certain  payments  were  proper.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 38 of 161  

And,  the  question  of  affixation  of  responsibility   is confined  to  "lapses" in the course of  these  transactions only. Even if a transaction has been made completely in accordance with  the  rules,  it  may,  nevertheless,  be  an  act   of favouritism  tainted  with corruption or  dishonesty.   Less deserving parties could be deliberately preferred over  more deserving parties in much transactions.  It is not difficult to  make out compliance with the rules or to show  on  paper that the most deserving party has received the benefit of  a contract.  Indeed, even the post deserving party may receive a  contract  or  a  benefit under  a  decision  taken  by  a Government or its Ministers who may have received an illegal gratification  for  it  without  anything  what  so   ’,ever appearing  on the records of the Government about the  bribe received by the Minister, concerned.  Hence, in addition  to the  fact that the items mentioned in the two  notifications mostly  do not tally with each other, it appears to us  that the  objects  of  the State notification do  not  go  beyond investigation  into  the illegality or irregularity  of  any transaction  and "responsibility" only of persons  concerned to  point  out what they were.  If one may so  put  it,  the State notification is meant to set up a Commission which has to inquire whether the veil worn by certain transactions  is correct  in  form  and  covers it  fully,  but  the  Central Government  notification  is  clearly meant  to  enable  the Commission appointed to tear down even the veil of  apparent legality   and  regularity  which  may  be  worn   by   some transactions.   It  authorises  the  Grover  Commission   to inquire into and discover the reality or substance, if  any, behind  certain (mostly other) transactions.  The object  of the  Central Government notification seems clearly not  only to affix responsibility for transactions mentioned there  on individuals  who may be really guilty even if a few of  them could be said to have been mentioned in both  notifications. We  do  not think that such notifications  would  justly  or fairly  be  spoken  of as covering  "the  same  matter",  as contemplated  by  proviso (b) to Section 3(1)  of  the  Act, because the 3 7 State  Commission is there to examine the appearance or  the surface whereas the Central Commission is expected to  delve deeper into what could only lie behind or below it. It  is  certainly a matter for concern to a  State  if  some irregularity   or  illegality  has  been  committed   in   a particular  transaction  by its Government  or  a  Minister. But, it would obviously be more helpful to determine why  it has been committed.  And, it should be still more  important for  it  to find out who, however highly placed,  is  really responsible  for  the commission of  that  irregularity  and whether  any  dishonesty or corruption has operated  at  the highest  levels in the State even if the form is proper  and regular.   If  the State notification shows no  concern  for what seem to us to be the much more important objects of the Central  Government  notification, one could  perhaps  guess that the indifference of the State towards the more  serious matters   is  not  without  some  object  or   significance. Nevertheless, we do not propose to pass any judgment on  the motives  of the State Government or the fact that  the  most important  or significant features of what has been  alleged against  the  Chief Minister and members of  his  Government have been left out by the State Government notification even if  the object of that notification was quite  bonafide  and proper so far as it went. We  think, however,  that  the State notification does not go far enough. But,        the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 39 of 161  

Central Government notification does proceed further. It squarely  levels charges against persons who,  according  to the allegations made, may have acted in a manner which makes them not only theoretically responsible but actually  guilty of corruption. For  the success of the policies of any State or  Government in  it, in any part of the country over which its  authority runs,  it should be shown to be capable of carrying out  the constitutional   mandates  contained  in  Part  IV  of   the Directive Principles of State Policy so as to make the basic human  rights guaranteed by our Constitution a  reality  and Dot  a mirage.  That, for the masses of our people,  is  the basic  purpose  of the whole Constitution  which  cannot  be allowed to be frustrated.  If the basic rights of the people are not to be stultified and to appear chimerical, those  in charge  of the affairs of the State, at the highest  levels, must be above suspicion.  This is only possible if their own bona fides and utterly unquestionable integrity are  assured and  apparent  in the context of the high  purposes  of  our Constitution  and  the  dire needs  of  our  poverty  strike masses.   We cannot view allegations of corruption  lightly. We  think that the interests of the States and of the  Union are  not antithetical when there are charges  of  corruption and misuse of power against those in authority anywhere.  To serve  the  common interests of the whole people,  on  whose behalf  our  Constitution speaks, the States and  the  Union cannot  stand  apart.  They must stand  together  united  in purpose and action.  It is as important that unjustified and malicious  attacks and charges  against individuals in  high places  should  be  unmasked and  the  reality  behind  them exposed  for  what  it is worth, as  it  is  that  justified complaints  must find adequate means of redress so that  the interests  of the dumb millions of our country men are  duly safeguarded against unscrupulousness wherever found.  If, as we  find in this case, the State notification is meant  only to  superficially  scratch the surface  of  the  allegations made, 38 whereas  the  Central Government notification  is  meant  to probe into the crux or the heart of what may or may not have gone wrong with the body politic in the State of  Karnataka, we  could not be too technical or astute in finding  reasons to  hold  that the subject matter of the  two  enquiries  is substantially the same.  Obviously, this could not really be so.   A  bare reading of the two notifications, set  out  in full above, shows that. In  the circumstances of this case, it may be more  graceful for  the Chief Minister of the State of Karnataka  to  waive his  technical objections, as he seems to do in  undertaking to place all the material before whichever commission may be found  to have jurisdiction to inquire into the  allegations made  against  him.   He  could  take  the  opportunity   to honourably  face and repel the charges which,  according  to him, have been repeatedly but Unjustifiably and  maliciously made against him over a sufficiently long period.  He  could thus  be able to establish that he is serving the  interests of  his State, its inhabitants, and, indeed, of the  country as a whole, if his assertions are correct. The  plaintiff  has not suggested anywhere that  the  Grover Commission  is  not  presided  ever  by  an  individual   of unquestionable  integrity  and independence who has  been  a Judge  of this Court., Mr. Lal Narain Sinha,  appearing  for the plaintiff, has, very frankly and properly, conceded that he cannot successfully press want of bona fides on the  part of the Central Government in issuing its notification.  This

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 40 of 161  

means  that  the question whether the Commission  is  either unnecessary,  except  as a weapon of political  warfare,  as well  as any doubts about whether it could be or was  to  be misused  in this case, must be dismissed  as  unsustainable. The  State  Government must itself be deemed to  admit  that circumstances necessitated the appointment of a  Commission, by  appointing  its own, to inquire into  analogous  matters which deserved investigation due to their public importance. We  find  that the Central  Government  notification  itself excludes from its purview those charges which may be  fairly said  to fall within the scope of the Commission set  up  by the  State  Government.  We are not concerned  with  matters which may be subsequently added so as to expand the scope of inquiry  by  the  State  Commission.   We  think  that   the provisions  of proviso (b) to Section 3(1) of the  Act  will prevent the State Government from adding such matters as are already covered by the Central Government notification.  We, however,  leave  it  to  the  Grover  Commission  itself  to determine,  whenever  it is faced with  such  an  objection, whether  a  particular  matter  is  already  being  properly enquired into by the State Commission. In view of what we have observed above, it would perhaps  be proper for the Government of Karnataka itself to withdraw it sown  notification if it thinks that certain members of  the State  Government  will be unduly embarrassed by  having  to face inquiries by two Commissions on matters which may  have some connections or even some common areas.  Indeed, to  get to   the  heart  of  a  transaction,  its   surrounding   or superficial shell, which is all that the State Commission 39 can inquire into with regard to some transactions, may  have to,  be  pierced, or, to some degree, traversed  before  the core of these transactions can be reached.  As we hold  that the two notifications authorise inquiries into matters which are  substantially  different  in  nature  and  object,  the enquiry by the Grover Commission cannot be said to be barred by reason of the State Government notification under proviso (b)  to Section 3 (1) of the Act, even if, in order to  deal with the substantially different subject matter, in view  of the  divergence  in objects certain areas of fact  or  rules governing transaction may be common.  If the objectives  are different  the examination of common areas of fact  and  law for different purposes will still be permissible. Without  doubting  the motives of the  State  Government  in appointing  its own Commission perhaps we may observe  that, in  a  case involving charges of the kind made  against  the Chief Minister and other Ministers of the State, it would be better  if the State’s own Commission did not even  remotely appear  to  have  been set up merely in  anticipation  of  a thorough investigation by an outside Central authority which would, presumably, appear more impartial and objective,  or, to  impede  or  embarrass the  proceedings  of  the  Central Government Commission.  Such doubts as could arise on  these grounds  will be dispelled by the, withdrawal of  the  State notification.   Although  the prompt action  toy  the  State Government  may  seem  quite commendable  and  bonafide,  in appointing   its   own  Commission  in   the   context   and circumstances  disclosed above, its continued existence  may not  give  exactly that impression after what we  have  held above  on  an analysis of the apparent objects  of  the  two Commissions judged by the contents of the two notifications. In  any  case, the subject matter, not  being  substantially same,  the Central Government Commission could proceed  with its investigations if other objections, which we now proceed to  examine,  are not really fatal to the  validity  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 41 of 161  

Central Government’s notification. Those  other  objections  to the  validity  of  the  Central Government’s notification may be summarised as follows : Firstly,  it  is submitted that express  provisions  of  the Constitution relating to the federal structure, distribution of  executive and legislative powers between the  State  and the  Union,  joint responsibility of a  State’s  Council  of Ministers,  conditions under which they can bold  office  or may  be dismissed, the State Legislatures exclusive  control over  their  actions  and conduct of affairs  of  the  State Government, are infringed by it, so that, if all this  could be done, under the clock of the powers conferred by  Section 3  of the Act, by the Central Government, this provision  of the  Act  is, pro tanto, invalid.  Secondly,  and  following logically  and  naturally from the set of  propositions,  as their  necessary consequence, the  notification  constitutes violations by the Central Government of what must be held to be parts of the basic features or the basic structure of the Constitution  which do not permit the destruction of  either federalism or democracy by issuing executive fiats.   Third- ly,  carrying  the  logic  of  the  last  mentioned  set  of submissions  a step further, it is urged that, as the  basic features  of the Constitution have been ’held by this  Court to be outside the procedure for amendment 40 contained  in  Article 368 of the Constitution, it  must,  a fortiori,  be held to be outside the legislative  competence of Parliament as contemplated by Articles 245-255 in Part XI of the Constitution read with provisions of the  Legislative Lists  in  Schedule  7. Fourthly, it is  suggested,  in  the alternative,  that, in any case, a necessary implication  of the express provisions of the Constitution is that a control by the Union Government. over the day-to-day working of  the Governments in the States by the adoption of the legislative procedure  found in Part Xi of the Constitution must have  a result  which  can  only be  achieved  by  a  Constitutional amendment under Article 368 of the Constitution’ Fifthly, it is  submitted that even if interference with the day to  day working  of the Governmental machinery in the States is  not barred by the basic structure of the Constitution, yet,  the situations  in which such interference is  warranted  having been specifically laid down in the emergency      provisions contained  in  Articles 352-360 found in Part XVIII  of  the Constitution,  any  other  mode of  interference,  with  the operations  of State Governments, not expressly provided  by the  Constitution itself, must be deemed to be  outside  the ordinary legislative competence of Parliament.  Sixthly, the plaintiff’s  counsel  submitted  that,  in  any  event,  the provisions  of the Act must be so construed or  interpreted, by   reading  them  down  if  necessary,  as   to   preclude interference by the Union Government with the operations  of the State Government or the conduct of its Ministers keeping in view all the submissions mentioned above. It  is  true  that learned counsel for  the  plaintiff  kept reverting  to  what he really meant to put  forward  as  the basic  or inviolable features of the Constitution,  yet,  he felt  reluctant to unequivocally commit himself to the  view that  the  Act  contained  provisions  which  constituted  a violation  of the basic structure of the Constitution  which has  been  held to include both  Democracy  and  Federalism. Apparently,  this  somewhat shifting position arose  from  a realisation that the Act may, have very little, if  anything at  all,  to do with provisions meant to  ensure  Democratic Government, and that our Constitution has, despite  whatever federalism  may  be  found in  its  structure,  so  strongly

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 42 of 161  

unitary features also in it that, when the totality of these provisions  is  examined,  it becomes  difficult  to  assert confidently   how  much  federalism  such   a   Constitution contains,  whether those parts of it which seem to  override the federal elements of our Constitution are not more  basic or significant than what is described as its federalism, and whether   possible  actions  under  the  Act,  intended   to authorise  investigation, presumably with a view to  finding remedies,  into  whatever dishonesty or  corruption  may  be discovered  in  the  conduct  of  governmental  affairs   by Ministers, are not really meant to safeguard or help  rather than to destroy  or hinder democratic government. It  is  interesting  to note what  Sir  Gyril  Salmon,  Lord Justice  of  Appeal.  said  in a  lecture  on  Tribunals  of Inquiry".               "In  all countries, certainly in  those  which               enjoy  freedom  of speech and  a  free  Press,               moments  occur  when allegations  and  rumours               circulate  causing  a  nation-wide  crisis  of               confidence in the integrity of public life  or               about other matters               41               of  vital  public importance.  No  doubt  this               rarely  happens,  but  when  it  does  it   is               essential  that  public confidence  should  be               restored, for without it no democracy can long               survive.   This confidence can be  effectively               restored only by thoroughly investigating  and               probing  the rumours and allegations so as  to               search out and establish the truth.  The truth               may  show that the evil exists, thus  enabling               it  to  be  rooted out, or that  there  is  no               foundation  in the rumours and allegations  by               which  the  public  has  been  disturbed.   In               either case, confidence is restored". In the lecture mentioned above, it was pointed out that  the Tribunal  of  Inquiry (Evidence) Act, 1921,  was  passed  in England   to   displace  the  procedure  by   which   Select Parliamentary  Committees were used "to investigate  alleged wrongdoing  in  high places".  About  the  Select  Committee procedure  he  said : "Such a method of investigation  by  a political  tribunal  was  wholly  unsatisfactory.   Being  a progressive  people it took us only little more  than  about 300 years to do anything about it.  In the United States  of America,  however, which is still more progressive  than  we are,   they   still   use   virtually   the   same   method. Congressional   Committees   of  investigation,   like   our Parliamentary  committees, consist of  members  representing the relative strength of the majority and minority  parties. Clearly  such bodies can never be free from party  political influences.   This  is a very real defect  in  any  tribunal investigating allegations of public  misconduct-particularly as  the  subject  matter of the  inquiry  often  has  highly charged political overtones." He observed : "The history  of such  investigations in England by Parliamentary  committees is, to say the least, unfortunate.  Let me give you but  one example.   Early in the present century there occurred  what became  known  as  the Marconi Scandal.  In  1912  the  Post Master General in a Liberal Government accepted a tender  by the  English Marconi Company for the construction of  State- owned  wireless  telegraph stations throughout  the  Empire. There  followed widespread rumours that the  Government  had corruptly  favoured  the Marconi Company  and  that  certain prominent members of the Government had improperly  profited by  the  transaction.  The  Select  Parliamentary  Committee

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 43 of 161  

appointed  to  investigate  these  rumours  represented  the respective   strengths  of  the  Liberal  and   Conservative Parties.  The majority report of the Liberal members of  the Committee exonerated the members of the Government concerned whereas a minority report by the Conservative members of the Committee  found  that these members of the  Government  had been guilty of gross impropriety.  When the reports came  to be  debated  in the House of Commons, the House  divided  on strictly  party  lines  and by  a  majority  exonerated  the Ministers  from all blame.  This is the last instance  of  a matter of this kind being investigated by a Select Committee of Parliament".  In other words, "it was because in  England investigation  by  a political tribunal of  matters  causing grave public disquiet had been discredited that the Tribunal of Inquiry (Evidence) Act, 1921, was passed, with a view  to setting  up  some permanent investigating  machinery  to  be available  for use when required"  Furthermore,  he  pointed out that even in America ad hoc 42 tribunals  are not infrequently appointed to avoid a  matter being  referred  to  a  Congressional  Committee,  as,   for example, the Warren Commission to investigate the murder  of President Kennedy. It  is  thus  clear that in democratic  countries  not  only modern practice but statute can provide for Inquiries of the kind which are meant to be conducted under our Act of  1952. The Preamble of our Act shows that it was meant to  "provide for  appointment  of  the Commissions  of  Inquiry  and  for vesting  such Commissions with certain powers".  Section  1, sub-section (2) of the Act indicates that it extends to  the whole  of  India; but, a proviso to it  puts  certain  limi- tations  to which its operation is subjected so far  as  the State of Jammu & Kashmir is concerned inasmuch as, for  this State, Inquiries set up must relate to matters  appertaining to  such  entries  in List II or List  III  of  the  Seventh Schedule  as  may  be applicable to  the  State.   There  is nothing in the Act to show any such limitations with regard. to any other State.               Section 2 of the Act provides:               "2. In this Act, unless the context  otherwise               requires-               (a)   ."appropriate Government" means-               (i)   the Central Government, in relation to a               Commission appointed by it to make an  inquiry               into  any  matter  relatable  to  any  of  the               entries  enumerated  in List I or List  II  or               List  III  in  the  Seventh  Schedule  to  the               Constitution; and               (ii)The  State Government, in relation to  a               Commission appointed by it to make an  inquiry               into  any  matter  relatable  to  any  of  the               entries  enumerated in List II or List III  in               the Seventh Schedule to the Constitution :               Provided  that  in relation to  the  State  of               Jammu  &  Kashmir, these  clauses  shall  have               effect subject to the modification that-               (a)  in sub-clause (i) thereof,for  the  words               and figures "List I or List II or List III  in               the Seventh Schedule to the Constitution"  the               words  and figures "List I or List III in  the               Seventh   Schedule  to  the  Constitution   as               applicable to the State, of Jammu and Kashmir"               shall be substituted;               (b)   in  sub-clause  (ii)  thereof,  for  the               words and figures "List II or List III in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 44 of 161  

             Seventh  Schedule  to the  Constitution",  the               words  and  figures "List III in  the  Seventh               Schedule to the Constitution as applicable  to               the  State  of  Jammu and  Kashmir"  shall  be               substituted;               (b)   "Commission"   means  a  Commission   of               Inquiry appointed under section 3;               43               (c)   "Prescribed"  means prescribed by  rules               made under               Act."               Section 3 of the Act reads as follows:               "3. (1) The appropriate Government may. if  it               is  of opinion that It is necessary so to  do,               and  shall, if a resolution in this behalf  is               passed by the House of the people, or, as  the               case  may be, the Legislative Assembly of  the               State, by notification in the Official Gazette               appoint  a  Commission  of  Inquiry  for   the               purpose of making an inquiry into any definite               matter  of  public importance  and  Performing               such functions and within such time as may  be               specified   in  the  notification,   and   the               Commission so appointed shall make the inquiry               and Perform the functions accordingly :               Provided  that where any such  Commission  has               been appointed to inquire into any matter-               (a)   by  the  Central  Government.  no  state               Government shall. except with the approval  of               the   Central  Government,   appoint   another               Commission to inquire into the same matter for               so  long  as the Commission appointed  by  the               Central Government is functioning;               (b)   by  a  State  Government,  the   Central               Government    shall   not   appoint    another               Commission to inquire into the same matter for               so  long  as the Commission appointed  by  the               State Government   is functioning, unless  the               Central  Government  is of  Opinion  that  the               scope of the inquiry should be extended to two               or more States.               (2)   The  Commission  may consist of  one  or               more  members  appointed  by  the  appropriate               Government,  and where the commission  consist               of  more than one member, one of them  may  be               appointed as the chairman thereof.               (3)   The  appropriate Government may, at  any               stage of an inquiry by the Commission fill any               vacancy which may have arisen in the office of               a member of the Commission (whether consisting               of one or more than one member).               (4)   The  appropriate Government shall  cause               to be laid before the House of the People  or,               as  the case may be, the Legislative  Assembly               of  the  State,  the report,  if  any  of  the               Commission   on   the-inquiry  made   by   the               Commission under sub-section (1) together with               a  memorandum  of the  action  taken  thereon,               within a period of six months of the,  submis-               sion  of the report by the Commission  to  the               appropriate Government".               4-1042 SCI/77 44 After  the two sections, set out above, which  disclose  the apparently very wide and undefined scope of inquiries to  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 45 of 161  

conducted under the Act, the only limit being that they must relate  to matters of "definite public  importance",  follow sections conferring upon Commissions under the Act powers of a  civil court for the purpose of eliciting  evidence,  both oral  and documentary, and power to punish those  guilty  of its contempt.  Section 6 of the Act, however, makes it clear that  statements  made  by a person in  the  course  of  his evidence  before the Commission "will not subject him to  or be  used  against him in any civil  or  criminal  proceeding except in a prosecution for giving false evidence by  making such  statements".  But; this protection is not extended  to statements  made in reply to questions not required  by  the Commission  to be answered, or, those made on matters  which are not relevant to the subject-matter of the inquiry.   The Act,  however, contains no provisions for giving any  effect to the findings of the Commission or for enforcing any order which could be made by the Commission against any person  as a  result  of  an  inquiry.  In  fact,  the  only  orders  a Commission  under  the  Act is  empowered  to  make  against anybody are those relating to abduction of evidence, whether oral  or  documentary, and those which may  be  required  to protect the Commission against "acts calculated to bring the Commission  or  any  member thereof  into  disrepute".   The proceedings  of a Commission could only result in  a  Report which  is to be laid before the Legislature concerned  under the  provisions of s. 3 (4) of the Act.  Hence, the  obvious intention  behind  the  Act is to enable  the  machinery  of democratic  government  to  function  more  efficiently  and effectively. it could hardly be construed as an Act meant to thwart democratic methods of government. Even  in countries with undiluted unitary systems  of  Govt. there  is devolution of powers of local self-Government  for restricted purposes.  In ’our country, there is, at the top, a Central or the Union Government responsible to Parliament, and  there are, below, it State Governments, responsible  to the  State Legislatures, each functioning within the  sphere of its own powers which are divided into two categories; the exclusive  and the concurrent.  Within the exclusive  sphere of the powers of the State legislature is local  Government. And, in all States there is a system of local Government  in both   Urban  and  Rural  areas,  functioning  under   State enactments.   Thus, we can speak of a three tier  system  of Government in our country in which the Central or the  Union Govt.  comes  at the apex with certain  subjects  which  are exclusively  left to the States concerned ordinarily  or  in normal  times.   But, even problems which arise  within  the territories  of  States  may  fall  within  the  sphere   of overriding Central power in emergencies.  And, if a  subject is considered important enough to be regarded as the concern of the whole nation, the Constitution makers have themselves placed it either in the exclusively Central Legislative List I  or  in  the  concurrent Legislative  List  III  of  items mentioned in Schedule VII. Our Parliament consists of the President and the two  Houses of  Parliament.   The House of, the People is not  meant  to represent  the States as independent units of  a  federation ,’Article 79).  It has to 45 have  a  strength  of members not exceeding  525  in  number chosen  by  direct  election  by  the  people  from  various territorial  constituencies in the States and not more  than twenty  representatives  of  people  living  in  the   Union territories  (Article 81).  There, the people of In"  living in  the  States and of the Union  territories  are  directly represented  so  that their interests and  rights  could  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 46 of 161  

presumed  to  be well looked after and  protected  by  their direct  representatives.   The  Council  of  States  has  12 members  in it nominated by the President for their  special knowledge  or  experience  in matters of  art,  science,  or social service, and not more than 238 representatives of the States and elected by members of the legislative assembly of each  State  in accordance with the system  of  proportional representation by means of single transferable vote and from the  Union territories in the manner prescribed by law  made by  the Parliament (Article 80).  The representation of  the Legislative   bodies  of  the  States  and  of   the   Union territories  is  certainly  a recognition  of  the,  federal principle.   But,  this  does  not  mean  that  the  Central Government  is  precluded from all interference  in  matters concerning individual States.  For determining the extent of that  interference  and  the circumstances in  which  it  is ,possible  we  have  to  turn to  other  provisions  of  our Constitution. Article  245(1)  of our Constitution gives  the  territorial operations  of  the laws made by Parliament  and  the  State legislatures.  Article 246(1) enacts that items in List I of the  Seventh Schedule fall exclusively within the domain  of Parliament and those  in List II come exclusively within the legislative  power of the State legislatures, but  those  in List III are to be concurrent.  Article 248, however,  vests Parliament with exclusive power to legislate with respect to matters  not  enumerated in either the concurrent  or  State list.  This is what is spoken of generally as the "residuary power".   In addition, Parliament has over-riding powers  of legislating  even for matters in the State list for  limited durations  if the Council of States by resolution  supported by not less than two thirds of its members declared that  it is  necessary  to do so in national interest or  during  the continuance of a proclamation of emergency (Articles 249 and 250).  Inconsistency between laws made by the Parliament and a  State legislature on an item found in a concurrent  list, is  to be resolved in favour of the law made  by  Parliament (Article  254).   And,  far-reaching  powers,  contained  in Articles  352-360 in Part XVIII of the Constitution,  enable the  President  to  suspend  not  only  the  enforcement  of fundamental  rights  of  citizens, and  their  operation  as fetters on legislative powers but also the functions of  the State legislature which can be assumed by Parliament and  of State Governments which can be taken over by the  President. It  is  true that the emergency powers are so  drastic  that they  can be abused.  We have not, however, got before us  a case  of  the exercise of emergency powers or  of  abuse  of powers.   We are only considering here the extents  of  what are put forward as federal and democratic features of  Govt. which  may  or  may not be capable of  suspension.   As  the Constitution   stands  at  present,  the  exercise  of   the emergency powers, whose validity is not questioned before us by  any party in this case, can completely remove  even  the semblance of a federal structure in our Constitution for the duration of an emergency. 46 A look at Chapter 11 of Part XI on administrative, relations between  the Union and the States, shows us  provisions  for directions which can be given to the, State Governments even in normal times by the   Central Govt. described in Articles 25-6-257, as "the Govt. of India.,  Article 256 enacts :               "256.   The  executive power  of  every  State               shall be so exercised as to ensure  compliance               with  the  laws  made by  Parliament  and  any               existing  laws which apply in that State,  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 47 of 161  

             the executive power of the Union shall  extend               to the giving of such directions to a State as               may  appear to the Government of India  to  be               necessary for that purpose". Article  257(1) may also be quoted to illustrate the  extent of Executive powers of the State and Union Govt. :               "257(1)  The  executive power of  every  State               shall  be  so exercised as not  to  impede  or               prejudice the exercise of the executive  power               of  the Union, and the executive power of  the               Union  shall  extend  to the  giving  of  such               directions  to  a State as may appear  to  the               Government  of India to be necessary for  that               purpose". The  extent of the normal executive powers of the Union  are indicated as follows by Article 73(1) of the Constitution :               "73(1)  Subject  to  the  provisions  of  this               Constitution, the executive power of the Union               shall extend-               (a)   to  the  matters with respect  to  which               Parliament has power to make laws; and               (b)   to   the   exercise  of   such   rights,               authority and jurisdiction as are  exercisable               by  the Government of India by virtue  of  any               treaty or agreement; Provided  that the executive power referred to in  subclause (a)   shall  not,  save  as  expressly  provided   in   this Constitution or in any law made by Parliament, extend in any State  to matters with respect to which the  Legislature  of the State has also power to make laws". And, the extent and limitations of the executive power of  a State given in Article 162 as follows:               "162.   Subject  to  the  provisions  of  this               Constitution,  the executive power of a  State               shall  extend to the matters with  respect  to               which  the Legislature of the State has  power               to, make laws:               Provided  that in any matter with  respect  to               which   the   Legislature  of  a   State   and               Parliament  have  power  to  make  laws,   the               executive power of the State shall be  subject               to,  and  limited  by,  the  executive   power               expressly conferred by this Constitution or by               any  law made by Parliament upon the Union  or               authorities thereof’. 47 The  wide scope of executive powers of the Union  Government was  considered  by  this Court not long  ago  in  State  of Rajasthan  v. Union of India(1), where, after examining  the relevant  Constitutional provisions, one of us  observed  in the  context  of  what  was sought  to  be  construed  as  a "direction"  to  the  State Government, given  by  the  Home Minister in the Union Government, to dissolve a State Assem- bly :               "I  may  point  out  that  there  are  various               aspects of relations between the Union and the               States governed by different provisions of the               Constitution.  I may here refer to those which               relate to giving of ’directions’ by the  Union               Government  to the State  Governments  because               Art. 365 provides               ’365.   Where any State has failed  to  comply               with or to give effect to any directions given               in the exercise of the executive power of  the               Union  under  any of the  provisions  of  this

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 48 of 161  

             Constitution,  it  shall  be  lawful  for  the               President to hold that a situation has  arisen               in which the government of the State cannot be               carried  on in accordance with the  provisions               of this Constitution’               Articles  256 and 257 mention a wide range  of               subjects  ,on which the Union  Government  may               give    executive    directions    to    State               Governments.    Article  73(1)  (a)   of   the               Constitution tells us that the Executive power               of  the Union extends to all matters on  which               ’Parliament has power to make laws’.   Article               248  of the Constitution vests exclusively  in               the Parliament residuary powers of making laws               on any matter not enumerated in the Concurrent               or   State   Lists.   Article   256   of   the               Constitution covers cases where the  President               may want to give directions in exercise of the               executive  power  of  the  Union  to  a  State               Government in relation to a matter covered  by               an  existing  law  made  by  Parliament  which               applies  to  that  State.   But,  Art.  257(1)               imposes  a  wider obligation upon a  State  to               exercise  its powers in such a way as  not  to               impede the exercise of executive power of  the               Union  which, as would appear from Art. 73  of               the Constitution, read with Art. 248 may cover               even  a subject on which there is no  existing               law   but   on  which  some   legislation   by               Parliament is possible.  It could,  therefore,               be  argued that although,  the.   Constitution               itself does not lay down specifically when the               power  of dissolution should be  exercised  by               the  Governor  on the advice of a  Council  of               Ministers in the State, yet if a direction  on               that  matter was properly given by  the  Union               Government  to a State Government, there is  a               duty  to  carry  it out.   The  time  for  the               dissolution of a State Assembly is not covered               by               (1)   A.I.R. 1977 S.C. p. 1361,1383-84.               48               any specific provision of the Constitution  or               any law made on the subject.  It is  possible,               however, for the Union Government, in exercise               of  its residuary executive power to  consider               it   a  fit  subject  for  the  issue  of   an               appropriate  direction when it considers  that               the political situation in the country is such               that a fresh election is necessary in the  in-               terest of political stability or to  establish               the confidence of the people in the Govt. of a               State". (p. 1383-84).               In that case, after considering the extent  of               federalism  in (our constitution it  was  also               observed (p. 1383) :               "If  then our Constitution creates  a  Central               Government  which is ’amphibian’ in the  sense               that  it  can move- either on the  federal  or               unitary  plane, according to the needs of  the               situation  and circumstances of a  case,  the,               question which we are driven back to  consider               is whether an assessment of the ’situation’ in               which the Union Government should move  either               on  the federal or unitary plane  are  matters

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 49 of 161  

             for  the Union Government itself or  for  this               Court to consider and determine. Each organ of               the Republic is expected to know the limits of               its own powers. The judiciary comes in   generally               only  when any question of ultra vires  action               is    involved, because questions relating  to               vires appertain to its domain". In the first quotation given above, what was spoken of as  a ,’residuary  executive  power" of  the  Central  Government, analogous   to   the  "residuary"  legislative   powers   of Parliament,  was  relied  upon in  support  of  the  alleged "direction" from the Centre’ In the case before us it  could certainly  be  urged that a consideration  of  the  question whether  a  State Govt. or its Chief Minister is or  is  not carrying out the trust which Constitutional power places  in the  hands  of  a State Government and its head,  so  as  to determine whether any exercise of extraordinary powers under Article  356  of the Constitution is called for or  not,  is certainly  a  matter  which lay within  the  powers  of  the Central Government.  Article 356 speaks of the satisfaction" of  the  President  from  a  report  of  the  Governor   "or otherwise"  whether  a particular situation  has  arisen  in which  the  Govt.  of  the State cannot  be  carried  on  in accordance with the provisions of the Constitution.  Such  a matter would certainly be a matter of public importance.  If the President deems it necessary to give the State Govt.  or its  Chief Minister an opportunity of being heard before  an impartial  Commission of Inquiry constituted under the  Act, it could certainly not be said that such a mode of  exercise of  power under Article 356 is not fully covered by what  is necessarily  implied  by this article of  the  Constitution. Indeed, such a procedure would be a very fair and reasonable one.   And,  in  judging  the-validity  of  provisions  even hypothetical  situations to which they could apply could  be taken into account and not merely those present in the Pi case before the Court.  We do not think that an  examination of  the express provisions of the Constitution advances  the case of the plaintiff- 49 On the other hand, the Central Government can place reliance on, interalia, provisions of Article 356 of the Constitution for powers which could be held to be necessarily implied  in the  provisions of the Constitution-that is to say, a  power to  order  an inquiry for the purposes of  the  satisfaction required by article 356.  And the machinery provided by  the Act  could,  it seems to us, be utilised to  decide  whether action under article 356 is really called for. Reliance was, however, placed strongly on provisions of  the Constitution setting up what, in the words of Dr.  Ambedkar, one of the prime architects of our Constitution, is "a  Dual Polity"  by which, as was explained in the case of State  of Rajasthan (supra), he meant a Republic "both unitary as well as  federal"  according  to  the  needs  of  the  time   and circumstances.   This "Dual Polity" of ours is a product  of historical  accidents,  or, at any  rate,  of  circumstances other  than  those which result in  genuine  federations  in which  the desire for a separate identity  and  governmental independence  of  the  federating units is  so  strong  that nothing  more than a union with a strictly demarcated  field of  Central Government’s powers is possible.   A  nonfederal polity  carries the attenuation of Central authority to  the extent of confining combined or concerted action to the more strictly limited field of collaboration only to matters such as  foreign  affairs  and  defence so  that  it  sets  up  a mechanism  of cooperative action in limited areas which  can

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 50 of 161  

hardly  be spoken of as a Government.  A genuine  federation is  a  combination of political units  which  adhere  rather tenaciously  to the exclusion of the Central authority  from strictly demarcated spheres of State action, but there is  a Central  or Federal "Government".  The extent of  Federalism set  up  depends  upon  the extent  of  demarcation  in  the executive,  legislative  and judicial spheres.  In  a  truly Federal  Constitution this demarcation is carried out  in  a very  carefully  comprehensive  and  detailed  manner.   The limits are clearly specified.  We will thus have to  examine our Constitution to determine how much of it is found here. No  doubt,  throughout the long course of our  history,  our successive  rulers  bad been trying to build up a  unity  of India  by establishing their imperial sway  Politically  and administratively over the whole country, but, it was  really the  British  who  succeeded in giving reality  to  such  an objective.  And, even they preserved a duality of systems of Government.   There was a British India under  the  Governor General   presiding  over  the  destinies  of  the   various provinces  under Governors as Imperial sub-agents,  but  all acting on behalf of an Emperor whose governments ruled  from Westminster  and Whitehall.  And, there were other parts  of the country, ruled by Indian Prince.,; owing allegiance to a foreign  Emperor  to  whose authority they  paid  homage  by acknowledging  his sovereignty or the paramountly  exercised through  his  Viceroy.  These two parts were  sought  to  be knitted together into a federal polity by the Government  of India Act of 1935.  Federal principles, including a  Federal Court,  were embodied in it so as to bring together and  co- ordinate  two different types of political systems and  sets of authorities.  But, after the Constitution 50 of our Republic, came the gradual disappearance of  Princely States  and a unification of India in a single  polity  with duality  of agencies of Government only for the purposes  of their  more  effective  and  efficient  operations  under  a Central direction.  It was, more or less, an application  of the  principle of division of labour under at least  Central supervision.   In other words the duality or duplication  of organs of government on the Central and State levels did not reflect  a truly federal demarcation of powers based on  any separatist  sentiments which could threaten the  sovereignty and integrity of the Indian Republic to which members of our Constituent  Assembly seemed ardently devoted,  particularly after  an unfortunate division of the country  with  certain obviously disastrous results. However,  we  may  examine the  express  provisions  of  our Constitution  relating  to the organs of Government  in  the States which, no doubt, give the appearance of  full-fledged separate  States for certain purposes.  Each State  has  its own  Governor exercising the executive power of that  State. But,   all   Governors,  although  undertaking   to   devote themselves  to the service and well-being of the  people  of their respective States, owe an undivided allegiance to "the Constitution and the law".  Each of them is appointed by the President  and  holds  office during  the  pleasure  of  the President  to whom he sends his reports with a view  to  any proposed action under Article 356 of the Constitution.   The Governor’s authority, under the Warrant of his  appointment, is  traceable to the President to whom he is to  submit  his resignation if he resigns. Article  163 speaks of the, Council of Ministers  "with  the Chief  Minister at the head to. aid and advise the  Governor in the exercise of his functions, except in so far as he  is by  or  under  this Constitution required  to  exercise  his

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 51 of 161  

functions  or  any  of them in  his  discretion."  Now,  the Council of Ministers, theoretically appointed by the  Gover- nor,   is   certainly  "collectively  responsible   to   the Legislative  Assembly of the State" (see :  Article  164(2). But, this "collective responsibility" does not, as has  been erroneously  attempted  to be argued before us,  abridge  or truncate  the power of the Central Government to  appoint  a Commission under s. 3 of the Act.  In fact, this "collective responsibility" has a scope and mode of operation which  are very  different from those of an inquiry under s. 3  of  the Act even though the same or similar matters may,  sometimes, give rise to both.  "Collective Responsibility" is basically political  in  origin and mode of operation.  It  may  arise even  in  cases  which may not call for  any  inquiry  under Section  3  of  the Act.  And,  matters  investigated  under Section 3 of the Act may have no bearing on any  "collective responsibility". The object of collective responsibility is to make the whole body of persons holding Ministerial office collectively, or, if  one  may so put it, "vicariously" responsible  for  such acts  of  the others as are referable  to  their  collective volition  so  that,  even  if  an  individual  may  not   be personally  responsible  for it, yet, he will be  deemed  to share 51 the   responsibility  with  those  who  may  have   actually committed some wrong.  On the other hand, in the case before us,  the  enquiry under Section 3 of the Act by  the  Grover Commission has been ordered by the Central Government so  as to determine who is actually responsible for certain actions and  what  could be the motive behind them.  The  sphere  of this   enquiry  is  very  different  from  that   in   which "collective    responsibility"    functions.      Explaining "collective  responsibility", as understood in England,  two writers  on Constitutional matters (see : "Some Problems  of the Constitution’ by Geoffrey Marshall and Graeme C. Moodie) say: (at p. 71)               "If  responsibility  is taken  in  the  formal               constitutional   sense,  there   would   seem,               granted  collective  governmental res-               ponsibility, to be no clear distinction to               be  drawn between Ministers inside  and  those               outside  the  Cabinet.  To be  responsible  in               this sense simply is to share the consequences               of- responsibility-namely to be subject to the               rule  that  no member of  the  Government  may               properly   remain  a  member  and   dissociate               himself from its policies (except on occasions               when the Government permits a free vote in the               House)".               ’They add :               "The substance of the Government’s  collective               responsibility could be defined as its duty to               submit  its  policy to and defend  its  policy               before the House of Commons, and to resign  if               defeated on an issue of confidence". Each  Minister can be and is separately responsible for  his own  ,decisions and acts and omissions also.  But,  inasmuch as  the Council of Ministers is able to stay in office  only so  long  as  it commands the support and  confidence  of  a majority  of  Members of the Legislature of the  State,  the whole  Council of Ministers must be held to  be  politically responsible, for the decisions’ and policies of each of  the Ministers  and of his department which could be presumed  to have  the support of the whole Ministry.  Hence,  the  whole

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 52 of 161  

Ministry  will,  at  least on issues  involving  matters  of policy,  have  to  be treated as one entity so  far  as  its answerability  to the Legislative Assembly representing  the electors is concerned.  This is the meaning of the principle underlying article, 164(2) of the Constitution.  The purpose of  this provision is not to find out facts or to  establish the  actual responsibility of a Chief Minister or any  other Minister   or   Ministers  for   particular   decisions   or Governmental  acts.   That can be more suitably  done,  when wrongful  acts or decisions are complained of, by  means  of inquiries  under the Act.  As already indicated above,  ,the procedure of Parliamentary Committees to inquire into  every legally   or   ethically   wrong  act  was   found   to   be unsatisfactory and unsound.  The principle of individual  as well as collective ministerial responsibility can work  most efficiently  only  when cases requiring proper  sifting  and evaluation of evidence and discussion of questions  involved have taken place, where this is required, in proceedings be- fore a Commission appointed under, s. 3 of the Act.- 52 Text-books writers on Constitutional Law have indicated  how collective  ministerial responsibility to Parliament,  which has  essentially a political purpose and effects,  developed later   than  individual  responsibility  of  Ministers   to Parliament which was also political in origin and operation. It  is true that an. individual Minister could, in  England, where  the  principle of individual and  collective  respon- sibility of Ministers was evolved, be responsible either for wrongful acts done by him without the authority of the whole cabinet  or of the monarch to support them, or under  orders of the King who could, in the eye of law, do no wrong.  But, apart  from  an impeachment, which has become  obsolete,  or punishment for contempt of a House, which constitute only  a limited kind of offences, the Parliament does not punish the offender.  For establishing his legal liability recourse  to ordinary courts of law is indispensable. Responsibility  to Parliament only means that  the  Minister may  be  compelled  by convention to resign.   Out  of  this liability arose the principle of collective  responsibility. Thus,  in  Wade and Phillips on  "Constitutional  Law",  8th Edn.,  p. 87, we find; "Just as it became recognised that  a single Minister could not retain office against the will  of Parliament, so later it became clear that all Ministers must stand or fall together in Parliament, if the Government  was to  be  carried  on as a unity rather than by  a  number  of advisers   of  the  Sovereign  acting   separately".    This development of collective responsibility was thus  described in 1878 by Lord Salisbury:               "For  all that passes in Cabinet every  member               of  it who does not resign is  absolutely  and               irretrievably  responsible  and has  no  right               afterwards  to say that he agreed in one  case               to  a  compromise,  while in  another  he  was               persuaded by his colleagues.... It is only  on               the principle that absolute responsibility  is               undertaken  by  every member of  the  Cabinet,               who,  after a decision is arrived at,  remains               member of it, that the joint responsibility of               Ministers to Parliament can be upheld and  one               of   the   most   essential   principles    of               parliamentary responsibility established." The  whole  question  of responsibility is  related  to  the continuance  of  a Minister or a Government  in  office.   A Minister’s  own acts or omissions or those of others in  the Department  in  his charge, for which he  may  feel  morally

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 53 of 161  

responsible,  or,  for  which others may  hold  him  morally responsible,  may compel him to resign.  By an extension  of this logic, applied to individual Ministers at first, emerg- ed  the  principle of "collective responsibility"  which  we find   enacted   in  Articles  75(2)  and  164(2)   of   our Constitution.  The only sanction for its enforcement is  the pressure  of public opinion expressed particularly in  terms of withdrawal of political support by members of  Parliament or the State Legislature as the case may be. As  Prof.  S. A. de Smith points out in  his  Constitutional and  Administrative  Law,  1971,  at  p.  170  to  179,  the principle   operates  in,  a  nebulous   moral-cum-political sphere, sometimes forcing an individual Minister to  resign, as in the, case of Mr. Profumo, and, on 53 other  occasions, involving the fate of the whole  Ministry, depending  upon the extent to which the Cabinet as  a  whole could be, in the circumstances of a particular case,  deemed to  be  responsible for a particular decision or  action  or inaction.  In England, the principle operates as a matter of convention  backed  by political judgment, as  reflected  in Parliament  whereas, for us, the principle is stated in  our Constitution  itself,  but it,  nevertheless,  depends  upon convention   and  upon  public  opinion,   particularly   as reflected in Parliament or in the State Legislature, as  the case  may  be, for its effectiveness.   The  principle  thus exists separately and independently from the legal liability of  a  Minister, holding an office in the Union or  a  State Government. An   investigation  by  a  Commission  of   Inquiry   should facilitate  or help the formation of sound  public  opinion. That  was the object of the Commission of  Inquiry  presided over by Lord Denninig on the Profumo affair.  The fact  that the   Minister   concerned   was   considered   individually responsible  to the House for a wrong statement made  to  it did  not prevent an inquiry by a Commission into matters  on which  he had made the statement.  His  individual  actions, however,  did  not  bring into operation  the  principle  of collective   responsible  because  his  colleagues  in   the Government   could   not  reasonably  be  held   guilty   of dereliction or breach of any duty. A  Commission of Inquiry could not properly be meant, as  is sometimes  suspected,  to merely white-wash  ministerial  or departmental action rather than to explore and discover,  if possible,  real facts.  It is also not meant to serve  as  a mode   of   prosecution  and  much  less   of   persecution. Proceedings  before  it  cannot  serve  as  substitutes  for proceedings  which should take place before a Court  of  law invested with powers of adjudication as well as of  awarding punishments  or affording reliefs.  Its report  or  findings cannot  relieve  Courts  which may  have  to  determine  for themselves matters dealt with by a Commission.  Indeed,  the legal  relevance  or  evidentiary value  of  a  Commission’s report  or  findings  on issues which a Court  may  have  to decide for itself, is very questionable.  The appointment of a  Commission  of  Inquiry to  investigate  a  matter  which should, in the ordinary course, have gone to a Court of  law is generally a confession of want, of sufficient evidence-as in  the case of the appointment of the Warren Commission  in the  U.S.A. to inquire into facts concerning the  murder  of the late President Kennedy-to take it to Court combined with an attempt to satisfy the public need and desire to discover what had really gone wrong and how and where if possible.  A Commission of Inquiry has, therefore, a function of its  own to  fulfill.   It has an orbit of action of its  own  within

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 54 of 161  

which it can move so as not to conflict with or impede other forms of action or modes of redress.  Its report or findings are  not immune from criticism if they are either  not  fair and impartial or are unsatisfactory for other reasons as was said to be the case with the Warren Commission’s report. Provisions  of either Article 75(2) or Article 164(2)  could not operate as bars against the institution of inquiries  by Commissions 54 set up wider the Act.  To infer such bars as their necessary consequences would be to misunderstand the object as well as the mode and sphere of operation of the principles found  in both articles 75(2) and 164(2) of the Constitution and  also the. purpose,, scope, and function of Commissions of Inquiry set up under the Act. In a somewhat desperate attempt to find some  constitutional prohibition  against  the  inquiries  on  which  the  Grover Commission  has embarked, learned Counsel for the  plaintiff relied   on  Article  194(3)  of  the   Constitution.    The particular  clause (3) of Article 194 has to be read in  the context  of  other  clauses of Article 194 as  well  as  the remaining  provisions  of the Constitution as  indicated  by Article  194(1).  We may here set out the whole  of  Article 194 which reads as follows :-               "194  (1).  Subject to the provisions of  this               Constitution  and  to the rules  and  standing               orders   regulating  the  procedure   of   the               Legislature, there shall be freedom of  speech               in the Legislature of every State.               (2)   No member of the Legislature of a  State               shall  be  liable. to any proceedings  in  any               Court in respect of anything said or any  vote               given  by  him  in  the  Legislature  or   any               committee  thereof, and no person shall be  so               liable  in  respect of the publication  by  or               under  the  authority  of a House  of  such  a               Legislature  of  any report, paper,  votes  or               proceedings.               (3)   In    other   respects,   the    powers,               privileges  and immunities of a House  of  the               Legislature of a State, and of the Members and               the committees of a House of such Legislature,               shall  be  such as may from time  to  time  be               defined by the Legislature by law, and,  until               so  defined,  shall be those of the  House  of               Commons  of  the  Parliament  of  the   United               Kingdom, and of its members and committees, at               the commencement of this Constitution.               (4)   The, provisions of clauses (1), (2)  and               (3) shall apply in relation to persons who  by               virtue of this Constitution have the right  to               speak  in, and otherwise to take part  in  the               proceedings of, a House of the Legislature  of               a State or any committee thereof as they apply               in relation to members of that Legislature". Article  194. reproduces the terms of article 105 with  this evident difference that, whereas article 194, is  applicable to  Houses of a State Legislature,, article 105  applies  to the  two Houses of Parliament.  Each of these  two  articles subjects  "the  powers, privileges and immunities"  of  each House as well as all its Members and its Committees not only to the laws made by the appropriate legislature but also  to all the other provisions of the Constitution.  It is  clear, from  these articles, that they do not apply to  legislative powers of Parliament or of the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 55 of 161  

55 State  Legislatures  which are specifically  dealt  with  by articles  245 to 255 of the Constitution.  Articles 105  and 194, far from dealing with the legislative powers of  Houses of  Parliament  or of State Legislatures  respectively,  are confined  in  scope to such powers of each House as  it  may exercise separately functioning as a House.  It also  covers immunities  and privileges of each House as a House as  well as of its members The correct principle of interpretation to apply is "no scitur a sociis", or, in other words, the  word "powers"  gets  its  meaning and colour not  only  from  its context  but also from the other words used  in  association with it. It is evident, from the Chapter in which article 194  occurs as  well  as  the heading and its  marginal  note  that  the "powers"  meant  to be indicated here are  not  independent. They are powers which depend upon and are necessary for  the conduct-of the- business of each House.  They cannot also be expanded  into those of the House of Commons in England  for all  purposes.  For example, it could not be contended  that each  House  of a State Legislature has the  same  share  of legislative power as the House of Commons has, as a  consti- tuent part of a completely sovereign legislature.  Under our law  it is the Constitution which is sovereign  or  supreme. The  Parliament  as well as each Legislature of a  State  in India   enjoys   only  such  legislative   powers   as   the Constitution  confers  upon it.  Similarly,  each  House  of Parliament   or   State  Legislature  has  such   share   in Legislative  power as is assigned to it by the  Constitution itself.   The  powers  conferred  on  a  House  of  a  State Legislature  are  distinct from the  legislative  powers  of either  Parliament or of a State legislature for  which,  as already  observed,  there  are separate  provisions  in  our Constitution.   We  need  not travel  beyond  the  words  of article  194  itself,  read with  other  provisions  of  the Constitution, to clearly reach such a conclusion. There is, if we may say so, considerable confusion still  in the  minds of some people as to the scope of  the  undefined "powers,  privileges and immunities" of a House of  a  State Legislature  so much so that it has sometimes been  imagined that  a  House of a State legislature has some  judicial  or quasi-judicial powers also. quite apart from its  recognised powers  of  punishment  for its contempt  or  the  power  of investigations  it may carry out by the appointment  of  its own  committees.   Arguments  of the kind  which  have  been sometimes  advanced  in  this country could  not  have  been advanced if it was clearly understood that, even in England, where the Constitution is largely conventional, the exercise of  judicial powers directly by Houses of  the  legislature, including   powers  such  as  those  of   impeachment,   are practically  obsolete.  Whatever remained of the  power  en- joyed  once by the High Court of Parliament, when  the  King could himself sit, as a part of Parliament, with the  Houses of Parliament, to administer justice is now concentrated  in the  House  of Lords, exercised through a Committee  of  Law Lords. Every power of the House of Parliament in England is subject to  an  act  of  Parliament.  The  Act  with  which  we  are concerned is an 56 Act  of  our Parliament.  We have to, satisfy  ourselves  by reference   to   our  Constitution  and  not   the   British Constitution  that the provisions of the Act before  us  are within the legislative competence of Parliament.  But, if we could ignore the provisions of our Constitution relating  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 56 of 161  

distribution  of  legislative  powers,  which  is  what  the arguments based on Article 194(3) seem to imply, we would be left  with  no yard-stick for  determining  the  legislative competence  of our Parliament.  It would be absurd  to  take that  view simply because that is the position  in  England. Nobody could, in England, question the validity of an Act of Parliament  on the ground that it is in excess of the  power vested in a sovereign Parliament to legislate.  If we  could apply  that  principle  here the Act before us  would  be  a sufficient answer to all argument against its validity. If  that principle does not apply in our country because  of the provisions of our Constitution, which constitute  courts judges  of constitutionality of even Acts of Parliament,  we have  to  test  the provisions of the Act on  the  anvil  of express  provisions of our own Constitution and not  on  the erroneously supposed powers of a House of Commons in England which could never ignore or invalidate the provisions of any Act  made by the Parliament there although it could  play  a decisive role in its repeal if it so desired. A source of confusion about the "powers" and "privileges" of the  House  of  Commons even in England  was  sought  to  be removed  long ago by Sir Erskine May when he pointed out  in his  "Parliamentary Procedure and Practice’, in  1844,  that Coke’s dictum and Blackstones views, according to which  the ordinary law courts could not judge matters relating to "Lex Parliament",   on  the  ground  that  "the  High  Court   of Parliament  hath no higher", were out of date even  in  17th Century England.  He said about such views :               "The  views  belonged  to  a  time  when   the               distinction    between   the   judicial    and               legislative   functions  of   Parliament   was               undrawn or only beginning to be drawn and when               the  separation of the Lords from the  Commons               was  much  less complete than it  was  in  the               seventeenth  century.   Views about  the  High               Court of Parliament and its powers which  were               becoming  antiquated  in  the  time  of  Coke,               continued   to  be  repeated  far   into   the               eighteenth   century,   although   after   the               Restoration  Principles began to be laid  down               which  were more in accord with the  facts  of               the  modern Constitution.  But much  confusion               remained which was not dismissed by the use of               the phrase "privileges of Parliament". Sir  Erskine  May  went on to  indicate  the  three  notions resulting from this "confusion of thought" in the course  of English Constitutional history.  He wrote :               "Three  notions arise from this  confusion  of               thought               (1)   That  the courts, being inferior to  the               High  Court  of  Parliament,  cannot  call  in               question,  the decision of either House  on  a               matter of privilege.               57               (2)   That the lex et conseutudo parliament is               a separate law, and, therefore, unknown to the               Courts.               (3)   That   a  Resolution  of  either   House               declaratory   of  privilege  is   a   judicial               precedent binding on the courts." Now,  what  learned  counsel for  the  plaintiff  seemed  to suggest was that Ministers, answerable to a Legislature were governed  by  a  separate  law  which  exempted  them   from liabilities under the ordinary law.  This was never the  law in  England.   And,  it is not so  here.   Our  Constitution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 57 of 161  

leaves  no  scope for such arguments, based on  a  confusion concerning  the  "powers" and "privileges" of the  House  of Commons  mentioned  in  articles  105(3)  and  194(3).   Our Constitution  vests only legislative power in Parliament  as well as in the State Legislatures.  A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed  quasi-judicially in  cases of contempt of its authority and take  up  motions concerning  its  "privileges" and "immunities"  because,  in doing  so, it only seeks removal of obstructions to the  due performance  of  its  legislative functions.   But,  if  any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts  in appropriate  proceedings.  For example, the jurisdiction  to try a criminal offence, such as murder committed even within a House vests in ordinary criminal courts and not in a House of  Parliament or in a State legislature.  In  Smt.   Indira Nehru  Gandhi v. Shri Rai Narain(1), this Court held that  a House  of  Parliament cannot, in exercise  of  any  supposed "powers"  under  article 105, decide election  disputes  for which  special authorities have been constituted  under  the Representation  of People Act, 1961, enacted  in  compliance with  article 329.  Similarly, appropriate  provisions  for. appointments  of  suitable persons, invested with  power  to determine, in accordance with a procedure which is fair  and just  and regular and efficient, for ascertainment of  facts on matters of public importance, is provided by the Act.  If such provisions are covered by specific provisions  relating to  legislative  competence of Parliament and on(--  of  the items  in Central List I or the concurrent List III  of  the Seventh  Schedule  of the Constitution, we-need  not  go  to other  provisions  which would, strictly  speaking,  not  be relevant  unless they could be relied upon to clearly  carve out  some  exception  ,operating  against  such  legislative competence. Learned  Counsel for the plaintiff has relied also upon  the provisions  of Chapter 11, Part XI, containing Articles  256 to 263 of the Constitution.  Here, we find Articles 256  and 257(1)  of the Constitution which we have  already  examined above to bring out the extent of Government of India’s power to  give  necessary  directions to every  State.   The  term "State"  used  there  could not possibly be  held  to  apply merely  to a geographical entity or  territory.   Article-1, sub-article  (2)  and Article-3 of our Constitution  make  a distinction between "the State" and its territory.   Article 300,  in  the  context  of  legal  proceedings,  makes   the Government of a State the legal representative of the (1) [1976] 2 S.C.R. 347. 58 State.  A direction can only be given to a legal entity  and not  to  a  geographical or a  territorial  entity.   Hence, "directions"  to  the "State", as these terms  are  used  in Articles  256 and 257, must necessarily mean  directions  to States  as legal entities which must have legal  representa- tives.   There  need  be no  difficulty  in  treating  State Governments   as   representatives   of   their   respective individual  States.   Can we, with such  a  constitution  as ours, say that the Union Government must take no   interest, and,  consequently,  no action whatsoever which  savours  of interference   with  governmental  functions  of   a   State Government ? in, the dissolution of State Assemblies case we have  already  stated  the views of this  Court  on  such  a subject  at  some  length  indicating  there  the  ]dud   of federation  we  have  in this country  with  what  has  been characterised  as "a strong unitary bias", or, at any  rate,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 58 of 161  

with powers given to the Union Government of.supervision and even  supersession,  in  certain  circumstances,  of   State Governments  temporarily  to restore normalcy or  to  inject honesty,   integrity,  and  efficiency  into   State   admi- nistrations where these essentials of good government may be wanting. Neither  Chapter 11, part XI of the-  Constitution,  dealing with the administrative relations between the Union and  the States, nor any other part of the Constitution could be held to   imply  a  prohibition  against  the  exercise  of   any legislative  power of Parliament.  Indeed, a glance  through Chapter  11 in part XI shows that, apart from articles 25  6 and 25 7 (1 ), it deals only with some special matters, such as  maintenance  of  national  highways,  water  ways,   and railways,  constructions  to be undertaken  for  objects  of national  or  military  importance,  delegation  of  certain powers,   some  arbitrations,  recognition  throughout   the territory  of  India  of certain public  acts  and  judicial proceedings  of the Union and of every State,  determination of  disputes relating to waters, and certain  other  matters involving co-ordination between the States.  It could not be said to exhaust all matters which may involve the  interests of  particular  States as well as of the  Union.   There  is nothing  in any of the provisions here or elsewhere  in  our Constitution  which  could, by a necessary  implication,  be said  to  impose conditions on the exercise  of  legislative powers   distributed  by  Chapter  I  of  Part  XI  of   the Constitution  read  with  the three  lists  in  the  Seventh Schedule.   Such a question must, therefore,  be  determined exclusively by the provisions of Chapter I of Part XI  which refer  us to the legislative lists in the Seventh  Schedule. We  cannot  forget that we are really  concerned  here  with legislative powers and not with administrative relations  or directions.   It  is  true that those powers  cannot  be  so exercised  as to displace or amend the  Constitution.   But, unless they have that effect, provisions meant to supplement and facilitate due discharge of Constitutional powers cannot be deemed to be in excess of ordinary legislative power. Entry  94  in  List I of  exclusively  Central  subjects  of legislation reads as follows : "94.   Inquiries, surveys and statistics for the purpose  of any of the matters in this list". It  is  true that matters affecting  relations  between  the Union  Government  and the State Government  are  not  found mentioned specifically 59 anywhere  in the Union List.  It was, therefore, urged  that "inquiries""  mentioned  here, even if  they  extend  beyond surveys  and statistics, must, nevertheless, be confined  to "matters  in  this  list".   It  was  submitted  that   such "inquiries" could not embrace the conduct of Ministers exer- cising  governmental  powers as such conduct does  not  fall under  any item in the list but should,  properly  speaking, have  found  a  place  in  the  Chapter  on  "administrative relations".  It was suggested that the Union Government war, really trying to exercise a kind of unwarranted disciplinary authority  and control over the conduct of Ministers in  the States  in  the  performance of  governmental  functions  by setting  up  a  Commission  of  Inquiry  a  subject,  it  is submitted, that could properly be dealt with only as a  part of  "Constitutional  law" and should have  found  a  mention explicitly  in  some part of our Constitution so as  to  ’be unmistakably identifiable there as such control  exercisable through the means adopted for it. We  do not think that the term "Constitutional law"  can  be

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 59 of 161  

either ,clearly or exhaustively defined although its  nature can  be  roughly  indicated in the way  in  which  text-book writers  have attempted to do it.  For  example,  Professors E.C.S.  Wade and Godfrey Phillips (See  Constitutional  Law, 8th Ed. page 4) say :               "There  is  no  hard and  fast  definition  of               constitutional law.  In the generally accepted               use  of  the  term it means  the  rules  which               regulate the structure of the principal organs               of  government and their relationship to  each               other,    and   determine   their    principal               functions." In  other  words, it could be expected to contain  only  the basic   framework.   It  is  not  part  of  its  nature   to exhaustively deal with all governmental matters. As there is no written Constitution in Britain, the  authors quoted   above  said  "the  Constitution  has  no   separate existence  since it is the ordinary law of the land".   They added  :  "There  is a common body of law  which  forms  the constitution,  partly  statutory,  partly  common  law,  and partly  conventions".   It  is not possible  in  England  to equate  all that passes as "constitutional law"  With  rules enforceable through Courts of law because conventions, which cannot  be  so enforced, are also,  apparently,  treated  as parts of it since they also contain rules of conduct.  Thus, not  all  "constitutional law" need be written  or  be  even "law"  in the commonly accepted sense of this term.  In  any case,  there  can be no clear-cut distinction  between  what could  or  should  and  what could  not  or  should  not  be comprehended within the body of rules called "constitutional law".   In practice, it will be found that what is  embodied even  in  a written constitution depends  sometimes  on  the peculiar  notions for the time being of people who make  it. It  reflects their views about what should be considered  so basic   or   fundamental  as  to  find  a   place   in   the Constitutional document.  For example, one of the provisions of  the  Swiss Constitution of 1893 prohibits  "sticking  of animals for butchers" meat unless they have previously  been stunned".   According to normal notions  of  "Constitutional law",  such a subject should not have found a place  in  it. Others think that a 5-1042SCI/77 60 constitution  should  contain nothing more than  the  barest possible  outlines of the structure of the Government  of  a country.   The  rest, whether "constitutional law"  or  not, could  be  done  by the  exercise  of  ordinary  legislative powers. Prof.   K. C. Where, in his "modern Constitutions", wrote  a Chapter  on "What a constitution should contain",  where  he observes :               "A  glance at the Constitutions  of  different               countries  shows at one,,- that people  differ               very much in what they think it necessary  for               a  Constitution  to contain.   The  Norwegians               were  able to say all that they wanted to  say               in about twenty five pages; the Indians occupy               about  two  hundred and fifty pages  in  their               Constitution  of  1950.  A principal  line  of               division  is found between those who regard  a               Constitution    as   primarily   and    almost               exclusively   a  legal  document   in   which,               therefore,  there is a place for rules of  law               but  for practically nothing else,  and  those               who  think  of  a Constitution as  a  sort  of               manifesto, a confession of faith, a  statement

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 60 of 161  

             of  ideals,  a ’charter of the land’,  as  Mr.               Podsnap called it". He  opined  that "the one essential  characteristic  of  the ideal or the best form of constitution is that it should  be the shortest possible".  And, Chief Justice John Marshall of the United States said in 1819 in McCulloch v. Maryland(1) :               "A Constitution to contain an accurate  detail               of  all  the subdivisions of which  its  great               powers  will  admit, and of all the  means  by               which  they  may be  carried  into  execution,               would  partake  of the prolixity  of  a  legal               code,  and could scarcely be embraced  by  the               human  mind.   It  would  probably  never   be               understood by the public.  Its nature,  there-               fore,  requires that only its  great  outlines               should  be  marked,  its  important’   objects               designated,  and the minor ingredients  ,which               compose  those  objects be  deduced  from  the               nature of the objects themselves." It  is  true  that our Constitution-makers did  not  try  to conform  to  the standards indicated above.   This  was  due largely  to the historical background and the manner of  our Constitution  making.  We did not start with a clean  slate. We accepted as our starting point the scheme embodied in the Government  of  India  Act, 1935,  enacted  by  the  British Parliament, evidently in an attempt to provide quite a  com- prehensive  and  foolproof  set  of  legal  rules  for   the governance of. our country.  On it, were engrafted a set  of provisions  containing  principles,  sometimes  conflicting, culled   from  the  Constitutions  of   various   countries, including  Japan,  and results of judicial  wisdom  and  ex- perience  gathered from all comers of the earth, so that  we have a Constitution which, as Mr. Granville Austin  suggests in his book on "The Indian Constitution : The cornerstone of a Nation", resembles a coat of various colours. (1)  4, LEd. 579. 61 Our  Constitution  may  be  lengthy  and  considerably  more comprehensive  and  elaborate than  Constitutions  of  other countries. Nevertheless, to expect its contents to be so all embracing  as  to necessarily specify and  deal  with  every conceivable  topic  of  legislation  on  all  constitutional matters exhaustively, with sufficient particulars, so as  to leave  no  room  for  doubt as to what  could  be  meant  by it...... as though a topic of legislation had to be  stated, with  necessary  particulars, like a charge  to  an  accused person  .... is to expect the humanly impracticable  if  not the  impossible.  And, to build an argument founded  on  the supposed  reasonableness  of such an  expectation  and  some loosely   drafted   comprehensive   definition   of   either "Constitutional  law"  or a "Constitution", to  convince  us that what is not so specified and identifiable as a  subject of   legislation,   given  in  the  Constitution   must   be necessarily  prohibited  at  least as a  topic  of  ordinary legislation,  although  it  may  become  permissible  by  an amendment of the Constitution, by an addition to it, appears very unrealistic to us.  At any rate, our Constitution  does not  inhibit  the  growth or  development  of  supplementary constitutional law through channels other than Article 368. Excessive  particularity  is  not  consistent,  as   already indicated  above, with the generally accepted notions  of  a basic  or what may be characterised as the "structural"  law of the State delineating its broad basic features only.  The most  that  could be expected from the  human  foresight  of Constitution  makers  is that they should provide  for  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 61 of 161  

residual  power of legislation which could cover  topics  on which,  consistently  with  the  constitutional   framework, Parliament  or  State legislatures could  depending  on  the constitutional   pattern,   legislate   even   though    the legislation  may  not be easily assignable to  any  specific entry.  Such a provision our Constitution makers did make. Item  97 corresponds to the residuary legislative powers  of Parliament under Article 248.  It reads as follows : "97.  Any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists." It gives effect to Article 248.  No doubt, resort to Article 248,  read  with item 97 of List I, could not  overcome  any specific   constitutional   bar   against   legislation   on investigation   of  conduct  of  Ministers  of   any   State Government  in the discharge of their duties had there  been one.  There is certainly no such express and specific bar in our  Constitution.  And, it is difficult to see how one  can arise  by some necessary implication of  provisions  dealing with  entirely  different topics.  There  is  no  indication anywhere  in  our  Constitution  that,  while  enacting  the provisions from which we are asked to infer a bar against or limitation  upon legislation on such a topic  as  inquiries, that our Constitution-makers had any such bar or  limitation even  remotely  in  their minds.  There seems  no  legal  or rational nexus between such a supposed bar or limitation and the  subjects  dealt with in the articles relied  upon.   As already  indicated  above, the  Constitution  makers  cannot always  mention  and exhaust every  conceivable  topic.   We think that it is in order to meet precisely such a situation that article 248 read with Entry 97 was inserted.  Hence, we think that article 248 read 62 with  Entry 97 of list I will fully cover Section 3  of  the Act even if item 94 of List I does not. Alternatively,  Entry 45 of the Concurrent List III  of  the Seventh  Schedule  was relied upon on behalf of  the  Union. This item reads as follows 45.Inquiries and statistics for the purposes of any of the matters ’specified in List II or List III". To fall under item 45 of List III the topic of inquiry  must relate to one of the specified items in List II or List III. If  neither  items 94 and 97 of List I nor item 45  of  List III which refers to inquiries relating to topics in List  II as  well  could  cover  Section  3  of  the  Act,  it  would necessarily  follow  that such an enactment,  assuming  that Section  3  was meant to cover an inquiry  against  a  State Minister’s conduct in the exercise of powers enjoyed by  him by  virtue of his office was not contemplated at all by  our Constitution  makers.   If  such an  argument  was  correct, Section  3  would,  on the assumption  made,  fall  entirely outside  the legislative competence of both  Parliament  and State  Legislatures  because there would be  no  legislative power  conferred  upon  any Legislature to  deal  with  such subject as it could not be covered by any entry in any list. Indeed,  if  we have correctly understood  the  argument  of learned  Counsel  for the plaintiff in the form  it  finally took,  this  is  precisely  what  is  submitted  to  us  for acceptance.   It was contended that this was so because  the conduct  of  governmental affairs by State  Governments  and their  Ministers  is subject exclusively to the  control  by State  Legislature  and  those of the  Union  Government  by Parliament alone by reason of the Constitutional  provisions we have already examined and explained. To  accept such contentions of the learned Counsel  for  the plaintiff  is to place Ministers, both in the States and  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 62 of 161  

the Union Governments, completely outside the scope of legal answerability on the ground that they were only  politically responsible to and controllable by appropriate  legislatures even  when  they,  in the course of  purported  exercise  of official  powers,  act dishonestly and  corruptly  and  even commit  criminal offences.  This would mean that even  if  a Minister receives bribes, as we genuinely hope that none  in the  whole country does, he could not be made answerable  in ordinary courts or be subjected to criminal proceedings.  If no  inquiry  under  any law into his  conduct  was  possible simply because the act complained of was done by a  Minister in purported exercise of a power vested in him by virtue  of his  ministerial office, he would be placed in a  privileged position  above the ordinary processes of law applicable  to other  citizens.  Mere holding of Ministerial  office  would confer  immunity from any inquiry.  He would thus  become  a legally irresponsible despot above the ordinary law. The  determine  whether there is a prima facie, case  for  a criminal  offence facts have to be necessarily  investigated or  inquired  into.   But,  of every  type  of  inquiry  and investigation except one by the House of the Legislature  of which he is a member is burred, the very first stop 63 towards aprosecution  for any serious crime would  be  shut out in limine. No question of any further legal  proceedings would arise under any enactment.  Such a consequence of  the constitutional provisions relied upon by learned counsel for the plaintiff could not, in our opinion, be possible  within the contemplation of our Constitution makers.  Indeed,  such a  view would clearly violate the express and very  salutary provisions of Article 14. We  prefer to infer and hold that the term  ’inquiries’,  as used  in item 94 of List I and Item 45 of List III,  without any limitations upon their nature or specification of  their character  or objects, is wide enough to embrace every  kind of  inquiry,  whether  a  criminal  offence  by  anyone   is disclosed  or  not by facts alleged.  Entry 45 in  List  III must  include  inquiries to cover  allegations  against  all persons  which  bring them within the sphere of Entry  I  of List  II  relating  to criminal law.  All  that  "Inquiries" covered by Item 45 require is that they must be   "for   the purpose  of any of the matters specified in List II or  List III."     The language used-"any of the matters  specified"- is broad enough     to cover anything reasonably related  to any  of  the  enumerated items even if done  by  holders  of ministerial  offices  in the States.Other subjects  will  be found  in  State List II.  And, even assuming  that  neither Entry  94  of List I nor Entry 45 of List III,  would  cover inquiries against ministers in the States, relating to  acts connected with the exercise of ministerial powers, we  think that  Article  248,  read  with Entry 97  of  List  I,  must necessarily cover an inquiry against Ministers on matters of public importance whether the allegations include violations of  criminal  law  or not.  A contrary  view  would,  in  my opinion have the wholly unacceptable consequence of  placing Ministers  in State Governments practically above  the  law. We   must   lean  against  an   interpretation   which   has consequences   which,  had  they  flowed  from  an   express enactment  of  Parliament or of a State  Legislature,  would have  invalidated the provision for conflict  with  Article, 14. It  would not be out of place to mention that even  for  the purposes  of  an inquiry into the conduct of Judges  of  the Supreme  Court  or of High Courts an Act of  Parliament  was passed for the specific purposes of Article 124 to  provide,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 63 of 161  

through appropriate investigation and inquiry, "proof of the misbehaviour  or incapacity of a Judge"  before  proceedings under  Article 124(4) could be initiated for their  removal. (See  : The Judges’ (Inquiry) Act 51 of 1968).  Hence,  even Judges,  who  have  to be  protected  against  unfounded  or malicious charges, as they have to give decisions which must necessarily  displease  at  least one out  of  two  or  more parties  to a case, are not in a more  privileged  position. It is true that, as somebody has observed, reckless  charges are  perhaps hurled against those holding public offices  in our  country  with the abundance of confetti at  a  wedding, yet, we cannot do away with inquiries under the Act for this reason.  The liability to face such inquiries before a  duly appointed impartial Commission is one of those hazards which individuals  holding ministerial office have to face.   They can perhaps find solace in the thought that inquiries  which are  thorough and impartial, conducted by competent  persons who  have held high judicial office, are the best  means  of clearing  them  of charges which are  really  unfounded  and malicious. 64 As we think that the powers conferred by Section 3 upon  the Central  and  State  Governments,  including  the  power  to institute inquiries of the kind set up under each of the two Notifications,  are  covered by the  express  constitutional provisions  mentioned above, no question of  any  exclusion, either by necessary implication or by any principle supposed to form a part of or to flow from the basic structure of the Constitution, can arise here.  Nor can we, upon the view  we take, read down and so interpret Section 3 of the Act as  to exclude  from its purview inquiries of the  kind  instituted under  the two Notifications.  To do so would be to give  an incentive to possible misuse and perversion of  governmental machinery and powers for objects not warranted by law.  Such powers carry constitutional obligations with them.  They are to be exercised like the powers and obligations of  trustees who  must  not deviate from the purposes  of  their  trusts. Whether  a  Minister has or has not abused  his  powers  and privileges  could  be  best determined by  fair  and  honest people anywhere only after a just and impartial inquiry  has taken  place  into complaints made against him so  that  its results are before them. It  is  evident  from  the  foregoing  discussion  that  the principle  relied  upon by the plaintiff’s  learned  Counsel repeatedly,  in support of which a passage  from  Crawford’s "Statutory Construction" (1940 Edn. paragraph 195 at p. 334- 335) was also cited, as the basis of the submissions of  the learned Counsel, was that what is expressly provided for  by the  Constitution  must necessarily exclude what is  not  so provided for.  This reasoning is an attempted misapplication of  the  principle  of construction  "Expression  Unius  Est Exclusio Alterius." Before, the principle can be applied  at all  the Court must find an express mode of doing  something that  is  provided  in a statute, which,  by  its  necessary implication, could exclude the doing of that very thing  and not  something else in some other way.  Far from this  being the  case  here,  as the discussion  above  has  shewn,  the Constitution   makers  intended  to  cover  the  making   of provisions  by Parliament for inquiries for various  objects which  may  be  matters of  public  importance  without  any indications of any other limits except that they must relate to subjects found in the Lists.  I have also indicated why a provision  like section of the Act would, in any case,  fall under entry 97 of List I of Schedule VII read with  Articles 248  and  356 of the Constitution even if  all  subjects  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 64 of 161  

which  it may relate are not found specified in  the  lists. Thus,  there  is express provision in  our  Constitution  to cover  an  enactment such as Section 3 of the  Act.   Hence, there  is  no room whatsoever for  applying  the  "Expressio Unius"  rule  to  exclude what  falls  within  an  expressly provided legislative entry.  That maxim has been aptly  des- cribed  as  a "useful servant but a  dangerous  master  (per Lopes  L.J. in Colquhoun v. Brooks(1).  The  limitations  or conditions  under  which  this  principle  of   construction operates  are frequently overlooked by those who attempt  to apply it. (1)  [1888] 21 Q.B.D. p. 52 @ 65. 65 To  advance the balder and broader proposition that what  is not  specifically  mentioned  in the  Constitution  must  be deemed to be deliberately excluded from its purview, so that nothing short of a Constitutional amendment could  authorise legislation  upon it, is really to invent a "Casus  Omissus" so as to apply the rule that, where ’,.here is such a gap in the  law, the Court cannot fill it.  The rule,  however,  is equally  clear that the Court cannot so interpret a  statute as  "to produce a casus omissus" where there is really  none (see  :  The  Mersey Docks and Harbour  Board  v.  Penderson Brothers(1).   If  our  Constitution  ’itself  provides  for legislation  to  fill what is sought to be  construed  as  a ’lacuna how can legislation seeking to do this be held to be void  because  it  performs  its  intended  function  by  an exercise  of an expressly conferred legislative power ?   In declaring  the  purpose of the provisions so  made  and  the authority for making it, Courts do not supply an omission or fill  up  a gap at all.  It is Parliament which  can  do  so and has done it.  To hold that parliament is incompetent  to do this is to substitute an indefensible theory or a figment of one’s imagination that the Constitution stands in the way somehow-for that which only a clear Constitutional bar could achieve. This  brings me to the next question to be considered :  Are there  any  special rules relating to  the  construction  of Constitutions   in  general  or  of  our   Constitution   in particular  ? And, if there be any such rules,  would  their application support the restrictive construction, ,submitted on  behalf  of  the plaintiff for  our  acceptance,  on  the Parliament’s  power  to enact section 3 of the  Act?   These seem to be important questions which need answers with  some clarity if possible. A writtenConstitution,   like  any  other   enactment,   is embodied in a document. There are certain general rules  of interpretation  and constructionof  all documents  which, no doubt, apply to the Constitution as well.Nevertheless, the nature of a Constitution of a Sovereign Republic,  which is  meant to endure and stand the test of time, the  strains and  stresses  of  changing  circumstances,  to  govern  the exercise  of all Governmental powers, continuously,  and  to determine the destiny of a nation could be said to require a special  approach  so that judicial  intervention  does  not unduly  thwart the march of the nation towards the goals  it has set before itself. Napoleon Bonaparte once said that the best Constitution  for any   country  is  one  which  is  both  short  and   vague. Obviously,  be  meant  that a  Constitution  must  have  the capacity to develop and to be easily adapted to the changing needs of the nation, to the vicissitudes of its fortunes, to the  growth  and expansion of various spheres of  its  life- social    economic,   political,   legal,   cultural,    and psychological.   If  the Constitution is unable  to  perform

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 65 of 161  

this  function  it  fails.  Prof.   Willis,  whose  work  on "Constitutional  Law  of the United States" has  been  cited before this Court, has said (at p. 19):               "Our  original Constitution was not an  anchor               but a rudder.  The Constitution of one  period               has not been the               (1) [1888] 13A.C.595@ 602               66               Constitution of another period.  As one period               has  succeeded another, the  Constitution  has               become larger and larger." This elasticity or adaptability of the American Constitution may account for its durability. Although,  a written Constitution, which is always  embodied in  a  document, must necessarily be subject  to  the  basic cannons  of construction of documents, yet, its very  nature as the embodiment of the fundamental law of the land,  which has  to be adapted to the changing needs of a nation,  makes it  imperative for Courts to determine the meanings  of  its parts  in  keeping  with its broad and  basic  purposes  and objectives  This  approach seems to flow from  what  may  be called  a  basic principle of construction of  documents  of this  type : that the paramount or predominant  objects  and purposes,  evident  from  the contents,  must  prevail  over lesser  terms ones obscurely embedded here and there.    The Constitutional  document, in other words, must be read as  a whole and construed in keeping with its declared objects and its  functions.   The dynamic needs of the nation,  which  a Constitution must fulfill, leave no room for merely pedantic hairsplitting play with words or semantic quibblings.  This, however,  does  not mean that the Courts, acting  under  the guise  of a judicial power, which certainly extends to  even making  the  Constitution,  in  the  sense  that  they   may supplement  it in those parts of it where the letter of  the Constitution is silent or may leave room for its development by  either ordinary legislation or judicial  interpretation, can  actually  nullify, defeat, or  distort  the  reasonably clear  meaning of any part of the Constitution in  order  to give  expression  to some theories of their  own  about  the broad or basic scheme of the Constitution. The  theory behind the Constitution which can be taken  into account for purposes of interpretation, by going even so far as to fill what have been called the "interstices" or spaces left  unfilled, due perhaps to some deliberate vagueness  or indefiniteness in the letter of    the  Constitution,   must itself   be   gathered  from  express  provisions   of   the Constitution.      The dubiousness of expressions  used  may be  scured  by  Court by making  their  meanings  clear  and definite  if necessary in the light of the broad  and  basic purposes  set before themselves by the Constitution  makers. And,  these meanings may, in keeping with the objectives  or ends  which  the Constitution of every  nation  must  serve, change  with changing requirements of the times.  The  power of judicial interpretation, even if it includes what may  be termed as "interstitial" law making, cannot extend to direct conflict  with express provisions of the Constitution or  to ruling  them out of existence.  What the express  provisions authorise cannot be curtailed by importing limits based on a mere theory of limitations on legislative powers. The statement of general principles of construction set  out above, is home out by earlier pronouncements of this  Court- some  emphasizing  the clearly expressed meanings  of  words used  in the Constitution., which cannot be  deviated  from, others   laying  stress  on  the  paramount   purposes   and objectives of the Constitution makers, some asserting the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 66 of 161  

67 undoubted  power  of Courts to declare void  legislation  in conflict with the Constitutional provisions, others pointing out  the  plenitude of legislative powers conferred  by  the Constitution  upon  Parliament and the  State  Legislatures, presumed  to  know  best the needs of the  people,  so  that Courts  could  not  lightly  invalidate  statutes.   I  will briefly  refer  to some of the past pronouncements  of  this Court  where, emphasis would naturally differ from  case  to case according to the particular context in which some  rule of construction arose for consideration. Kania,  C.  J., quite clearly laid down  a  basically  sound approach, if I may so characterise it with great respect, to the  interpretation of the Constitution in A. K. Gopalan  v. State of Madras(1), when he said :               "In   respect   of  the  construction   of   a               Constitution  Lord  Wright  in  James  v.  The               Commonwealth  of Australia (1936 A.C.  578  at               614) observed that "a Constitution must not be               construed  in any narrow and pedantic  sense."               Mr. Justice Higgins in Attorney-General of New               South Wales v. Brewery Employees’ Union  (1908               6)  Corn.   L.R.  469  @  611-12,  observed  :               ’Although  we  are to interpret words  of  the               Constitution   on  the  same   principles   of               interpretation  as  we apply to  any  ordinary               law,  these very principles of  interpretation               compel us to take into account the nature  and               scope  of the Act that we are  interpreting-to               remember   that  it  is  a   Constitution,   a               mechanism under which laws are to be made  and               not a mere Act which declares what the law  is               to  be’.  In In re the Central  Provinces  and               Berar Act XIV of 1938 (1939 FCR 18 (1937), Sir               Maurice Gwyer, C.J., after adopting these  ob-               servations said : ’especially is this true  of               a  federal Constitution with its nice  balance               of jurisdictions.  I conceive that a broad and               liberal spirit should inspire those whose duty               it  is to interpret it; but I do not imply  by               this that they are free to stretch or  pervert               legal or constitutional theory or even for the               purpose   of   supplying   omissions   or   of               correcting   supposed   errors’.    There   is               considerable authority for the statement  that               the  Courts are not at liberty to  declare  an               Act  void  because  in  their  opinion  it  is               opposed  to a spirit supposed to pervade,  the               Constitution  but  not  expressed  in   words.               Where  the  fundamental law has  not  limited,               either  in terms or by necessary  implication,               the   general   powers  conferred   upon   the               legislature  we  cannot declare  a  limitation               under   the   notion  of   having   discovered               something  in the spirit of  the  Constitution               which is not even mentioned in the instrument.               It is difficult upon any general principles to               limit   the  omnipotence  of   the   sovereign               legislative  power by judicial  interposition,               except  so  far  as the  express  words  of  a               written Constitution-give that authority.   It               is  also stated, if the words be positive  and               without ambiguity, there is no authority for a               Court  to vacate or repeal a Statute  on  that               ground  alone.   But, it is  only  in  express

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 67 of 161  

             constitutional provisions limiting legislative               power and controlling the temporary will of a               [1950]1S.C.R. 88 @ 119 to 120.               68                 majority  by a permanent  and  paramount law               settled by the deliberate wisdom of the nation               that one can find a safe and solid ground  for               the authority of Courts of justice to  declare               void    any   legislative   enactment.     Any               assumption  of authority beyond this would  be               to place in the hands of the judiciary  powers               too  great and too indefinite either  for  its               own  security  or the  protection  of  private               rights." In  State  of Bihar v. Kameshwar Singh(1), this  Court  held that where two constructions are possible, "the Court should adopt that which will implement and discard that which  will stultify  the  apparent  intention  of  the  makers  of  the Constitution". Another principle which this Court has repeatedly laid down, for  cases  in  which two constructions  may  be  reasonably possible,  is  that  it should adopt  one  which  harmonizes rather   than   one  which  produces  a   conflict   between Constitutional provisions (See : 1. C. Golaknath v. State of Punjab(2)  ; K. K. Kochuni v. State of Madras  &  Kerala(3); Mohd.   Hanit v. State Bihar(4); State of M.P. v.  Ranojirao Shinde(5); Prem  Chand Garg v. Excise Commissioner, U.P.(6),  Devadasan v. Union of India(7). Courts  have been advised to adopt the  construction  "which will   ensure   smooth  and  harmonious   working   of   the Constitution  and  eschew  the  other  which  will  lead  to absurdity  or give rise to practical inconvenience  or  make well-established provisions of existing law nugatory (See  : Kesavananda Bharati v. State of Kerala(8). In Kesavananda Bharati’s case (supra) Sikri C.J., said about the mode of construing the Constitution :               "One  must  not  construe it  as  an  ordinary               statute.  The Constitution, apart from setting               up a machinery for Government, has a noble and               grand vision in the Preamble."               In the very case Khanna J. observed               "A  Constitution cannot be regarded as a  mere               legal  document  to be read as a  will  or  an               agreement nor is constitution like a plaint or               a  written statement filed in a  suit  between               two litigants.               xx             xx            xx             xx               xx               (1)[1952] S.C.R. 889 at 980-81.               (2)[1967] 2 S.C.R. 762 at 791.               (3)[1960] 3 S.C.R. 887 at 905.               (4)[1959] S.C.R. 629 at 648.               (5)[1968] 3 S.C.R. 489.               (6)[1963] Suppl. (1) S.C.R. 88 5 at 91 1.               (7)[1964] 4 S.C.R. 680 at 695.               (8)11973]  4 S.C.C. 225 at 426 (1973  Suppl               S.C.R.1).               69               It provides for the framework of the different               organs  of the State, viz the  executive,  the               legislature and the judiciary.  A Constitution               also  reflects the hopes and aspirations of  a               people". Repeatedly, this Court has declared that a broad and liberal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 68 of 161  

construction in keeping with the purposes of a  Constitution must  be given preference over adherence to too  literal  an interpretation (see : e.g. Sakal Papers (P) Ltd. v. Union of India,(1), of the Constitution. In   particular,  the  plenitude  of  power  to   legislate, indicated  by a legislative entry, has to be given  as  wide and  liberal  an interpretation as is  reasonably  possible. Thus,  in  Jagannath Baksh Singh v. State of  U.P.,(2)  this Court said :               "....it  is  an elementary  cardinal  rule  of               interpretation  that  the words  used  in  the               Constitution  which confer  legislative  power               must receive the most liberal construction and               if they are words of wide amplitude, they must               be  interpreted so as to give effect  to  that               amplitude.  It would be out of place to put  a               narrow or restricted construction on words  of               wide  amplitude in a Constitution.  A  general               word  used  in an entry like the  present  one               must  be construed to extend to all  ancillary               or  subsidiary  matters which can  fairly  and               reasonably be held to be included in it". In  Union of India v. H. S. Dhillon,(3) Sikri,  C.J.,  after discussing  :the tests adopted both in India and  in  Canada for  determining whether a particular subject  falls  within the Union or the State List observed p. 5 1 ) :               "It  seems  to us that the  function  of  Art.               246(1),  read with entries 1-96 List I  is  to               give positive power to Parliament to legislate               in respect of these entries.  Object is not to               debar Parliament from legislating on a matter,               even  if other provisions of the  Constitution               enable it to do so.  Accordingly, we donot               interpret   the  words  ’any   other   matter’               occurring in entry97 List I to mean a topic               mentioned by way of exclusion. These               words really refer to the matters contained in               each  of the entries 1 to 96.  The words  ’any               other  matter had to be used because entry  97               List I follows entries 1-96 List I. It is true               that the field of legislation is demarcated by               entries 1-96 List I, but demarcation does  not               mean   that  if  entry  97  List   I   confers               additional  powers  we should refuse  to  give               effect  to  it.  At any rate,  whatever  doubt               there may be on the interpretation of entry 97               List  I is removed by the wide terms  of  Art.               248.   It  is framed in  the  widest  possible               terms.   On its terms the only question to  be               asked  is  :  Is  the  matter  sought  to   be               legislated  on included in List II or in  List               III  or  is  the  tax  sought  to  be   levied               mentioned in List II or in List               (1)   [1962] 3 S.C.R. 842;               (2)   [1963] 1 S.C.R. 220 @ 228-229.               (3)   [1972] 2 S.C.R. 33,               70               III ?  No question has to be asked about  List               I.  If the answer is in the negative, then  it               follows that Parliament has power to make laws               with respect to that matter of tax". It  will  be seen that the test adopted  in  Dhillon’s  case (supra)  was,  that  if a subject does  not  fall  within  a specifically  demarcated field found in List II or List  III it would fall in List I apparently because, of the amplitude

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 69 of 161  

of  the  residuary  field indicated by  entry  97,  List  I, Legislative  entries  only  denote fields  of  operation  of legislative power which is actually conferred by one of  the articles  of  the Constitution.  It was,  pointed  out  that Article 248 of the Constitution conferring legislative power is  "framed in the widest possible terms".  The validity  of the  Wealth Tax Act was upheld in that case.   The  argument that  a  wide range given to entry 97 of List I,  read  with Article 248 of the Constitution, would destroy the  "federal structure" of our Republic was rejected there. On      an application of a similar test here, the powers given to  the Central  Government by Section 3 of the Act, now before  us, could  not  be  held to be invalid on the  ground  that  the federal structure of the State is jeopardized by the view we are  adopting in conformity with the previous  decisions  of this Court. I may next refer to what may be regarded as certain  special features  of  our Constitution so as to indicate  its  broad purposes and objectives. Our Constitution has, in it, not only an elevating  preamble setting  forth  the  presumed will of the  whole  people  of India, conceived of as one entity, but a set of  Fundamental Rights in Part III.  Directive Principles of State Policy in Part  IV of the Constitution, a rough separation  of  powers between  the  Executive, the Legislative, and  the  Judicial branches of Government, a pragmatic federalism which,  while distributing  legislative powers between the Parliament  and State  Legislatures,  with  a  concurrent  field  also,  and indicating  the spheres of Governmental powers of State  and Central  Governments,  is  overlaid,  as  already  indicated above,   ’by  strongly  ’unitary’   features,   particularly exhibited by lodging in Parliament the residuary legislative powers,  and  in the Central Govt, the  executive  power  of appointing State Governors, and Chief Justices and Judges of High Courts, powers of giving appropriate directions to  the State  Governments, and of even displacing the State  Legis- latures  and  Governments in  exceptional  circumstances  or emergencies   of   not  very  clearly  defined   ambits   or characters.  No other "federation" in the world has  exactly similar unitary features.  One wonders whether such a system is  entitled  to  be dubbed "federal" in  a  sense  denoting anything more than a merely convenient division of functions operative in ordinary times.  The function of  "supervision" is certainly that of the Central Government with all that it implies. It may be noticed that the basic allegiance contemplated  by the  Constitution is, legally speaking, to the  Constitution itself about whose advent this Court once said (in  Virendra Singh & Ors. v. the State of U.P. (1) ).               "........ at one moment of time the new  order               was  born  with the new  allegiance  springing               from the same source for               (1)   [1955] S.C.R. 415 at 436.               71               all,   grounded  on  the  same  basis  :   the               sovereign will of the people of India with  no               class,  no  caste,  no  race,  no  creed,   no               distinction, no reservation". The  Constitution, as its Preamble makes it clear, is  of  a sovereign   republic.   The  legal  sovereignty   which   it represents includes legal legislative sovereignty which must embrace  the power of making any law on any  subject.   Such legislative  power  to enact any law must,  therefore,  vest somewhere in a legislative organ of the Republic.  It cannot be placed anywhere outside these organs.  To apply the  test

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 70 of 161  

formulated in Dhillon’s case, (supra) the Parliament  alone, would  have  the  power to enact by a  simple  majority,  by reason  of Article 248 read with entry 97 of List I,  if  it falls  neither  in List II nor in List  III.   As  indicated above, the contention on behalf of the plaintiff, if  accep- ted,  would  expel the power of legislation  itself  on  any matter involving an inquiry into the conduct of Governmental affairs  by  a  minister  in a  State  Government  from  the legislative  Lists  and place it under  Article  368.   This means   that,  although  the  express  provisions   of   the Constitution, broadly interpreted, as they should be,  would prima facie authorse a provision.. such as Section 3 of  the Act,  yet,  we  should imply  a  Constitutional  prohibition against  such  an enactment by Parliament even if  its  wide terms  could  as  they prima  facie  do,  include  inquiries against State Ministers exercising Governmental powers. As indicated above, the first step of the argument mentioned above is a theory of what the Constitution must  necessarily contain  as contrasted with ordinary law.  To  support  this submission, a passage was cited from the judgment of Wanchoo J, in I. C. Golak Nath & Ors. v. State of Punjab and Anr.(1) which contains the following question front Ivor Jennings on "The Law and the Constitution" (1933 Edn. at p. 51  onwards) :               "A   written   constitution   is   thus    the               fundamental  law  of a  country,  the  express               embodiment  of  the doctrine of the  reign  of               law.    AR   public   authorities-legislative,               administrative  and judicial ....  take  their               powers  directly or indirectly  from  it......               whatever    the   nature   of   the    written               constitution  it  is  clear that  there  is  a               fundamental distinction between constitutional               law and the rest of the law,. There is a clear               separation,     therefore,     between     the               constitutional law and the rest of the law".               The learned Judge then went on to observe               "It is because of this difference between  the               fundamental law (namely, the Constitution) and               the   law   passed   under   the   legislative               provisions of the Constitution that it is  not               possible   in  the  absence  of   an   express               provision  to that effect in  the  fundamental               law to change the fundamental law by  ordinary               legislation   passed  thereunder,   for   such               ordinary  legislation must always  conform  to               the fundamental law (i.e. the Constitution)." (1)  [1967] 2 S.C.R. 762 @ 828. 72 in Golaknath’s case, Wanchoo J. had also pointed out at page 827               "The  Constitution is the fundamental law  and               no  law  passed under mere  legislative  power               conferred  by the Constitution can affect  any               change in the Constitution unless there is  an               express  power  to that effect  given  in  the               Constitution  itself.   But  subject  to  such               express   power  given  by  the   Constitution               itself,   the  fundamental  law,  namely   the               Constitution,  cannot  be  changed  by  a  law               passed   under  the   legislative   provisions               contained   in   the   Constitution   as   all               legislative   acts  passed  under  the   power               conferred by the Constitution must conform  to               the  Constitution can make no change  therein.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 71 of 161  

             There   are  a  number  of  Articles  in   the               Constitution   which  expressly  provide   for               amendment by law, as, for example, 3, 4, 1  0,               59(3),  65(3), 73(2), 97, 98(3), 106,  120(2),               135,  137,  142(1) 146(2), 148(3),  149,  169,               171(2),  186,  187(3),  189(3),  194(3),  195,               210(2), 221(2), 225 , 229(2), 239(1),  241(3),               283(1) and (2), 285(2), 287, 300(1), 313, 345,               373,  Sch.  V. cl. 7 and Sch.  VI cl. 21;  and               so  far as these Articles are  concerned  they               can be amended by Parliament by ordinary  law-               making  process.   But  so far  as  the  other               Articles  are  concerned  they  can  only   be               amended by amendment of the Constitution under               Art.  368.  Now Art. 245 which gives Dower  to               make  law  for the whole or any  part  of  the               territory  of India by Parliament is  "subject               to  the provisions of this  Constitution"  and               any law made by Parliament whether under  Art.               246  read with List I or under Art.  248  read               with item 97 of List I must be subject to  the               provisions of the Constitution.  If  therefore               the   power  to  amend  the  Constitution   is               contained  in  Art. 248 read with item  97  of               List I, that power has to be exercised subject               to  the provisions of Constitution and  cannot               be used to change the fundamental law (namely,               the Constitution) itself." The passages cited above cannot provide a foundation for the theory  that  "constitutional Law" and the rest of  the  law can,  in  respect  of their contents or  subject  matter  be placed  in two sharply divided or distinct  and  water-tight compartments with no overlapping or uncertain fields between them.  It must not be forgotten that Wanchoo, J.  repeatedly explained,   by   putting   in   the   words   namely,   the "Constitution"   within  brackets,  that  he   ’was   really concerned  with  indicating the special features of  a  very detailed or comprehensive Constitution such as ours.  Indeed as  regards the subject matter of the laws contained in  the Constitution  and  these  which may  be  introduced  by  the ordinary law making procedure, the above mentioned  judgment of Wanchoo J. itself indicates how even certain parts of the law found in our written Constitution may be amended by  the ordinary law making procedure.  This passage was used by the learned Counsel for the plaintiff to urge that additions  or changes in 73 "Constitutional  Law" cannot be made by ordinary law  making procedure  but must take place only in accordance  with  the provisions  found  in Article 368  unless  the  Constitution expressly  provides  otherwise.  This  contention,  however, overlooks the fact that Article 368 of the Constitution only provides   the   procedure   for  an   amendment   of   "the Constitution", and says nothing about any amendment of other laws  by  the introduction of or changes in laws  which  may conceivably be classed or construed as "constitutional laws" because of their subject matter.  This passage should not be torn  out  of  its  context,  in  which  the  difference  in procedure,  between  the  one  for  an  amendment  of   "the ,Constitution",  provided  by  article  368,  and  that  for ordinary  legislation, contemplated by Articles 245 to  248, was under consideration.  It was in that connection that the observation was rightly made that, unless there is  specific authority  given by constitutional provisions  for  changing the law laid down by "the Constitution" itself, by  adopting

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 72 of 161  

only the ordinary law making procedure, a change in the  law contained in express provisions of the constitution"  itself could  not be brought about without complying  with  Article 368  of  the Constitution. follows obviously from  the  very notion of a Constitution as an embodiment of a  "fundamental law" which serves as a touchstone for all other "laws".  The "fundamental  distinction" between "the Constitutional  law" or "the fundamental law" and the ordinary laws, referred  to there,  was meant to bring out only this difference- in  the uses  made of laws which, being "fundamental", can test  the validity  of all other laws on a lower normative  level  and these other laws which are so tested.  In that very  special or restricted sense, the law not found in "the Constitution" could  not be "constitutional" or "fundamental" law.   Other parts  of  the  law,  even  though  they  may  appertain  to important  constitutional  matters, are not  parts  of  "the Constitution",  and, therefore, could not test the  validity of laws made by Parliament.  What was said with reference to the  actual  provisions  of  the  Constitution  could   not, however,  be  used to infer some bar  on  legislative  power which  is not there in the Constitution at all  for  reasons repeatedly indicated above. In  an  earlier  part  of this judgment,  it  is  held  that legislative power to enact a provision such as Section 3  of the  Act could be found, in any event, in Article  248  read with entry 97 of List I, even if it could possibly be  urged that  it is not covered by entries 94 of List I and  45   of List III, which seem to exhaust the three Lists in so  farms the  subject  matters of enquiries are  concerned.   Learned Counsel for the plaintiff tried to introduce some doubts  on the  ground  that there is no specific entry in any  of  the lists   to  cover  the  conduct  of  Ministers   in   St-ate Governments in relation to governmental functions.  And,  it was submitted, reference to subjects specified in the  Lists would  exclude  those which are unspecified.   It  could  be urged in reply that, as indicated in Dhillon’s case (supra), a legislative entry only indicates the field of operation of the power, but the sources of ordinary legislative power are to be found in one of the Articles 245, 246, 247, 248,  249, 250,  252,  or 253 of the Constitution, and, so far  as  the field  of operation of the legislative power  is  concerned, both  entry  94 of List I and entry 45 of List  III  are  so widely worded as to embrace inquiries 74 touching  any of the fields indicated by any of the  entries in   the  lists.   A  Minister  must  necessarily   exercise governmental powers in relation to one of these fields.   It is  not necessary to specify which that field is. The  field of  power to legislate about inquiries is indicated in  wide enough terms to make it unnecessary to specify the field, in the law made itself, to which the inquiry must relate,.   It is  enough  if  the enquiry set up relates to  a  matter  of "public importance." Again, it is not a necessary part of an entry ill a legislative list, which only roughly indicates a field of legislation, that it must also specify the  classes of persons who may be affected by the legislation.  That  is neither a constitutional nor a reasonable requirement. This  Court has already held that overlapping of  fields  of operation  of  legislative  power does  not  take  away  the legislative  power.  Indeed, ,as we have said, both  entries 94 of List I and 45 of List III must necessarily be  related to  a variety of fields of operation of  legislative  power. And, in any case, even if an inquiry on a matter of  "public importance"  relates to an unspecified field, it  should  be covered  by  entry 97 of List I itself.   Therefore,  it  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 73 of 161  

immaterial whether we hold that entry 97 of List I by itself singly or that entry, read with entry 94 of List I, could be deemed to cover the field of operation of such  legislation, what  is material and important is that the  three  entries- Nos.  94  and 97 of List I and 45 of List III are  bound  to cover, between them, legislation authorising inquiries  such as  the  one  entrusted to the Grover  Commission.   If  the subject of inquiries against Ministers in State  Governments is not mentioned specifically either in any of the  articles of the Constitution or in the legislative lists it does  not follow  from it that legislation covering such inquiries  is incompetent  except by means of a constitutional  amendment. ’On  the  contrary,  such a subject  would  be  prima  facie covered by the wide terms of article 248 for the very reason that  the  Constitution contains no express or  implied  bar which  could  curtail  the  presumably  plenary  powers   of legislation of our Parliament. Once  we  have located the legislative power in one  of  the articles   of   the   Constitution,   authorising   ordinary legislation by Parliament for inquiries covered by section 3 of  the  Act, and we find also the  appropriate  entries  in legislative Lists I and III indicating the fields of  opera- tion  of  that  legislative power of  Parliament,  the  well recognised  principle  which  would  apply  and  exclude  an implied  bar against the exercise of that plenary power  has been  stated  by  this Court and also  by  other  Courts  in Commonwealth countries on several occasions.  That principle follows  logically  from R. v. Burah (1878) (3  A.  C.  889) which  is  the locus classics on the subject.   The  general principle  laid down in Burah’s case was that once  what  is conferred   upon  a  Parliament  or  other  Legislature   is legislative power, its plenary character must be presumed so that,   unless  the  instrument  conferring  the  power   to legislate  itself  contains some express limitation  on  the exercise  of  legislative  power, the ambit  of  that  power cannot be indirectly cut down by supposed implications.  The cases  on  this subject were comprehensively  considered  by this  Court in Kesavananda Bharati’s case (supra) where  the majority  view  was  that there can  be  no  merely  implied limitations on expressly conferred legislative powers.  This Court 75 there  referred to and adopted the principles laid  down  in Burah’s  case’  (supra).  Palekar J.  quoted  the  following passage from it (in Kesavananda Bharati’s case’ at p. 607) :               "The  established  Courts of Justice,  when  a               question arises whether the prescribed  limits               have   been   exceeded,  must   of   necessity               determine  that question; and the only way  in               which  they can properly do so, is by  looking               to the terms of the               instrument   by  which,   affirmatively,   the               legislative powers were created, and by  which               ,  negatively , they are restricted.  if  what               has  been  done  id  legislation,  within  the               general  scope of the affirmative words  which               give the power, and if it violates no  express               condition   or  restriction on by  which  that               power      is limited if is not for any  Court               Justice to inquire further,    or  to  enlarge               constructively     those    conditions     and               restrictions." in that case, Judges of this Court also relied upon Attorney General  for the Province of Ontario’ v. Attorney.   General for  the Dominion of Canada(1) where Earl Loreburn had  said

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 74 of 161  

(at p. 583)               "In  the interpretation of a completely  self-               governing Constitution founded upon a  written               organic  instrument such as the British  North               America Act, if the text is explicit the  text               is  conclusive, alike in what it  directs  and               what it forbids.  When the text is  ambiguous,               as  for example, when the  words  establishing               two mutually exclusive jurisdictions are  wide               enough  to  bring a  particular  power  within               either,  recourse must be had to  the  context               and scheme of the Act." The learned Additional Solicitor General has strongly relied upon  the  State of Victoria v. The Commonwealth  (2)  where earlier  cases applying the reasoning contained  in  Burah’s case  (supra) were surveyed and Barwick C. J. cited the  two passages  set  out  above by us,  one  from  Lord  Selbome’s judgment  in  Burah’s case (supra) and the  other  from  the judgment of Earl Loreburn in the Province of Ontario’s  case (supra)   from  Canada.   Barwick.   C.J.  also  cited   the following passage from the Amalgamated Society of  Engineers v. Adelaide Steamship Co.  Ltd.               "The nature and principles of legislation’ (to               employ  the words of Lord Selborne in  Burah’s               case), the nature of dominion  self-government               and  the  decisions just cited  entirely  pre-               clude, in our opinion, an a priori  contention               that  the  grant of legislative power  to  the               Commonwealth  Parliament as  representing  the               will  of  the whole of the people of  all  the               State,,,  of Australia should not bind  within               the geographical area of the Commonwealth  and               within  the limits of the  enumerated  powers,               ascertained   by  the  ordinary  process.   of               construction, the States and their agencies as               representing   separate   sections   of    the               territory." (1)  [1912] App.  Cas. 571. (2)  45 Australian Law Journal Reports 251-22 C.L.R. 353. (3)  [1920] 28 C.L.R. 129 @ 152-153. 76 In  Victoria’s case (supra), Barwick C.J., although  not  in entire agreement with the way in which Sir Owen Dixon, C.J., had  expressed himself in West v. Commissioner  of  Taxation (N.S.W.(1)  opined that it was only- another way of  putting what  had been consistently. laid down as the  principle  of interpretation  of Constitutions of British  self  governing Dominions  since  Burah’s case (supra).   The  passage  thus explained was :               "........  the principle is that whenever  the               Constitution  confers a power to make laws  in               respect  of  a specific subject  matter  prima               facie  it is to be understood as enabling               the  Parliament  to make  laws  affecting  the               operations  of the States and their  agencies.               The  prima facie meaning may be  displaced  by               considerations  based  on the  nature  or  the               subject matter of the power or the language in               which it is conferred on some other  provision               in the Constitution." Learned  Counsel for the plaintiff, conscious of  the  basic principles  of  construction of the  plenary  constitutional power  to  legislate,  fried to  sustain  his  very  gallant attacks  upon  the  validity  of section 3  of  the  Act  by referring to express provisions of the Constitution  where,,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 75 of 161  

as we have explained above, we could discover no such bar by a  necessary implication.  However, the theory of the  basic structure of the Constitution kept "popping up", if Nyc  may so  put  it,  like the "jack in the box",  from  behind  the constitutional  provisions, from time to time.  It was  said to "underlie" constitutional provisions. Thus, the plaintiff’s learned Counsel did not entirely  give up  reliance  on  what  has been  described  as  "the  basic structure  of the Constitution" although he, very  ;astutely and  rightly,  tried to put the express  provisions  of  the Constitution in the fore-front.  Whatever may be said  about the strategic value for the plaintiff of this mode of  using the  doctrine of "the basic structure of the  Constitution", it  does  not relieve us from the necessity  of  considering whether an application of such a doctrine could be  involved in the case before us.  We cannot overlook that  Kesavananda Bharati’s case (supra) where although a majority of  learned Judges  of this Court which rejected the theory of  "implied limitations"  upon  express plenary  legislative  powers  of constitutional  amendment, yet, we accepted, I say  so  with the  utmost respect, again by a majority, limitations  which appeared  to  be  not easily  distinguishable  from  implied limitations upon plenary legislative powers even though they were  classed  as  parts  of "the  basic  structure  of  the Constitution."  We  are  bound  by  the  majority  view   in Kesavananda Bharati’s case (supra) which we have followed in other  cases.   We  have,  however, to  make  it  clear  and explicit   enough   to  be  able   to   determine,   without inconsistency and with some confidence, the type of cases to which  it  could and others to which it could not  apply  as specific cases come up before us for consideration. (1)  (1 937) 56 C.L.R. 657 @ 682. 77 What, therefore, is this doctrine of "the basic structure of our  ,Constitution"  of  which, according  to  some  learned Judges of this Court, expressing the majority views on  this doctrine, "federalism" is a part ?  We can only answer  this question by quoting from certain passages from the  opinions of  the learned Judges who were parties to the  decision  of this Court in Kesavananda Bharati’s case (supra). Sikri   C.  J.,  who  accepted  the  doctrine   of   implied limitations,  and, consistently with its logic,  found  that the  basic structure of the Constitution forms an  orbit  of exercise  of power which is outside the purview  of  Article 368, relied on the observations and dicta found in Melbourne Corporation v. The Conzmonwealth(1) and Australian  National Airways Pvt.  Ltd. v. The Commonwealth (2). The learned Chief Justice cited Starke J.’s views  expressed in Melbourne Corporation’s case (supra) :               "The  federal  character  of  the   Australian               Constitution   carries  implications  of   its               own.....................               xx                    xx                    xx               xx               "The position that I take is this The  several               subject  matters  with respect  to  which  the               Commonwealth is empowered by the  Constitution               to  make  laws for the peace, order  and  good               government  of the Commonwealth are not to  be               narrowed  or limited by  implications.   Their               scope and amplitude depend simply on the words               by which they are expressed.  But implications               arising  from the existence of the  States  as               parts of the Commonwealth and as  constituents               of  the federation may restrict the manner  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 76 of 161  

             which the Parliament can lawfully exercise its               power   to  make  laws  with  respect   to   a               particular       subject-matter.         These               implications, or perhaps it were better to say               underlying  assumptions of  the  Constitution,               relate  to  the  use of a  power  not  to  the               inherent  nature of the subject matter of  the               law.  of course whether or not a law  promotes               peace,  order and good government is  for  the               Parliament, not for a court, to decide.  But a               law   although  it  be  with  respect   to   a               designated  subject matter, cannot be for  the               peace,  order  and  good  government  of   the               Commonwealth  if it be directed to the  States                             to  prevent their carrying out their  function s               as parts of the Commonwealth."               Again Gibbs J was quoted               "The   ordinary   principles   of    statutory               construction  do  not preclude the  making  of               implications when these are necessary to  give               effect to the intention of the legislature  as               revealed     in    the    statute     as     a               whole" ................ .               (1)   (1947) 74 C.L.R. 31.               (2)   (1945) 71 C.L.R. 29.               78               "Thus,  the purpose of the  Constitution,  and               the scheme by which it is intended to be given               effect, necessarily give rise to  implications               as to the manner in which the Commonwealth and               the  States  respectively may  exercise  their               powers, vis-a-vis each other."               After considering a number of cases the  Chief               Justice    stated   conclusion   on    implied               limitations as follows (at p. 163-164) :               "What  is the necessary implication  from  all               the provisions of the Constitution ?               It seems to me that reading the Preamble,  the               fundamental importance of the, freedom of  the               individual, indeed its inalienability, and the               importance   of  the  economic,   social   and               political  justice mentioned in the  Preamble,               the  importance of directive  principles,  the               non-inclusion  in art. 368 of provisions  like               arts.  52, 53 and various other provisions  to               which  reference  has  already  been  made  an               irresistible  conclusion emerges that  it  was               not  the intention to use the word  amendment’               in the widest sense.               It   was   the   common   understanding   that               fundamental  rights would remain in  substance               as they are and they would not be amended  out               of  existence.  It seems also to have  been  a               common  understanding  that  the   fundamental               features   of   the   constitution,    namely,               secularism,  democracy and the freedom of  the               individual would always subsist in the welfare               state.               In  view  of the above  reasons,  a  necessary               implication  arises  that- there  are  implied               limitations  on the power of  Parliament  that               the  expression  ’amendment  of  this  Consti-               tution’ has consequently a limited meaning  in               our Constitution and not the meaning suggested

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 77 of 161  

             by the respondents".               Sikri  C.J. recorded his finding on the  basic               structure in Kesavananda Bharti’s case (supra)               as follows (at pp. 165-166) :               " The true position is that every Provision of               the  Constitution can be amended  provided  in               the result the basic foundation and  structure               of  the  constitution remains the  same.   The               basic structure may be said to consist of  the               following features:               (1)   Supremacy of the Constitution;               (2)   Republican   and  Democratic   form   of               Government;               (3)  Secular character of the Constitution;               (4)   Separation   of   powers   between   the               Legislature, the executive and the judiciary;               79               (5) Federal character   of the Constitution.               The  above  structure is built  on  the  basic               foundation,  i.e. the dignity and  freedom  of               the   individual.    This   is   of    supreme               importance.  This cannot by any form of amend-               ment be destroyed.               The  above  foundation  and  the  above  basic               features are easily discernible not only  from               the  preamble  but  the whole  scheme  of  the               Constitution, which I have already discussed". Similarly, Shelat and Grover JJ, after surveying  principles of  interpretation  and construction  of  the  Constitution, accepted  the theory of implied limitations on the power  of Parliament as well as the doctrine of basic structure.  They recorded their conclusion as follows (at ;pp. 280-281)               "The  basic structure of the  constitution  is               not  a  vague concept  and  the  apprehensions               expressed  on behalf of the  respondents  that               neither  the citizen nor the Parliament  would               be  able to understand it are  unfounded.   If               the  historical background, the Preamble,  the               entire   scheme  of  the   Constitution,   the               relevant provisions thereof including Art. 368               are kept in mind there can be no difficulty in               discerning that the following can be  regarded               as  the basic elements of  the  Constitutional               structure. (These cannot be cataloged but  can               only be illustrated).               1.    The Supremacy of the, Constitution.               2.    Republican   and  Democratic   form   of               Government and sovereignty of the country.               3.    Secular  and  federal character  of  the               Constitution.               4.    Demarcation   of   power   between   the               legislature, the               executive and the judiciary.               5.    The dignity of the individual secured by               the various               freedoms and basic rights in Part III and  the               mandate to, build a welfare State contained in               Part IV.               6.    The  unity  and  the  integrity  of  the               nation". Hegde     and  Mukherjea,  JJ.  also  considered  at  length principles  of  interpretation  and  construction  in   this country   and   in   the   Commonwealth   countries.    They distinguished  earlier cases of this Court.  They  purported to  apply well established principles of interpretation  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 78 of 161  

construction such as the Mischief Rule in Heydon’s case, the need  to ’view the Constitution as a whole, and its  history and objects.  They ,said (at p. 307) :               "While interpreting a provision in a  statute,               or,  Constitution  the primary  duty,  of  the               Court  is to find out the legislative  intent.               In  the present case our duty is to  find  out               the               80               intention of the founding fathers in  enacting               article   368.   Ordinarily  the   legislative               intent is gathered from the language used.  If               the    language   employed   is   plain    and               unambiguous, the game must be given effect  to               irrespective  of  the  consequences  that  may               arise.   But  if  the  language  employed   is               reasonably capable of more meanings than  one,               then  the  Court will have to  call  into  aid               various well settled rules of construction and               in particular, the history of the  legislation               to  find  out the evil that was sought  to  be               remedied and also in some cases the underlying               purpose  of  the  legislation-the  legislative               scheme and the consequences that may  possible               flow  from accepting one or the other  of  the               interpretations because no legislative body is               presumed to confer a power which is capable of               misuse’.               They  cited  the Preamble and  the  objectives               underlying the Constitution, and found (at  p.               316) :               "Implied  limitations on the powers  conferred               under  a statute constitute a general  feature               of  all  statutes.   The  position  cannot  be               different  in  the case  of  powers  conferred               under  a  Constitution.  A grant of  power  in               general terms or even in absolute terms may be               qualified  by other express provisions in  the               same  enactment  or may be  qualified  by  the               implications   of  the  context  or  even   by               considerations arising out of what appears  to               be the general scheme of the statute".               They did not enumerate all the basic  features               of   the  Constitution  but   recorded   their               conclusion as follows (at p. 356) :               "Though  the power to amend  the  Constitution               under  Article  368 is a very wide  power,  it               does  not yet include the power to destroy  or               emasculate   the   basic   elements   or   the               fundamental features of the Constitution". Jaganmohan   Reddy,   J,  in  the  course  of   a   detailed consideration  of  Constitutional provisions, dwelt  on  the Preamble  largely  and  on  the  needs  of  the  nation  for stability  of its values and gave a narrower connotation  to the  word "amendment" than one which could destroy the  very identity of the Constitution.  He said (at p. 517):               "There is nothing, vague or unascertainable in               +,he preamble and if what is stated therein is               subject to this criticism it would be  equally               true  of what is stated in Article  39(b)  and               (c)  as these are also objectives  fundamental               in  the  governance of the country  which  the               State   is   enjoined  to  achieve   for   the               amelioration and happiness of its people.  The               elements of the basic structure are  indicated

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 79 of 161  

             in the preamble and translated in the  various               provisions  of the Constitution.  The  edifice               of  our Constitution is built upon and  stands               on  several  props,-remove any  of  them,  the               Constitution   collapses.   These   are:   (1)               Sovereign  Democratic Republic;  (2)  Justice,               social, economic and political; (3)               81               Liberty of thought, expression, belief,  faith               and  worship;  (4) Equality of status  and  of               opportunity.   Each one of these is  important               and collectively they assure a way of life  to               the  people  of India which  the  Constitution               guarantees.   To  withdraw any  of  the  above               elements the structure will not survive and it               will  not  be the same Constitution,  or  this               Constitution nor can it maintain its identity,               if something quite different is substituted in               its  place,  which the sovereign Will  of  the               people alone can do." Khanna, J., while definitely rejecting the theory of implied limitations on plenary powers of legislation,  nevertheless, thought that the need. to reconcile the urge for change with the need for continuity imposed even upon the wide power  of amendment  of the Constitution the limitation that  it  must move  within the orbit defined by its basic  structure.   He did not, and I say so with great respect, explicitly attempt a  reconciliation between his views on  implied  limitations with those on the basic structure, which at least  resembled implied limits on the plenary power of legislation.  He also relied  heavily  on the preamble to  the  Constitution.   He explained  later,  in Shrimati Indira Nehru  Gandhi  v.  Raj Narain(1),  that he did not exclude such amendments  in  the chapter  on  Fundamental  Rights as may form  parts  of  the "basic  structure"  from the purview of what  could  not  be touched  by the power of amendment contained in Article  368 of  the Constitution.  The judgment of Khanna J. tilted  the balance, by a narrow majority of one, in favour of the  "the basic structure" of the Constitution as a limitation on  the expressly conferred legislative power of amendment. I  need  not  set out similarly the views  of  Ray,  Palekar Mathew,  Beg, Dwivedi, and Chandrachud, JJ, as  they,  while accepting  the undeniable proposition that the  Constitution contained what was basic, held the, view, supported also  by reference, to the history of our Constitution-making and  to its  express provisions, that the power to amend  or  change the Constitution in any manner and in any respect desired by the  representatives of the people was also a part  of  that basic  structure or the urges of the people which had to  it round  expression  ill Article 368 of the  Constitution  and which  had  to be fully recognised by giving it  the  widest possible  amplitude.  They too, therefore,  recognised  that there  was  "a basic structure" of the Constitution  in  the light  of its history and contents and by an application  of well  established  rules of  construction.   The  difference between  the  majority and minority views was  only  on  the question  whether a wide scope of powers of amendment  given to  the representatives of the people was or was not a  part of  this basic structure or its functioning as evidenced  by the express declarations and provisions of the Constitution. I  do  not  think that what those  learned  Judges  who,  in Kesavananda  Bharti’s case (supra), found a  narrower  orbit for  the legislative power of amendment of the  Constitution itself to move in cant to (1)  [1976] 2 S.C.R. 347.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 80 of 161  

82 lay  down some theory of a vague basic  structure  floating, like  a  cloud  in  the skies,  above  the  surface  of  the Constitution and outside it or one that lies buried  beneath the  surface for which we have to dig in order  to  discover it.   I  prefer  to  think That the  doctrine  of  "a  basic structure" was nothing more than a set of obvious inferences relating  to the intents of the Constitution makers  arrived at by applying the established canons of construction rather broadly,   as   they  should  be  so  far  as   an   organic Constitutional  document,  meant  to govern the  fate  of  a nation, is concerned.  But, in every case where reliance  is placed upon it, in the course of an attack upon legislation, whether ordinary or constituent (in the sense that it is  an amendment of the Constitution), what is put forward as  part of  "a basic structure" must be justified by  references  to the express provisions of the Constitution.  That  structure does  not exist in vacuo.  Inferences from it must be  shown to  be embedded in and to flow logically and naturally  from the,  bases of that structure.  In other words, it  must  be related  to  the provisions of the Constitution and  to  the manner  in  which  they could  indubitably  be  presumed  to naturally and reasonably function.. So viewed, the  doctrine is  nothing more than a way of advancing a  well  recognised mode of construing the Constitution.  It should be used with due care and caution.  No exposition of it which could  make it appear as a figment of judicial imagination or as capable of  ’such subjective interpretations that it may become  im- possible  to  decipher or fix its  meaning  with  reasonable certainty could be accepted by us because that would  amount to  declaring  its futility. In  Kesavananda  Bharti’s  case (supra),  this Court had not worked out the implications  of the basic structure doctrine in all its applications.  It could, therefore, be said, with utmost respect, that it was perhaps   left there in an amorphous state which could  give rise to possible    misunderstandings  as to whether  it  is not  too  vaguely  stated  or  too  loosely  and   variously formulated  without  attempting a basic  uniformity  of  its meanings or implications.  The one principle, however, which is  deducible  I  in  all  the  applications  of  the  basic structure  doctrine,  which has been used by this  Court  to limit  even the power of Constitutional amendment,  is  that whatever   is  put  forward  as  a  basic  limitation   upon legislative  power must be correlated to one or more of  the express  provisions  of  the  Constitution  from  which  the limitation  should naturally and necessarily  spring  forth. The  doctrine  of  basic  structure,  as  explained   above, requires that any limitation on legislative power must be so definitely   discernible   from  the  provisions    of   the Constitution itself that there could be no doubt or  mistake that  the  prohibition  is a part  of  the  basic  structure imposing  a  limit  on  even  the  power  of  Constitutional amendment.   And,  whenever  we construe  any  document,  by reading  its provisions as a whole, trying to  eliminate  or resolve its disharmonies, do we not attempt to interpret  it in accordance with what we find in its "basic structure"  or purposes ? The doctrine is neither unique nor new. I  may here point out that in Smt.  Indira Nehru  Gandhi  v. Rai Narain (supra), when the doctrine of the basic structure of the Constitution was invoked to assail the provisions  of Representation of People Act, Ray C.J., seemed to reject the theory of basic structure 83 altogether in its application either to the construction  of the  Constitution or of ordinary legislation.  He  said  (at

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 81 of 161  

pp. 436-437) :               "To   accept  the  basic  features  or   basic               structures  theory  with  regard  to  ordinary               legislation would mean that there would be two               kinds of limitations for legislative measures.               One  will pertain to legislative  power  under               Articles  245  and  246  and  the  legislative               entries  and the provision in Article 13.  The               other would be that no legislation can be made               as  to  damage or destroy  basic  features  or               basic  structures.  This will  mean  rewriting               the  Constitution and robbing the  legislature               of   acting  within  the  framework   of   the               Constitution.  No legislation can be free from               challenge  on  this  ground  even  though  the               legislative  measure  is  within  the  plenary               powers of the legislature".               He went on to observe (at p. 437):               "The  theory  of  basic  structures  or  basic               features  is  an  exercise  in   imponderable.               Basic   structures  or  basic   features   are               indefinable.  The legislative entries are  the               fields of legislation.    The     pith     and               substance  doctrine has been applied in  order               to    find   out    legislative    competency.               and  eliminate  encroachment  on   legislative               entries.  If the theory of basic structures or               basic features will be applied to  legislative               measures  it will denude Parliament and  State               Legislatures  of the power of legislation  and               deprive   them  of  laying  down   legislative               policies.   This will be encroachment  on  the               separation of powers".               Mathew,   J.,  observed  :  in  Smt.    Indira               Gandhi’s case (supra) (at pp. 525-526)               "I  think the inhibition Lo destroy or  damage               the  basic  structure by an amendment  of  the               Constitution flows from the limitation on the,               power of amendment under Article 368 read into               it  by the majority in Bharati’s case  because               of  their  assumption that there  are  certain               fundamental  features  in  the-   Constitution               which  its makers intended to remain there  in               perpetuity.   But I do not find any  such  in-               hibition so far as the power of Parliament  or               State Legislatures to pass laws is  concerned.               Articles  245 and 246 give the power and  also               provide the limitation upon the power of these               organs to pass laws.  It is only the  specific               provisions  enacted in the Constitution  which               could  operate as limitation upon  the  power.               The   Preamble,   though   a   part   of   the               Constitution, is neither a source of power nor               a  limitation  upon the power.   The  preamble               sets  out the ideological aspirations  of  the               people.   The essential features of the  great               Concepts   set   out  in  the   preamble   are               delineated  in the various provisions  of  the               Constitution.  It is these specific provisions               in   the  body  of  the   Constitution   which               determine  the  type of  democracy  which  the               founders of               84               that  instrument established; the quality  and               nature  of  justice,  political,  social   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 82 of 161  

             economic  which  was  their  desideratum,  the               content  of liberty of thought and  expression               which  they entrenched in that  document,  the               scope of equality of status and of opportunity               which  they enshrined in it.   These  specific               provisions  enacted in the Constitution  alone               can  determine  the  basic  structure  of  the               Constitution as’ established.  These  specific               provisions,    either   separately    or    in               combination determine the content of the great               concepts  set  out  in the  preamble.   It  is               impossible to spin out any concrete concept of               basic  structure out of the gossamer  concepts               set   out  in  the  preamble.   The   specific               provisions  of the Constitution are the  stuff               from  which  the  basic structure  has  to  be               woven". In  Smt.   Indira Gandhi’s case  (supra),  Chandrachud,  J., after  making  similar  observations on the  nature  of  the Preamble  and pointing out that there was no agreed list  of basic  features of the Constitution given by learned  Judges constituting   the  majority  in   Kesavananda.    Bharati’s (supra),  said, on the applicability of the basic  structure doctrine to the power of ordinary legislation. (at pp.  669- 670)               "The  Constitutional  amendments may,  on  the               ratio  of  the Fundamental  Rights  case,  be,               tested  on the anvil of basic structure.   But               apart  from the principle that a case is  only               an authority for-what it decides, it does  not               logically follow from the majority judgment in               the  Fundamental  Rights  case  that  ordinary               legislation must also answer the same test  as               a  constitutional  amendment.   Ordinary  laws               have to answer two tests for their validity  :               (1)  The  law must be within  the  legislative               competence  of  legislature  as  defined   and               specified  in  Chapter  1,  part  XI,  of  the               Constitution  and  (2)  it  must  not   offend               against  the ions of Article 13(1) and (2)  of               the  Constitution  Basic   Structure,  by  the               majority judgment. is not a part of the funda-               mental  rights nor indeed a provision  of  the               Constitution.   The theory of basic  structure               is   woven  out  of  the  conspectus  of   the               Constitution,   and  the  amending  power   is               subject  to  it because it  is  a  constituent               power.   ’The power to amend  the  fundamental               instrument  cannot carry with it the power  to               destroy   its  essential  features’-this,   in               brief,  is  the arch of the  theory  of  basic               structure.   It  is  wholly out  of  place  in               matters  relating to the validity of  ordinary               laws made under the Constitution". Both  Khanna  J.,  and I,  however,  expressed  views  there showing that aspirations of the people of India, set out  in the  Preamble  as well as other parts of  the  Constitution, provided  general guidance in judging the  Constitutionality of   all  laws  whether  constitutional  or   ordinary.    I specifically  said  there  that the doctrine  of  the  basic structure  of  the Constitution could be used  to  test  the validity   of  laws  made  by  Parliament  either   in   its constituent or ordinary law making capacities 85 because  "ordinary law making cannot go beyond the range  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 83 of 161  

constituent power". No  doubt, as a set of inferences from a document (i.e.  the Constitution),  the doctrine of "the basic structure"  arose out  of and relates to the Constitution only’ and does  not, in that sense, appertain to the sphere of ordinary  statutes or arise for application to them in the same way.      But, if,  as  a result of the doctrine, certain  imperatives  are inherent  in  or  logically and necessarily  flow  from  the Constitution’s ’basic    structure", just as though they are its express mandates, they can be  and  have to be  used  to test  the, validity of ordinary laws just as other parts  of the Constitution are so used. In  Smt.  Indira Gandhi’s case (supra), the  differences  of approach between the learned Judges, were not so much on the question  whether "the basic structure" was to be deemed  to be  really an additional part of the Constitution  (on  this there is agreement that it could not) or only a principle of its construction, but on the question whether, once it,  was found  to  be  a  permissible  mode  of  construction,  what followed from it was applicable to test the validity of both constitutional as well as ordinary law-making.  The majority view  of learned Judges of this Court seemed to be that,  it was  not  available  to test the validity  of  the  impugned provisions  of the Representation of People Act because  the expressly laid down ordinary law making powers of Parliament are  clear  enough.  In other words, it was held to  be  in- applicable  here on the view that there was no ambiguity  to be  resolved  about  the  ordinary  law  making  powers   of Parliament.   It was applied to interpret the ambit of,  the Constituent  power as there was some uncertainty  about  its scope.  It, however, seems to me that the test of "free  and fair  elections" and of "equality before the law" were  used by  this  Court  in judging the  validity  of  the  impugned provisions  of  the  Representation of People  Act  in  Smt. Indira Nehru Gandhi’s case (supra) although the majority  of learned  judges  of  the bench preferred to  do  so  without characterising these features as parts of a basic  structure of  the,  Constitution.   But, when  deciding  the  question whether  the purported constitutional amendment  could  take away  the powers of this Court to hear and decide on  merits the  election  appeals pending before it,  all  the  learned Judges who participated in the decision of that case  seemed to rely, in varying degrees, either expressly or  impliedly, upon  the "basic structure" of the Constitution  itself,  as revealed by its express provisions, to hold that, under  the guise  of  exercising a legislative  power,  the  Parliament could  not,  in  effect,  adjudicate on  the  merits  of  in individual case under the Constitution as it stood. It is important to note that majority opinions of Judges who participated  in the decision in Kesavananda Bharati’s  case (supra)and  those who took part in the decision  in  Smt. Indira Gandhi’scase   (supra),   invalidating   certain constitutional amendments, makeout  limitations  founded on the basic structure of the Constitution by very     detailed references to the express provisions of the Constitution.In Smt.   Indira  Nehru  Gandhi’s case (supra),  parts  of  the Constitution 86 (Thirty-Ninth  Amendment)  Act  of  1975  were  struck  down primarily because specific provisions of Article 368 of  the Constitution left no room for doubt that what was  conferred by  the  Constitution upon a majority of not less  than  two thirds  of  the  members of the  two  Houses  of  Parliament present and voting, supported by resolutions of legislatures of  not less than one half of the States, was a  legislative

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 84 of 161  

power  and not a judicial power judged both by its  contents and  procedure.  Hence, it was held that, on the very  terms of  the  specific power conferred, an exercise  of  judicial power, in purported exercise of legislative powers contained in  Article 368 of the Constitution, was prima  facie  ultra vires.   Such  exercise  of  power  contravenes  the   basic structure of the Constitution of which the legislative orbit of  power  indicated by Article 368 of the  Constitution  is also  a  necessary part.  The principle asserted  there  was stated by me as follows :               "Neither   of   the   three   constitutionally               separate organs of State can, according to the               basic  scheme of our Constitution today,  leap               outside    the   boundaries   of    its    own               constitutionally  assigned sphere or orbit  of               authority into that of the other". These orbits were expressly chalked out by the law found  in the Constitution.  There could be no doubt, whatsoever  upon reading the provisions of the Constitution as a whole,  that the  orbits  of legislative and judicial power are  not  the same.   But, so far as the orbits of legislative  power  are concerned, it is clear that those of Parliament and ofthe State  legislatures  are  not mutually  exclusive  in  every respect. There  is also a concurrent field of  legislation. And, there is nothingthere  which could come in the  way of   the  plenary  legislative  power  conferred  upon   our Parliament in fields assigned to it.  These can be  limited, at the most, by a necessary or unavoidable implication, such as  the one which must flow from the conferment of  judicial and  legislative  and  executive  powers  separately,   with unmistakably   different  characteristics,  upon   different authorities.   The  basic scheme of the  Constitution  could certainly   be   invoked  to   invalidate   legislation   by Parliament, acting in its ordinary law making capacity, on a subject  which falls either exclusively within the orbit  of an  amendment  of "the Constitution" or in List  II  of  the Seventh  Schedule of exclusively State subjects.  But, as  I have indicated above, this is not so here. Thus,  it is clear that whenever the doctrine of  the  basic structure  has  been expounded or applied it is  only  as  a doctrine  of  interpretation  of  the  Constitution  as   it actually exists and not of a Constitution which could  exist only  subjectively in the minds of different individuals  as mere theories about what the Constitution is.  The  doctrine did  not  add to the contents of the Constitution.   It  did not,  in  theory, deduct anything from what was  there.   It only purported to bring out and explain the meaning of  what was already there.  It was, in fact, used by all the  judges for only this purpose with differing results simply  because their  assessments or inferences as to what was part of  the basic  structure  in  our Constitution  differed.   This,  I think, is the ’Correct interpretation of the doctrine of the basic structure of the 87 Constitution.   It  should only be applied if it  is  clear, beyond  the region of doubt, that What is put forward  as  a restriction  upon  otherwise clear and  plenary  legislative power is there as a Constitutional imperative. If this be the correct view about the basic structure, as  a mode  of interpreting the Constitution only,  the  so-called federalism  as  a  fetter on  legislative  power  must  find expression  in  some express provision to be  recognised  by Courts.  It may be mentioned here that a majority of  Judges who decided the Kesavananda Bharati’s case (supra) have  not treated  "Federalism" as part of the basic structure of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 85 of 161  

Constitution.  And, none of them has discussed the extent of the  "federal" part of this structure.  It is not enough  to point to Article I of the Constitution to emphasize that our Republic  is a "Union" of States.  That, no doubt  is  true. But,  the  word  "union"  was used in  the  context  of  the peculiar  character of our federal Republic revealed by  its express  provisions.   We  have still to  find,  from  other express  provisions, what this "Union" means or what is  the extent  or  nature  of  "federalism"  implied  by  it.   The Constitution  itself does not use the word  "federation"  at all.    In  any  case,  after  examining  all  the   express provisions  of the Constitution, relied upon by the  learned Counsel for the plaintiff, I am unable to discover there any such fetter which could, by a necessary implication, prevent Parliament from enacting Section 3 of the Act. Indeed,  if  the theory of necessary implications is  to  be applied   here,   the,   entrenched   provisions   of    our Constitution, for which a special procedure for amendment is prescribed  within  Article 368 itself,  together  with  the other provisions discussed above, give the express limits to which  the operations of the federal principles is  confined in  our  Constitution.   None  of  the  expressly  mentioned features  could, by any necessary implication, impinge  upon the expressly given and distributed legislative powers.  The doctrine that express mention excludes that which is not  so mentioned  applies  also  to express  limitations.   If  the scheme  of distribution of legislative powers is  basic  and express,  with  its own express  limitations,  "implied"  or unspecified alleged limitations going beyond that scheme are eliminated by the very force of the express provisions. In Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors(1).   I  find  that the validity of the  Act  and  of  a notification  under Section 3 of the Act was challenged  but upheld  by this Court, although a part of clause 10  of  the notification which, in addition to requiring it to recommend measures  to prevent similar future cases, also directed  it to  report  on  "the  action which in  the  opinion  of  the Commission should be taken as and by way of securing redress or  punishment", was held to be outside the purview  of  the Act  in  so far as the latter part went  beyond  the  purely investigatory  character  of the inquiry authorised  by  the Act.   In that case the Commission was required  to  inquire into and report on the administration of affairs of certain (1)[1955] S.C.R. 279. 88 companies   specified   in  a  schedule   annexed   to   the notification.   It  was  held  there  inter-alia  that  mere possibility  of misuse of powers given by the Act could  not vitiate  the power conferred by the Act.  It was  also  held there  that the Act was made by Parliament acting in  fields indicated by entries 94 of List I and 45 of List III of  the Seventh Schdule so that the inquiries could be ordered  "for the  purposes of any of the matters in List I, List  II  and List  III."  Incompetence  of  Parliament  to  legislate  on matters in List II could not, it was held, vitiate power  to order inquiries relating to subjects in that list in view of the express terms of entry 45 in List II.  It was held  that the scope of inquiry may also cover matters ancillary to the inquiries themselves.  Furthermore, relying on Kathi  Raning Rawat v. State of Saurashtra, (1) it was pointed out (at  p. 293):               " The Commission has no power of  adjudication               in the sense of passing an order which can  be               enforced proprio vigore.  A clear  distinction               must,  on the authorities, be drawn between  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 86 of 161  

             decision which, by itself, has no force and no               penal  effect  and a  decision  which  becomes               enforceable  immediately or which  may  become               enforceable by some action being taken." It  is  true  that  in  R.  K.  Dalmia’s  case  (supra)  the provisions  ’of  the  Act  were  not  assailed  on  all  the extensive  grounds  on which they have now  been  questioned before  us.   Nevertheless,  the objects  of  the  Act  were considered and indicated there. The purposes for which a Commission can be set up under  the Act  was  considered  long ago by a Division  Bench  of  the Nagpur High Court in M. V. Rajwade v. Dr. S. M. Hasan &  Ors (2),  which  was  cited  with  approval  by  this  Court  in Brajnandan  Sinha  v.  Jyoti  Narain(3)  and  the  following passage was quoted from the judgment:               "The  Commission  in  question  was  obviously               appointed  by  the State Government  ’for  the               information of its own mind’, in order that it               should  not act, in exercise of its  executive               power, ’otherwise than in accordance with  the               dictates of justice and equity’ in ordering  a               departmental enquiry against its officers.  It               was, therefore, a fact finding body meant only               to instruct the mind of the Government without               producing any document of a judicial nature". It may be mentioned here that in A. Sanjeevi Naidu etc. etc. v.  State  of  Madras & Anr. (4)  this  Court  examined  the position of an individual Minister who determines matters of policy and programmes of his Ministry, within the  framework of major policies of the Government, vis-a-vis the officials in  the  Department in his charge who act on behalf  of  the Government subject to the directions given orally (1)  [1952] S.C.R. 435. (2)  [1954] I.L.R. Nagpur p. I @ 13. (3)  [1955] 2 S.C.R. 955. (4)  [1970] 3 S.C.R. 505 @ 512. 89 or  in  writing by the Minister concerned.   Hence,  it  may become  a matter of considerable difficulty,  delicacy,  and importance, in a particular case, to apportion the blame  or responsibility  for  any  act or  decision,  alleged  to  be wrongful,  between the Minister concerned and the  officials who work under his directions.  Such apportionments could be safely  entrusted only to experts who have had  considerable judicial experience and can deal with complete  impartiality and  dexterity with issues raised.  The moral or  collective responsibility  which  is political is  a  different  matter which  may  no  doubt  be  affected  by  the  reports  of  a Commission  of Inquiry.  Individual liability may have  even more  serious consequences for the Minister  concerned  than the  collective responsibility which carries only  political implications. In  State  of Jammu & Kashmir v. Bakshi  Ghulam  Mohammad(1) this  Court pointed out that even if Bakshi Ghulam  Mohammad had ceased to be the Chief Minister of the State of Jammu  & Kashmir  his past actions would not cease to be  matters  of public  importance.  It definitely disapproved the  view  of the High Court when it said (at p. 407) :               "These  learned  Judges  of  the  High   Court               expressed  the  view that the acts  of  Bakshi               Ghulam  Mohammad  would  have  been  acts   of               public,  importance  if he was in  office  but               they  ceased to be so as he was out of  office               when  the Notification was issued.  In  taking               this   view,   they  appear  to   have   based

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 87 of 161  

             themselves  on  the observation made  by  this               Court in Ram Krishna Dalmia v. Sri Justice  S.               R.   Tendolkar   that  "the  conduct   of   an               individual  may assume such a  dangerous  pro-               portion  and  may so prejudicially  affect  or               threaten to affect the public well-being as to               make such conduct a definite matter of  public               importance,   urgently  calling  for  a   full               enquiry".  The learned Judges felt that  since               Bakshi  Ghulam Mohammad was out of office,  he               had become innocuous; apparently, it was  felt               that  he  could not long threaten  the  public               well-being by his acts and so was outside  the               observation in Dalmia’s case.  We are clear in               our  mind  that this is a misreading  of  this               Court’s   observation.  this  Court,  as   the               learned  Judges  themselves noticed,  was  not               laying   down  an  exhaustive  definition   of               matters  of public importance.  What is to  be               inquired into in any case are necessarily past               acts  and  it  is because  they  have  already               affected the public well-being or their effect               might  do  so,  that they  became  matters  of               public  importance.  It is irrelevant  whether               the  person who committed those acts is  still               in power to be able to repeat them." The  clear implication of the last mentioned  pronouncement, with  which  I  find  myself  in  complete  and   respectful agreement,  was that even if a Minister in the  exercise  of his  official power does acts which may amount  to  criminal offences, yet, inquiry into them may be made as a matter  of public importance and not of just Private importance. (1)  [1966] Supp.  S.C.R. 401. 90 And,  what  can  be done when he is out  of  office  may,  a fortiori, be ordered when he is in office.  This Court  also said there as follows, with which also I entirely agree  (p. 406) :               "  ....  it  is difficult  to  imagine  how  a               Commission  can  be  set up by  a  Council  of               Ministers  to  inquire into the  acts  of  its               head,  the  Prime  Minister, while  he  is  in               office.  It certainly would be a most  unusual               thing  to happen.  If the rest of the  Council               of Ministers resolves to have any inquiry, the               Prime  Minister  can be expected  to  ask  for               their  resignation.   In  any  case  he  would               himself  go  out.   If  he  takes  the   first               course,then no Commission would be set up  for               the  Ministers wanting the inquiry would  have               gone.   If  he  went  out  himself,  then  the               Commission would be set up to inquire into the               acts  of a person who was no longer in  office               and for that reason, if the learned Judges  of               the High Court were right, into matters  which               were  not  of public importance.   The  result               would  be  that the acts of a  Prime  Minister               could  never be inquired into under  the  Act.               We find it extremely difficult to accept  that               view.  " In P. V. Jagannath Rao & Ors. v. State of Orissa & Ors.  was held  by  a  Constitution  Bench  of  this  Court  that  the appointment  of a Commission of Inquiry under section  3  of the Act with the object of enabling the Government to  frame "appropriate  legislative  or  administrative  measures   to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 88 of 161  

maintain   the  purity  and  integrity  of   the   political administration in the State?’ was valid. Again  in  Krishna  Ballabh Sahay & Ors.  v.  Commission  of Enquiry  &  Ors.  (2) a similar view was taken  and  it  was observed  by this.  Court with reference to the  charges  of corruption into the conduct of Ministers (at p. 394)               "It  cannot  be stated  sufficiently  strongly               that  the public life of persons in  authority               must  never admit of such charges  being  even               framed against them.  If they can be made then               an  inquiry  whether to establish them  or  to               clear the name of the person charged is called               for.               A  perusal of the grounds assures us that  the               charges are specific, and that records  rather               than oral testimony will be used, to establish               them." I  may also say that I fully agree with the views  expressed by   Kailasam  C.J.,  of  the  Madras  High  Court,  in   M. Karunanidhi v. The Union of India & Anr.(3) I  may mention that the considerations placed before us  for assailing  the legislative competence of Parliament,  having been  rejected  by us as quite insubstantial, could  not  be utilised  for "reading down" the provisions of section 3  of the Act a procedure which may be some- (1)  [1968] 3 S.C.R. 789. (2)  [1969] 1 S.C.R. 387. (3)  A.I.R. 1977 Mad. 192. 91 times available for saving a provision from partial or total invalidity.   "Reading down" is, after all, only  a  logical outcome  of the principle of constitution Res  Magis  Valeat Quam Pereat (See : Craies on "Statute Law" 6th. ed. p. 103). The  last  question I propose to advert to  relates  to  the preliminary  objection  to the maintainability of  the  suit under  Article 131 of the Constitution on which I share  the conclusions  of  Chandrachud  J.  and  of  Bhagwati  J.  and Kailasam  J.  as  against those, with due  respect,  of  our learned brethren who have held that the plaintiff should  be non-suited  on  the ground that a suit such as the  one  now before  us  does  not lie at all under Article  131  of  the Constitution. I  have  dealt at length with all the arguments  which  were advanced  on  behalf  of the State of  Karnataka  because  I accept as correct the submission of the learned Counsel  for the  plaintiff that the case involves consideration  of  the exercise of governmental powers which vest in the Government of  the State and its Ministers as such vis a vis  those  of the Central Government. and its Ministers.  They also  raise questions  relating  to the meaning and the  ambit  and  the applicability   of   the  particular   provisions   of   the Constitution whose operations are of vital interest to every State.    Indeed,   the  interpretations  given   to   these provisions must necessarily be of great concern to the Union as  well.  They are matters which involve the  interests  of the  whole of the people of India who gave  unto  themselves the Constitution whose provisions we have interpreted. The  Union of India, acting through the Central  Government, could be said to represent the whole of the people of India. The individual States, acting through their Governments  and Ministers,  could  be said to represent the people  of  each individual  State  and their  interests.   When  differences arise between the representatives of the State and those  of the whole people of India on questions of interpretation  of the Constitution, which must affect the welfare of the whole

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 89 of 161  

people,  and  particularly that of the people of  the  State concerned,  it appears to me, with great respect, to be  too technical an argument to be accepted by us that a suit  does not   lie  in  such  a  case  under  Article  131   of   the Constitution. According to both sides to the case before us an exercise of powers  under  section  3 of the Act is  called  for.   They differ  only on the question whether the Government  of  the State concerned or the Central Government also, on the facts of  this  case,  can exercise those  powers.   Their  claims conflict.  There is a lies.  The parties to the dispute  are before  us.   We had to decide it and we have done  so.   It seems  to  me that a distinction between the State  and  its Government  is,  at the most, one between the whole  and  an inseparable  part  of the whole. It would be  immaterial  as regards  claims  on  behalf  of  either  the  State  or  its Government  whether the two are distinct  jurists  entities. Even  if  they  could  be  distinctly  separate,  which   is doubtful,  the claim of the Government would be that of  the State. 92 In  State of Rajasthan v. Union of India (1) this Court  has recently  considered  the scope of Article  131.   There,  I said, inter alia, on this question (at p. 1393) :               "I  do  not  think that we  need  take  a  too               restrictive  or a hyper-techincal view of  the               State’s  rights to sue for any rights,  actual               or fancied which the State Government  chooses               to take up on behalf of the State concerned in               a suit under Art. 131." It  may  be, explained here that this  observation  was  not meant to lay down more than that there would be presumed  to be  a  nexus between the interests of the State and  of  the people it represents when the Government of the State, takes up   an  issue  relating  to  the  interpretation   of   the Constitution  against an action taken, or, even, as was  the case  there, one contemplated by the Central Government.   I would  like to remove the impression that no such  nexus  is needed  if the use of the words "actual or fancied", in  the observations  quoted  above, create it.   I  however,  think that, in the case before us, the nexus between the rival claims advancedand  the interests of the public of  the State is reasonably made out. It is a different  matter that I do not accept the view put forward onbehalf  of  the State  of  Karnataka  that  it  alone  and  not  the   Union Government  also has the power to set up a Commission  under section  3  of  the, Act on a matter  of  public  importance primarily concerning the State. It  has  to be remembered that Article 131 is  traceable  to section   204   of  the  Government  of  India   Act.    The jurisdiction  conferred  by it thus originated in  what  was part  of the federal structure set up by the  Government  of India Act, 1935.  It is a remnant of the Federalism found in that Act. It   should,   therefore,   be   widely   and generously interpreted for thatreason   too  so  as   to advance the intended remedy. It can be invoked,in      my opinion,  whenever  a State and other States  or  the  Union differ  on a question of interpretation of the  Constitution so  that a decision of it will affect the scope or  exercise of governmental powers which are attributes of a State.   It makes no difference to the maintainability of the action  if the  powers of the State, which are Executive,  Legislative, and  Judicial, are exercised through particular  individuals as they necessarily must be.  It is true that a criminal act committed by a Minister,, is no part of his official duties.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 90 of 161  

But, if any of the organs of the State claim exclusive power to  take  cognizance  of it, the  State,  as  such,  becomes interested  in  the dispute about the  legal  competence  or extent of powers of one of its organs which may emerge. I do not think that the fact that the State acts through its Ministers or officials can affectthe maintainability of  a suit under Article 131 of the Constitution. Both    Article 166(3) of our Constitution  as well as Section 59(3)of the Government of India Act of 1935 provided for  allocation of  the business of the Government among the  Ministers  for "the  more  convenient transaction of  the  business."  This implies  that  the  State can act  not  merely  through  its Government as a whole (1)  A.I.R. 1977 S.C. 1361. 93 but also through its individual Ministers as provided by the rules.   Section 49(1) of the Government of India  Act  made this position absolutely clear by enacting :               "The  executive authority of a Province  shall               be  exercised on behalf of His Majesty by  the               Governor, either directly or through  officers               subordinate to him."               The  equivalent to that is Article  154(1)  of               our Constitution which reads as follows :                "154.  Executive  power  of  State-.(1)   The               executive  power of the State shall be  vested               in the Governor and shall be exercised by  him               either    directly   or    through    officers               subordinate  to  him in accordance  with  this               Constitution." In  King-Emperor  v.  Sibnath Banerji &  Ors.(1)  the  Privy Council had held that "a Minister is an officer  subordinate to  the  Governor"  for the purposes of Section  49  of  the Government of India Act only.  This observation was no doubt relied upon by this Court in A. Sanjeevi Naidu ,etc. etc. v. State of Madras & Anr.(2) with regard to the position of our Ministers  for  the  purposes  of  Article  154(1)  of   the Constitution.These  provisions,  far from  establishing  any antithesis  between the official capacity of a Minister  and the State for which he acts, only show that, as a  Minister, he  is  an agent or a limb of the Government of  the  State, and,  therefore, he can be treated as an "officer" for  pur- poses  of Article 154(1) which corresponds to Section 49  of the  Government  of  India  Act.   The  result  is  that   a Minister’s official acts cannot be distinguished from  those of  the State on whose behalf he ;acts.  With great  respect for  the  view  of  my learned brethren  who  seem  to  hold otherwise,  this  feature cannot make a suit  by  the  State tinder  Article 131 of the Constitution  incompetent  merely because  it relates to the exercise of a  Minister’s  powers enjoyed  by  Virtue  of his office.   There  is  nothing  in Article  131 of the Constitution itself to debar the  State, which  must always necessarily act through its  officers  or agents  or Ministers, from suing the Central Government  not only  to protect one of its agents, officers,  or  Ministers from  being  proceeded against, in any way, by  the  Central Government,  but to prefer its own claim to exclusive  power to  deal with him; and, this is what the plaintiff has  done by means of the suit before us. It  is evident that a Minister has been treated, in the  two cases  cited before us as an "officer" for the very  limited purpose of indicating that the State itself can act  through him  as he holds an office which enabled him to act for  it. They do not equate or assimilate his status or position with that  of a Government servant.  In my opinion, the  Minister

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 91 of 161  

of  a State, as the holder of an office provided for by  the Constitution is, like a Judge of a High Court, a  "dignitary of  State"  to use the expression employed  by  Sir  William Holdsworth  the  eminent British Constitutional  lawyer  and jurist, for a High Court Judge.  His dignity and position is bound  up with that of the State he represents.  Hence,  his State is entitled to sue to assert it. (1)  L.R. 72 I.A. 241 @ 266. (2)  [1970] 3 S.C.R. 505 @ 512. 94 It  may  be  possible  sometimes  to  distinguish  a  purely individual   wrongful  or  criminal  act,  committed  by   a Minister,  falling entirely outside the scope of  his  legal authority, as disconnected with his office.  But, even  this cannot,  in my opinion, disable the State itself from  suing for theprotection  of its own authority to deal with  the Minister concerned. It is, as I have already indicated, a different matter if  we, hold, aswe  have held  here, that the claim of the State to have exclusive power to  deal with its Minister is not sustainable for some reason.  The right  to  advance a claim, which is all  that  Article  131 providesfor,  is to be distinguished from the strength  of that claim in law.So long   as the claim is of the  State, the fact that a Minister, in exercisinggovernmental powers, represents  the State, can make no difference whatsoever  to the maintainability of the suit by the State. I  think  that  the State concerned,  which  challenges  the validity of the action of the Central Government against one or  more  of  its Ministers in  respect  of  acts  involving exercise  of its governmental powers, would have  sufficient interest  to  maintain a suit under Article 131  because  it involves  claims  to  what  appertains to  the  State  as  a "State."  It may be that, if the effect upon the  rights  or interests of a State, as the legal entity which  constitutes the legally set up and recognised governmental  Organisation of the people residing within certain territorial limits  is tooremote, indirect, or infinitesimal, upon the facts of a particular case, wemay  hold  that it is  not  entitled  to maintain a suit under Article 131. But, I do not  think that we can say that here. The following cases were cited by the plaintiff’s Counsel  : The   Governor-General  in  Council  v.  The   Province   of Madras,(1) United Provinces v. Governor-General in  Council; (2)  Attorney-General for Victoria at the Relation  of  Dale and Ors. v. The Commonwealth & Ors.(3) Attorney-General  for Victoria  (at  the  Relation of  the  Victorian  Chamber  of Manufacturers) v. The Commonwealth(4). State of Rajasthan v. Union of India (supra).  Except for the last mentioned  case they are not directly helpful on the scope of Article 131 or on  the  right of a State to sue under  it.   They,  however indicate  the  kind of questions on which  and  the  persons through  whom  the units and the Central  authorities  in  a Federation may litigate. My answers to the three issues framed are 1.   The suit is maintainable. 2.   The Central Government’s notification is valid. 3.   Section 3 of the Act is valid. On  a fourth supplementary question framed on  facts  placed and  arguments  advanced before us, my answer  is  that  the State  and  Central Government notifications do  not  relate substantially to "the same (1)  [1943] F.C.R. p. 1. (2)  A.I.R. 1939 F.C. 58. (3)  71 C.L.P.. 237. (4)  1943-1934 (2) C.L.R.533.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 92 of 161  

95 matter" within the meaning of proviso (b) to Section 3(1) of the  Act.  It is, however, made clear that this question  is answered  by  me on the assumption that there  is  no  legal defect in the appointment of its own Commission by the State Government.    The  validity  of  the   State   Government’s notification  was  not challenged before us  on  any  ground whatsoever. The views expressed here will not, therefore, be deemed to have anybearing  on questions  relating  to the  validity of the State Government’s  notification  which were  not  canvassed before us.   This  clarification  seems necessary  because  the validity of the  State  Government’s notification has also been, I understand, challenged in some other proceedings on grounds which can only be considered by us  if aid when they come up before us.  Consequently,  this suit must be dismissed with costs. CHANDRACHUD, J.-Consequent upon the result of the  elections held  to  the Karnataka Legislative Assembly  in  1972,  the Congress  formed the government with Shri D. Devaraj Urs  as the  Chief  Minister of the State.  That party was  then  in power at the centre too, but it lost its long held  majority in the 1977 Lok Sabha elections after which the Janata Party formed  the  Government  at the centre.   However  in  those elections  to the Lok Sabha, 26 out of 28 seats allotted  to the State of Karnataka were won by the Congress. Certain  opposition  members of the  Karnataka  Legislative, Assembly  submitted to the Union Home Minister a  memorandum containing   allegations  of  corruption,  favouritism   and nepotism  against the Chief Minister, Shri Devaraj Urs.   In response to a request of the Union Home Minister, the  Chief Minister offered his comments on the allegations but,  while repelling  the  accusations  as  frivolous  and  politically motivated, the Chief Minister raised a point which forms the nucleus of the arguments advanced in the suit before us.  He contended  that  the,  federal structure  enshrined  in  the Constitution is the corner-stone of national integrity; that the  Constitution is the source of the power of  the  Centre and the States; that the exercise of all powers, whether  by the  Central  Government or by the State  Governments,  must conform  to  the scheme of distribution  of  powers  devised under the federal scheme of our Constitution that the erring ministers of State Governments are accountable to the  State legislature  only; and that, the Central Government  has  no authority  or  control  over the government of  a  State  in respect  of matters which are within the  State’s  exclusive domain,  save in exceptional times when an emergency  is  in operation.  The Chief Minister asserted that an enquiry into the charges levelled against him could only be held by or at the instance of the State Government. By  a notification dated May 18, 1977 issued  under  section 3(1)  of  the  Commissions of Inquiry Act, 60  of  1952  the Governmentof   Karnataka  appointed  a  Commission   of Inquiry consisting ofShri  Mir lqbal Hussain, a  retired Judge of the Karnataka High Court,for   the   purpose    of conducting an inquiry into the allegations specified in  the notification.  Within a few days thereafter, on May, 23, the Government  of  India issued a notification under  the  same Act, appoint- 96 ing a Commission of Inquiry consisting of Shri A. N. Grover, retired ,Judge of the Supreme Court, for inquiring into  the charges made against the Chief Minister, as described in the notification.The  validity   of   this   notification   is challenged by the State of Karnatakaby the present  suit brought under article 131 of the Constitution. The Union  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 93 of 161  

India  and  Shri A. N. Grover are impleaded to the  suit  as defendants 1 and 2 respectively. The  State,  of Karnataka contends by its  plaint  that  the Central  Government  has  no jurisdiction  or  authority  to constitute  the Commission in the purported exercise of  its powers under the Commissionsof Inquiry Act, 1952; that the appointment of the Commission ofInquiry  by  the  Central Government   of  or  inquiring  into   allegations   against ministers of the State Government while they continue to  be inoffice    and   enjoy  the  confidence  of  the   State legislature is destructiveof  the federal  structure  of the  Constitution and the scheme of distribution  of  powers provided for under it, that the cabinet system of government under  which the Council of Ministers is responsible to  the legislature  of the State would fail of its purpose  if  the Union  executive  were  to assume to itself_  the  power  to direct  an  inquiry  into  allegations  made  against  State ministers while they are in office; that the provisions con- tained in section 3 of the Act of 1952 cannot be interpreted so  as  to clothe the Central Government with the  power  to appoint a Commission for inquiring into matters relatable to any of the entries in List II of the Seventh Schedule to the Constitution, in respect of which Parliament has no power to make  a  law  and  the Union  executive  no  power  to  take executive  action; that such an interpretation would  render section  3 of the Act ultra vires the provisions of Part  XI of  the  Constitution  which  deals  exhaustively  with  the relations  between the Union and the States; and  that,  the report  of  the Inquiry Commission appointed  by  the  Union Government  cannot serve any useful purpose as  the  Central Government is incompetent to take any remedial executive  or legislative  action  against  the  ministers  of  the  State Government or the State Government itself. These  contentions  are traversed by the Union of  India  by its written statement. It  has,  in  the  first  instance, raised a preliminary objection ,,hat thesuit itself  is not  maintainable  as the appointment of the  Commission  to inquire into the personal conduct of the Chief Minister  and other ministers does not affect any legal right of the State of  Karnataka.   It further contends that  the  notification issued by the State Government neither covers the  questions comprised in the notification of the Central Government  nor does  it  cover ail of the matters mentioned in  the  latter notification;  that the Central Government is  competent  to constitute a Commission to inquire into a definite matter of public  importance,  namely, the conduct of  a  minister  of State   Government;  and  that,  the  appointment   of   the Commission  is neither destructive of the federal  structure of the Constitution nor of any other basic feature thereof. Three  issues were framed by this Court on these  pleadings. The  first relates to the maintainability of the  suit,  the second  to the question whether the notification  issued  by the Central Government is 97 ultra  vires the powers possessed by it under section  3  of the Act of 1952 and the third to the contention whether,  if section  3  authorises the Central Government to  issue  the impugned   notification,  the  section  itself  is  at   all constitutional. On  the preliminary objection as to the  maintainability  of the  suit,  I prefer to adhere to the view which I  took  in State  of  Rejasthan  v. Union of  India,  where  a  similar objection  was raised by the Union Government to  the  suits filed  by  the State of Rajasthan and certain  other  States under  article  131  of  the  Constitution,  challenging   a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 94 of 161  

directive   of   the  Union  Home  Minister   advising   the dissolution of State Assemblies. I have had the benefit of perusing the Judgment prepared by brother Untwalia on behalf of himself and Brethren Shinghal and JaswantSingh in  which they have taken the view that the Commission of Inquiry set- up by the Central Government is not against the State or the State  Government but is against an individual  minister  or ministers  and since the setting up of the  Commission  does not involve any invasion of the legal rights of the State or the  State  Government, the suit is not  maintainable  under article 131 at the instance of the State of Karnataka.  I am free  to  confess that I have considerably profited  by  the judgment of my learned Brethren because their point of view, with, respect, is not to be overlooked simply because I have already expressed a contrary opinion in an earlier decision. But  having given a fresh and closer thought to the  problem in  the  light of the view expressed by them  and  a  fuller argument  advanced  in this case by the  learned  Additional Solicitor-General,  I am inclined to the opinion  that  even taking  a  strictly  legalistic  view  of  the  matter,  the preliminary  objection  to the maintainability of  the  suit ought to be rejected. The  jurisdiction conferred on the Supreme Court by  article 131 of the Constitution should not be tested on the anvil of banal  rules  which  are applied under  the  Code  of  Civil Procedure  for determining whether a suit  is  maintainable. Article  131 undoubtedly confers ’original jurisdiction’  on the  Supreme  Court  and  the  commonest  form  of  a  legal proceeding which is tried by a court in the exercise of  its original  jurisdiction  is  a suit.   But  a  constitutional provision,  which  confers exclusive  jurisdiction  on  this Court  to  entertain  disputes of a certain  nature  in  the exercise  of  its original jurisdiction, cannot  be  equated with  a  provision conferring a right on a  civil  court  to entertain  a  common  suit so as to  apply  to  an  original proceeding  under article 131 the canons of a suit which  is ordinarily triable under section 15 of the Code ofCivil Procedure  by a court of the lowest grade competent  to  try it. Advisedly,  the  Constitution  does  not  describe  the proceeding whichmay  be brought under article 131  as  a ’suit’ and significantly, article 131 uses words and phrases not commonly employee, for determining the jurisdiction of a court  of  first instance to entertain and try a  suit.   It does not speak of a ’cause of action, an expression of known and  definite legal import in the world of witness  actions. Instead,, it employs the word ’dispute,’ which is no part of the  elliptical jargon of law.  But above all,  article  131 which  in a manner of speaking is a self-contained  code  on matters  falling within its purview, provides expressly  for the condition subject to which an action can lie 98 under  it.  That condition is expressed by the clause :  "if and in so far as the dispute involves any question  (whether of law or fact) on which the existence or extent of a  legal right   depends".   By  the  very  terms  of  the   article, therefore,  the  sole  condition which  is  required  to  be satisfied  for  invoking the original jurisdiction  of  this Court-is  that the dispute between the par-ties referred  to in  clauses (a) to (c) must involve a question on which  the existence or extent of a legal right depends. The  quintessence of article 131 is that there has to  be  a dispute  between the parties regarding a question  on  which the  existence  or  extent  of a  legal  right  depends.   A challenge  by the State Government to the authority  of  the Central  Government  to  appoint  a  Commission  of  Inquiry

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 95 of 161  

clearly involves a question on which the existence or extent of the legal right of the Central Government to appoint  the Commission of Inquiry depends and that is enough to  sustain the proceeding brought by the State under article 131 of the Constitution.  Far from its being a case of the "omission of the  obvious", justifying the reading of words into  article 131  which are not there, I consider that  the  Constitution has  purposefully  conferred on this  Court  a  jurisdiction which  is  untrammeled by considerations  which  fetter  the jurisdiction of a court of first instance, which  entertains and  tries suits of a civil nature.  The very nature of  the disputes  arising  under article 131 is different,  both  in form and substance, from the nature of claims which  require adjudication in ordinary suits. The Constitution aims at maintaining a fine balance not only between  the  three organs of power,  the  legislature,  the executive and the judiciary, but it is designed to secure  a similar balance between the powers of the Central Government and those of the State, Governments.  The legislative  lists in the Seventh Schedule contain a demarcation of legislative powers  between  the  Central and  State  Governments.   The executive power of the Central Government extends to matters with respect to which Parliament has the power to make  Laws while  that of the State extends to matters with respect  to which  the  State legislature has the power  to  make  laws. Part  XI  of the Constitution is devoted  specially  to  the delineation  of relations between the Union and the  States. That  is a delicate relationship, particularly if  different political  parties  are in power at the Centre  and  in  the States.   The  object of article 131 is to  provide  a  high powered  machinery for ensuring that the Central  Government and the State Governments act within the respective  spheres of  their  authority and do not trespass upon  each  other’s constitutional functions or powers.  Therefore, a  challenge to the constitutional capacity of the ’defendant’ to act  in an  intended manner is enough to attract the application  of article  131, particularly when the ’plaintiff’ claims  that right exclusively for itself.  If it fails to establish that right,  its challenge may fail on merits but the  proceeding cannot  be thrown out on the ground that the impugned  order is  not calculated to affect or impair a legal right of  the plaintiff. In an ordinary civil suit, the rejection of a right asserted by the defendant cannot correspondingly and of its own force establish   the  right  claimed  by  the   plaintiff.    But proceedings under article 131 are adjudicatory of the limits of constitutional power vested in the 99 Central and State Governments.  The claim that the defendant (the Central Government here) does not possess the requisite power  involves the assertion that the power to appoint  the Commission of Inquiry is vested exclusively in the plaintiff (the State Government here).  In a civil suit the  plaintiff has to succeed on the strength of his own title, not on  the weakness  of his adversary’s because the defendant may be  a rank  trespasser  and  yet he can lawfully hold  on  to  his possession  against the whole world except the  true  owner. If,,  the  plaintiff is not the true owner,  his  suit  must fail.   A  proceeding  under article  131  stands  in  sharp contrast  with an ordinary civil suit.  The  competition  in such a proceeding is between two or more governments--either the  one or the other possesses the constitutional power  to act.   There  is  no third alternative as in  a  civil  suit wherein  the  right  claimed by  the  plaintiff  may  reside neither  in him nor in the defendant but in a  stranger.   A

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 96 of 161  

demarcation  and definition of constitutional power  between the rival claimants and restricted to them and them alone is what  a proceeding under article 131  necessarily  involves. That  is  how  in  such  a  proceeding,  a  denial  of   the defendant’s  right  carries  with it  an  assertion  of  the plaintiff’s. Firstly,  therefore,  1. am unable to appreciate that  if  a State Government chaLlenges the constitutional rights of the Central  Government to take a particular course  of  action, article  131  will still not be  attracted.   Secondly,  the contention of the State Government in the present proceeding is  not  only that the Central Government has  no  power  to appoint  the  Inquiry  Commission  for  inquiring  into  the conduct of State Ministers but that such a right is exclusi- vely  vested in the State Government.  There is,  therefore, not  only  a  denial of the right  claimed  by  the  Central Government  but  an  assertion that  the  right  exclusively resides  in the State Government.  In a sense,  the  instant case  stands on a stronger footing than the  Rajasthan  Case because  there the challenge made by the  State  Governments could perhaps be characterised as purely negative in  nature since  the basic contention was that the Central  Government had  no power to dissolve the State Assemblies.   There  is, therefore,  an  the greater reason here  for  rejecting  the preliminary objection. The  State  of Karnataka has claimed an  alternative  relief that  if  section  3 of the Commissions of  Inquiry  Act  is construed as authorising the Central Government to issue the impugned  notification,  it  is  ultra  vires  as  being  in violation  of  article  164(2)  and  the  ’federal   scheme’ embodied  in the Constitution.  Whether this  contention  is well  founded  or not is another matter but it seems  to  me difficult to hold that the State of Karnataka does not  even have  the  legal right to contend that the  provision  of  a parliamentary statute authorising the Central Government  to act in a particular manner is unconstitutional. The palliative of a writ petition under article 226 which is suggested  on behalf of the Union Government as a  sovereign remedy  in  such  matters is hardly  any  substitute  for  a proceeding  under  article 131.  It is notorious  that  writ petition has its own limitations and indeed many a  petition under article 226 is rejected with the familiar quip :  "Why don’t  you  file a suit ?" Apart from disputes  between  the Government  of  India and a State  Government,  article  131 contemplates other per- 100 mutations  and  combinations  in  the  matter  of  array  of parties.   A dispute between one or more States  or  between the Government of India and a State on one hand and  another State or other States on the other hand cannot appropriately be decided by a High Court under article 226 and that  could not have been the intendment of the constitution.   Disputes of  the  nature described in article 131 are usually  of  an urgent nature and their decision can brook no delay.  It  is therefore  expedient  in the interest of justice  that  they should,  as far as possible,, be brought before and  decided by  this  Court  so  as to obviate  the  dilatoriness  of  a possible  appeal.  An original proceeding decided  by  this. Court is decided once and for all.  For these reasons I reject the preliminary objection raised by the Union Government and hold that the proceeding brought by the State of Karnataka is maintainable under article  131 of the Constitution. Another  point,  also of a preliminary nature,  may  now  be disposed  of Section 3(1) of the Commissions of Inquiry  Act

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 97 of 161  

authorises   the  ’appropriate  Government’  to  appoint   a Commission  of Inquiry for the purpose of making an  inquiry into  any definite matter of public importance  and  perform such  functions and within such time as may be specified  in the  notification.  Clauses (a) and (b) of the  proviso  to, section  3 (1) cut down the width of that power with a  view to  ensuring  that  the Central  Government  and  the  State Governments  do not appoint parallel Commissions which  will simultaneously  inquire into the ’ same matter’.  Since,  in the instant case, the State of Karnataka had’ appointeda Commission of Inquiry before the Union Government issued the impugned  notification,  clause (b) of the proviso  will  be attracted. That  clause  says that if a  Commission  has been appointed to inquire into any matter :               "(b)  by  a  State  Government,  the   Central               Government    shall   not   appoint    another               Commission to inquire into the same matter for               so  long  as the Commission appointed  by  the               State  Government is functioning,  unless               the Central Government is of opinion that  the               scope of the inquiry should be extended to two               or more states." The question for consideration is whether the appointment of the commission of inquiry by the Central Government violates the injunction contained in this clause. Considering  the  terms of the notifications issued  by  the State Government and the Central Government and the  matters into  which  the  respective  Commissions  are  directed  to inquire, it seems obvious that the object and purpose of the two inquiries is basically of different character.  The very preambles to the two notifications highlight this difference and show that they are directed to different ends. The preamble of the Karnataka notification recites :               "WHEREAS  allegations  have been made  on  the               floor  of the Houses of the State  Legislature               and  elsewhere that irregularities  have  been               committed/excess  payments  made  in   certain               matters relating to contracts, grants of land,               allotments  of sites, purchase  of  furniture,               disposal of food grains etc.               101               NOW  THEREFORE  The  Government  of  Karnataka               hereby  appoint the Commission of inquiry  for               the purpose of making an inquiry into the said               allegations, particularly specified below               The   preamble  of  the   Central   Government               notification on the other hand recites :               "Whereas the Central Government is of  opinion               that  it is necessary to appoint a  Commission               of  Inquiry  for  the  purpose  of  making  an               inquiry  into  a  definite  matter  of  public               importance,  namely,  charges  of  corruption,               nepotism,    favouritism    or    misuse    of               Governmental power against the Chief  Minister               and  certain other Ministers of the  State  of               Karnataka, hereinafter specified.........." The  terms of reference of the two commissions disclose  the same  fundamental  difference.  The primary  object  of  the State   Government  in  appointing  the  Commission  is   to ascertain whether improper or excessive payments were  made, undue favours were shown, irregularity or fraud had occurred in the conduct of official business etc; and secondarily  to find  out  as to "who are the persons  responsible  for  the lapses, if any, regarding the aforesaid and to what extent." On  the other hand, the commission appointed by the  Central

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 98 of 161  

Government is specifically directed to inquire "whether  the Chief Minister practised favouritism and nepotism" in regard to  various  matters mentioned in the notification.  It  is, there-fore, wrong for the State Government   to contend that the  Central  Government  has appointed  the  Commission  of Inquiry forthe  purpose  of  inquiring  into  the  ’same matter’  into which the Commission of Inquiry  appointed  by the  State  Govt.  is directed to  inquire.   In  fact,  the Central Government notification provides expressly by clause 2  (a)  (ii)  that  the Commission  will  inquire  into  the allegation  contained in the memoranda submitted by  certain members  of the Karnataka State legislature, "excluding  any matter  covered  by the notification of  the  Government  of Karnataka." The  argument  that  the two notifications  cover  the  same matter  suffers  from  a lack  of  recognition  of  ordinary political realities.  It is hardly ever possible, except  in utopian conditions, that the State Government will appoint a Commission  to inquire into acts of corruption,  favouritism and  nepotism  on  the part of its Chief  Minister.   It  is interesting  that Sir Thomas More coined the  name  ’Utopia’ from the Greek  (not) and topos (place) which together  mean "No place." It is inconceivable that a Commission of Inquiry will  be  appointed  by  a  State  Government  without   the concurrence  of  the  Chief Minister and  if  the  political climate  is  so hostile that he is obliged to submit  to  an inquiry  into  his  own conduct, he will  quit  rather  than concur.   Indeed,  a Council of Ministers  which,  considers that  the  conduct  of its Chief Minister and  some  of  the Ministers  requires examination in a public  inquiry,  shall have  forfeited the confidence of the legislature and  would ordinarily  have  to  tender  its  resignation.   Thus,  the objection  of the State Government that the notification  of the  Central  Government offends against clause (b)  of  the proviso  to section 3(1) of the Act is  factually  unfounded and theoretically unsound. 102 Having   disposed  of  the  objections  which  were   of   a preliminary  nature,  it is necessary now  to  consider  the merits of the rival contentions on issues 2 and 3. Shri Lal Narayan Sinha who appears on behalf of the State of Karnataka, contends that section 3(1) of the Commissions  of Inquiry  Act  should  not be construed  as  authorising  the Central  Government to appoint a Commission of  Inquiry  for the  purpose  of  inquiring into the conduct  of  a  sitting minister  of  a State Government.  It is  impossible,  on  a plain  reading  of the section, to accept  this  contention. Section 2(a) (i)    and (ii) of the Act define  ’appropriate Government’ to mean : (i)the  Central  Government, in relation to  a  Commission appointed  by  it  to  make  an  inquiry  into,  any  matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the  Constitution; and (ii)the  State  Government,  in relation  to  a  commission appointed by it to make an inquiry into any matter relatable to  any of the entries enumerated in List II or List III  in the  Seventh  Schedule to the  Constitution.   Section  3(1) empowers  the ’appropriate Government’ if it is  of  opinion that  it  is  necessary  so  to do,  and  obliges  it  if  a resolution  in  that behalf is passed by the  House  of  the People or the Legislative Assembly of the State as the  case may  be, to appoint a Commission of Inquiry for the  purpose of  making  an inquiry into any definite  matter  of  public importance.   The constitutional considerations  for  which,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 99 of 161  

the  learned  counsel contends that section 3(1)  should  be given  a restricted meaning and the minute niceties  of  his submission  will  be considered later.  But,  keeping  those considerations apart for the moment, I see no  justification for  reading  down the provisions of section 3(1) so  as  to limit  the  power of the Central  Government  to  appointing Commissions  of  Inquiry for inquiring into the  conduct  of persons in relation to matters concerning the affairs of the Union  Government only.  Section 3(1) empowers  the  Central Government  to  appoint a commission for making  an  inquiry into  any  definite  matter of  public  importance.   It  is inarguable   that-the   conduct  of   ministers   of   State Governments  in  the purported discharge of  their  official functions  is  not a definite matter  of  public  importance within  the  meaning of section 3(1).  To  what  extent  the principle   of  federalism  will  be  impaired  by  such   a construction  will of course have to be examined  with  care but  I see no substance in the contention that  the  Central Government does not even possess the power to collect  facts in regard to allegations of corruption made by a section  of the State legislature against sitting ministers of the State Government.   That  power  must  undoubtedly  be   exercised sparingly  and  with restraint because under  the  guise  of directing  an  inquiry  under  section  3(1),  tile  Central Government  cannot interfere with the day-to-day working  of the, State Government.  One cannot also contradict that what appears to be a proper use of power may sometimes contain  a veiled  abuse  of  power.  howsoever  infinitesimally.   But statutory,  construction  cannot  proceed  on  distrust  and suspicion  of  those  who  are  charged  with  the  duty  of administering  laws.  Section 3(1) must, therefore,  receive its proper construction with the reservation that mala fides vitiate all acts. 103 Lack  of bona fides was alleged but was not pressed in  this case.   In  my opinion, therefore, section  3(1)  cannot  be given  a  restricted  meaning, as  canvassed  by  the  State Government. On  this  view, the contention that section 3(1)  should  be read down and the impugned notification should be set  aside as  falling  outside  the scope of that section  has  to  be rejected.   But  then it is urged by the State that  if  the section  cannot be given a restricted meaning and has to  be construed  widely so as to authorise the Central  Government to  direct  the  holding of inquiries into  the  conduct  of sitting  State  ministers, the provision would  be  rendered unconstitutional  for a variety of reasons.   Those  reasons must now be considered. It  is  said  in the first place that  if  the  language  of section  3 (1) is construed widely, it will not only  enable the Central Government to appoint a Commission of Inquiry to inquire  into  the  conduct of sitting  Ministers  of  State Governments   but  it  will,  applying  the  same  rule   of construction,  also enable the State Government  to  appoint similar  Commissions of Inquiry to inquire into the  conduct of  the Central Ministers.  This, according to  the  State’s counsel,  would  offend against the provisions  of  articles 75(3)  and  164(2)  of  the  Constitution.   These  articles provide  respectively that the Central Council of  Ministers shall be collectively responsible to the House of the People and  the  State Council of Ministers shall  be  collectively responsible  to the Legislative Assembly of the State.   The argument  is  that  the power to  appoint  a  Commission  of Inquiry  for  the purpose of inquiring into the  conduct  of sitting  ministers of another Government is  destructive  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 100 of 161  

the  principle  of collective responsibility  enunciated  in these  articles.  This argument is said to  receive  support from the circumstance that by virtue of article 194 (3),  it is the privilege of the Legislative Assembly of the State to appoint a committee for inquiring into the conduct of any of its   members,  including  a  minister.    That   privilege, according  to the learned counsel, is as inviolable  as  the principle of collective responsibility. I  find it impossible to accept this  contention.   Articles 75(3) and 164 (2) speak of the collective responsibility  of the  Council  of Ministers as a body, to the  House  of  the People  or the Legislative Assembly of the State.   Whatever may be the findings of a Commission of Inquiry, the  Council of  Ministers,  whether  at the Centre  or  in  the  States, continues  to be collectively answerable or  accountable  to the  House  of  the  People  or  the  Legislative  Assembly. Indeed,  neither the appointment of the Commission nor  even the  rejection  by  the  Commission of all  or  any  of  the allegations  referred to it for its inquiry would  make  the Council  of  Ministers  any the  less  answerable  to  those bodies.  The object of the two articles of the  constitution on  which the State of Karnataka relies is to  provide  that for  every  decision taken by the cabinet, each one  of  the ministers  is responsible to the legislature concerned.   It is difficult to accept that for acts of corruption, nepotism or  favouritism  which  are alleged  or  proved  against  an individual minister, the entire Council of Ministers can  be hold  collectively  responsible to the legislature.   If  an individual  minister  uses  his office’ as  an  occasion  of pretense for committing acts of corruption, he would be 104 personally answerable for his unlawful acts and no, question of  Collective, responsibility of the Council  of  Ministers can  arise  in such a case.  As observed by Hegde  J.  while speaking  for  a  constitution Bench of  this  Court  in  A. Sanjeevi  Naidu  etc.  v. State of  Madras  &  Anr.,(1)  the essence  of  collective  responsibility of  the  Council  of Ministers  is  that  the  cabinet  is  responsible  to   the legislature for every action taken in any of the ministries. In  other words, the principle of collective  responsibility governs  only  those acts which a minister performs  or  can reasonably be said to have performed in the lawful discharge of his official functions. The  history of the principle, of collective  responsibility in England shows that it was originally developed as against the  King.  The ministers maintained a common front  against the  king,  accepted joint and  several  responsibility  for their  decisions whether they agreed with them or  not,  and resigned  in  a  body if the king refused  to  accept  their advice.  In relation to, the British Parliament,  collective responsibility  means  that the cabinet  presents  a  common front.  In Melbourne’s famous phrase, ’the cabinet ministers must all say the same thing’.  The principle of  collective, responsibility perhaps compels ministers to compromise  with their  conscience.  but in matters of policy  they  have  to speak with one voice, each one of them being responsible for the decision taken by the cabinet.(2) In his book on "Constitutional and Administrative Law"  (Ed. 1971,  page  175), S.A. de Smith says  that  the  collective responsibility  of  the cabinet to the House of  Commons  is sometimes  spoken of as a democratic bulwark of the  British Constitution.   According to the learned author,  collective responsibility  implies  that all cabinet  ministers  assume responsibility  for  cabinet decisions and action  taken  to implement  those decisions.  A minister may disagree with  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 101 of 161  

decision or with the manner of its implementation, but if he wishes to express a dissent in public he should first tender his resignation. While explaining the principle of collective responsibility, Sir  Ivor Jennings in his book "Cabinet  Government"  (Third Ed., 1959 p. 277) says               "For  all  that passes in Cabinet  (said  Lord               Salisbury in 1878) each member of it who  does               not  resign  is absolutely  and  irretrievably               responsible,  and has no right  afterwards  to               say   that  he  agreed  in  one  case   to   a               compromise, while in another he was  persuaded               by  his  colleagues.  . . It is  only  on  the               principle  that  absolute  responsibility   is               undertaken by every member of the Cabinet who,               after  a  decision is arrived  at,  remains  a               member of it, that the joint responsibility of               Ministers to Parliament can be upheld, and one               of   the   most   essential   principles    of               parliamentary responsibility established." (1) [1970] 3 SCR 505, 512 (2)Chamber’s  Encyclopaedia,  1973 Ed.  Vol. 2,  page  736 under the heading Cabinet.... Collective Responsibility’. 105 The   learned   author   says  that   perhaps   Mr.   Joseph Chamberlain’s  definition of collective  responsibility  was better  since  he had occasion to study the matter  both  as enfant  terrible under Mr. Gladstone and in his  middle  age under Lord Salisbury.  According to Mr. Chamberlain.               "Absolute  frankness in our private  relations               and  full discussion of all matters of  common               interest...  the decisions freely  arrived  at               should be loyally supported and considered  as               the decisions of the whole of the  Government.               of course there may be occasions in which  the               difference is of so vital a character that  it               is   impossible  for  the  minority  ....   to               continue  their support, and in this case  the               Ministry  breaks up or the minority member  or               members resign." Thus  the argument that section 3(1) of the Act will  offend against the principle of collective responsibility unless it is construed narrowly is without any substance.  As  regards the suggested involvement of article 194(3), in the  absence of a specific provision in the Constitution that the conduct of a member of the legislature shall be inquired into by the legislature  only,  it  is  impossible  to  hold  that   the appointment  of  a  Commission  of  Inquiry  under  the  Act constitutes  an  interference  with  the  privilege  of  the legislature.  English precedents relating to the  privileges of  the House of Commons, which are relevant  under  article 194(3), do not support the State’s contention. That   disposes  of  an  important  limb  of   the   State’s submission.   The other contentions of the State  Government directed  towards showing that the impugned notification  is unconstitutional are these :               (a)   the  charges contained in  the  impugned               notification  relate to corruption,  nepotism,               favouritism  and misuse of governmental  power               by  the Chief Minister and other ministers  in               relation  to the executive powers  exercisable               directly or through subordinate officers  find               neither   the   Central  Executive   nor   the               Parliament can exercise any control, over  the               State executive, except during an emergency;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 102 of 161  

             (b)   India being a Union of States one  must,               while  interpreting  the  Constitution,   have               regard  to the essential features and  general               scheme   of  our  federal   or   quasi-federal               Constitution in which the powers of the  Union               of  India’ and the States are clearly  defined               and demarcated.  "To hold otherwise would mean               that  the  Union executive  would  effectively               control  the State executive which is  opposed               to   the   basic   scheme   of   our   Federal               Constitution;               (c)   Neither article 248 of the  Constitution               which  confers exclusive residuary  powers  of               legislation on Parliament with respect to  any               matters not enumerated in the Concurrent  List               or  the State List nor the residuary entry  97               in List I can include the power to make a  law               vesting   in   the   Central   Government    a               supervisory  control over the  State,  Govern-               ment;               106               (d)   Entry   94  in  List  I  is   manifestly               irrelevant on Parliament’s powers to pass  the               impugned law.  It confers power on  Parliament               to legislate on the topic; "Inquiries, surveys               and  statistics for the purpose of any of  the               matters"  in  List  I.  Misuse  of  power   by               ministers  of  State  Governments,  which   is               stated  to  be one of the  matters  of  public               importance dealt with in sect ion 3(1) of  the               Commissions  of  Inquiry Act,  does  not  fall               within  the  scope  of  any  of  the   matters               enumerated in List I;               (e)   Entry  45 of List III :  "Inquiries  and               statistics  for  the  purpose of  any  of  the               matters  specified  in List II  or  List  III"               cannot  also  empower Parliament to  pass  the               impugned legislation.  The reason is that  if,               as  contended  by the  Union  Government,  the               essence  of  the notification  issued  by  the               Central  Government  is not  the  transactions               described  therein but the misuse of power  by               the   Chief  Minister  or  ministers  of   the               Government of Karnataka, there is no entry  in               List II or List III relating to the misuse  of               governmental  power  by ministers of  a  State               Government;               (f)   A law conferring power on Parliament  or               the  Central  executive to  inquire  into  the               conduct  of  a  sitting minister  of  a  State               Government  in  regard to  alleged  misuse  of               governmental  powers, by an agency  chosen  by               the   Central   executive,   is   beyond   the               "Legislative" competence of Parliament because               in reality, such a law is supplemental to  the               provisions  of  Part  XI, Chapter  11  of  the               Constitution  which  deals with  the  adminis-               trative  part  of the  relations  between  the               Union  and  the States and would fall  in  the               category  of Constitutional  law.   Parliament               has  no power to add to or vary or  supplement               the provisions of the Constitution by means of               an   ordinary  legislation  except  when   the               Constitution    provides   to   that    effect               specifically;

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 103 of 161  

             (g)   To  confer upon the Union executive  the               power  to  call upon the  State  executive  to               render  explanation of its  executive  actions               and  the  further power to  compel  the  State               executive to submit to the jurisdiction of  an               authority  chosen by the Union  executive  for               investigating   charges  against   the   State               executive   brings   into  existence   a   new               relationship between the Central executive and               the State executive which is not a permissible               exercise  of legislative power.  Such  an  em-               powerment  can  be  made in  the  exercise  of               constituent  power  only after  following  the               procedure  prescribed  by article 368  of  the               Constitution; and               (h)   Legislative and administrative relations               between  the Union and the States having  been               defined  in the Constitution,  the  provisions               relating   thereto  are  exhaustive  of   that               subject and therefore legislation in               107               regard   to   Centre-State   relationship   is               prohibited   by  necessary  implication.    By               providing  by article 164(2) that the  Council               of Ministers shall be collectively responsible               to  the Legislative Assembly of the State,  by               conferring  on  the  Legislative  Assembly  by               article   194(3)  the  necessary   powers   to               effectuate that responsibility, by enumerating               the  situations in Part XI, Chapter II  as  to               when  the  Central executive can  control  the               State executive, and finally by providing  for               emergencies  in  articles  355  and  356,  the               Constitution  has  impliedly  prohibited   the               imposition  of  the  control  of  the  Central               executive  over  the State  executive  in  any               other manner.  If an instrument enumerates the               things   upon   which  it  has   to   operate,               everything   else   is  necessarily   and   by               implication  excluded from its  operation  and               effect. The dominant note of these submissions is one and one only : that the Central executive cannot, save by a  constitutional amendment,  be given power to control the functions  of  the State  executive  through  the medium  of  a  Commission  of Inquiry.  Whether Parliament has the competence to pass  the impugned legislation in the exercise of its legislative,  as distinguished  from constituent power is a separate  matter, but   before  considering  the  validity  of   the   State’s contention  in  that  behalf, it  is  necessary  to  examine whether the assumption underlying that contention is at  all justified,   namely  that  by  the   impugned   legislation, Parliament has conferred on the Central Government the power to control the executive functions of the State  Government. For   that  purpose  it  is  necessary  to  have  a   proper understanding  of the scheme and purpose of the  Commissions of  Inquiry  Act and the true effect of its  more  important provisions. The Commissions of Inquiry Act was passed by the  Parliament in  1952  in  order  to  provide  for  the  appointment   of Commissions  of  Inquiry and for vesting them  with  certain powers.   Section 3(1) read with section 2 (a) of  that  Act empowers,  in so far as is relevant, the Central  Government to  appoint by notification a Commission of Inquiry for  the purpose  of  making an inquiry into any definite  matter  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 104 of 161  

public  importance  and  perform such functions  as  may  be specified in the notification.  The Commission has thereupon to make the inquiry and perform its functions, one of  which of  course  is  to  submit its  report  to  the  Government. Section  3(4)  requires that the  Central  Government  shall cause  to be laid before the House of the People the  report of  the Commission of Inquiry together with a memorandum  of the  action taken thereon, within a period of six months  of the  submission of the report by the commission.  Section  4 confers on the Commission some of the powers possessed by  a civil  court  while  trying  a  suit,  like  enforcing   the attendance  of witnesses, examining them on oath,  discovery and   production   of  documents,  receiving   evidence   on affidavits  requisitioning any public record,  etc.   Having regard   to  the  nature  of  the  inquiry  and  the   other circumstances of the case, the Government can under  section 5(1)  direct that all or any of the provisions contained  in sub-sections (2), (3) (4) and (5) of section 5 108 shall  apply to the Commission.  Some of these  sub-sections empower  the  Commission to require any  person  to  furnish information to the Commission and to enter into any building or  place where any document relating to the subject  matter of the inquiry may be found.  For the purpose of  conducting any   investigation   pertaining  to   the   inquiry,   the. Commission  by  section 5A can utilise the services  in  the case of a Commission appointed by the Central Government, of any   officer  or  investigation  agency  of   the   Central Government. It is clear from these provisions and the general scheme  of the Act that a Commission of Inquiry appointed under the Act is  a  purely  fact-finding  body  which  has  no  power  to pronounce,  a  binding or definitive judgment.   It  has  to collect  facts through the evidence led before it and  on  a consideration  thereof it is required to submit  its  report which the appointing authority may or may not accept.  There are sensitive matters of public importance which, if left to the  normal  investigational agencies, can  create  needless controversies and generate an atmosphere of suspicion.   The larger interests of the community require that such  matters should   be  inquired  into  by   high-powered   commissions consisting  of  persons  whose  findings  can  command   the confidence  of  the people.  In his address  in  the  Lionel Cohen  Lectures, Sir Cyril Salmon speaking on "Tribunals  of Inquiry" said :               "In  all countries, certainly in  those  which               enjoy  freedom  of speech and  a  free  Press,               moments  occur  when allegations  and  rumours               circulate  causing  a  nation-wide  crisis  of               confidence in the integrity of public life  or               about   other   matters   of   vital    public               importance.  No doubt this rarely happens, but               when  it  does  it is  essential  that  public               confidence should be restored, for without  it               no   democracy   can   long   survive.    This               confidence can be effectively restored only by               thoroughly   investigating  and  probing   the               rumours  and allegations so as to  search  out               and  establish the truth.  The truth may  show               that  the evil exists, thus enabling it to  be               noted  out, or that there is no foundation  in               the rumours and allegations by which the pubic               has  been disturbed.  In either  case,  confi-               dence is restored." A  police investigation is, at its very best,  a  unilateral

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 105 of 161  

inquiry into an accusation since the person whose conduct is the subject-matter of inquiry has no right or opportunity to cross-examine   the  witness  whose  statements  are   being recorded by the police.  Section 8C of the Act, on the other band, confers the right of cross-.examination, the right  of audience  and  the right of representation through  a  legal practitioner on the appropriate Government, on every  person referred  to  in Section 8B and with the permission  of  the Commission,  on any other person whose evidence is  recorded by the Commission.  Clauses (a) and (b) of Section 8B  refer respectively   to  persons  whose  conduct  the   Commission considers  it  necessary to inquire into and  persons  whose reputation,  in the opinion of the Commission, is likely  to be prejudicially affected by the Inquiry.  It is  undeniable that the person whose conduct is being inquired into and  if the  be  a Chief Minister or a Minister, the doings  of  the government  itself,  are  exposed to  the  fierce  light  of publicity.   But that is a risk which is inherent  in  every inquiry directed 109 at finding out the truth.  It does not, however, justify the specious   submission  that  the  inquiry   constitutes   an interference  with  the  executive functions  of  the  State Government or that it confers on the ,Central Government the power  to  control  the functions of  the  State  executive. After all, it is in the interest of those against whom  open allegations  of corruption and nepotism are made  that  they should  have an opportunity of repelling  those  allegations before a trained and independent Commission of Inquiry which is  not hide-bound by the technical rules of evidence.   "It is  only  by  establishing the truth  that  the  purity  and integrity  of public life can be preserved" and that is  the object  which  the  Commissions  of  Inquiry  Act  seeks  to achieve. In M. V. Rajwade v. Dr. S. M. Hassan & Ors.,(1) it was  held by  the Nagpur High Court that section 4 of the  Act  merely clothes the Commission with certain powers of a civil  court but does not confer on it the status of a court and that the Commission is only fictionally a civil court for the limited purposes  enumerated  in section 5(4).  The  Court  observed that there is no accuser, no accused and no specific charges for  trial  before the Commission, nor  is  the  Government, under the law, required to pronounce one way or the other on the findings of the Commission.. In other words,               "The Commission governed by the Commissions of               Inquiry  Act, 1952 is appointed by  the  State               Government  ’for  the information of  its  own               mind......... it is, therefore, a fact finding               body  meant only to instruct the mind  of  the               Government without producing any document of a               judicial nature." These  observations were extracted and quoted with  approval by this Court in Brajnandan Sinha v. Jyoti Narain.(2) It  is,  therefore,  clear  that  the  power  conferred   by Parliament on the Central Government to appoint a Commission of Inquiry under section 3 (1) of the Act for the purpose of finding  facts in regard to the allegations  of  corruption, favouritism and nepotism against a sitting Chief Minister or ministers cannot be held to constitute interference with the executive functions of the State Government.  On receipt  of the  Commission’s report, the Central Government may or  may not  take  any  action, depending upon  the  nature  of  the findings recorded by the Commission.  If it decides to  take any  action. the validity thereof may have to be  tested  in the light of the-constitutional provisions.  But until  that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 106 of 161  

stage  arrives,  it is difficult to hold  that  the  Central Government  is exercising any control or supervisory  juris- diction   over   the  executive  functions  of   the   State Government.   As observed by this Court in Shri Ram  Krishna Dalmia  v. Shri Justice S. R. Tendolkar & Others,  (a)  "the Commission  has  no power of adjudication in  the  sense  of passing an order which can be enforced proprio vigore". (1)  AIR 1954 Nag. 71. (2) [1955] S.C.R. 955, 975. (3) [1959] S.C.R. 279, 293. 110 Thus, the very assumption on which the State’s counsel,  has built  up  the  edifice of his argument seems to  me  to  be fallacious.  The, rejection of that assumption furnishes  at once  an answer to most of his other submissions but,  since the  matter  has  been  argued  on  both  sides  fully   and earnestly,  it is desirable to consider all the  rival  con- tentions and set the dispute at rest. The  next limb of Shri Sinha’s argument is that India  is  a Union  of States and that one must, while  interpreting  the Constitution, have regard to the essential features and  the general scheme of our federal or quasi-federal  Constitution by  which, the powers of the Union’ of India and the  States are  clearly  defined  and demarcated.   Quoting  a  learned author  on "Constitutional Law of India" Vol. 1, page  1074, counsel contends that to hold otherwise would mean that  the Union   executive  would  effectively  control   the   State executive,  which  is  opposed to the basic  scheme  of  our federal Constitution. The  statement  from the "Constitutional Law  of  India"  on which counsel relies is out of context because it occurs  in relation to the question whether in dismissing the  ministry or  in dissolving the legislature, the Governor acts  as  an agent  of  the  President or under  his  directions.   While expressing  the  opinion that a responsible  Union  ministry would not be justified in advising the removal of a Governor merely  because he takes action which does not fall in  line with  the policy of the Union ministry, the  learned  author says  that any other view would vest in the Union  executive effective control over the State executive, which is opposed to the basic scheme of our federal Constitution.  Apart from the  consideration that the statement relied upon is out  of context,  I  have already rejected the submission  that  the appointment  by  the Central Government  of  a  fact-finding Commission  of  Inquiry for inquiring into  the  conduct  of sitting  State  Ministers can be deemed  to  vest  effective control  over the State executive in the Central  executive. Counsel’s  submission shall, therefore have to  be  examined keeping aside this aspect of the matter. India,  undoubtedly, is a Union of States and that  is  what article   1(1)  of  our  Constitution  expressly   provides. Whether  we describe our Constitution as federal  or  quasi- federal,  one  cannot ever blind ones vision  to  the  stark reality  that India is a Union of States.  The  Constitution contains  a  carefully  conceived  demarcation  of   powers, legislative and executive, between the Central Government on the  ons hand and the State Governments on the  other.   The balance of that power ought never to be disturbed, but  that is  a different thing from saying that inherent  or  implied limitations  should be read into legislative powers or  that because  India is a Union of States, one must read into  the Constitution powers and provisions which are not to be found therein but which may seem to follow logically from what the Constitution provides for expressly. 111

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 107 of 161  

The  first  question  which  one  must  tackle  is   whether Parliament  has  the  legislative competence  to  enact  the Commissions  of  Inquiry Act, 1952.  This  question,  in  my opinion, is concluded by a judgment of a Constitution ]Bench of  this Court in Shri Ram Krishna Dalmia (supra)  in  which the  validity of the very Act was challenged in a matter  in which  a notification was issued by the  Central  Government under section 3 of the Act for inquiring into the affairs of certain   companies.   It  was  held  by  this  Court   that Parliament  had the legislative competence to pass  the  law under  entry  94 of List I and entry 45 of List III  of  the Seventh  Schedule of the Constitution.  Entry 94 of  List  I relates  to  "Inquiries,  surveys  and  statistics  for  the purpose of any of the matters" in List I, while entry 45  of List  III  relates  to "Inquiries  and  statistics  for  the purposes of any of the matters specified in List II or  List III". It   is  well-established  that  entries  in   the legislative lists must receivenot a narrow or  pedantic but a wide and liberal construction and,considered from that point of view, the word ’inquiries’ which occurs in the two  entries must be held to cover the power to pass an  Act providing for appointment of Commissions of Inquiry.  It  is in the exercise of this power that the Parliament has passed the  Commissions of Inquiry Act, 1952.  Since the  power  to appoint a Commission to Inquire into the conduct of  sitting ministers of State Governments which is comprehended  within section  3(1)  of  the  Act  does  not  offend  against  the principle  of  collective  responsibility  ,of  the  State’s Council of Ministers or against the privileges of the Legis- lative  Assembly  and since it does not also confer  on  the Central  Government  the  power of control  over  the  State executive, the provision must be held to be a valid exercise of the legislative competence of the Parliament. Shri Ram Krishna Dalmia (supra) in so far as it decides that the  Commissions  of  Inquiry Act,  1952  falls  within  the legislative competence of the Parliament in view of entry 94 of  List I and entry 45 of List Ill must, with respect,  be‘ affirmed and accepted as good law.  I may, however, add that if for any reason it were to appear, which it does not, that these  entries  do not justify the passing of the  Act,  the residuary entry 97 of List I will in any- event support  the legislative  validity  of the Act.  That  entry  confers  on Parliament  the power to legislate on ’Any other matter  not enumerated in List II or List Ill........ Entry 97 is in the nature of a residuary entry and the words ’Any other matter’ which  appear  therein  mean ’Any matter  other  than  those enumerated  in  List  I’.  If entry 94 does  not  cover  the impugned Act, ’Inquiries’ of the nature contemplated by  the Act will fall within the description ’Any other matter’; and if  entry 45 of List III and, admittedly, the whole  of  the State List are to be kept out of consideration, the Act will relate to ’a matter not enumerated in List II or List  III’. Shri  Sinha  objected to recourse being had to entry  97  of List  I  on the ground that it cannot, any more  than  other entries  in Lists I and II, confer on Parliament the  power to  make a law vesting in the Central executive  supervisory control  over the State executive.  That  contention  having been  rejected,  entry  97 will in  any  event  sustain  the legislative validity of the Act. It  is unnecessary to consider the implications  of  article 248 because that may require an examination of the question, which is 112 needless  here in view of the decision in Shri  Ram  Krishna Dalmia, (supra) whether that article confers power which  is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 108 of 161  

not to be found in article 246(1) read with entry 97 of List I  and whether an affirmative answer to this  question  will render entries 1 to 96 of List I otiose.  One may sum up the discussion  on  the  question  of  Parliament’s  legislative competence  by saying that adopting "the  construction  most beneficial  to  the  widest possible  amplitude"  of  powers conferred   by   the  Constitution  and   interpreting   the legislative  entries  in "a broad and liberal  spirit",  the impugned  Act  cannot  be  held  to  suffer  from  want   of legislative  competence,  in  the Parliament  to  enact  it. Entry 94 of List I, entry 45 of List III and failing  these, entry 97 of List I must sustain the Act. That  disposes of points (a) to (e) set out  above,  leaving for consideration points (f), (g) and (h).  For the sake  of easy  reference,  these points may be  summarised  thus  (i) Administrative  relations between the Union and  the  States are dealt with in Chapter 11 of Part XI of the Constitution; (ii)  The Commissions of Inquiry Act, as interpreted  above, purports  to supplement the provisions contained in  Chapter II,   Part  XI;  (iii)  Parliament  cannot  supplement   any provision of the Constitution except by an amendment of  the Constitution; (iv) The Commissions of Inquiry Act creates  a new  Centre,-State  relationship by vesting in  the  Central executive  an  added control over the  State  executive  not provided  for in the Constitution, and (v) Since the  provi- sions  contained in Chapter 11 of Part XI are exhaustive  of matters, governing the administrative relations between  the Union  and the States, any legislative addition  thereto  or supplementing   thereof  must  be  held  to   be   impliedly prohibited. The  short  answer  to the first four points,  (i)  to  (iv) above,  is  that  though  it  is  true  that  administrative relations between the Union and the States are dealt with by Chapter  II  Part  XI of the  Constitution  and  though  the provisions  contained  therein cannot be altered save  by  a constitutional  amendment,  the Commissions of  Inquiry  Act does  not  bring  about  any  change  in  the   Centre-State relationship  as  envisaged  by Part  XI.   The  Act  merely empowers  the Central Government to appoint a Commission  of Inquiry  for the purpose of collecting facts with a view  to informing  its own mind; and the report of  the  Commission, not  being  binding  on any one, has no force  of  its  own. Revelations before the Commission may conceivably produce an impact  on the credibility of the State Government, but  the inquiry  is  directed not to the manner in which  the  State Government  or  the State executive conducts itself  in  the discharge of its constitutional functions but to the  manner in which, if at all, its ministers have used their office as a  cloak for committing acts of corruption and  favouritism. It is possible that a Commission may accept the  accusations against  the  minister and in fairness  emphasise  that  the private  doings of the minister have nothing to do with  the public  administration  of the  States’  executive  affairs. Indeed, the Commission may reject the allegations as totally baseless and frivolous.  These are all imponderable and they cannot  influence the decision of the basic question  as  to the  nature of the Commission’s functions.   Therefore,  the contention that by empowering the Central 113 Government  to appoint a Commission for inquiring  into  the conduct  of  the  sitting  ministers  of  State  Government, Parliament  has legislated on the Centre-State  relationship which is a constitutional subject, is without any force. However,  it is necessary to say a word about  the  somewhat novel  argument  of the State Government that,  by  ordinary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 109 of 161  

legislation,   the  Parliament  cannot  even  supplement   a constitutional provision, unless the Constitution  expressly authorises it to do so.  Ordinary legislation, as  contended by  the learned Additional Solicitor-General, has to  answer only two tests : Firstly, the law must be within the  legis- lative competence of the legislature, and secondly, the  law must  not  offend  against the provisions  of  Part  III  or infringe  any other specific provision of the  Constitution. Once  the  legislative  competence  is  established  and  no violation  of any specific constitutional provision is  made out,  the  validity  of the Act cannot be  assailed  on  the ground  that  it ’supplements’ a  constitutional  provision. The  fallacy  of  the  State’s  argument  consists  in  the, assumption  that every law "in respect of" a  subject-matter dealt  with  by the Constitution amounts necessarily  to  an amendment  of the Constitution.  An illustration or two  may help clarify the true position.  Article 297 of the  Consti- tution  provides that all lands , minerals and other  things of value underlying the ocean within the territorial  waters or  the continental shelf of India shall vest in  the  Union and be held for the purposes of the Union.  It is inarguable that  since  "lands,  minerals and  other  things  of  value underlying  the ocean within the territorial waters  or  the continental shelf of India" is the subject matter of article 297,  no  legislature,  even  if  it  possesses  legislative competence  to do so, can legislate on that  subject-matter. It   is  elementary  that  the  legislature  cannot,   while legislating  on  a topic enumerated in  the  relevant  list, violate or infringe any provision of the Constitution.   But so long as there is no such infringement, legislation on the subject  dealt  with  by  article  297  cannot  be  declared unconstitutional  on  the  ground that  it  supplements  the provisions of that article.  Article 299 of the Constitution deals  with  contracts.  It seems to me  equally  inarguable that  a  legislation  dealing  with  the  subject-matter  of contracts,   even   though  not   lacking   in   legislative competence, becomes unconstitutional for the reason that  it deals with the subject-matter of contracts.  The argument of the  State  in  this behalf is therefore  wholly  devoid  of substance,  apart from the consideration that  the  impugned legislation does not bear on the Centre-State relationship. The  fifth and the last contention is also capable of  being disposed of with the answer that the Commissions of  Inquiry Act   does  not  deal  with  the  subject  of   Centre-State relationship, directly or indirectly.  There is,  therefore, no  question of its creating a new relationship between  the Union  and  the  States not known  to  the  Constitution  or inconsistent  with that provided for in Chapter II, Part  XI of  the Constitution.  Not only that the pith and  substance of the Act is "Inquiries", but it does not even incidentally encroach or trespass upon a constitutional field occupied by Part XI.  If it does not touch the subject-matter of Centre- State  relationship, there is no question of  its  impinging upon a subject dealt with by the Consti- 114 tution.   Therefore, even assuming that legislation  on  the question  of Centre-State relationship is impliedly  barred, the impugned Act does not fall within the vice of that  rule and cannot, therefore, be pronounced as unconstitutional. All  the  same,  it  is necessary  to  examine  briefly  the validity of the State’s contention that since the provisions in Chapter II, Part Xi are exhaustive, of matters  governing the  administrative  relations  between the  Union  and  the States,  any legislative addition thereto, or  supplementing thereof, if impliedly prohibited.  As already observed,  _if

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 110 of 161  

a   law   is  within  the  legislative-competence   of   the legislature,  it  cannot  be invalidated  on  ’the  supposed ground that it. has added something to, or has supplemented, a  constitutional  provision  so long  as  the  addition  or supplementation  is not inconsistent with any  provision  of the Constitution.  I am, therefore, unable to appreciate the relevance  of  the  State’s reliance  on  the  passage  from Crawford’s  Statutory Construction (Ed. 1940 pages  334-335) to  the effect that if a statute enumerates the things  upon which it has to operate, everything else is necessarily  and by  implication excluded from its operation and its  effect. As I have said more than once in my judgment, the one common thread which runs through the argument of the State is  that the Constitution must be deemed to have impliedly prohibited the imposition of the control of the Central executive  over the  State  executive except in emergencies, and  since  the Commissions of Inquiry Act transgresses that  constitutional prohibition,   it  is  void.   The  very  assumption   being unfounded,  the  supposed consequence has  to  be  rejected. Besides,  the  doctrine  of  implied  prohibition  which  is necessarily  based on the principle of inherent  limitations has  been rejected by this Court in the  Fundamental  rights case(1)  and  in Shrimati Indira Nehru Gandhi  v.  Shri  Rai Narain(2). I  am, therefore, of the opinion that though the suit  filed by the State of Karnataka is maintainable under Article  131 of   the  Constitution,  the  notification  issued  by   the Government  of India on May 23, 1977 is within the scope  of section  3(1)  of the Commissions of Inquiry Act,  1952  and that the Act is not unconstitutional for any of the  reasons mentioned on behalf of the State Government.  Accordingly, I agree respectfully with the conclusions reached by my  .Lord the Chief Justice in the case. BHAGWATI,  J.-I  entirely  agree  with  the  judgment   just delivered  by my learned brother Chandrachud so, far as  the merits  of the claim in the suit are concerned, but  on  the question of maintainability of the suit under Article 131 of the  Constitution, I would like to express my opinion  in  a separate judgment, not only because the constitutional issue it raises is one of some importance, but also because I find that though there was some discussion in regard to the scope and ambit of this article in the judgment delivered by me on behalf  of my learned brother Gupta and myself in the  State of Rajasthan (1)[1973] Supp.  S.C.R. 1,608, 916-917, 977-78. (2)[1976] 2 S.C.R. 347. 115 v.   Union of India(1) it did not take into account  certain aspects of the, question and a fuller consideration appeared to be clearly necessary.  The facts giving rise to the  suit are set out in detail in the judgment pronounced by my  Lord the  Chief  Justice  and  hence  it  is  not  necessary   to reiterate-them.  Suffice it to state that the Suit has  been filed  by the State of Karnataka against the Union of  India to  quash  a notification issued by the  Central  Government setting  up a Commission to inquire into certain charges  of corruption and nepotism against the Chief Minister and  some other ministers of the State of Karnataka.  The question  is whether  the  suit  is maintainable under Art.  131,  for  a preliminary  objection  against the maintainability  of  the suit  has been raised by the _ learned Additional  Solicitor General on behalf of the Union of India. The  answer  to the question depends primarily on  the  true interpretation  of  Art. 131.  This article confers  on  the Supreme  Court,  subject  to the  other  provisions  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 111 of 161  

Constitution,   exclusive  original   jurisdiction  in   any dispute-(a) between the Government of India and one or  more States, or (b) between the Government of India and     any State or States on one side and one or more other States on the  other, or (c) between two or more States, if and in  so far as the     dispute involves any question (whether of law or fact) on which the    existence  or  extent  of  a  legal right  depends.   It  is clear on a plain  reading  of  this article  that  it does not lay down any particular  mode  of proceeding   for  exercise  of  the  original   jurisdiction conferred  by it.  No doubt, Part III of the  Supreme  Court Rules  contemplates  that the Original jurisdiction  of  the Supreme  Court under this article shall be invoked by  means of  a suit, but that is not the requirement of  the  article and  in interpreting it, we should be careful not  to  allow ,our  approach to be influenced by considerations of  ’cause of action’ which are germane in a suit.  The scope and ambit of the original jurisdiction must be determined on the plain terms of the article without being inhibited by any a priori considerations. Now,  plainly  there are two limitations in  regard  to  the dispute which can be brought before the Supreme Court  under Article  131.  One is in regard to parties and the other  is in regard to the subject-matter.  The article provides in so many  terms that the dispute must be between the  Government of  India  and  one or more States or between  two  or  more States.  The object of the article seems to be that since in a   federal   or   quaasi-federal   structure,   which   the Constitution seeks to set up, disputes may arise between the Government of India; and one or more States, or between  two or  more  States,  a  forum  should  be  provided  for   the resolution  of  such disputes and that forum should  be  the highest  Court  in the land, so that final  adjudication  of such  disputes could be achieved speedily and  expeditiously without  either party having to embark on a  long,  tortuous and  time consuming journey through a hierarchy  of  Courts. The  article  is a necessary concomitant of a federal  or  a quasi-federal  form of Government and it is  attracted  only when the parties to the dispute are the Government of  India or  one or more States arrayed on either side.  This is  the limitation  as  to  parties.  The  other  limitation  as  to subject-matter flows from the (1)A.T.R. 1977 S.C. 1361. 116 words "if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a  legal right depends".  These words clearly indicate  that the dispute on affecting the existence or extent of a  legal right and not a dispute on the political plane not involving a  legal aspect.  It was put by Chandrachud, J., very  aptly in his judgment in the State of Rajasthan v. Union of  India (supra)  when he said : "Mere wrangles  between  governments have  no place under the scheme of that article. It is  only when a legal, as distinguished from a mere political,  issue arises  touching  upon the existence or extent  of  a  legal right that the article is attracted.  Hence the suit in  the present  case would obviously not be maintainable unless  it complies with both these limitations. The  contention of the learned Additional Solicitor  General on  behalf  of  the Union of India was  that  the  test  for determining the maintainability of the suit was not  whether the  right of the Central Government to set up a  Commission of  Inquiry against the, Chief Minister and other  ministers of  the State of Karnataka was questioned in the  suit,  but whether  the  impugned  action  of  the  Central  Government

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 112 of 161  

infringed  any  legal  right  of the  State.   Even  if  the impugned action of the Central Government were invalid and I must  assume  it  to  be  so  in  order  to  determine   the maintainability  of  the suit the question is  as  to  whose legal  right would be infringed : who would have a cause  of action ? Can the State say that its legal right is infringed and  is  therefore,  entitled to maintain  the  suit  ?  The learned  Additional Solicitor General submitted  that  since the  impugned action of the Central Government was  directed against the Chief Minister and other ministers of the State, the  legal  right  infringed  would be  that  of  the  Chief Minister  and the concerned ministers and they would have  a cause of action against the Union of India since they  would be  prejudicially  affected by the executive action  of  the Central  Government which is alleged to be in  contravention of the Constitution and the law.  They have a legal right to immunity from subjection to the unconstitutional exercise of power by the Central Government and this right can certainly be enforced by them.  But that would be by way of a petition under  Article 226 or Article 32, if a fundamental right  is involved, and not under Art. 131.  Even the State Government may be said to have a cause of action on the ground that the impugned  action  of  the  Central  Government  affects  its personnel,  namely, the Chief Minister and  other  ministers and  the  State Government may legitimately  claim  to  have sufficient interest to maintain a petition under Art. 226 to challenge  the impugned action.  But it cannot file  a  suit under  Article  131 because it is only the State  which  can maintain  such  a suit and not the  State  Government.   The learned  Additional  Solicitor General  contended  that  the expression  used  in Article 131 is ’State’ and  not  "State Government"  and there is a fundamental distinction  between ’State’  and  ’State Government’ and it is,  therefore,  not enough to attract the applicability of Article 131 that  the State  Government should have a cause of action.  It is  the State whose legal right must be infringed and who must  have a cause of action in order to invoke the jurisdiction  under Article 131.  The impugned action of the Central  Government in the present case, argued the learned Additional Solicitor General, affects the legal right of the Chief Minister 117 and  the concerned Ministers and also possibly of the  State Government, but it does not infringe the legal right-of  the State as a legal entity as distinct from the legal right  of its  executive agent, namely, the State Government  and  the State is, therefore, not entitled to maintain the suit under Article  131.   This contention of  the  learned  Additional Solicitor  General is, in my opinion, not well  founded  and cannot be sustained. There  are  two fallacies underlying the contention  of  the learned  Additional Solicitor General.  One is in drawing  a rather  rigid,  watertight distinction between  ’State’  and ’State  Government’  in the context of Article 131  and  the other,  in assuming that it is only where a legal  right  of the  plaintiff is infringed that the suit can be  maintained by  the plaintiff under that article.  Turning first to  the distinction  between  ’State’ and ’State Government,  it  is true  that theoretically this distinction does exist and  it finds recognition in sub-.sections (58) and (60) of  section 3 of the General Clauses Act, 1897.  The majority judges  in the  State  of  Rajasthan v. Union  of  India  (supra)  also accepted  that  there is a distinction between  ’State’  and ’State   Government’.    Willoughby  points  out   in   "The Fundamental  Concepts  of  Public  Law"  at  page  49:  "The distinction   between  the  State  and  its  Government   is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 113 of 161  

analogous  to  that between a given human individual,  as  a moral  and  intellectual person, and his  material  physical body.   By  the  term ’State’ is  understood  the  political person  or entity which possesses the law making right.   By the term ’Government’ is understood the agency through which the will of the State is formulated, expressed and executed. The Government thus acts as the machinery of the State,  and those  who operate this machinery-act as the agents  of  the State’.  And to the same effect are the observations, of the United States Supreme Court in Poindexter v. Greenhow :  (1) "The State itself is an ideal person, intangible,  invisible and  immutable.   The Government is an agent. . .  .  ".  It would  thus be seen that the State Government is  the  agent through which the State exercises its executive power.  Now, if  the  State Government is the agent  through  which  the- State  expresses  its will, it is difficult to see  how  the State  can  be  said to be unconcerned  when  any  right  or capacity   or  lack  of  it  is  attributed  to  the   State Government.  It would be wholly unrealistic to suggest  that since  the State Government is distinct from the State,  any action  or  capacity or lack of it in the  State  Government would  not  affect  the State and the  State  would  not  be interested  in  it.  This is to ignore  the  integral  rela- tionship  between  the ’State’ and the  ’State  Government’. Any  action  which  affects  the  State  Government  or  the ministers  in  their  capacity  as  ministers-for  in   that capacity  they would be acting on behalf of the  State-would raise a matter in which the State would be concerned.  It is true that analogies and metaphors are apt to mislead and  it would  be  unsafe  to base an argument  upon  them,  but  to reinforce what I have said, I may take the analogy given  by Willoughby in the above quoted passage and ask the  question :  if any action or capacity or lack of it is attributed  to the "material physical body", would it not be ascribable  to the individual whose body it is and would he not be affected by it ? I agree with Dr. Rajeev Dhavan and Prof.  Alice (1)  29 Law.  Ed., 185. 118 Jacob  when  they say in their forthcoming  article  on  the Assembly dissolution case namely, the State of Rajasthan  v. Union  of India that: "Any communication that is made  to  a Chief  Minister  in  his capacity  as  Chief  Minister"  and equally  to a minister in his capacity as minister,   " must create a matter which involves the State".  S. Murtaza Fazal Ali, J., in the State of Rajasthan v. Union of India  sought to make a distinction between permanent institutions of  the State  and  their  changing personnel and  observed  :  "The question  as to the personnel to run these  institutions  is wholly unrelatable to the existence of a dispute between the ’State’  and  the ’Government of India’.  It  is  only  when there  is  a  complete abolition of  any  of  the  permanent institutions of a State that a real dispute may arise." I do not  think that this is a valid distinction for  determining when  a  dispute  can be said to be one with  the  State  as distinct   from   the  per-sons   constituting   the   State Government.  To quote again from the forth-coming article of DR.  Rajeev  Dhawan  and  Prof.   Alice  Jacob:  "The   hair splitting  distinction  cannot  be  between  the,  permanent institutions of the State and the nonpermanent  institutions of the, State; nor can it be between actions which limit the powers  of  the officials of the Government of a  State  and those that abolish the institutions of the State.  The  hair splitting distinction is between those actions which can  be attributed  to the State or any official thereof  and  those actions which are personal and not ascribed to the officials

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 114 of 161  

in their capacity as officials of the State-A letter sent to the  Chief  Minister questioning his- capacity or  power  to rule as Chief Minister may not allege lack of confidence  in the  Chief  Minister  as person, wife,  husband,  father  or friend.  It alleges lack of confidence in the Chief Minister in  his  capacity  as  Chief Minister."  I  find  myself  in agreement  with  this opinion and I wholly  endorse  it.   I would,  therefore, hold that when any right or  capacity  or lack of it is attributed to any institution or person acting on  behalf  of the State, it raises a matter  in  which  the State  is  involved or concerned.  The State would,  in  the circumstances, be affected or at any rate interested, if the Chief  Minister  and other ministers in  their  capacity  as such,  or to put it differently, in the matter of  discharge of    their   official   functions,   are    subjected    to unconstitutional   exercise   of  power   by   the   Central Government.   If  the  Central Government were  to  issue  a direction  to  the  Chief Minister and  other  ministers  to exercise  the executive power of the State in  a  particular manner,  the  State  would  be  clearly  affected  if   such direction  is  unconstitutional  and would  be  entitled  to complain against it.  Then is the position any different, if the  Central  Government,  instead,  proceeds,  without  any constitutional authority, to inquire how the executive power of  the State is exercised by the Chief Minister  and  other ministers  and whether it is exercised in a  proper  manner. The  State  would  clearly  in such a  case  have  locus  to challenge   the  unconstitutional  action  of  the   Central Government- It  may  also  be noted that, on a  proper  construction  of Article  131, it is not necessary that the plaintiff  should have  some legal right of its own to enforce, before it  can institute  a suit under that article.  It is not a sine  qua non of the applicability of article 131 that there should be infringement  of  some legal right of the  plaintiff.   What article  131 requires is that the dispute must be one  which involves a 119 question  "on which the existence or extent of  legal  right depends".   The  article does not say that the  legal  right must be of the plaintiff.  It may be of the plaintiff or  of the  defendant.  What is necessary is that the existence  or extent  of the legal right must be in issue in  the  dispute between the parties.  We cannot construe Article 131 as con- fined to cases where the dispute relates to the existence or extent  of  the legal right of the plaintiff for to  do  so, would  be to read words in the article which are not  there. It  seems  that because the mode of proceeding  provided  in Part  III of the Supreme Court Rules for bringing a  dispute before  the Supreme Court under Article 131 is a suit,  that we  are  unconsciously influenced to import  the  notion  of ’cause  of  action,  which  is germane in  a  suit,  in  the interpretation  of Article 131 and to read this  article  as limited  only  to  cases  where  some  legal  right  of  the plaintiff is infringed and consequently, it has a ’cause  of action’  against the defendant.  But it must  be  remembered that there is no reference to a suit or ’cause of action’ in Article  131  and that article confers jurisdiction  on  the Supreme Court with reference to the character of the dispute which  may  be  brought before  it  for  adjudication.   The requirement of ’cause of action’, which is so necessary in a suit,  cannot, therefore, be imported while  construing  the scope  and ambit of Art 131.  It is no doubt true, that  the judgment delivered by me in the State of Rajasthan v.  Union of  India  proceeds  on the assumption  that  a  suit  under

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 115 of 161  

Article  131  can be Instituted only if some  right  of  the plaintiff  is infringed, but there was no proper  discussion of this question in the course of the arguments in that case and   on  fuller  consideration,  I  think  that   no   such restriction  can be imported in the construction of  Article 131  so  as to narrow down the ambit and  coverage  of  that article.  The only requirement necessary for attracting  the applicability of Article 131 is that the dispute must be one involving any question "on which the existence or extent  of a legal right" depends, irrespective whether the legal right is claimed by one party or the other and it is not necessary that  some legal right of the plaintiff should be  infringed before  a  suit  can be brought  under  that  article.   The plaintiff  must  of  course be a party to  the  dispute  and obviously  it cannot be a party to the dispute unless it  is affected  by  it.  The plaintiff cannot raise a  dispute  in regard  to a matter which does not affect it or in which  it is  not  concerned.   It  cannot  act  as  a  mere  busybody interfering with things which do not concern it.  But if the plaintiff  has interest in raising the dispute in the  sense that  it is affected by the action taken, it can  bring  the dispute before the Supreme Court under Article 131, even  if no  legal right of its is infringed, provided of course  the dispute  is relatable to the-existence or extent of a  legal right. It  would also be convenient at this stage to consider  what is  the meaning of the expression ’legal right’ as  used  in Article  131.  It is obvious that the word ’right’  is  used here  in  a generic sense and not according to  its-  strict meaning.   ’Right’  in  its  narrow  sense  constitutes  the correlative  of duty, but in its generic sense  it  includes not  only  right  strict to sensu,  but  "any  advantage  or benefit conferred upon a person by a rule of law".  Dias  in his jurisprudence, 1976 ed., pages 33-34, says that the word ’right’  has  undergone  successive shifts  in  meaning  and Hohfeld in his "Fundamental Legal Concepts as Applied 120 to  Legal  Reasoning" gives four different meanings  of  the word  right,.   One is right strict to sensu, the  other  is liberty, the third is power and the fourth is immunity.   In its  strict sense ’right’ is defined-as interest  which  the law  protects  by  imposing corresponding  duty  on  others. ’Liberty’  is  exemption from the right of another  and  its correlative  is  no-right’ and in the same  way  ’power’  is ability  to  change the legal relations of another  and  its correlative   is   liability.   Similarly,   ’immunity’   is exemption   from  the  legal  power  of  another   and   the correlative of immunity is disability.  To illustrate, where there is a right stricto sensu in A, there is a  correlative duty  in B to do X. Similarly, where A has liberty to do  X, there is a correlative no-right in B to interfere in  regard to it.  The correlative of, power in A is liability in B  as regards  X and similarly, where there is immunity in A  from the legal power of B, its correlative is disability in B  as regards X. These are the four different jural  relationships recognised  by  law  and they are  comprehended  within  the generic  term ’right’.  Now, there can be no doubt that  the word  ’right’ is used in Article 131 in this generic  sense. If,  for  example,  the  State  claims  to  be  entitled  to legislate  exclusively on a particular matter on the  ground that  it  falls within List III of the VII Schedule  to  the Constitution and the Union of India questions this right  of the  State,  the dispute would be one relating, not  to  any right  of the State in the strict sense of the term, but  to the  ’liberty’ of the State to legislate on such matter  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 116 of 161  

it would come directly within the terms of Art. 131.  Even a dispute  relating  to  the power of the Union  of  India  to abolish  the legislative assembly of a State or to  dissolve it would fall within the scope and ambit of Art. 131 as held expressly  by  Chandrachud, J., Gupta, J.,  and  myself  and impliedly  by Beg, C.J., in the State of Rajasthan v.  Union of  India.   What  has, therefore, to be seen  in  order  to determine the applicability of Art. 131 is whether there is, any  relational  legal matter involving  a  right,  liberty, power or immunity qua the parties to the dispute.  If  there is, the suit would be maintainable, but not otherwise. The   question  which  arises  for  consideration  on   this interpretation  of Art. 131 is whether there is any  dispute between  the  State  of Karnataka and  the  Union  of  India involving  a  question as to the existence or  extent  of  a relational  legal  pattern within the generic sense  of  the term ’right.  It is true that it may not be possible to  say that  by  reason  of  the impugned  action  of  the  Central Government in setting up a Commission of Inquiry against the Chief Minister and other ministers who constitute the  State Government, any legal right of the State is infringed,  but, as already pointed out above, it is not necessary, in  order to  invoke the jurisdiction of the Supreme Court under  Art. 131,  that the State should be able to show that some  legal right of ots ps breacheds.  That is enough to show that  the averments in the led, not as a busy body or as a  meddlesome interloper, but in a real sense in questioning the power  of the Central Government to set Up such Commission of Inquiry. If  we  look  at the averments in the plaint,  and  for  the purpose of determining the question of jurisdiction we  must proceed on the assumption that the averments are correct, it is clear that according to the claim made by the State,  the legislature of the State and the State Government alone have power  to  investigate and control  misuse  of  governmental power by the Chief Minister 121 other ministers of the State and the Central Government  has no power to inquire into the same or to set up a  Commission of Inquiry or that purpose.  This claim of the State clearly raises a dispute as to the extent of the power of the  State and  the existence of a superior or coordinate power in  the Central Government to inquire into the conduct of the  Chief Minister and other ministers of the State in the.  discharge of  their governmental functions.  Such a  dispute  concerns the  content of the respective powers of the State  and  the Union of India and the inter se relationship between the two entities  :and the State is vitally interested in  it.   The State  is  very much concerned whether the  conduct  of  its council  of  ministers  in  the  discharge  of  governmental functions  can be inquired into only by itself  through  its own  agency or it can also be subjected to scrutiny  by  the Union of India.  The State would certainly have locus to say that  the Union of India has no right to encroach  upon  its exclusive  power to investigate into misuse of  governmental power  by its council of ,ministers.  There can be no  doubt that, apart from its council of ministers the State can also competently  make  a  claim that the  council  of  ministers acting on its behalf is immune from subjection to the  power of  the Central Government to inquire into their conduct  as ministers.  This immunity claimed in respect of the  council of  ministers  can  be  ascribed to the  State  and  it  can certainly  raise  a dispute touching upon the  existence  of this  immunity.   So  far  as dispute as  to  the  scope  of respective  legislative fields between the Commonwealth  and the States in Australia is concerned, it is now well settled

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 117 of 161  

as a result of the decision in Attorney General for Victoria v. The Commonwealth(1) that the Attorney-General of a  State ,can  sue  for a declaration of the  invalidity  of  Federal legislation  as  an  invasion of a  purely  State  field  of legislative power and similarly the Attorney-General for the Commonwealth   can  sue  a  State  in  order  to  obtain   a declaration of the invalidity of State legislation where  it encroaches  upon  the  legislative Dower  entrusted  to  the ,Commonwealth.   The High Court of Australia pointed out  in this  case  that the position was  correctly  summarised  by Gaven  Duffy, C.J., Evatt and Me Tiernan, JJ.  in  Attorney- General  for  Victoria  v.  The  Commonwealth  (2)  in   the following words : "It must now be taken as established  that the  Attorney-General of a State of the Commonwealth  has  a sufficient   title   to  invoke  the   provisions   of   the Constitution for the purpose of challenging the validity  of Commonwealth  legislation  which extends  to,  and  operates within. the State whose interests be represents".  Now, if a State  has  sufficient title to challenge  the  validity  of Union legislation on the ground that it interferes with  the exercise  of  State  legislative power,  it  must  follow  a fortiori  that  the  State would  have  locus  to  challenge unconstitutional exercise of power by the Central Government which  encroaches upon its exclusive sphere in  relation  to the  conduct of its Council of ministers.  The  State  would also  be  entitled to challenge the impugned action  of  the Central Government as unconstitutional, because it  prevents the  State from exercising its power to direct inquiry  into matters  which are specified in the notification  issued  by the Central Govern- (1)  71 C.L.R. 237 (2)  52 C.L.R. 533. 122 ment, by reason of proviso (a) to sub-section (1) of section the Commissions of Inquiry Act, 1952.  The suit filed by the State against the Union of India must, in the circumstances, be held to be maintainable under Article 131. Since,  however, the claim made by the State in the suit  is not  sustainable  on  merits as pointed out  by  my  learned brother  Chandrachud in his judgment, I agree with him  that the suit should be dismissed with costs. UNTWALIA J.-We agree that this suit should be dismissed with costs.   We  however regret our inability to concur  in  the view   expressed   by  Bhagwati  J.,  in   regard   to   the maintainability  of  the,  suit under, Article  131  of  the Constitution.   For the reasons stated hereinafter  we  have come  to the conclusion that the, suit is not  maintainable. We have also briefly discussed and decided the other  issues in   the   suit  on  merits.    While   generally   agreeing respectfully with the leading judgment of the learned  Chief Justice, we think it advisable. to add a few pages by way of our concurring note. The first issue in this suit is "Is the suit maintainable ?" Although the decision of this issue is interlined with other issues  settled  for  adjudication, it  can  be  dealt  with separately also. What, in substance, is this suit filed under Article 131  of the   Constitution  of  India  ?  Certain   allegations   of corruption,  nepotism  and favouritism in  relation  to  the administrative actions of the Chief Minister and some  other Ministers  of  the  State of Karnataka  were  made  by  some legislators  of  that  State.  A  memorandum  signed  by  46 legislators  of  the State containing  the  allegations  was forwarded  to the Central Government.  Its Home Minister  in

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 118 of 161  

his  letter  dated  April  26,  1977,  requested  the  Chief Minister  to give information and his comments  apropos  the allegations  made.  The Chief Minister, in his reply  letter dated May, 13, 1977, inter alia, challenged the authority of the  Central Government to call for an explanation and  make any  inquiry  in  the matter.  He claimed that  it  was  the exclusive  right  of  the  State to do  so.   It  seems,  to forestall  the appointment of any Commission of  Inquiry  by the  Central  Government, the State Government  hastened  to issue a notification on May 18, 1977 to set up some kind  of inquiry  in  respect of the allegations made,  although,  in terms  the inquiry was not specifically in relation  to  the various  charges  of misconduct and  maladministration  made against  the  Chief Minister and the other  Ministers.   The notification  was  issued  by  the  State  Government  under section  3 of the Commissions of Inquiry Act, 1952  (Central Act 60 of 1952) (hereinafter to be referred to as the  Act). Shri  Justice  Mir  lqbal Hussain, a retired  Judge  of  the Karnataka  High Court, was appointed as the sole  member  of the  Commission  of Inquiry by the State  Government.   Five days  later,  on May 23, 1977, the  Central  Government,  in exercise  of  their  power  under  section  3  of  the  Act, appointed another Commission consisting of a single  Member, namely, Shri Justice A. N. Grover,, 123 Judge of the Supreme court of India, to inquire into,- the allegations  in Annexures ’I’ and ’II’ to  the  notification excluding,  however, from the latter-"any matter covered  by the notification of the Government of Karnataka in the Chief Secretariat  DPAR  7  GAN 77, dated  the  18th  May,  1977". Thereupon  the of Karnataka filed the present suit  claiming certain-  relief  mainly on two grounds : (1)  On  a  proper interpretation  of  the  Act the  State  Government  is  the appropriate Government and not the Central Government to set up  a Commission of Inquiry; and (2) in the alternative  the provisions  in  the  Act in so far  as  they  authorise  the Central  Government to issue the impugned notification-  are ultravires  the  Constitution.  The first defendant  in  the suit  is  the Union of India, the second being  Shri  A.  N. Grover.   The  contest is by the first  defendant  only  and hereinafter  in this judgment it will be referred to as  the defendant.   In  substance  and  effect  the  claim  of  the defendant  is that it has got the legal right to  issue  the impugned  notification; the right conferred by Section 3  of the  Act is not ultravires the Constitution.  The  right  of the  State of Karnataka to institute the suit under  Article 131  is challenged mainly on the ground that the  nature  of the dispute, in the suit is such that it does not affect any legal right of the State. Under  Article  I of the Constitution, India is a  Union  of States.   The State of Karnataka is one of  the  constituent units  of the Union of India.  The concept of State is  that by  itself  it is an ideal person, a legal  entity.   It  is intangible,  invisible and immutable.  The Government, in  a sense,  is an agency through which the will of the State  is formulated,  expressed and executed.  Both  the  expressions have  been  separately defined in the General  Clauses  Act, 1917.  In relation to the existence of a dispute between the Union of India on the one hand and one or more States on the other, the expression used in Article 131 for the former  is the Government of India, signifying that the dispute may  be with  the  Government of India but the other  party  to  the dispute  must  be  the State only and not any  limb  of  the State-the  Government, this Legislature or-  the  Judiciary. Article  300  is  an  enabling  provision  to  describe  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 119 of 161  

Government  of India in a suit as the Union of India and  to enable  the Government of a State to sue or. be sued in  the name  of  the State.  If there is an invasion an  the  legal right of a State the agency through which the action will be commenced  may  well  be the Government of  the  State.   An inroad  upon  the right of the Government  may,  in  certain circumstances,  be  an inroad upon the legal  right  of  the State.   Article 300, therefore, merely prescribes the  mode of  describing a party to the suit.  The real answer to  the question  of maintainability, however, has got to  be  found from  the  words  of  Article  131  itself.   The  following conditions must exist for invoking the original jurisdiction of the Supreme Court under the said Article               (1)   The   dispute   must  be   between   the               Government of India and one or more States  or               between    two or more States; and               124               (2)   The  dispute must involve  any  question               whet law or of fact on which the existence  or               extent the legal-right depends. There  is some departure in this regard from the  correspond provision of Section 204 of the Government of India Act,  19 which is not necessary to be pin-pointed here.  In  specific terms  has not been stated in the Article as to whose  legal right  the question involved in the dispute must relate  and in  what  respect.   Chandrachud  J.,  in  this  regard  has expressed  his opinion  in the case of State of Rajasthan  & Ors. v. Union of India( 1) at page 1396 as follows               "It is sufficient in order that its provisions               may  apply that the plaintiff,  questions  the               legal or constitutional right asserted by  the               defendant,  be it the Government of  India  or               any other State". The  learned Chief Justice in his leading judgment  did  not decide  this question.  The other five Judges including  one of us (Untwalia J.) took a contrary view.  Yet, Bhagwati and Gupta  JJ.  on the facts of that case held  that  the  legal right of the State, the plaintiff, had been infringed.   The other three, even on merits, expressed an opposite view.  If we  may  say so with great respect, we are unable  to  agree with  the  view  aforesaid,  expressed  by  Chandrachud   J. Ordinarily  and  generally, in any suit  including  the  one under Article 131 the competition is between the legal right of  the  plaintiff and the defendant.   But  primarily,  and almost invariably, the plaintiff has to establish his  legal right in order to succeed in the suit.  As against the claim of  the  plaintiff, if the legal right of the  defendant  is established,  the suit is bound to fail.  But on failure  of either to establish his own legal right, the suit will still fail   because  the  plaintiff  cannot  succeed  unless   he establishes his legal right.  This proposition of law is  so clear  and axiomatic that the expression-"the  existence  or extent of a legal right" used in Article 131 undoubtedly  is meant to bring about this result.  It was neither necessary, nor perhaps advisable, to state further in the article  that the  dispute  must involve any question on which  the  legal right of the plaintiff must depend.  It is matter of  common experience that more often than not absence of a legal right in  one party helps the other party to establish  its  legal right and vice versa. In  the  case of King-Emperor v. Sibnath Banerji  &  Ors.(2) Lord  Thankerton opined at page 266 that "a Minister  is  an officer  subordinate to the Governor within the  meaning  of the  Government  of  India Act, 1935."  The  same  view  was expressed by Hegde J., in the case of A. Sanjeevi Naidu etc.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 120 of 161  

etc.  v. State of Madras and Anr.(3), with reference to  the provisions of the Constitution. In  the  present  case the inquiry set- up  by  the  Central Government is not against the State or the State Government. It  is against the Chief Minister and some other  Ministers. who are officers of the State. (1)  A.I.R. 1977 S.C. 1361. (2)  72 Indian Appeals, 241. (3)  [1970] 3 S.C.R., 505. 125 It  may be open to them to, take the plea in an  appropriate proceeding, such as a writ petition under Article 226 of the Constitution, ,that the action of the Central Government  is legal  and ultra vires.  Under Article 131A  (introduced  by the  42nd Amendment), the question of vires of section 3  of the Act may then have to be referred for the decision of the Supreme  Court  by  the  High Court.  But  that  in  no  way entitled  the State to invoke the original  jurisdiction  of the Supreme Court under Article 131.  The submission made by Mr. Lal Narayan Sinha on behalf of the plaintiff-State  that the  legal  right  of  the State has  been  invaded  by  the impugned  notification, is not correct.   Counsel  submitted that  it is only the States right to order an inquiry  under section  3 of the Act against its Ministers  acting  through its  Government, that the Central Government has  no  right, that  it  has put an impediment in the right of  the  State, Government to modify or issue a subsequent notification  for the  purpose  of enlarging or clarifying the  scope  of  the inquiry  and that it has, thus affected the legal  right  of the  State.  We find no substance in this  argument.   There may be a competition between the power of one authority  and the other, here in this case between the Central  Government and the State Government.  But unless the power exercised by one  authority  brings about a dispute  impinging  upon  the legal  right of the other authority, the latter cannot  come under Article 131 and say that merely because it was  within its  power  to  do so its legal right  is  affected  by  the illegal  exercise of the power by the other authority.   The said  exercise  of the power must directly or  by  necessary implication affected the legal right of the other authority. We may support the proposition by an illustration.  Suppose, the  Central Government, in pursuance of a law made  by  the Parliament  in respect of an: Entry in List II,, say,  Entry 8, relating to, intoxicating liquors, makes an order against a person residing in or an officer of any State.  The  order will  be  obviously  bad, as having  been  issued  under  an invalid law made by the Parliament.  Who can challenge  this order  ? Obviously the person affected or aggrieved  by  the order.  If the order does not affect the legal right of  the State  or the State Government (for the purpose  of  testing the argument, the two may be equated), can the State file  a suit  under  Article 131 merely because the order  has  been made  against  its resident in accordance with a  law  which encroached upon the exclusive legislative field of the State ? The answer, in our ,opinion, must be in the negative.   In the  instant case if the stand on merits taken on behalf  of the   State   Ministers  in  correct,  then   the   impugned notification is an invasion on their legal right.  They can’ press  into  service the power of the  State  Government  to order an inquiry  and  challenge the impugned notification,  but  the said notification can in no way be said to have affected  or restrained  the State Government from giving effect  to  its notification.               Some  help may be derived from the  definition

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 121 of 161  

             of  the word "State’ given at page  856-57  of               Vol. 81 Corpus, Juris Secundum. It says :               "The word ’State’ has various meanings, but as               used  in  the federal  Constitution,  acts  of               congress, and State statutes,               126               it  has a definite, fixed, and  certain  legal               meaning  as designating a member of the  Union               in contradistinction to the United States as a               nation................................               The  State is a legal entity, and is  entitled               to  the  fundamental rights,  privileges,  and               immunities belonging to every legal entity." If a restricted meaning were not to be given to the scope of the  suit  which  can  be  filed  under  Article  131,  very anomalous,  and sometimes absurd, results may follow and  it will  be difficult to put a dividing line and a stop to  the very  wide  scope  of  the  suit  resulting  from  such   an interpretation.  Any action taken by the Central  Government either  under  the  Act or otherwise.  against  any  citizen residing in, or an officer of the State could be  challenged by institution of a suit under Article 131 by the State  on’ the  ground  that the action of the  Central  Government  is ultra vires and Without any legal right.  The argument  that the  State  is  interested  in  protecting  its  people  and officers  when their legal right has been illegally  invaded by the Central Government and, therefore, it has a locus  to invoke  Article 131, in our opinion, is too obviously  wrong to be accepted. As  we  have  said above, a Minister is an  Officer  of  the State.  An order affecting him cannot confer a right of suit on the State under Article 131.  So the present suit, in our opinion,  is not maintainable.  We, however, do not  propose to non-suit the plaintiff on that ground alone, and  proceed to discuss the other issues. The  other two issues framed for consideration in this  suit are in the following terms :               "2.   Is the impugned notification ultra vires               the  powers  of the Central  Government  under               Sec. 3 of the Commissions of Inquiry Act ?               3.    If  section  3  of  the  Commissions  of               Inquiry Act authorises the Central  Government               to  issue  the impugned notification,  is  the               Section itself unconstitutional ?" Both  these issues may conveniently be dealt with  together. Several  points  of view were canvassed by Mr.  Lal  Narayan Sinha for the plaintiff with his usual clarity and precision but,  at times, because of the inherent difficulties of  the points involved and the case being one of first  impression, he  was obliged to change and modify his line  of  argument. Mr. Soli Sorabjee, the learned Additional Solicitor General, combated  the  arguments  of the  plaintiff  very  ably  and succinctly.   Eventually, the main points of attack  of  the plaintiff were crystallized in the following terms               1.    Our   Constitution  is  of   a   Federal               character  clearly defining and  dividing  the               legislative and the executive functions of the               Centre  and  the  States  and  their  inter-se               relationship.-  The judicial functions of  the               Judiciary are in a well-defined and demarcated               separate compartment..               127               2.    Except  to the extent permitted by  the,               Constitution  the Centre cannot encroach  upon               the  legislative  or executive  field  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 122 of 161  

             State.               3.    The  Act does not and  cannot  authorise               the Centre to set up a, Commission of  Inquiry               against the State Executive; Section 3 must be               read    down   to   save   it   from    ’being               constitutionally invalid.               4.    If  it be not possible to read down  the               Act  in the manner suggested then the  Act  is               invalid in so far as it authorises the  Centre               to set up a Commission of Inquiry against  the               State Executive.               5.    Such  a  law is beyond  the  legislative               competence  of  the  Union  Parliament  as  in               substance  and  in effect it  violates  either               expressly or by necessary implication  certain               provisions  of  the  Constitution,  its  basic               scheme,  or the fundamental back-bone  of  the               Centre-State relationship as enshrined in  the               Constitution.               6.    The  law having the effect as  aforesaid               will  really be a constitutional law  bringing               about  an amendment in the Constitution  which               is  obviously  not  permissible;  an  ordinary               legislation unless expressly permitted by  the               provision  of the Constitution cannot  in  any               way amend the Constitution.               7.    The   Act  is  beyond  the   legislative               competence  of  the Central Parliament  if  it               means authorisation by the Central  Government               of  any machinery for making inquiries in  the               executive  actions of the State Government  or               the  Chief  Minister  or  any  other  Minister               either collectively or individually.               8.    Strictly speaking the subject-matter  of               the present inquiry is not covered by the  Act               if  it  be held that it has  been  enacted  in               exercise of the power of the Parliament  under               Entry  94 of List I, Entry 45 of List  III  or               the  Residuary  Entry 97 of List I  read  with               Article 248 of the Constitution.               9.    Lastly  it was also submitted  that  the               scope, of the two inquiries one set up by  the               State  Govt. & the other by the Central  Govt.               are more or less the same.  Almost all matters               of  inquiry are over-lapping  and,  therefore,               the,  impugned  notification is  bad  on  that               account too. We  proceed  to   discuss and consider briefly,  as  far  as possible,  the propositions aforesaid, but not  strictly  in the order we have set out above. 128 Strictly  speaking,  our Constitution is not  of  a  federal character  where separate, independent and sovereign  States could  be  said to have joined to form a nation  us  in  the United  States of America or as may be the position in  some other countries of the World.  It is because of. that reason that sometimes it has been characterised as quasi-federal in nature.   Leaving the functions of the Judiciary  apart,  by and large the legislative and the executive functions of the Centre  and  the States have been defined  and  distributed, but, even so, through it all runs an overall thread or  rein in  the  hands  of  the Centre  in  both  the  fields.   The Parliament  has  the  exclusive authority  to  legislate  on matters  enumerated in List I. So has the State  Legislature the exclusive legislative power with respect to the  various

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 123 of 161  

entries  in List II.  Both have concurrent powers in  regard to  the  entries  of  List  III.   The  residuary  power  in accordance  with  Article 248 and Entry 97 of List  I,  lies with the Central Parliament.  It has got a predominant  hand in  respect  of  the matters in the concurrent  list  as  is apparent  from  Article 254.  Article 249 confers  power  on Parliament  to  legislate with respect to a  matter  in  the State  List, in the national interest.  When a  proclamation of emergency is in operation as provided for in Article 250, the  Parliament has got the power to legislate with  respect to  any matter in the State List.  Some inroad in the  State legislative  field  by  the  Centre  is  permissible   under circumstances  mentioned  in  Articles  252  and  253.    As provided for in Article 254 in some situations, the State is under an obligation to reserve a Bill for the  consideration of  the President and receive his assent before it  is  made into a law. "It  shall be the duty of the Union to protect  every  State against external aggression and internal disturbance and  to ensure  that the Government of every State is carried on  in accordance with the provisions of this Constitution".  (vide Art.  355,  emphasis supplied). In case of  failure  of  the constitutional machinery in States, provision has been  made in Article 356 for the Centre to assume legislative and exe- cutive powers but not the powers vested in or exercisable by a  High  Court of a State.  The effect  of  proclamation  of emergency  under  Article 352 is to  enlarge  the  executive power of the Union and extend it to the giving of  direction to  any State as to the manner in which the executive  power thereof  is to be exercised as provided for in Article  353. There  could  not have been, for obvious reasons,  any  such provision in regard to the administration of the Centre. The  administrative  relations between the  Centre  and  the States  are  by  and large governed  by  the  provisions  of Chapter II of Part XI of the Constitution.  While  providing in  Article  256 that "two executive power  of  every  State shall be so exercised as to ensure compliance with the  laws made by Parliament and any existing laws which apply in that State",  it is significant to note that it has further  been engrafted  therein that "executive power of the Union  shall extend  to the giving of such directions to a State  as  may appear  to the Government of India to be necessary for  that purpose."  The  control  of the Union  over  the  States  in certain  cases  has been provided for in Article  257.   Mr. Sinha  pointedly referred to Article 258A introduced in  the Constitution  by the Constitution (Seventh  Amendment)  Act, 1956, to lend support to his 129 argument.  But, in our opinion, instead of strengthening the point  as  urged,  it weakens it because  the  said  Article provides:               "258A.    Power  of  the  States  to   entrust               functions   to   the    Union.-Notwithstanding               anything in the Constitution, the Governor  of               a   State  may,  with  the  consent   of   the               Government    of   India,    entrust    either               conditionally   or  unconditionally  to   that               Government  or  to its officers  functions  in               relation to any matter to which the  executive               power of the State extends." of  course,  the Governor of a State would  mean  the  State Government  or the Council of Ministers and it is not  meant to  authorise the Governor to act in his discretion in  this regard. We may now refer to some other characteristics and  features

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 124 of 161  

of our Constitution to demonstrate the weak character of our federal structure and the controlling hand of the Centre  on States in certain matters.  Some of the salient ones are the following :               1.    The Governor of a State is appointed  by               the   President  and  holds  office   at   his               pleasure.   Only in some matters he has got  a               discretionary  power  but in  all  others  the               State  administration is carried on by him  or               in  his name by or with the aid and advice  of               the  Ministers.   Every  action,  even  of  an               individual  Minister,  is the  action  of  the               whole Council and is governed by the theory of               joint and collective responsibility.  But  the               Governor  is there, as the head of the  State,               the Executive and the Legislature, to,  report               to the Centre about the administration of  the               State.               2.    Making    a    departure    from     the               corresponding  provision in the Government  of               India Act, Entry 45 in List III of the Seventh               Schedule empowers the Parliament to  legislate               on  the  subject of "inquiries......  for  the               purpose  of  any of the matters  specified  in               List II" also besides List III, and List I  as               mentioned  in  Entry  94 of  that  List.   The               constituent   power   of  amendment   of   the               Constitution  lies with the  Parliament  under               Article 368 providing for concurrence by  half               the number of the States in certain matters.               3.    Article 2 empowers the Parliament by law               to  admit  into the Union, or  establish,  new               States  on  such terms and  conditions  as  it               thinks fit.               4.    Parliament is also empowered by  Article               3 to make law for the formation of new  States               and  alteration of areas, boundaries of  names               of existing States. Such is the nature of our federal structure. In State of West Bengal v. Union of India(1) in the majority judgment  delivered by B. P. Sinha, C.J., the character  and nature of (1)[1964] 1 S.C.R. 371. 130 our  federal  structure, has been discussed from  pages  396 onwards.   The  learned Chief Justice observed at  page  397 that in our Constitution the supreme authority of the Courts to  interpret  the  Constitution and  to  invalidate  action violative of the Constitution is to be found in full  force. "The  exercise  of powers legislative and executive  in  the allotted  fields is hedged in by numerous  restrictions,  so that  the powers of the States are not coordinate  with  the Union  and are not in many respects independent".   At  page 398   it  is  observed  :  "The  political  sovereignty   is distributed  between, as we will presently demonstrate,  the Union  of  India and the States with greater  weight-age  In favour of the Union". If  any  Article of the, Constitution in terms  permits  the Centre  to encroach upon the legislative and  the  executive field  of the State, as some of the Articles do, then  there could  be no doubt that the encroachment is perfectly  legal and valid.  If, however, either the law or the action  taken under it makes an inroad on the executive power of the State in  express violation of any provision of  the  Constitution or, even assuming, as was argued by Mr. Sinha, violating the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 125 of 161  

provisions  of  the Constitution by  necessary  implication, then  such  a law or the action taken  thereunder  would  be invalid.   The  Constitution does not permit the  Centre  to violate it in any matter. But  in  order to appreciate as to whether the  Act  or  the action taken by the Centre under Section 3 thereof has  gone against  the Constitution either expressly or  by  necessary implication,  one  has  to appreciate  the  nature  of.  the provisions   made  and  the  scope  and   functions.of   the Commission  in question.  The extent of the executive  power of  the Union is co-extensive with the legislative Power  of the  Parliament.  The position in respect of  the  executive power of the State is identical (’vide’ Articles 73 and  162 respectively).   Entry  94 in the Union  List  empowers  the Parliament to legislate concerning inquiries for the purpose of  any of the matters in that list, that is to say, if  any kind  of inquiry is necessary for any kind of  purpose  con- nected with any of the matters in List I then the Parliament is empowered to make a law for the setting up of a machinery or a Tribunal for the purpose of the said inquiry.  List  II does  not  contain any such entry.  Then comes Entry  45  in List III which has already been alluded to.  This authorises both  the  Central  and the State  Legislatures,  of  course subject  to  the other provisions of the  Constitution  e.g. Article  254, to enact law for the purpose of providing  for the  machinery  of inquiry for the purposes of  any  of  the matters  specified in List II and List III.  It has been  so held in the case of Shri Ram Krishna Dalmia v. Shri  Justice S.  R.  Tendolkar  &  Ors.(1) where  Das  C.J.  has  lucidly discussed  the  matter, if we say so with great  respect  at pages 289-291. Empowering  the  Central Legislature to make a law  for  the purpose  of  inquiry in regard to the matters  specified  in List II is in no sense empowering it to legislate  vis-a-vis such  matters.  It is only for the purpose of achieving  the object of the inquiry to be set up in regard (1)  [1959] S.C.R. 279. 131 to  the matters enumerated in List III.  The purpose may  be as  a  matter  of  policy in  relation  to  the  legislation proposed  to be passed by the various States or may be  with regard  to  their  executive  actions  taken  apropos   such matters.   We may just. illustrate our view by referring  to Entry  6  of  List  II., The.   State  Legislature  has  the exclusive  authority  to  legislate on  "public  health  and sanitation;  hospitals and dispensaries"; of course,  within the territory of that State.  The executive power being  co- extensive,  the  hospitals may be  established  and  doctors appointed therein by the State Government either in  accord- ance  with  the  law made in that regard  or  even  in  pure exercise  of  the  executive  power.   If  there  has   been corruption,  nepotism, favouritism or  maladministration  in connection  with  the  said executive action  of  the  State Government,  the law made under Entry 45 of  the  Concurrent List  can undoubtedly cover an inquiry in such matters.   It neither  interferes with the legislative power of the  State nor with its executive action.  A mere inquiry under the Act by a Commission appointed thereunder which is a fact-finding body, is for the purpose of finding the facts.  No body is a prosecutor;  no  body  is an accused; all  are  invited  and welcomed  by  the  Commission  to  assist  it  to  find  the necessary facts within the scope of the inquiry set up. In  passing  we may also refer to Entry 8 of List I  in  the Seventh  Schedule to the Constitution.  It is in respect  of "Central  Bureau.  of Intelligence and  Investigation."  The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 126 of 161  

Central  Parliament is therefore ,competent to legislate  on this topic and the Central Government can make an  executive order   asking  the  Central  Bureau  of  Intelligence   and Investigation to make any enquiry in relation to the acts of commission  and omission whether amounting to an offence  or not  of any person including any officer or Minister of  any State.  It that be so, will it be reasonable to say that the Commission appointed by the Central Government under the Act cannot  be  appointed for finding facts in relation  to  the allegations made against the Minister of a State ? Obviously not. It was strenuously submitted on behalf of the plaintiff that no  such  fact-finding Inquiry Commission could  be  set  up against   the  Judiciary  either  Subordinate   or   Higher. Reference was made to the cases of The State of West  Bengal v.  Nripendra Nath Bagchi,(1) and Shamsher Singh &  Anr.  v. State of Punjab (2) in support of this proposition.  But the exclusion of the inquiry under the Act against the Judiciary is  based on entirely different principles.  So far  as  the Subordinate  Judiciary is concerned, inquiry of this  nature will be impermissible on the. basis of the express  language of Article 235 as interpreted by this Court in the two cases referred to above and in various others.  The setting up  of such  an  inquiry against a High Court Judge  or  a  Supreme Court  Judge  will be barred because of  the  constitutional provisions  contained in clauses (4) and (5) of Article  124 read  with Article 218.  As a matter of fact  in  accordance with  clause (5) of Article 124 the Parliament  has  enacted the Judges Inquiry Act, 1968 (Act 51 at 1968). (1)[1966] 1 S.C.R. 771. (2)[1975] 1 S.C.R. 841, 132 As  already pointed out, in an inquiry set up under the  Act there  is no prosecution, no framing of a formal charge,  no accused  before  the  Commission of Inquiry.   There  is  no exercise of any supervisory or disciplinary jurisdiction  by the  Central Government against the State Government by  the appointment of a Commission, nor is there any usurpation  of any  executive  function of the State.   Reference  in  this connection may be made to the following cases M.   V.  Rajwade  v. Dr. S. M. Hasan & Ors,  (1)  Brajnandan Sinha  v. Jyoti Narayan(2) Shri Ram Krishna Dalmia  v.  Shri Justice S. R. Tendolkar & Ors, (3) State of Jammu &  Kashmir v.  Bakshi Ghulam Mohammad; (4) P.  V. Jagannath Rao &  Ors. v.  State of Orissa & Ors;(5) and Krishna Ballabh Sahay  and Ors. v. Commission of Enquiry & Ors.(6) The Centre, however, must be and is concerned with and interested in knowing  and ascertaining  facts as regards the allegations made  against any  Chief Minister, Minister or any other Officer  of  the. State Government. Now  let  us  proceed  to examine  the  matter  a  bit  more carefully  with reference to the other arguments of Mr.  Lal Narayan  Sinha.  Counsel submitted that neither the  Council of  Ministers  nor  any individual  Minister  is  under  the disciplinary  control of the Central Government, Setting  up of a Commission of Inquiry to find facts in relation to  the alleged misconduct or maladministration of the Ministers is, in substance and effect, an exercise of disciplinary control over them.  He further submitted that the State  Legislature to whom the Ministers are responsible is competent to set up an  inquiry against them in accordance with the  powers  and privileges  as provided for in Article 194.  It may  be  so. It  may  well be, as further argued by Mr. Sinha,  that  not only  the State Legislature but the State Government  itself is  competent  to appoint a Commission  of  Inquiry  against

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 127 of 161  

itself  or  its  Ministers  and  officers.   But  it  sounds incongruous  and highly anomalous that the State  Government would think of instituting an inquiry against itself.  It is equally strange to think that the Ministers in power,  while remaining  in office, would set up a Commission  of  Inquiry for  inquiring into their alleged misdeeds in the matter  of administration  of  the  State.  We  shall  assume  for  the purpose  of  argument  that  legally  and  technically   the position  is  correct.   Even so, how does it  lead  to  the conclusion  that their power is exclusive and  excludes  the power  of the Central Government under the Act?  We fail  to find any words in any of the Articles of the Constitution to indicate  that  the power of the State  Legislature  or  the State Government in this matter is exclusive.  It may be co- extensive.  and such a situation is  undoubtedly  postulated and provided for in the proviso appended to sub-section  (1) of section 3 of the Act.  Although technically and literally the Ministers are appointed by the Governor and hold  office at his pleasure, in reality, in the constitutional set up of our parliamentary democracy, the Governor in his  discretion cannot by (1) [I.L.R.] 1954, Nagpur 1.(2) [1955] 2 S.C.R. 955. (3) [1959] S.C.R. 279.   (4) [1066] 1 Suppl. S.C.R. 401. (5) [1968] 3 S C.R 789.  (6) [1969]  1  1 S.C.R. 387. 133 himself  set up a Commission of Inquiry against the  sitting Ministers,  nor  can  the President direct  him  to  do  so- emergency  provisions  in  Part  XVIII  apart.   What   then excludes  the  power of the Central Government to set  up  a Commission  of  Inquiry for finding facts in regard  to  the alleged maladministration of the Ministers or officers of  a particular  State.   Government?   After  ascertainment   of facts,  further action may follow or be taken in  accordance with  the  provisions of the Constitution or the  law.   But surely the Act does not, nor could it, provide for any  kind of  disciplinary action such as removal or suspension  of  a Minister  in  office by the Centre on ascertainment  of  the truth  of the alleged facts- against him-provisions  in  the Emergency  Chapter apart.  If it were otherwise  undoubtedly it will be encroaching upon he power of the State Government or  the State Legislature.  India is a single country  as  a whole.   The nation is one and one alone.  Leaving also  the special  provisions of Article 370 in relation to the  State of Jammu & Kashmir, there is no dual citizenship; there  are no. different nationalities. While  assailing the impugned notification Mr.  Lal  Narayan Sinha  has strenuously contended that Article 164(2) of  the Constitution   which   makes  the   Council   of   Ministers collectively responsible to the Legislative Assembly of  the State  indicates  that  a  Minister  is  in  no  other   way responsible, answerable or accountable for anything that  he does  while  in  office and he cannot  be  subjected  to  an inquiry   under  the  Commissions  of  Inquiry  Act.    This contention  is based on a misconception of the  true  import and meaning of the doctrine of collective responsibility and as such cannot be countenanced.  The following discussion on the  subject in "Representative and Responsible  Government" by A. H. Birch will be found useful in this connection :-               "Ministerial accountability to Parliament  has               two aspects : the collective responsibility of               Ministers  for the policies of the  Government               and  their individual responsibility  for  the               work  of  their departments.   Both  forms  of               responsibility  are  embodied  in  conventions               which   cannot  be  legally  enforced.    Both

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 128 of 161  

             conventions  were developed during  the  nine-               teenth century, and in both cases the practice               was   established  before  the  doctrine   was               announced (page 131)." In  "Government  and  Law" by T. C. Hartlay  and  J.  A.  C. Griffith,   the  position  in  regard  to   the   collective responsibility  of Ministers to the Legislature  is  tersely stated as under               "Ministers   are  said  to   be   collectively               responsible.   This  is  off-en  elevated   by               writers to the level of a ’doctrine’ but is in               truth  little more than a  political  practice               which    is   commonplace   and    inevitable.               Ordinarily,  Ministers form  the  governmental               team,   all  being  appointed  by  the   Prime               Minister from one political party.  A  Cabinet               Minister deals with his own area of policy and               does  not  normally have much to do  with  the               area of other Ministers.  Certainly no Cabinet               Minister  would  be  likely  to  make   public               statements which impugned               134               on the work of another Minister’s  department.               On   a   few  important  issues,   policy   is               determined  by the Cabinet  after  discussion.               Collective  responsibility means that  Cabinet               decisions bind all Cabinet Ministers, even  if               they  argued  in  the  opposite  direction  in               Cabinet.   But this is to say no more  than  a               Cabinet  Minister  who  finds  himself  in   a               minority must either accept the majority  view               or  resign.  The team must not be weakened  by               some  of  its members making clear  in  public               that  they  disapprove  of  the   Government’s               policy.   And  obviously  what  is  true   for               Cabinet Ministers is even more true for  other               Ministers.  If they do not like what the  team               is  doing,  they  must either  keep  quiet  or               leave" (page 60). Dealing with the collective responsibility of the Council of Ministers  to the Legislative Assembly of the State,  Sarkar C. J., speaking for the Court said at page 405 as follows in State of Jammu and Kashmir v. Bakshi Ghulam Mohammad(1) :               "Section 37 talks of collective responsibility               of  Ministers  to  the  Legislative  Assembly.               That only means that the Council of  Ministers               will  have  to stand or fall  together,  every               member being responsible for the action of               any other." From  the above, it is crystal clear- that the  doctrine  of collective responsibility on which Mr. Lal Narayan Sinha has so  heavily  leaned  does not grant immunity  to  the  State Ministers  from  being subjected to the  provisions  of  the Commissions  of Inquiry Act and the plaintiff can derive  no help from it. If the Act is really a constitutional law as understood  and explained  by  eminent scholars, surely the  Parliament  has transgressed  its  limits  in enacting such a  law.   It  is axiomatic  that the amendment of the Constitution cannot  be allowed  except as provided for in Article 368.   There  are certain  exceptions to it.  Examples of exceptions are  very few.  Numerous such examples given by Wanchoo J., as he then was,  in Golak Nath(2) case, at page 827, if we may  say  so with  great  respect, are not quite  accurate.   The  powers given  to a particular Legislature under any of the  Entries

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 129 of 161  

in  the respective Lists of the Seventh Schedule or  by  any particular Article of the Constitution are ,of the same kind and  quality;  as for example, when Articles 10,  59(3)  and 65(3) speak about a law to be made by the Parliament then it is  not  conferring a power in the Parliament to  amend  the Constitution.   The  power is an ordinary  legislative  one. But  there  are  a few Articles in the  catalogue  given  by Wanchoo  J., which empower the Parliament, in substance  and in   effect,  to  amend  a  particular  provision   of   the Constitution  by an ordinary legislative procedure and  that necessitated an express provision to say that no such law as aforesaid shall (1)  [1966] Suppl.  S.C.R. 401. Section  37  or  the  Constitution  of  Jammu  and   Kashmir corresponds to Article 164 of the Constitution of India, (2) [1967] 2 S.C.R. 762. 135 be  deemed  to be an amendment of the Constitution  for  the purposes of Article 368 vide, for example, Articles 4(2) and 169(3).  Although the law made under clause (1) of Article 4 and clauses (1) and (2) of Article 169 will be tantamount to an amendment of the Constitution, by a legal fiction clauses (2)  and (3) of the said Articles respectively provide  that such  law  shall  not be deemed to be an  amendment  of  the Constitution  and  the procedure prescribed by  Article  368 will not be necessary to be followed. A quotation from Hood Phillips’ Constitutional Law was given to us by Mr. Sinha to say:               "The Constitutional Law of a State is the  law               relating  to  the constitution of  that  State               (Page 1).  The Constitution of a State is  the               system  of laws, customs and convention  which               define the composition and powers of organs of               the  State and regulate the relations  of  the               various State organs to one another and to the               private citizen." (p. 4) It is not necessary to multiply the quotations.  In no sense the impugned law is a constitutional, law. Mr.  Sinha  also contended that an ordinary  law  cannot  go against the basic scheme or the fundamental back-bone of the Centre-State relationship as enshrined in the  Constitution. He put his argument in this respect in a very ingenious  way because he felt difficulty in placing it in a direct  manner by  saying  that an ordinary law cannot  violate  the  basic structure  of the Constitution.  In the case of Smt.  Indira Nehru  Gandhi  v.  Shri  Rai  Narain(1)  such  an   argument expressly  rejected by this Court.  We may rest  content  by referring  to  a passage from the judgment  of  our  learned brother Chandrachud J., at pages 669-670 which runs thus :               "The  Constitutional  amendments may,  on  the               ratio  of  the  Fundamental  Rights  case,  be               tested  on the anvil of basic structure.   But               apart  from the principle that a case is  only               an authority for what it decides, it does  not               logically follow from the majority judgment in               the  Fundamental  Rights  case  that  ordinary               legislation must also answer the same test  as               a  constitutional  amendment.   Ordinary  laws               have to answer two tests for their validity  :               (1  ) The law must be within  the  legislative               competence  of the legislature as defined  and               specified  in  Chapter  1,  Part  XI  of   the               Constitution  and  (2)  it  must  not   offend               against the provisions of Articles 13 (1 ) and               (2)  of the Constitution.  ’Basic  structure’,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 130 of 161  

             by the majority judgment, is not a part of the               fundamental  rights nor indeed a provision  of               the Constitution.  The theory of basic  struc-               ture  is  woven out of the conspectus  of  the               Constitution   and  the  amending   power   is               subjected  to it because it is  a  constituent               power.   ’The power to a mend the  fundamental               instrument  cannot carry with it the power  to               destroy its essential features this, in brief,               is the arch of the theory               (1)   [1976] 2 S.C.R. 347.               136               of basic structure.  It is wholly out of place               in   matters  relating  to  the  validity   of               ordinary laws made under the Constitution." The  doctrine of "implied prohibition", relied upon  by  Mr. Sinha,  lids  repeatedly  been rejected  by  the  Courts  in England, Australia and by this Court.  There is a  veritable roll call of such cases.  We may just refer to a few :  Webb and  Outrim,  (1)  followed in The  Amalgamated  Society  of Engineers  and  The Adelaide Steamship Company  Limited  and others(2) wherein at page 150 it has been stated :               "The doctrine of "implied prohibition" against               the  exercise of a power once  ascertained  in               accordance    with    ordinary    rules     of               construction,  was definitely rejected by  the               Privy Council in Webb v. Outrim, (1907)  A.C.,               81". Reference may also be made to The State of Victoria and  The Commonwealth of Australia. (8) These and many earlier  cases of  this  Court  were all considered  and  the  doctrine  of "implied    prohibition’   was   definitely   rejected    by overwhelming   majority   in  the  case  of   His   Holiness Kesavananda  Bharati Sripadagalavaru v. State of  Kerala,(4) popularly  known  as Fundamental Rights case.  We  may  just refer  to  the  observations of Palekar  J.,  at  page  608, Dwivedi J., at page 916 and Chandrachud J., at page 977.  To the same effect is the view expressed by Ray J., as, he then was,  Khanna  J.,  and others.  The  power  granted  to  the Central Legislature under Entry 45 of the Concurrent List is clear and explicit I for passing a law of inquiry in  regard to any of the matters in List II.  That being so, the  power cannot   be   curtailed   on  the   doctrine   of   "implied prohibition".  As a matter of fact one had to search in vain the basis for even applying this doctrine in this, case. Wynes  in  his  book "Legislative,  Executive  and  Judicial Powers  in Australia," Fourth Edition has said at  pages  12 and 13:               "The  only  way  in  which  the  Court   could               determine  whether  the prescribed  limits  of               legislative power had been exceeded or not was               "by looking to the terms of the instrument  by               which,  affirmatively, the legislative  powers               were  created, and by which  negatively,  they               are restricted."                ............................................               "The  effects  of  the  Engineers’  case  upon               Commonwealth State relations are considered in               Chap.   IX.   What is  important  for  present               purposes are the principles of  interpretation               there  laid  down and acted upon  ever  since.               The rejection of the doctrines of mutual  non-               interference and State reserved powers has had               a profound effect upon the Constitution               (1)   (1907)A.C. 81.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 131 of 161  

             (2)   28 Commonwealth Law Reports, 129.               (3)   122 Commonwealth Law Reports 353.               (4)   [1973] Suppl.  S.C.R. 1.               137               inevitably leading to what Professor Sawer has               described as an "expansive" interpretation  of               federal  powers.   For it  followed  from  the               principle    that   Dominion   and    Colonial               Legislative  powers are plenary  (a  principle               from which the High Court has never  deviated)               and  an interpretation of specific  grants  of               power read in their entirety without regard to               a  reservation  of all  non-specified  powers,               that the enumerated powers of the Commonwealth               were  to be read in their full  sense  subject               only  to  the  prohibitions  expressly  or  by               implication set upon them in the  Constitution               itself.    And  the  express   provision   for               supremacy of Commonwealth over State laws  in-               the  event of conflict completed the  process;               as   Dixon  C.  J.  remarked  in   1947,   the               Commonwealth  is  bound to be  in  the  better               position,  because  it  is  a  Government   of               enumerated powers." There is, in our opinion, no justification for reading  down the  provisions of the Act, viz.  Sections 2 and 3, nor  are the   said  provisions  ,constitutionally  invalid  on   any account. It  is  not  necessary for us to discuss or  deal  with  any detail the last submission made on behalf of the  plaintiff. It  was  a faint, weak and hesitant argument to  escape  the Commission of Inquiry appointed by the Centre.  The  grounds of  mala tides, somewhat vaguely and faintly alleged in  the plaint,  could not be and were not, pressed at the  time  of the hearing of the suit.  What was, however, argued for  our consideration  was that the two inquiries-one set up by  the State  earlier and the other appointed by the Centre  later- are  almost one and the same; they cannot be allowed  to  go side  by  side.   However the fact that  the  Commission  of Inquiry appointed by the Centre is for the purpose of making an  inquiry  into the definite matter of  public  importance within  the meaning of Section 3(1) of the Act could not  be and  was not disputed.  The only point debated  was  whether another  Commission appointed by the Central  Government  to inquire  into  the same matter for which  a  Commission  had already been set up by the State Government is violative  of proviso  (b) to section 3(1).  But there is no substance  in this  argument.   Firstly,  the notification  of  the  State Government  has  not in terms appointed any  Commission  for inquiry  into the matters of alleged  corruption,  nepotism, favouritism  and maladministration of the Chief Minister  or any  other  Minister of the Government  of  Karnataka.   The items  specified  in clauses (I) to (XXXII) are said  to  be "irregularities committed or excess payments made in certain matters  relating to contracts, grant of land, allotment  of sites, purchase of furniture, disposal of food-grains  etc.’ In  none of those clauses it is mentioned as to who is  said to   be  responsible  for  the  alleged  irregularities   or maladministration.   There  is no reference to  any  alleged misconduct,  corruption  or maladministration of  the  Chief Minister or of any other Minister.  The last clause (XXXIII) is very vaguely and conveniently worded.  It says- "Who  are  the persons responsible for the lapses,  if  any, regarding the aforesaid and to what extent ?" 138

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 132 of 161  

The  terms  of reference in the Notification issued  by  the Centre is to inquire into the specific matters enumerated in Annexure 1, none of Which is covered by the notification  of the  State Government, as for example, item I of Annexure  I reads thus               "Whether   the   Chief   Minister    practised               favouritism and nepotism by appointing his own               brother,  Shri D. Komparaj Urs, as a  Director               of   the’  Karnataka  State  Film   Industries               Development Corporation in place of Shri R. J.               Rebello, Chiet Secretary to the Government, in               1974, and later as Director-in-Charge with the               powers  to  exercise  all the  powers  of  the               Managing Director.’ In  regard to the specific matters in Annexure II there  may be found some common matters which are the subject-matter of inquiry by the State Government but then, as we have already stated,  in  regard  to  the  matters  in  Annexure  II  the notification in clear terms excludes ,any matter covered  by the  notification of the Government of Karnataka dated  18th May,  1977.   The  Grover Commission,  therefore,  would  be competent  to exclude such matters from the purview  of  its inquiry. KAILASAM,  J.-This suit is filed by the State  of  Karnataka against  the  Union of India through the  Secretary  to  the Government  of India, and Shri A. N. Grover,  Commission  of Inquiry  to  inquire into charges of  corruption,  nepotism, favouritism  and  misuse of governmental power  against  the Chief Minister and other Ministers of the State of Karnataka under  Article  131  of the  Constitution  of  India.   The, reliefs prayed for in the suit are :               (a)   to  declare that ’the  notification  No.               SO.    No.   365(E)   dated   May   23,   1977               constituting  the  Commission  of  Inquiry  in               purported  exercise of powers under Section  3               of the Commissions of Inquiry Act as  illegal,               ultra  vires;  and  unconstitutional  and  not               authorised by law;               (b)   to  declare that the provisions  of  the               Commissions  of  Inquiry  Act,  1952  do   not               authorise the Central Government to constitute               a  Commission of Inquiry in regard to  matters               falling  exclusively within the sphere of  the               State’s legislative and executive power; or               (c)   in  the  alternative, declare  the  said               provisions  of the Commissions of Inquiry  Act               as   ultra  vires  both  the  terms   of   the               Constitution as well as the federal  structure               implicit  and  accepted  as  inviolable  basic               feature of the Constitution;               (d)   for  a perpetual injunction  restraining               the  respondents  from acting  or  taking  any               further  steps  in furtherance  of  the  noti-               fication  No. S.O. No. 365(E) dated 23rd  May,               1977. The facts of the case briefly are : The Union Home  Minister addressed a communication dated April 26, 1977 to the  Chief Minister  of  the State of Karnataka enclosing a copy  of  a memorandum  of  allegations purporting to  be  submitted  by certain  members  of the opposition party in  the  Karnataka State Legislature seeking his comments thereon. 139 The Chief Minister of the State of Karnataka replied to  the Union  Home Minister on May 13, 1977 answering  the  various allegations  and charges.  The Chief Minister  of  Karnataka

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 133 of 161  

also questioned the powers of the Central Government to  ask for  the comments of the State Government.  On May 18,  1977 the   State  Government  by  a  notification   appointed   a Commission of Inquiry under section 3(1) of the  Commissions of Inquiry Act, 1952 to inquire into various allegations and irregularities  specified  in the notification.   The  Chief Minister  also  addressed a letter on May 18,  1977  to  the Union Home Minister informing him on the appointment of  the Commission.  On May 23, 1977 by a notification the Union  of India  appointed  another  Commission  of  Inquiry  for  the purpose of inquiring into charges of corruption, favouritism and misuse of governmental power against the Chief  Minister and other Ministers of the State of Karnataka. In  this  suit  the  action  of  the  Union  Government   in constituting  a Commission of Inquiry under section 3(1)  is challenged  as  illegal, ultra vires  and  unconstitutional. The  contention of the State Government is that the  Central Government  has no jurisdiction or authority  to  constitute the  Commission  of Inquiry in the exercise  of  its  powers under  the Commissions of Inquiry Act, 1952.  The  plaintiff contended  that the impugned notification is destructive  of the  federal  structure of the Constitution  and  scheme  of distribution of powers that the Constitution does not confer any  supervisory  or  disciplinary  control  by  the   Union executive  over  the State Government or its  Ministers  and that  the Constitution does not vest the Central  Government with any general supervisory or inquisitorial power over the functioning  of the State Governments within the  respective fields.  As the matter in dispute affects the legal right of the State it was submitted that a suit under Article 131  of the Constitution is maintainable in the Supreme Court. On  behalf of the 1st defendant, the Union of India, it  was averred  that  the  suit by the State of  Karnataka  is  not maintainable  in as much as the impugned notification  dated May  23,  1977  does not affect the  plaintiff  State.   The inquiry  against the Chief Minister and the other  Ministers is  against  individuals  and  not  against  the  State   of Karnataka.  There being no dispute between the Government of India and the State, a preliminary objection was taken  that the  suit  was  not maintainable under Article  131  of  the Constitution.    The  various  pleas  put  forward  by   the plaintiff were denied and it was submitted that the impugned notification  was  well  within the powers  of  the  Central Government  and  that  there had  been  no  infringement  or interference with the State’s executive functions. On the pleadings the following issues were framed 1.   Is the suit maintainable? 2.   Is the impugned notification ultra vires the powers’ of the Central Government under section 3 of the Commissions of Inquiry Act ? 3.   If  section  3  of  the  Commissions  of  Inquiry   Act authorises  the  Central Government to  issue  the  impugned notification. is the section itself unconstitutional? 140 The  main  question involved in the suit is one  of  Centre- State relationship and whether the impugned notification  is within the powers of the Central Government under section  3 of   the  Commissions  of  Inquiry  Act.    Though   certain allegations  are made in the plaint that the impugned  order was mala fide it was not pressed during arguments.  So  also the power of the State Government to appoint a commission of inquiry is not challenged.  It is therefore not necessary to go  into the reasons which induced the State  Government  to appoint  a commission of inquiry.  Before dealing  with  the various  contentions of the counsel on behalf of  the  State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 134 of 161  

and  the Central Government it is necessary to set  out  the background  and the relevant provisions of the  Constitution dealing with the Centre-State relationship and the scope  of the Commissions of Inquiry Act, 1952. The  British Crown assumed sovereignty over India from  East India Company in 1858 and the British Parliament enacted the first statute for the governance of India Act, 1858 (21 & 22 Vict.,  106).   The Act provided absolute  imperial  control without  any popular participation in the administration  of the country.  The powers of the Crown were exercised by  the Secretary  of  State  for India assisted  by  a  Council  of Members.   Subsequently the Indian Councils Act, 1861,  1892 and 1909 were passed.  Later on the Government of India Acts 1912 and 1915 were passed by the British Parliament. The Government of India Act, 1919, was the first step  taken by the British Government for, increasing the association of Indians  in every branch of administration and  the  gradual development  of self governing institutions with a  view  to progressive realisation of responsible government in British India.  The Government of India Act, 1919 introduced for the first  time dyarchy in the provinces.  The central  subjects were  exclusively  kept  under the control  of  the  Central Government.    The  provincial  subjects were  divided  into ’transferred’ and ’reserved’  subjects.          Transferred subjects  were administered by the Governor with the aid  of Ministers  while reserved subjects were administered by  the Governor    and   his   Executive   Council   without    any responsibility to the Legislature.  By Devolution Rules made under the Government of India Act, 1919 a separation of  the subjects  of administration into Central and Provincial  was made.   To some extent the relation of central control  over the  provinces  was  relaxed.  Under the  Act  of  1919  the provinces  were  delegates  of the centre  and  the  central legislature retained the power to legislate for the whole of India   relating  to  any  subject.   The  passing  of   the Government of India Act, 1935 introduced for the first  time a  change in the from of the Government i.e. the  Government which  was unitary under the Government of India  Act,  1919 gave  way to a federation with the provinces and the  Indian State as the units.  Under the unitary system the  provinces were  under  the administrative as well as  the  legislative control of the Central Government.  The Governor-General  in Council was the keystone of the whole constitutional edifice and  the, British Parliament discharged  its  responsibility through  the Secretary of State and the Governor-General  in Council. The  intention of the Government of India Act. 1 35  was  to unite the provinces and the Indian States into a  federation under the Crown. 141 The  unitary  State  was  to be  broken  into  a  number  of autonomour, provinces deriving their authority directly from the  Crown instead of from the Central Government  and  then building them up into a federal structure in which both  the federal and provincial governments Would get Powers directly from  the Crown.  The basis of the change is the  resumption into the hands of the Crown all rights, authority and juris- diction in or over the territories of the British India  and redistribution of the powers between the Central  Government and   the   provinces.    Though   the   federal   structure contemplated under the Government of India Act, 1935 did not come  into existence as the Indian States ,refused to,  join the  federation, so far as the provinces were  concerned  it took  effect.   The Government of India  Act,  1935  divided legislative  powers between the Central and  the  provincial

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 135 of 161  

Legislatures  and within ’its defined sphere, the  Provinces were no longer delegates of the Central Government but  were autonomous units of administration.  The Government of India assumed the role of the federal government.  With regard, to provincial  governments  the  executive  authority  of   the provinces  was  exercised by the Governor on behalf  of  the Crown  and  not ,is a subordinate of  the  Governor-General, with the advice of Ministers responsible to the Legislature. In  the centre the executive authority was vested  with  the Governor  General  and  with regard  to  reserved  subjects, defence, external affairs, etc., the Governor General was to act  in  his  discretion,  with  the  help  of   counsellors appointed   by   him  without  being  responsible   to   the Legislature.   Governor-General was to act on the advice  of the  Council  of  Ministers who  were  responsible,  to  the Legislature  with  regard to subjects  other  than  reserved subjects.  The Governor General was to act under the control and  directions  of  the Secretary of  State  regarding  his special responsibilities.  The Government of India Act, 1935 distributed  the powers between the federal legislature  and the  provincial governments by having (i) Federal List  over which the Federal Legislature had exclusive powers of legis- lation;  (ii)  A Provincial List over which  the  Provincial Legislature   had  exclusive  jurisdiction;  and   (iii)   A Concurrent  List over which both the Federal and  Provincial Legislatures  bad  competence.  The ’Federal  law  prevailed over  a Provincial law if there was any repugnancy  and  the residuary  power  of legislation under the 1935  Act  vested with   the   Governor-General.   Under   the   scheme,   the legislative  powers  of  both  the  central  and  provincial legislatures were subject to various limitations and  either of them was not a sovereign legislature.  Another feature of the  1935 Act was that the Federal Court was set lip  mainly for  determining  the  disputes between the  units  and  the federation.    The  separation  of  legislative  powers   as Federal.   Provincial and Concurrent Lists and the  division of  powers  between  the centre and the  provinces  and  the setting up of the Federal Court under the 1935 Act were  all adopted in the Constitution of India. The  Indian Independence Act 1947 was passed as  an  interim measure  before the coming into force of  the  Constitution. The ,object of the Indian Independence Act, 1947 as  amended by  Adaptation Orders was to make provisions for an  interim Constitution until the Constituent Assembly could draw up  a future Constitution.  Indian Independence Act. 1947  altered the  constitutional position by declaring that  with  effect from August 15, 1947 the suzerainty of the 142 British  Crown over the Indian States would lapse  and  from that   date   United  Kingdom  would  cease  to   have   any responsibility   in  respect  of  the  Government   of   the territories   included  in  British  India.    The   Central Legislature  of India ceased to exist from August 14,  1947. The Constituent Assembly came into existence for framing  of the   Constitution  and  also  functioned  as  the   Central Legislature  of the Dominion.  The new Constitution  adopted the  bulk of the provisions of the Government of India  Act, 1935.   The  provisions relating to distribution  of  powers between  the units and the centre were adopted and  in  fact extended.  The. constitution-makers gave up the unitary bias and  adopted detailed provisions regarding the  distribution of powers and functions between the Union and the States  in all  aspects of their administrative and  other  activities. Inter-state  relations,  co-ordination and  adjudication  of disputes amongst the States were also provided for.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 136 of 161  

The  Indian  Constitution cannot be described as  a  federal Constitution as the Indian Federation is not a result of  an agreement by various States and the territorial integrity of the  States  is  not guaranteed as the  territories  of  the States can be changed or a State completely abolished  under Article  4 of the Constitution.  But it has to be  borne  in mind  that  after the lapse of paramountly  of  the  British Crown,  the Indian States which acceded to the  Dominion  of India  were  brought  within  the  union  envisaged  by  the Constitution.   The  Indian  States  which  acceded  to  the Dominion  were brought under the federal system on the  same footing  as  other  Units  of  the  Federation,  namely  the Provinces.   The position of the States in the  Constitution is in several respects subordinate to the Central Government in that the formation of the federation was not as a  result of  any  treaty between the States and the  federation,  and that  the  State may be reformed  or  altogether  eliminated under  Art. 4 of the Constitution.  Though the  Constitution divides  executive power between the Union and  the  States, the  States, are bound to execute certain directions of  the Union.   The executive power regarding the laws made by  the Union  hi the Concurrent subjects will be exercised  by  the States  unless  the  Parliament  direct%  otherwise  and  as regards  the  Union  subjects the  Union  may  delegate  its executive  functions  to a State either  by  legislation  by Parliament  or by consent of the State Government.  It is  a duty of the State to execute the Union law and the executive power  of the State must be exercised in such manner as  not to  interfere with the executive power of the union and  the State  shall be under the direction of the  union  regarding the  Union laws.  The failure of the State to carry out  the directions of the Union would empower the Union to supersede the State Government by assuming to itself the powers of the State  Government.   These features  make  the  Constitution strictly not a federal constitution.  It has been  variously called  as quasi-federal or federal in structure or  federal system  with  a  strong  central  bias.   But  whether   the Constitution is recognised as federal or not the position of the  States is distinctly recognised.  Under Art.  I of  the Constitution  of  India, India shall be a Union  of  States. Without  States there can be no Union.  Historically as  the Princely  Indian  States  joined the  Union  and  for  other reasons  the  State  as  an  entity  was  recognised.   The, ,Constitution  is the source of power for the Union as  well as the States. 143 While under the Government of India Act, 1935 the source  of power for the Federal and the Provincial Government was  the Crown, under the Constitution of India, the source of  power for the States as well as the Union is the Constitution.  In its  own  field i.e. as regards the power conferred  on  the State,  it is supreme so also the Central, Government.   But in  determining  what are the powers of the  Union  and  the State  one  has to look into the  Constitution  and  nowhere else.   The  States  are not the delegates  of  the  Central Government  and the ,Central Government cannot exercise  any power  over  the  State which is not  provided  for  in  the Constitution. Part  V of the Constitution deals with the  Union.   Chapter deals  with  the  Executive,  Chapter  11  with  Parliament, Chapter  III  with  Legislative  Powers  of  the  President, Chapter  IV  the  Union Judiciary :and Chapter  V  with  the Comptroller  and Auditor-General of India.  Part VI  of  the Constitution  deals with the States.  Chapter I is  General, Chapter 11 deals with the Executive, Ch.  III with the State

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 137 of 161  

Legislature.    Ch.   IV  with  legislative  Power  of   the Governor, Ch.  V with the High Courts in the States and  Ch. VI  with  Subordinate  Courts.   Part  XI  deals  with   the Relations between the Union and the States. ,Ch.  I of  Part XI  deals  with Legislative Relations  and  distribution  of Legislative  Powers while Ch.  II deals with  Administrative Relations  ’between the Union and the States.  A few of  the Articles  in these ,Chapters will be referred to  in  detail later.   But  it is sufficient at this stage  to  note  that while Part V is assigned to the Union executive and Part  VI to the, States, Part XI deals with the Relations between the Union  and the States.  The distribution of  powers  between the  Union and the States can be discerned from the  various provisions  of  the  Constitution.   A  machinery  is   also provided   for,   for  settling  their   disputes   in   the Constitution.   In  the distribution of powers it  is  clear there  is strong tilt in favour of the Union.  According  to the  Constitution, the Union can assume powers of the  State Government  by  taking over the State  Administration  under certain contingencies provided for in the Constitution.  But the  Union  Government cannot claim any power which  is  not vested  in  it  under the provisions  of  the  Constitution. There is no overriding power with the Union Government.   It cannot  deal with the State Government as its delegate,  for the  source of power for the Union as well as the State,  is the  Constitution and the Union Government cannot claim  any powers   over  the  State  which  are  not  found   in   the Constitution. The  nature  of our Constitution has been discussed  by  the Supreme Court in a few decisions which may be referred to at this stage.  In Atiabari Tea Co. Ltd. v. The State of  Assam & Others,(1) Gajendragadkar J. as he then was, in construing Art. 301 observed : "We must adopt a realistic approach  and bear  in  mind the essential features of the  separation  of powers  on  which our Constitution rests.  It is  a  federal constitution  which we are interpreting, and so that  impact of Art.   301  must be judged accordingly". The  matter  was dealt with by S.    K.  Das J. in the  Automobile  Transport (Rajasthan) Ltd v. The (1)  [1961] 1 S.C.R. 809. (2)  [1963] 1 S.C.R. 491. 144 State  of Rajasthan and Others.(2) The learned  Judge  after tracing  the history of the’ Indian Constitution observed  : "The  evolution  of afederal structure  or  a  quasi-federal structure  necessarily  involved,  in  the  context  of  the conditions  then prevailing, a distribution of powers and  a basic part of our Constitution relates to that  distribution with  the three legislative lists in the  Seventh  Schedule. The  Constitution  itself says by Art.  I that  India  is  a Union  of States and in interpreting. the  Constitution  one must  keep in view the essential structure of a  federal  or quasi-federal  Constitution, namely, that the units  of  the Union have also certain powers as has the Union itself." The learned’ Judge further observed : "In evolving an integrated policy on this subject our Constitution-makers seem to  have kept in mind three main, considerations which may be broadly stated thus : first, in the larger interests of India  there must  be free flow of trade, commerce and intercourse,  both inter-State and intra-State; second, the regional interests. must  not be ignored altogether; and third, there must be  a power of’ intervention by the Union in any case of crisis to deal with particular problems that may arise in any part  of India."  rhe  learned  Judge  concluded  :  "Therefore,   in interpreting the relevant articles in PartXIII we must  have

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 138 of 161  

regard  to the general scheme of the Constitution  of  India with  special  reference to Part III  (Fundamental  Rights), PartXII  (Finance,  Property etc. containing Arts.  276  and 286) and their inter-relation to Part XIII in the context of a federal or quasi-federal constitution in which the  States have  certain powers including the power to  raise  revenues for  their  purposes by taxation." The  decision,  is  clear authority  for the proposition that the essential  structure of   Indian  Government  is  of  federal  or   quasi-federal character, the units havingalso certain powers as the  Union itself. On  this aspect the learned Solicitor-General very  strongly relied on certain passages in State of West Bengal v.  Union of  India,, (1) in the Majority judgment delivered by  Sinha C. J. Referring to Art. 4of the Constitution which  empowers the Parliament by legislation to alter the territory of  the State or abolish it altogether Sinha C. J. observed :  "When the  Parliament  is  invested with authority  to  alter  the boundaries  of any State and to diminish its areas so as  to even  destroy a State with all its power and  authority,  it would  be  difficult to hold that the  Parliament  which  is competent  to  destroy  a  State  is,  on  account  of  some assumption   as  to  absolute  sovereignty  of  the   State, incompetent  effectively to acquire by legislation  designed for  that  purpose  the  property owned  by  the  State  for Governmental  purposes." The learned Chief Justice,  further observed that "Even if the, Constitution were heldto be a federal and the States regarded qua the Unionas  sovereign the  power  of  the Union to legislate  in  respect  of  the property Situate    in    the   State    would    remain unrestricted."  The Court was, considering an Act passed  by the,  Parliament,  the Coal Bearing Areas  (Acquisition  and Development)  Act,  1957,  enabling the Union  of  India  to acquire  certain  coal bearing areas in the  State  of  West Bengal.  The State filed a suit contending that the Act  did not apply to lands vested in or owned by the State and  that if it applied to such lands the- (1)  (1964] 1 S.C.R. 371. 145 Act was beyond the legislative competence of the Parliament. The,  decision  as  far  as  it  holds  that  even  if   the Constitution were held to be a federal Constitution and  the States regarded qua the Union as sovereign, the power of the Union  to legislate in respect of the property would  remain unrestricted,  may be right as falling within power  of  the Parliament under Entry 42, List III aid Entries 52 and 54 of List  I.  But with very great respect the  observation  that "the   Constitution  of  India  is  not  truly  Federal   in character  .... that only those powers which  are  concerned with  the  regulation of local Problems are  vested  in  the States"  is  not in accordance with the  decisions  of  this Court  in  Atiabari  Tea Co. Ltd. v. The State  of  Assam  & Others (supra) and the Automobile Transport (Rajasthan) Ltd. vs.  the  State of Rajasthan and Others (supra) which  is  a decision  of  a Bench of seven Judges of  this  Court.   The observation  of the Court that from the powers conferred  on the  Parliament  under Art. 4 it cannot be held that  it  is incompetent  for  the Parliament to acquire  by  legislation the,  property  owned  by the States on the  theory  of  the absolute sovereignty of the, States, cannot be understood as having laid down that the States have no sovereignty even in their  own sphere or that Parliament has any  overriding  or supervening powers.  The observation of Subba Rao J.   as  he  then was in the dissenting  judgment  that  the Indian   Constitution  accepts  the  federal   concept   and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 139 of 161  

distributes  the  sovereign powers  between  the  coordinate constitutional  entities, namely, the Union and  the  States and that this concept implies that one cannot encroach  upon the  Governmental  functions  or  instrumentalities  of  the other,  unless the Constitution expressly provides for  such interference,  is in accordance with the. accepted  view  of this Court.  It is unfortunate that the earlier decisions of this  Court in Atiabari Tea Co. Ltd. v. The State  of  Assam and Others and the Automobile Transport (Rajasthan) Ltd.  v. The  State of Rajasthan and Others were not brought  to  the notice of the Court. In Special Reference No. 1 of  1964(1), dealing  with  the  Centre-State  relationship  this   Court observed:               "Our  Legislatures  have  undoubtedly  plenary               powers, but these powers are controlled by the               basic  concepts  of the  written  Constitution               itself   and  can  be  exercised  within   the               legislative    fields   allotted   to    their               jurisdiction  by  the three  Lists  under  the               Seventh  Schedule; but beyond the  Lists,  the               Legislatures cannot travel.  They can no doubt               exercise  their plenary legislative  authority               and discharge               their  legislative functions by virtue of  the               powers  conferred  on  them  by  the  relevant               provisions of the Constitution; but the  basis               of  the  power  is  the  Constitution  itself.               Besides,  the  legislative  supremacy  of  our               Legislatures   including  the  Parliament   is               normally  controlled  by the  provisions  con-               tained  in part III of the  Constitution.   If               the  Legislatures step beyond the  legislative               fields  assigned  to them,  or  acting  within               their respective fields, they trespass on  the               fundamental rights of the citizens in a manner               not   justified  by  the,  relevant   articles               dealing  with  the  said  fundamental  rights,               their  legislative actions are, liable  to  be               struck down by courts               (1)   [1965] 1 S.C.R. 413.               146               in  India.   Therefore,  it  is  necessary  to               remember  that  though our  Legislatures  have               plenary  powers,  they  function  within   the               limits prescribed by the material and relevant               provisions of the Constitution."               It was further observed:               "In a democratic country governed by a written               Constitution, it is the Constitution which  is               supreme  and sovereign.  It is no  doubt  true               that  the Constitution itself can be,  amended               by  the  Parliament,  but  that  is   possible               because  Art. 368 of the  Constitution  itself               makes  a  provision  in that  behalf  and  the               amendments of the Constitution can be  validly               made   only   by   following   the   procedure               prescribed  by the said article.   That  shows               that  even  when the  Parliament  purports  to               amend the Constitution, it has to comply  with               the  relevant  mandate  of  the   Constitution               itself." The political _development of British India took the form of dismantling a unitary Constitution and introducing a federal scheme through Devolution Rules and the Government of  India Act, 1935. Our Constitution accepted a federal scheme though

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 140 of 161  

limited  in extent having regard to the regional  interests, resources,  language and other diversities existing  in  the vast subcontinent.  These facts have been taken into account by the Constitution-makers and a limited federalism was made a  part of the Constitution by Art. 1 itself providing  that India  shall be a Union of States.  Effect is given to  this intention  by  separation  of the  Lists  and  by  providing legislative and executive power to the Union and the  States in  separate chapters of the Constitution.   This  principle has been accepted by the- Supreme Court in the decisions  in Atiabari  Tea Co. Ltd.  V. The State of Assam &  Others  and ’the  Automobile Transport (Rajasthan) Ltd. v. The State  of Rajasthan  and Others cited earlier.  The observations  made in the West Bengal case (supra) which have been referred  to already are not in conformity with the otherwise  consistent view  of the Supreme Court that the Constitution is  supreme and that the Union as well as the States will have to  trace their  powers  from the provisions of the  Constitution  and that the Union is not supreme and the States are not  acting as delegates of the Union. It  may  be useful to refer to the views  expressed  by  the Supreme Court in the Kesavananda (1) and Election (2)  cases on this subject.  The question that arose in those cases was how  far the Constitution could be amended.  In  Kesavananda case, the majority was of the view that the basic  structure of  the  Constitution cannot be amended. The  Election  case proceeded on the basis of Kesavananda’s case that the  basic structure could not be amended.  The learned counsel for the plaintiff Mr. Lal Narain Sinha made it very clear that he is not inviting the Court to find any undefined basic structure but is confining his arguments to point out that the federal structure  in the limited sense is an integral part  of  the Constitution  and that the Union Government is  not  supreme and it has no power apart from what is found (1)  [1973] Supp.  S.C.R. 1. (2)  [1976] 2 S.C.R. 347. 147 in the Constitution.  In Kesavananda case it was held by the majority  that  Art. 368 does not enable the  Parliament  to alter   the  basic  structure  or  the  framework   of   the Constitution.  Chief Justice Sikri in discussing as to  what is  the  basic structure of the Constitution  held  that  it consisted  of (1) Supremacy of the Constitution, (2)  Repub- lican  and  democratic  form  of  Government,  (3)   Secular character  of  the Constitution, (4)  Separation  of  powers between  legislatures,  executive and  judiciary’,  and  (5) Federal character of the Constitution.  For the purposes  of the  present  discussion it is unnecessary to  go  into  the question  as. to whether the federal structure as  found  in the Constitution could be amended or not as it is sufficient to note that it is recognised that the States do  constitute an   integral   part  of  the  Constitution   having   their legislative  and  executive  powers and  that  these  powers cannot be interfered with by the Union Government unless  in accordance with the provisions of the Constitution. Before  dealing  with  the position of  the  States  in  the Constitution,  it  has  to  be borne in  mind  that  in  the distribution  of  powers between the Union  and  the  States there is a strong bias in favour of the Union.  In the event of  an Emergency the federal Government can  convert  itself into a unitary one.  The Union Government can supersede  the state  Government which refused to carry out its  directions as are authorised under Art. 365 of the Constitution.  While the  Union Government is given powers to give directions  in certain specified matters under Articles 256 and 257, when a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 141 of 161  

Proclamation of Emergency is made under Art. 352, the  power of  the  Union  executive to give directions  to  the  State Government  will  extend to any matter and  the  legislative power  of the Union Parliament. will extend to  matters,  in the State List under Art. 250.  There are provisions in  the Constitution conferring wider powers on the Union in case of Financial  Emergency. The executive authority of  the  Union becomes  enlarged enabling the Union to give  directions  to the   State  requiring  financial  discipline.   The   Union Parliament  can  assume  the  legislative  powers  over  any subject  included  in the State List by a  Resolution  under Art.249  if  such legislation is necessary in  the  national interest.  Whenever the State Government cannot be,  carried out  in accordance with the provisions of  the  Constitution the  President is empowered to take over and the  Union  can assume  the executive and.  Legislative powers of the  State under  Art.  356.   Though there is  a  division  of  powers between  the  Union and the States there  is  provision  for control by the Union Government both over the administration and legislation of the State.  These are provided for  under Art. 201 which empowers the President to disallow any  State Legislation  which is reserved for his consent.  A  duty  is cast upon the States by the Constitution under Arts. 256 and 257 to execute the Union laws.  The executive power of every State  shall  be so exercised as not to interfere  with  the executive  power of the Union and that in these matters  the States  shall be under the directions of the  Union.   These powers are specifically mentioned in the Constitution and it is not disputed that the Union Government can exercise them. The  question that arises for consideration is  whether  the Union Government can order an inquiry into the  Governmental functions  of the State which is not specifically  conferred on the Union by the 148 Constitution.   Ile  preliminary  objection  of  the   Union Government that it is not the State but only the  Government of  the  State or the Ministers that are aggrieved  will  be dealt  with  in due course.  The position of the  States  is indicated  in Art.  I which declares that India shall  be  a Union  of States and the States and the territories  thereof shall  be  as  specified  in  the  First  Schedule  and  the territory  of  India shall comprise the territories  of  the States, the Union territories and such other territories  as may be acquired.  Part VI of the Constitution deals with the States.  Art. 154(1) vests the executive power of the  State in  the Governor and provides that it shall be exercised  by him  either directly or through officers subordinate to  him in accordancewith the Constitution.  Art. 162 provides  that subject to the provisions of the Constitution the  executive power  of the State shall extendto the matters with  respect to  which  the Legislature of the State has  power  to  make laws.  There is a proviso to Art. 162 which provides that in any matter with respect to which the Legislature of a State- and Parliament have power to make laws, the executive powers of  the  State  shall be subject to,  and  limited  by,  the executive power expressly conferred by this Constitution  or by any law made by Parliament upon the Union or  authorities thereof.  Art. 163 provides that the-re-, shall be a Council of Ministers with the Chief Minister at the head to aid  and advise  the  Governor  in the  exercise  of  his  functions. except.  in  so far as he is by or under  this  Constitution required  to  exercisehis functions or any of  them  in  his discretion  under  Art.  164 the  Chief  Minister  shall  be appointed  by the Governor and the other Ministers shall  be appointed by the Governor on the advice of the Chief  Minis-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 142 of 161  

ter.   It  further provides that the  Ministers  shall  hold office  during the pleasure of the Governor and the  Council of  Ministers  shall.  be collectively  responsible  to  the Legislative Assembly of the StateChapter III deals with  the State  Legislature.   Art. 168 relates  to  constitution  of legislatures in the States.  This Chapter confers  executive powers  of the State in the Governor who shall  exercise  it with the aid and advice of the Council of Ministers with the Chief  Minister at the head.  It is also provided  that  the executive  power of the State shall extend to  matters  with respect  to which the legislature of the State has power  to make laws.  So far as the executive and legislative power of the  State is concerned it is absolute subject only  to  the other  provisions  of  the  Constitution  Part  XI  of   the Constitution deals with relations between the Union and  the states : Ch.  I with legislative relations and Ch.  II  with administrative relations between the Union and’ the  States. The scheme for the distribution of legislative power between the  Union  and  the States has been  taken  over  from  the Government of India Act, 1935 and Arts. 245 and 246 more  or less reproduce sections 99 and 100 of the 1935 Act.  Article 245  (1)  provides  "Subject  to  the  provisions  of   this Constitution, Parliament may make laws ?or the whole or  any part  of  the territory of India, and the Legislature  of  a State may make laws for the whole or any part of the State". Art.  246 confers on the Parliament the exclusive  power  to make laws with respect to, any of the matters enumerated  in List  I  of the Seventh Schedule.  The  Legislature  of  the State  has  exclusive power to, make laws for the  State  in respect  of  any matters enumerated in List  II  i.e.  State List.  The Parliament and the Legislature of the State shall have power tomake laws with respect to any matter enumerated in List III i.e. Con-- 149 current  List.   It is important to note  that  the,  powers conferred  under  Articles 245 and 246 are  subject  to  the provisions of the Constitution.  Therefore the laws made  by a   Legislature  may  not  be  valid  for  either  lack   of jurisdiction  in  respect of the subject matter  or  on  the ground that they violate the provisions of the Constitution. The  residuary  power  of legislation is  conferred  on  the Parliament under Art. 248 which provides that the Parliament has  exclusive  power to make any law with  respect  to  any matter not enumerated in the concurrent List or in the State List.   Under Art. 246 (1) and (2) and Art. 254 (1)  when  a State law is in conflict with the State law or repugnant  to Union  law which Parliament is competent to enact the  Union law  shall  prevail and the State law shall be void  to  the extent of repugnancy.  But an attempt should be made to  see whether the conflict could be avoided by construction.  If a reconciliation  is  impossible only then the  federal  power should  prevail.  Article 248(1) and Entry 97 in List  I  of the Seventh Schedule make it clear that the residuary  power is  with  the  Parliament and when a  matter  sought  to  be legislated  is  not  included in List II  or  List  III  the Parliament  has  power  to make laws with  respect  to  that matter  or tax.  But function of the Lists is not to  confer powers   on  the  Legislature.   They  only  demarcate   the legislative  field.   The Federal Court,  in  The  Governor- General in Council v. The Raleigh Investment Co.(1) observed that  "the purpose of the List was not to create  or  confer power  but  only  to distribute to  federal  and  provincial legislatures  the powers which had been conferred by ss.  99 and 1 00 of the Act".While approving the observations of the  Federal Court in Union ofIndia  v. ff. S.  Dhillon

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 143 of 161  

(2) the majority for     whom Chief Justice Sikrispoke held that "It (Art. 248) is framed in   the    widest    possible terms.On  its  terms the only question to be  asked’  is is the matter soughtto  be legislated included in  List II  or  in  List  III or is the  tax  sought  to  be  levied mentioned  in List II or in List III  No question has to  be asked  about List I. If the answer is in the negative,  then it  follows  that  Parliament has power to  make  laws  with respect  to that matter or tax." But this  observation  does not  decide the question whether the  residuary  legislative power  of the Union includes a right to direct inquiry  into the governmental functions of the State for as laid down  by the Federal Court in the Governor-General in Council v.  The Raleigh  Investment Co. the purpose of the Lists is  not  to create  or  confer  powers and the  powers  conferred  under Articles  245 and 246 are subject to the provisions  of  the Constitution.  As there is no provision in the  Constitution conferring   on  the  Union  the  power  to  supervise   the governmental  functions  of the State the reference  to  the Lists will not solve the problem. The  crux of the, controversy is while the, Karnataka  State would contend that relation between the Union and the States is a subject matter of the Constitution and is not a subject covered by any of the three Lists, the contention on  behalf of  the Union Government is that the notification  does  not contravene   any   of  the  specific   provisions   of   the Constitution  and as such the legislative competence of  the Union cannot be questioned.  While on behalf of the State of Karnataka it is submitted that the power to inquire into the conduct of a Minister (1)  [1944] I .C R. 229, 26 1. (2)  [1972] 2 S.C.R. 33. 150 who  is  responsible  to the Legislature is  only  with  the Legislature  of the, State, the submission on behalf of  the Union  is  that the power of the Union is  not  specifically taken away by any of the provisions of the Constitution  and therefore the contemplated inquiry is within the  competence of  the  powers, of the Union.  According to  the  Solicitor General, the right question to ask is "Does the  legislation provide  for  some  matter  which  runs  counter  to  or  is inconsistent  with or brings about a change in the  existing provisions  of  the  Constitution in such  manner  that  the original  and  the  amended  provisions  are  different  and inconsistent  ?"  If it does so then it can be  regarded  as amendment  howsoever  it  may  be  brought  about  i.e.   by addition,  variation  or  repeal.  At the,  same  time  mare enactment  of  provisions  which  are  not  in  any   manner qualitatively  inconsistent with the existing provisions  of the   Constitution   but  deal  with  certain   aspects   of legislative  topics  or a Constitutional subject,  does  not postulate exercise of constituent power for amendment of the Constitution.   In support of his contention that unless  an express provision of the Constitution is contravened the law can  not be questioned on the ground of implied  prohibition the  learned  counsel  relied  on  Webb  v.  Outrim.(1)  The question  that  arose for decision by the Privy  Council  in that  case  was whether the respondent, an  officer  of  the Australian Commonwealth, resident in Victoria and  receiving his official salary in that State, is liable to be  assessed in  respect thereof for income tax imposed by an Act of  the Victorian Legislature. It  was  not contended  before  the Court that the restriction on the powersof the Victoria Constitution  is  enacted by any express  provision  of  the Commonwealth  Constitution Act but was argued that  inasmuch

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 144 of 161  

as the imposition of an income-tax might interfere with  the free  exercise of the legislative or executive power of  the Commonwealth, Such interference must be impliedly  forbidden by  the Constitution of the Commonwealth, although  no  such express prohibition can be found therein.  The Court held  : "The enactments to which attention has been directed do  not seem  to  leave any room for implied  prohibition."  It  was further  held  that "It is impossible to  suppose  that  the question  now  in  debate was left to  be  decided  upon  an implied  prohibition when the power to enact laws  upon  any subject  whatsoever was before the Legislature."  The  basic principles of construction of the Constitution are laid down by  Lord Selbourne in R v. Burah (2) which is  accepted  and applied  by Earl Lorebum L. C. in Attorney-General  for  the Province  of Ontario and Others v. Attorney General for  the Dominion of ’Canada and another. (3) The rule laid down in R v.  Burah  is  that  "when a  question  arises  whether  the prescribed  limits have been exceeded the only way in  which it  can  be  done  is  by looking  into  the  terms  of  the instrument  by  which affirmatively the  legislative  powers were  created and by which negatively they  are  restricted. If  what  has been done is legislation  within  the  general scope ,of the affirmative words which give the power and  if it  violates no express, condition or restriction  by  which that power is limited, it is not for any court of justice to inquire, further, or to enlarge constructively (1)  [1907] A.C. 81. (2)  [1878] 3 A.C. 889. (3)  [1912] A.C. 571 at 583. 151 those  conditions and restrictions".  In 1912 A. C.  571  it was  held  that  "if  the  text  is  explicit  the  text  is conclusive,  alike in what it directs and what  it  forbids. When the text is ambigious, as, for example. when the  words establishing two mutually exclusive jurisdictions are,  wide enough  to bring a particular power within either,  recourse must  be  had  to the context and scheme of  the  Act."  The decision  of  the Australian High Court in  The  Amalgamated Society of Engineers v. The Adelaide Steamship Company  Ltd. and  Others, (1) in which it was held that the  doctrine  of implied  prohibition  against, the exercise  of  power  once ascertained  in  accordance  with ordinary  rules  of  cons- truction  was  rejected  by the Privy  Council  in  Webb  v. Outrim. The  decision in The State of Victoria v. The  Common-wealth of  Australia  (3)  was referred to  but  as  that  decision reiterates the principles laid down in R. v. Burah (4) it is not  necessary to refer to it.  The principle laid  down  is that if what has been done is legislation within the general words  which  give the power and if it violates  no  express condition  or  restriction by which that power  is  limited, then  it is not for the court of justice to inquire  but  it cannot be understood as meaning that the word ’express’ does not exclude what is necessarily implied. In Liyanage v. R(5) the  Privy  Council while interpreting the  Constitution  of Ceylon held that the Constitution did not expressly vest the judicial  power exclusively in the judiciary but, that  fact was   not  decisive  as  the  scheme  of  the   Constitution particularly the provisions relating to the judiciary viewed in the light of the fact that the judicial power had  always been  vested in courts, held that the judicial power  vested exclusively  in  the judiciary.  To the same effect  is  the decision  of  this  Court in The State  of  West  Bengal  v. Nripendra Nath Bagchi (6).  The question that arose in  that case  was whether the inquiry ordered by the Government  and

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 145 of 161  

conducted by an Executive Officer of the Government  against a District and Sessions Judge contravened the provision-, of Article  235  of the Constitution which vests  in  the  High Court  the  control over the District Court and  the  courts subordinate thereto.  The Court construed the word ’control’ used  in  Article 235 as including disciplinary  control  or jurisdiction  over District Judges.  Relying on the  history which  lay behind the enactment of these articles the  Court came to the conclusion that ’control’ was vested in the High Court  to effectuate a purpose, namely, the securing of  the independence  of  the subordinate judiciary  and  unless  it included disciplinary control as well, the very object would be frustrated.  It also took into account the fact that  the word ’control’ is accompanied by the word ’vest’ which is  a strong  word  which showed that the High Court is  made  the sole custodian of the control over the judiciary.  The Court observed : "This aid to construction (the history which lies behind the enactment) is admissible because to find out  the meaning  of a law, recourse may legitimately be bad  to  the prior  state of the law, the evil sought to be  removed  and the  process by which the law was evolved." Though there  is no (1)  28 C.L.R. 129. (2)  [1907] A.C. 81, (3)  122 C.L.R. 353. (4) Supra. (5)[1967] A.C. 259. (6)[1966] 1 S.C.R. 771. 152 express provision in the Article conferring the disciplinary control  and  jurisdiction over the District  judge  it  was implied  from  the  wording of  the  Article.   Reading  the decision of the Privy Council in Liyanage v. R. (Supra)  and the  decision of this Court in the State of West  Bengal  v. Nripendra  Nath Bagchi (Supra), the word ’express’ in R.  v. Burah  (Supra)  should  be construed as  including  what  is necessarily  implied.  Taking into account the  history  and the  scheme  of  the  Constitution  the  safeguards  in  the Constitution  regarding  the States have necessarily  to  be implied,  though  it is conceded on behalf of the  State  of Karnataka  that no particular provision of the  Constitution has been expressly modified, amended or altered. The  extent of the executive power of the Union is found  in Art. 73 and that of the State is given in Art. 162.  In Part XI,   Chapter  II,  which  deals  with  the   administrative relations between the Union and the States Articles 256  and 257  list  the obligations of the States and the  Union  and control  of  the  Union over the States  in  certain  cases. Article 256 provides that the executive power of every State shall be so exercised as to ensure compliance with the  laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend  to the  giving of such directions to a State as may  appear  to the  Government of India to be necessary for  that  purpose. Under  this  Article it is obligatory on every State  to  so exercise  its  executive power as to ensure  the  compliance with the laws made by the Parliament and the executive power of the Union shall extend to giving such instructions to the State  as  are necessary for that purpose.   Article  257(1) provides that the executive power of every State shall be so exercised as not to impede or prejudice the exercise of  the executive power of the Union, and the executive power of the Union  shall  extend to the giving of such directions  to  a State  as  may  appear  to the Government  of  India  to  be necessary  for  that purpose.  Sub-article (2)  extends  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 146 of 161  

power   of  the  Union  to  giving  directions  as  to   the construction  and  maintenance  of  means  of  communication declared  in  the direction to be of  national  or  military importance sub-article (3) extends the power of the Union to the giving of directions to a State as to the measures to to be  taken  for  the protection of the  railways  within  the State.  By 42nd Amendment to the Constitution Art. 257A  was introduced  by  which Government of India  is  empowered  to deploy  any armed force of Union or any other force  subject to  the  control  of the Union for dealing  with  any  grave situation of law and order in any State.  Sub-article (2) of Article 257A provides that any Armed Force or other force or any contingent or unit thereof replayed under clause (1)  in any  State shall act in accordance with such  directions  as the  Government  of  India may issue  and  shall  not,  save otherwise  provided  in such directions, be subject  to  the superintendence  or control of the State Government  or  any officer  or authority subordinate to the  State  Government. No reliance was placed by the, Government of India on any of its inherent or overriding powers.  Except in cases referred to  in articles 256 and 257 and 257A, the Constitution  does not provide for the Union Government to give any  directions to the State Government.  Though under Article 355 it  shall be  the  duty of the Union to protect  every  State  against external aggression and internal disturbance, it was thought a constitutional amendment was necessary to enable the Govt. of India to deploy 153 armed forces to deal with grave situation of law and  order. As there is no specific Article in the Constitution enabling the   Union  Government  to  cause  an  inquiry   into   the governmental  functions  of the State the  power  cannot  be assumed by ordinary legislation but resort must be bad to  a constitutional amendment. In  I. C. Golak Nath & Ors. vs.  State of Punjab &  Anr.,(1) Wanchoo  J. has stated "The Constitution is the  fundamental law and no law passed under mere legislative power conferred by   the   Constitution  can  affect  any  change   in   the Constitution unless there is an express power to that effect given  in  the  Constitution itself.  But  Subject  to  such express   power  given  by  the  Constitution  itself,   the fundamental law, namely the Constitution, cannot be  changed by  a law passed under the legislative provisions  contained in the Constitution as  an legislative Acts passed under the power  conferred  by the Constitution must  conform  to  the Constitution.   There  are  a  number  of  articles  in  the Constitution  which expressly provide for amendment by  law, as  for example, 3, 4, 10, 59(3), 65(3), 73(2),  97,  98(3), 106,  120(2),  135, 137, 142(1), 146(2), 148(3),  149,  169, 171(2),  186, 187(3), 189(3), 194(3), 195,  210(2),  221(2), 225,  229(2),  239(1), 241(3), 283(1) and  (2),  285(2),287, 300(1), 313, 345, 373, Sch.  V. cl. 7 and Sch.  VI, cl. 21". Art.  2  enables  the Parliament by law to  admit  into  the Union,   or  establish,  new  States  on  such  terms   land conditions  as  it  thinks  fit  and  Art.  3  enables   the Parliament  by law to form new States and alteration of  the areas  or  boundaries  of any State and  the  names  of  the existing  States.  Article 4 provides that laws  made  under Articles  2  and 3 shall contain such  pro-visions  for  the amendment  of the First Schedule and the Fourth  Schedule-as may be necessary to give effect to the provisions of the law and  may  also  contain such  supplemental,  incidental  and consequential  provisions as Parliament may deem  necessary. Sub-article  (2)  of  Art. 4 provides that no  such  law  as aforesaid  shall  be  deemed  to, be  an  amendment  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 147 of 161  

Constitution for the purposes of Article 368.  So also  Art. 169(1)  enables  the Parliament by law to  provide  for  the abolition  of  the Legislative Council of a State  and  Sub- article (3) provides that no such law as aforesaid shall  be deemed  to  be  an amendment of  the  Constitution  for  the purposes  of Article 368.  Similar provisions are  found  in Schedule V, cl. 7 and Schedule VI, cl. 21 where the law made by  Parliament  is  deemed not to be  an  amendment  of  the Constitution  for the purposes of Art. 368.  So far  as  the other  Articles mentioned above are concerned  the  Articles themselves  enable  the  Parliament  to  make  law  for  the purposes  mentioned in the various Articles.  Regarding  the Articles  in which no- power is conferred on the  Parliament to  make laws, Parliament cannot add to the Constitution  by ordinary law making process. The Union Government relied on Entry 94 in List I and  Entry 45  in List III in the Seventh Schedule as empowering it  to enact the Commissions of Inquiry Act, 1952, and to issue the impugned notification.  Entry 94 in List I runs as follows : "94.   Inquiries, surveys and statistics for the Purpose  of any of the matters in this List." (1)  11967] 2 S.C.R. 762. 154 Entry 45 in List III, Concurrent List, is as follows : "45.   Inquiries and statistics for the purposes of  any  of the matters specified in List II or List III." As  Entry 94 in List I is confined to matters in List I  the learned Solicitor General rightly did not rely on that Entry but  relied  mainly  on.  Entry 45 in List  Ill.   Entry  45 enables the Union to make laws for inquiries for the purpose of any of the matters specified in Lists II & III i.e. State List  and the Concurrent List.  The question that arises  is whether the word ’inquiries’ would include the power to make inquiry into misuse of the governmental powers by the  Chief Minister and the other Ministers of a State Government while in  office.  The golden rule of interpretation is  that  the words  should  be  read  in  their  ordinary,  natural   and grammatical   meaning   and  in  construing   words   in   a Constitution  conferring legislative power the most  liberal construction  should be put upon the words so that they  may have  effect  in their widest amplitude.  But this  rule  is subject  to certain exceptions.  It  is found  necessary  to prevent  conflict  between  two  exclusive  jurisdictions  a restricted  meaning may be given to the words.  The  Federal Court  in Re the Central Provinces and Berar Sales of  Motor Spirit and Lubricants Taxation Act, 1938 (Central  Provinces and  Berar Act No. XIV of 1938) ( in Re A Special  Reference tinder Section 213 of the Government of India Act, 1935) (1) in construing the expressions "duties of excise" in Entry 45 of  List  I-in the Seventh Schedule and "taxes  on  sale  of goods" in Entry 48 of List II i.e. the State List, held that the  conflict  could be resolved by  giving  the  expression "duties  of  excise" a restricted meaning, namely  that  the duty  of  excise is a tax on manufacture  or  production  of goods.  Thus it is permissible to, give a restricted meaning in  construing the language of conflicting  provisions.   In Madras  v. Gannon Dunkerly & Co. (Madras) Ltd. (2),  it  was held  that though in construing a legislative  entry  widest construction  must  be  put  on  the  words  used,  as   the expression  "sale  of goods" was a term  of  well-recognised legal  import  in the general law; relating to the  sale  of goods  and  in  the legislative practice  relating  to  that topic,  it must be interpreted in Entry 48, List II, Sch.  7 of  the  Act as having the same meaning as in  the  Sale  of Goods  Act.   The  rule that in construing the  words  in  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 148 of 161  

Constitution  most liberal construction should be  put  upon the  words  is  not a universal rule as  is  seen  from  the judgment  of Lord Blackburn in River Wear  Commissioners  v. Adamson(3)  where Lord Blackburn expressed his view that  in interpreting  the  words,  the object is  to  ascertain  the intention expressed by the words used and that the object of interpretation of documents and statutes is to ascertain  of the intention of them that made it".  Lord Coke in  Heydon’s case  applied  the  principle which was laid  down  by  Lord Blackburn.  In R.M.D. Chamarbaugwalla v. The Union of  India (4) "I Venkatarama Ayyar J. cited with approval the rule  in Heydon’s case and added that the principles laid down (1)[1939] F.C.R. 18. (2)[1959] S.C.R. 379. (3)[1877] S A.C. 743. (4)(1957] S.C.R. 930. 155 are  well-settled and have been applied in  Bengal  Immunity Co.  Ltd.  V.  State  of Bihar(1),  and  observed  that  the legislative  history of the impugned law showed  that  prize competitions  involving skill had presented no  problems  to the  legislatures, and that having regard to  that  history, and also the language, used hi the Act, the definition must, by  construction,  be  limited to prize  competitions  of  a gambling  nature.   Thus there is ample  authority  for  the proposition  that  in interpretation of  statutes  the  main object  is  to ascertain. the "intention of them  that  made it". It  is therefore necessary to discern the intention  of  the Parliament in enacting the Commissions of Inquiry Act, 1952. The inquiry under Entry 45 is for the purpose of any of  the matters  specified in List II or List III.  It is seen  that inquiry  into  the  misconduct  in  exercising  governmental functions  by  the  Chief  Minister of  a  State  cannot  be discerned  from any of the entries in List II or  List  III. Entry  45  is in the Concurrent List and if a law  could  be enacted by the Parliament empowering the Union Government to conduct  an  inquiry  into the misuse  of  the  governmental functions  by a Minister of State, it cannot be denied  that the  State  Government  will have  the  power  to  legislate empowering  the State to inquire into the misuse of  govern- mental  powers  by a Union Minister relating to  matters  in List II and List III. Obviously   the  powers   conferred under Entry 45 cannot be construedin  such manner,  for  it could never have been intended. Otherwisethe result will not be conducive to the harmonious functioning ofthe  Union and  the States.  This circumstance is a  strong  indication that Entry 45 in List III ’inquiries’ should not be given  a wide  meaning  as  conferring on the  Union  and  the  State Governments  powers  to enact a provision to embark  on  an, enquiry  as to the misuse of the Governmental powers by  the other. The provisions of the Commissions of Inquiry Act, 1952,  Act 60  of 1952 will now be examined.  The preamble of the  Act, is as follows :- "An Act to provide for appointment of Commissions of Inquiry and for vesting such Commissions with certain powers." Section  2 defines the "appropriate Government"  as  meaning the Central Government in relation to a Commission appointed by  it to make an inquiry into any matter relatable  to  any of-the  entries enumerated in List I or List II or List  III in  the Seventh Schedule to the Constitution and  the  State Government,  in relation to a Commission appointed by it  to make  an  inquiry into any matter relatable to  any  of  the entries  enumerated  in List II or List III in  the  Seventh

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 149 of 161  

Schedule to the Constitution.  Section 3(1) provides for the appointment of Commission.  It runs as follows:               "3. (1) The appropriate Government may, if  it               is of opinion that it is, necessary so to  do,               and  shall, if a resolution in this behalf  is               passed by the House of the People or,               (1)[1955] 2 S.C.R. 603.               156               as  the case may be, the Legislative  Assembly               of the State, by notification in the  Official               Gazette,  appoint a Commission of Inquiry  for               the  purpose  of making an  inquiry  into  any               definite  matter  of  public  importance   and               performing such functions and within such time               as  may be specified in the notification,  and               the  Commission  so appointed shall  make  the               inquiry and perform the functions  accordingly               :" The proviso to section 3(1) bars the State Government except with  the  approval  of the Central  Government  to  appoint another  Commission to inquire into the same matter  when  a Commission   appointed   by  the   Central   Government   is functioning and bars the Central Government from  appointing a commission from inquiring into the same matter so long  as the   Commission  appointed  by  the  State  Government   is functioning  unless the scope of the inquiry is extended  to two  or  more States.  Under section  3(1)  the  appropriate Government may appoint a commission but shall appoint one if a  resolution is passed by the House of the People  or,  the Legislative  Assembly of the State as the case may be.   The purpose  of  the commission is to make an inquiry  into  any "definite matter of public importance?’. The  Parliament under the Act has delegated its  legislative functions  to the appropriate Government and  has  conferred the  discretion  to  appoint a commission if it  is  in  its opinion  necessary  to do so and make it obligatory  on  the Government to appoint a commission if there is a  resolution by the Legislature concerned.  The purpose of appointment of the  commission is for making an inquiry into  any  definite matter  of public importance.  There is no mention or  guid- ance  as  to  the person against whom an inquiry  is  to  be conducted.   In the proviso which bars the State  Government from  appointing  the commission to inquire  into  the  same matter  when already the Central Government has appointed  a commission  and  vice versa, it is clear  that  the  section could  not have contemplated the appointment by the  Central Government of a commission to inquire into the abuse of  the power  by the State Government being aware of the fact  that such  a  construction would enable the State  Government  to appoint a commission to inquire into the misuse of the power of the Central Government in any of the matters relating  to Lists  11 and III.  Such a construction would  not  reflect, the intention of the Parliament.  Before dealing fully  with the  scope of the powers of the appropriate Government as  a delegate  and  the construction that has to be  put  on  the scope of appointment of a commission of inquiry ’under  this section, it is necessary to notice other relevant provisions of  the  Act.   Subsection (4) of  section  3  requires  the appropriate  Government  to  lily before the  House  of  the People  or  the  House of the Legislative  Assembly  of  the State,  the report of the commission on the inquiry made  by the  commission  together with a memorandum  of  the  action taken thereon, with a period of six months of the submission of   the  report  by  the  Commission  to  the   appropriate Government.   Subsection  (4)  therefore  contemplates  some

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 150 of 161  

action to be taken by the appropriate Government.  Section 4 deals  with the powers of a commission.  It shall  have  the powers of a civil court while trying the suit under the Code of Civil Procedure, 1908, in respect of matters 157 mentioned in the section.  Section 5 enables the  Commission to require any person to furnish information on the  subject matter  of the inquiry and any person so required  shall  be deemed  to  be  legally bound to  furnish  such  information within  the meaning of sections 176 ;and 177 of  the  Indian Penal  Code.   The  Commission may also  cause  :search  and seizure  of books of account and documents or take  extracts or  copies  therefrom so far as they  are  applicable.   The commission  is  deemed  to be a  civil  court,  for  certain purposes mentioned in sub-sections (4) and (5) of section 5. Section  5A empowers the commission to utilize the  services of certain officers in the case of a commission appointed by the  Central  Government  of any  officer  or  investigation agency  of  the Central Government or any  State  Government with the concurrence of the Central Government or the  State Government,  as  the  case  may be, or  in  the  case  of  a Commission appointed by the State Government of any  officer or  investigation agency of the State Government or  Central Government  with the concurrence of the State Government  or the Central Government, as the case may be.  The  commission may  summon  and enforce the attendance of  any  person  and examine  him,  require the discovery and production  of  any document, and requisition any public record or copy  thereof from any office.  Section 8-B provides that if at any  stage of inquiry the commission considers it necessary to  inquire into  the conduct of any person and is of opinion  that  his reputation  is  likely to be prejudicially affected  by  the inquiry   the  commission  shall  give  to  that  person   a reasonable  opportunity of being heard and section 8-C  con- fers a right of cross-examination and representation by  the legal practitioner to persons referred to in section 8-B  of the Act. Reading  the  Act as a whole the Commission  is  given  wide powers  ,of inquiry compelling Pie attendance  of  witnesses and  persons  who are likely to  be  prejudicially  affected giving them a right of cross-examination.  When a report  is submitted  by  the  Commission,  section  3(4)  contemplates action to be, taken by the appropriate Government. While  considering  the scope of Entry 45 in  List  III  and particularly the, word ’inquiries’ it has been found that in the context a restricted meaning should be given and if  the word  is  given  a wide meaning as to an  inquiry  into  the governmental  action of the State or the Union, as the  case may  be, it would not be conducive to the smooth running  of the  Constitution.   Under  section  3  the  Parliament  has conferred the power on the appropriate Government to appoint a commission of inquiry to inquire into any definite  matter of  public  importance.   On  behalf of  the  Union  it  was submitted   that  the  words  "definite  matter  of   public importance?’  would embrace the inquiry into the  misuse  of the  governmental functions of the State and in  support  of this contention several decisions were cited. In  M.  Y.  Rajwade v. Dr. S. M.  Hasan  and  others(1)  the question  arose as to whether a commission  appointed  under the  Commissions of Inquiry Act, 1952. has the status  of  a court.  The High Court at Nagpur held that the Act does  not confer on it the status of a Court. (1)I.L.R. [1954] Nag. 1. 158 The  facts  of the case are that the  Government  of  Madhya

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 151 of 161  

Pradesh   appointed  a  commission  of  inquiry  under   the Commissions of Inquiry Act, 1952, with Hon’ble Shri  Justice B.  K.  Choudhuri as the sole member.   The  Commission  was asked to inquire ’and report whether (i)  the firing was justified (ii) excessive force was used; and (iii)after  the  firing adequate action  was  taken  to maintain  peace  and  order,  to  prevent  recrudescence  of trouble  and to give adequate medical and other aid  to  the injured. Dealing  with the nature of the inquiry the court held  that the  commission in question was obviously appointed  by  the State  Government  for the information of its own  mind,  in order that it should not act,, in exercise of its  executive power,  otherwise  than in accordance with the  dictates  of justice  and  equity,  in ordering  a  departmental  inquiry against its officers.  It was therefore a fact finding  body meant  only to instruct the mind of the  Government  without producing any document of a judicial nature.  So far as  the scope  of  the inquiry in the case was  concerned  it  falls strictly  within  section  3 as the  inquiry  related  to  a definite matter of public importance and not an inquiry into the misuse of governmental functions of a Chief Minister  or a  State  Minister.   On  the  facts  of  the  case  it  was appropriate  that the court found that it was merely a  fact finding  body meant to instruct the mind of the  Government. In  Branjnandan Sinha v. Jyoti Narain(1) the  Supreme  Court considered  the  question whether the  Commission  appointed under  the Public Servants (Inquiries) Act, 1850, is  not  a court  within  the meaning of the Contempt  of  Courts  Act, 1952.  The Court approved the view taken by the Nagpur  High Court that the Commission was only a fact finding Commission meant only for instruct the mind of the Government and found that a Commission under the Public Servants (Inquiries) Act, 1850,  is  not a court. In Shri Ram Krishna  Dalmia  v  Shri Justice S. R. Tendolkar and Others(2) the Central Government appointed a Commission of Inquiry to inquire into and report in  respect of certain companies mentioned in  the  schedule attached  to the notification and in respect of  the  nature and extent of the control and interest which certain persons named  in the notification exercised over  these  companies. The   validity  of  the  Commissions  of  Inquiry  Act   was questioned.   The Supreme Court held that the Act was  valid and  intra  vires  and  the  notification  was  also   valid excepting  the words "as and by way of securing  redress  or punishment’ in clause 10 thereof which went beyond the scope of the Act.  The Court also held that the Act does not dele- gate  to the Government any arbitrary or uncontrolled  power and  does  not offend Article 14 of the  Constitution.   The Court  further  observed that the discretion  given  to  the Government  to set up a commission of inquiry is  guided  by the policy laid down in the Act and the executive action  is to  be  taken only when there exists a  definite  matter  of public  importance into which an inquiry is necessary.   The facts of the case are that the Central Government  appointed a Commission (1)[1955] S.C.R. 955. (2)[1959] S.C.R. 279. 159 of  Inquiry  under section 3 of the Commissions  of  Inquiry Act,  1952,  to  inquire  and  report  in  respect  of   the administration of the affairs of companies specified in  the schedule and other matters mentioned in clauses (2) to  (11) of the Order.  The inquiry under clause (3) is regarding the nature  and  extent  of the control,  direct  and  indirect,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 152 of 161  

exercised  over such companies and firms or any of  them  by Shri  R. K. Dalmia and 3 others, their relatives,  employees and  persons  connected with them.  Under  clause  (10)  the inquiry  was against any irregularities, frauds or  breaches of  trust etc. and required the Commission to recommend  the action  which  in the opinion of the  Commission  should  be taken as and by way of securing redress and arrangement  or’ to  act  as a preventive in future cases.  This  Court  held that  the Commission in the case was merely  to  investigate and record its findings and re,commendations without  having any  power  to  enforce them.  It was further  held  that  a portion  of  last  part of cl. (10) which  called  upon  the Commission  of  Inquiry to make  recommendations  about  the action  to  be taken as and by way of  securing  redress  or punishment  cannot  be  said  to  be  at  all  necessary  or ancillary to the purpose of the Commission.  The Court  held that  the  words  "as  and by way  of  securing  redress  or punishment"  clearly  go outside the scope of the  Act,  and such  a  provision was not covered by  the  two  legislative entries in the Constitution and should therefore be deleted. Considering  the  scope of section 3 it  observed  that  the "answer  is  furnished  by the statute  itself  for  section indicates  that  the appropriate Government  can  appoint  a Commission  of  Inquiry only for the purpose of  an  inquiry into  any  definite matter of public importance  and  to  no other matter.  In other words, the subject matter of inquiry can  only  be of a "definite matter of  public  importance". Rebutting the contention on behalf of the appellant that the delegation of the authority to the appropriate Government is unguided  and  uncontrolled, the Court  observed  that  "the executive action of setting up a Commission of Inquiry  must conform  to the condition of the- section, that is  to  say, that there must exist a definite matter of public importance into which an inquiry is, in the opinion of the  appropriate Government, necessary or is required by a resolution in that behalf passed by the House of the People or the  Legislative Assembly of the State".  The Court proceeded to observe that if  the Parliament had declared with sufficient clarity  the policy and laid down the principles for the guidance of  the exercise of the powers conferred on the appropriate  Govern- ment  it cannot be said that an arbitrary  and  uncontrolled power had been delegated to the appropriate Government.   On the  facts of the case before the Court the  conclusion  was reached that the power was exercised within the policy  laid down  by  the Parliament and the guidance  afforded  by  the preamble  and  section 3 of the Act.  The decision  was  not dealing with a case in which the inquiry is ordered into the misuse of governmental functions of the Chief Minister of  a State exercising the executive functions of the State.   The Court also rejected the plea on behalf of the appellant that the  Act  and  conduct of individual persons  can  never  be regarded as definite matter of public importance,  observing that  the  act and conduct of individuals  may  assume  such dangerous  proportions as may well affect the  public  well- being and thus become a definite matter of public import- 160 ance. An inquiry into "definite matter of public importance" may  be  incidental  or ancillary to  such  inquiry  require inquiring  into the conduct of persons.  Section  8-B  which was  introduced by an amendment by Act 79 of  1971  provides that if at any stage of the inquiry the Commission considers it necessary to inquire into the conduct of any person or is of opinion that the reputation of any person is likely to be prejudicially affected by the inquiry, the Commission  shall give to that person a reasonable opportunity of being  heard

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 153 of 161  

in the inquiry and to produce evidence in his defence.   The amendment  would indicate the procedure to be adopted if  in the  course of the inquiry it becomes necessary  to  inquire into  the  conduct of any person.  This would  suggest  that principally  the inquiry is as regards a matter of  definite public importance.  It may be that in some cases the conduct of  individuals  may  become a  definite  matter  of  public importance  as  laid down in R. K. Dalmias  case.   But  the decision does not conclude the point that has arisen in this case,   namely  whether  the  definite  matter   of   public importance)  should be construed as to include the right  to inquire  into  the abuse of governmental  functions  by’  a, State  Government when no such intention could have been  in the minds (if the Parliament. In  State of Jammu and Kashmir v. Bakshi Ghulam  Mohammad(1) the   State  Government  of  Jammu  and  Kashmir  issued   a notification  under  section  3 of  the  Jammu  and  Kashmir Commission of Inquiry Act, 1962, setting up a commission  to inquire into the wealth acquired by the first respondent and certain specified members of his family during his period of office.  It may be noted +that the Commission of Inquiry was set up by the State Government after Bakshi Ghulam  Mohammad resigned and ceased to be, the Chief Minister of the State. Two  of  the three Judges of the High Court  took  the  view that,  the matter referred to was not of  public  importance because  on  the  date of  the  notification  Bakshi  Ghulam Mohammad did not hold any office in the Government and  that there was no evidence of public agitation in respect of  the conduct  complained  of and that showed that they  were  not matters  of public importance.  The Supreme  Court  rejected the  view  taken  by  the High  Court  observing  :  "It  is difficult  to  imagine how a Commission can be set up  by  a Council  of Ministers to inquire into the acts of its  head, the  Prime  Minister, while he is in office.   It  certainly would be a most unusual thing to happen.. If the rest of the Council of Ministers resolves to have any inquiry, the Prime Minister  can be expected to ask for their resignation.   In any  case, he would himself go out.  If he takes. the  first course, then no Commission would be set up for the Ministers wanting  the  inquiry  would  have gone.   If  he  went  out himself, then the Commission would be set up to inquire into the  acts  of a person who was no longer in office  and  for that  reason, if the learned Judges of the High  Court  were right,  into  matters which were not of  public  importance. The result would be that the acts of a Prime Minister  could never be inquired into under the Act.  We find it  extremely difficult to accept that (1)  [1966] Supp.  S.C.R. 401. 161 view."  The decision of the Court is that the  inquiry  into the  past  and which have affective  the  public  well-being would be matters of public importance and it was  irrelevant whether  the  person who committed those acts  is  still  in power  to be, able to repeat them.  The pronouncement is  an authority  for the proposition that inquiry into the acts  a person who had ceased to be a Chief Minister may continue to I a matter of public importance. It  Bakshi’s  case the inquiry %,as directed  by  the  State Government  against  the  conduct  of  an  erstwhile   Chief Minister of the State.. Thus Court rejected the,  contention that  the inquiry against a person is outside the  scope  of section  3  of  the  Commissions of  Inquiry  Act.   It  was contended  before  this Court relying on section 10  of  the Jammu  and Kashmir Commission of Inquiry Act, 1962 that  the inquiry   directed  into  the  conduct  of  Bakshi   Cjhulam

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 154 of 161  

Mohanunad  was outside the scope of the Act.  Section 10  of the Jammu and Kashmir Act is similar to the present sections 8-B  and 8-C of the Commissions of Inquiry Act,  1952.   The section  states  that  if at any stage of  the  inquiry  the Commission  considers  it  necessary  to  inquire  into  the conduct  of any person or is of opinion that the  reputation of any person is likely to be prejudicially affected by  the inquiry   the  Commission  shall  give  to  that  person   a reasonable opportunity of being heard in the inquiry and  to produce  evidence in his defence.  Basing on the wording  of the  section it was submitted that the inquiry  is  normally only  into  a  definite  matter  of  public  importance  and inquiries  into  the conduct of a person can arise  only  as incidental or ancillary to such an inquiry.  As the  section contemplates the necessity of inquiry into the conduct of  a person  arising  at any stage of  the  Inquiry  Commission’s proceedings,  it  was submitted that the  inquiry  into  the conduct of a person is only incidental.  This Court rejected the contention on the ground that section 3 which permits  a Commission  of  Inquiry to be appointed is  wide  enough  to cover  an inquiry into the conduct of an individual  and  it could  not  be natural reading of the Act to  cut  down  the scope of section 3 by an implication drawn from section  10. This  observation was, as the subsequent sentence  makes  it clear,  made in rejecting the plea that section 10 does  not apply  to  a  person whose conduct  comes  up  directly  for inquiry  before  a  Commission set up under  section  3.  In Bakshi’s  case  as  the inquiry was  ordered  by  the  State Government  into  the affairs of a Chief  Minister  who  had ceased  to  be in office, the Court was not called  upon  to consider  the  question  whether the  Union  Government  can appoint a commission of inquiry into the conduct of a  Chief Minister   of   a  State  in  office   which   implies   the determination   of  Centre-State  relationship   under   the Constitution. In this case the appointment was by the  State Government against the erstwhile Chief Minister.  Apart from this  question  it  is  seen  that  if  section  3  of   the Commissions  of Inquiry Act, 1952 is construed  as  enabling the appointment of a commission of inquiry into the  conduct of  a  State  Chief Minister in office it  would  result  in empowering the Central Government which is a delegate of the Parliament  to  exercise the powers which would  never  have been contemplated by the Parliament, for as already  pointed out  the result of such construction would be  inviting  the State Government to appoint a commission of inquiry 162 to  the  conduct of Central Ministers regarding  matters  in List II and List III.  It is significant to note that  after Bakshi’s  case  was decided by the Supreme  Court  in  1966, amendments were introduced to the Commissions of Inquiry Act by Act 79 of 1971.  Section 8-B ins as follows :-               "8B.   If,  at any stage of the  inquiry,  the               Commission,-               (a)considers  it necessary to inquire  into               the conduct of any person; or               (b)is of opinion that the reputation of any               person is likely to be prejudicially  affected               by  the inquiry, the Commission shall give  to               that person a reasonable opportunity of  being               heard  in the inquiry and to produce  evidence               in his defence :               Provided  that nothing in this  section  shall               apply  where the credit of a witness is  being               impeached." No  doubt, there was corresponding section, section  10,  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 155 of 161  

the  Jammu & Kashmir Commission of Inquiry Act, 1962,  which was  considered in Bakshi’s case by the Supreme  Court,  and the Court had held that section 1 0 was also applicable to a case  in  which the conduct of a person was  directly  under inquiry.  It observed that the scope of section 3 cannot  be cut  down  by  an implication drawn  from  section  10.  The subsequent  amendment of the Act by introduction of  section 8-B which provides that if at any stage of the inquiry,  the Commission  considers  it  necessary to  inquire,  into  the conduct of any person, or is of opinion that the  reputation of  any  person is likely to be  prejudicially  affected  by enquiry would indicate that the Parliament was aware, of the consequence  of  such wording, and intended the  Act  to  be applicable  in  the main to any definite  matter  of  public importance  while  an inquiry into the  affairs  of  persons would be permissible if it arose-as incidental or  ancillary to   such   inquiry.   This  construction  appears   to   be justifiable,  for otherwise section 3 would have the  result of  empowering  the delegate i.e. the Union  Government,  to order an inquiry into the affair of the Chief Minister of  a State  and  inviting  the  same  treatment  from  the  State Government. The  decision  in P. V. Jaganmohan Rao & Ors.  v.  State  of Orissa  &  Ors.(1) also relates to the  appointment  by  the State Government of a Commission of Inquiry into the conduct of  the  Chief  Minister and Ministers who  ceased  to  hold office  on the date of the notification in regard to the  in regularities committed during the tenure of their office and it does not relate to the Commission of Inquiry appointed by the  Central  Government  to  inquire  into  the  abuse   of governmental  functions  by  the Chief  Minister  and  other Ministers. It will be, seen on an examination of the cases cited  above that  in  no  case the Central  Government  bad  ordered  an inquiry into the abuse of powers by the State Chief Minister in office.  It is stated that an inquiry was ordered by  the Central Government against Pratap Singh (1)[1968] 3. S.C.R. 789. 163 Kairon,  a  State Chief Minister, while in  office  but  the validity  of  such  an ,order was not  questioned  before  a court.  The Sarkaria Commission was appointed by the Central Government to inquire into  the conduct  of the Chief Minister when lie ceased to hold  that office and the President took over the administration of the Tamil  Nadu  State.   While in  office  the  Chief  Minister questioned  the Union Government’s power to appoint  such  a Commission. The  impugned  notification by the  Central  Government  was challenged  on  the ground that it is in  violation  of  the proviso  to section 3(1) of the Commissions of Inquiry  Act. Under  the proviso when a State Government has  appointed  a commission  of  inquiry, the Central  Government  shall  not appoint  another commission to inquire into the same  matter for  so  long  as  the commission  appointed  by  the  State Government is functioning, unless the Central Government  is of opinion that the scope of the inquiry should be  extended to  two  or more States.  In this case it is  common  ground that  the  State Government had appointed  a  Commission  of Inquiry  earlier.  The scope of the inquiry ordered  by  the Central  Government does not extend to two or ,more  States. In  the  circumstances  the notification  is  sought  to  be supported  by  the Central Government on the plea  that  the inquiry ;does not relate to the "’same matter" and therefore the  validity  of  the notification  cannot  be  challenged.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 156 of 161  

Reading section 3(1) along the proviso, it is apparent  that the  intention  of  the Act is to  en.able  the  appropriate Government  i.e.  the  Central or the  State  Government  to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance.   The Central  Government  can  appoint a commission  to  make  an inquiry  into  any matter relatable to any  of  the  Entries enumerated  in  List I, List II or List III of  the  Seventh Schedule of the Constitution while the State Government  can appoint a commission to inquire into any matter relatable to any of the entries enumerated in List II and List III of the Constitution.  As both the Central Government and the  State Government  have  power to appoint a commission  of  inquiry relating  to  entries in List II and List  III  there  might arise occasions when there may be overlapping.  In order  to avoid  such  a contingency provisos (a) and (b)  to  section 3(1) enact that when the Central Government has appointed  a commission  of  inquiry  the  State  Government  ’shall  not appoint  another commission to inquire into the same  matter without  the approval of the Central Government-,as long  as the  commission  appointed  by  the  Central  Government  is functioning  and  the Central Government shall  not  appoint another  commission to inquire into the same matter as  long as  the  commission  appointed by the  State  Government  is functioning.   These  provisions  are  for  the  purpose  of avoiding any conflict by the two Governments appointing  two separate  commissions to inquire into the same matter. in  a speech made by the Minister for Law Shri C. C. Biswas  while introducing  the Bill on August 6, 1952 in the Rajya  Sabha, he explained the provisions of section 3 and its  underlying purposes as follows :               "Then  there is also the question whether  and               bow far there may be overlapping inquiries  by               the  Centre appointing Commission on  its  own               and a State also a commission of               164               its  own to deal with the ’same matter.   That               is dealt with here in the proviso.  The danger               of overlapping is avoided by providing that if               there is a Commission appointed-by the Central               Government  already functioning then  it  will               not be open to a State Government, except with               the approval of the               Centre,  to  appoint  another  commission   to               inquire into the               same matter.  Similarly, if there is already a               Commission  appointed  by a  State  Government               functioning with respect to a matter which  is               within  the jurisdiction of the State it  will               not  be  open  to the  Central  Government  to               override   the  State  Commission  except   in               certain  circumstances  which  are  indicated,               that  is, unless the Central Government is  of               the  opinion that the scope of inquiry  should               be  extended to two or more States.   Then  of               course this will be done, obviously not  with-               out  reference to the State.  So as  you  will               see, Sir, provision is made in this clause for               avoiding  conflict between the Centre and  the               State." It  will  be  seen that the provisos were  enacted  for  the purpose  of  avoiding  conflict between the  Union  and  the State.   The  very  object of the proviso to  section  3  is defeated  by the construction sought to, be put upon by  the Union  Government.   The objection to the appointment  of  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 157 of 161  

commission  by the Union Government when there is already  a commission appointed by the State functioning is ’sought  to be  got over by the Union on the plea that by  the  impugned notification  the. inquiry is not directed against the  same matters  for which the State: has appointed a commission  of inquiry.   In the written statement filed on behalf  of  the Union of India it is contended that the matters. referred to the  Grover  Commission of Inquiry appointed  by  the  Union Government  are those which are not covered by the terms  of reference of the Hussain Commission of Inquiry appointed  by the  Government  of  Karnataka and that Annexure  I  to  the notification  dated  May  23, 1977  lists  such  allegations contained in the Memorandum dated April 11, 1977 as are  not at  all  included in the terms of reference of  the  Hussain Commission  of  Inquiry and that  relating  to  allegations, contained  in  Annexure II the said  allegations  stipulated that the Grover Commission of Inquiry will inquire into  the said  allegations  excluding  any  matter  covered  by   the notification  of the Government of Karnataka dated  May  18, 1977.  It was submitted that while the matter referred to by the  State Government is regarding  various  irregularities, the inquiry directed by the Central Government is for making an  inquiry on charges of corruption, nepotism,  favouritism or  misuse of governmental power against the Chief  Minister and certain other Ministers of the State of Karnataka.   The notification of the Karnataka: State Government appointing a Commission of Inquiry runs as follows:               "Whereas  allegations  have been made  on  the               floor  of the Houses of the State  Legislature               and elsewhere that irregularities have ,  been               committed/excess  payments  made  in   certain               matters relating to contracts, grant of  land,               allotment  of  sites, purchase  of  furniture,               disposal of food grains, etc.;               165               Whereas the State Government is of the opinion               that  It is necessary to appoint a  Commission               of   Inquiry   to  inquire   into   the   said               allegations;               NOW  THEREFORE,  in  exercise  of  the  powers               conferred  by sub-section (1) of section 3  of               the Commissions of Inquiry Act, 1952  (Central               Act  60 of 1952) the Government  of  Karnataka               hereby appoint Justice Shri Mir Iqbal Hussain,               Retired  Judge of the Karnataka High Court  to               be the Commission of Inquiry............." The  plea  on  behalf of the State is that  the  inquiry  is directed against all the allegations that have been made  on the  floor  of  the Houses of  the  State  ]Legislature  and elsewhere  and  the  charges therefore  comprehend  all  the matters  that  are  found  in  the  impugned   notification. Further  it  was submitted that as the commission is  to  go into and determine as to who are the persons responsible for the  lapses  the inquiry would include charges  against  the Chief Minister also.  As the purpose of the two provisos  to section  3(1)  is  to avoid conflict, the  words  "the  same matter"   in   the   provisos  should  be   given   a   wide interpretation  and only matters that are not  referable  to the  subject  matter  of  the  inquiry  by  the   Commission appointed  by  the State can be taken over  by  the  Central Government.   We  were not called upon to go  into  the  two notifications  and determine which item in the  notification of.  the  Central  Government is not covered  by  the  State Government  notification.  In giving a wider meaning to  the words  ’the same matter’ with a view to avoid conflict,  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 158 of 161  

contention of the Central Government that the inquiry  into- the  conduct of the Chief Minister about the  same  incident will make it a different matter cannot be accepted. The  contention as to the maintainability of the suit  under Article  131  of  the Constitution may  now  be  considered. Article 131 is as follows:               "Subject    to   the   provisions   of    this               Constitution,  the Supreme Court shall to  the               exclusion  of any other court,  have  original               jurisdiction in any dispute-               (a)   between the Government of India and  one               or more States, or               (b)..............               (c)between two or more states,               If andin  so far as the dispute  involves               any question (whether of lawor   fact)   on               which the existence or extent of a legal right  depends: The  point  is  whether the dispute  involves  any  question whether of law or fact on which the existence or extent of a legal  right of the State depends.  In other Words,  a  suit would  be  maintainable if there is any  infringement  of  a legal  right of the State.  The submission on behalf of  the Union  Government is that what is affected is not the  legal right  of  the  State  but  if at  all  that  of  the  State Government or the Ministers concerned.  Ministers may have a cause of action in which case the remedy will be by way of a petition under Article 226.  If the State 166 Government  feels aggrieved they can also take action  under Article  226  but  unless the legal right of  the  State  is affected recourse to Art. 131 cannot be had.  Relying on the General  Clauses Act and the distinction that is  maintained in  the  Constitution  between  the  State  and  the   State Government  it  was submitted that the State  itself  is  an ideal  person intangible, invisible, and immutable, and  the Government  is  its  agent.   In  order  to  appreciate  the contentions  of the parties it is necessary to refer to  the relevant  articles  of the Constitution  to  determined  the question as to whether any of the legal rights of the State is affectedPart  VI of the Constitution relates  to  the States and Art. 154 providesthat  the executive  power  of the State shall be vested in the Governorand  shall   be exercised  by  him either directly or through  the  officers subordinate  to  him in accordance  with  the  Constitution. Article  162 provides that subject to the provisions of  the Constitution  the executive power of the State shall  extend to the matters with respect to which the Legislature of  the State has power to make laws.  In other words the  executive power  of  the State is co-extensive  with  the  legislative power  of the State.  The executive power of the State  will be exercised by the Governor with the aid and advice of  the Chief Minister and other Ministers of the State.   According to  the  impugned  notification  Commission  of  Inquiry  is appointed  for  the  purpose of making  an  inquiry  into  a definite  matter  of public importance,  namely  charges  of corruption, nepotism, favouritism or misuse of  governmental power against the Chief Minister and certain other Ministers of the State of Karnataka.  The inquiry therefore is amongst other things regarding the misuse of the governmental  power against the Chief Minister and other Ministers of the State. The  executive function of the State which is vested in  the Governor is exercised by him with the aid and advice of  the Chief  Minister and the Council of Ministers.  The power  is also exercised by the Governor either directly or indirectly through  officers subordinate to him in accordance with  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 159 of 161  

Constitution.   The governmental functions of the State  are performed  by the Governor as required by  the  Constitution with the aid and advice of the Ministers The scope  of   the enquiry  would  inevitably involve the  functioning  of  the executive of the State.  The plea of the State Government is that its  powers  are derived from the Constitution and  its existence  and  its exercise of powers as executive  of  the State  is  guaranteed by the Constitution,  and  the  Centre cannot interfere with ’such exercise of executive functions. The  question involves the extent of the executive power  of the  State  and  any interference with  that  power  by  the Central  Government  would  affect the legal  right  of  the State.   The plea on behalf of the Union Government is  that Art.  154 contemplates the exercise by the Governor  of  his executive  power  through  officers subordinate  to  him  in accordance  with the Constitution.  The submission  is  that when the powers are exercised through Ministers who. accord- ing to the learned counsel for the respondent, are  officers the rights of such Ministers or officers are only interfered with and not the legal rights of the State.  Further it  was submitted  that State is different from the Government of  a State and if any action of the State or the Ministers of the State  is  questioned  the State as ’such  cannot  have  any grievance.  When the exercise of the executive functions  of the  State  through its officers is interfered with  by  the Central Government it cannot be said that the legal right of the State is not affected. 167 Strong  reliance,  was placed by the Union Government  on  a recent  decision of the Supreme Court in State of  Rajasthan and  Others v. Union of India.(1) The States  of  Rajasthan, Madhya  Pradesh, Punjab, Bihar, Himachal Pradesh and  Orissa filed  suits under Art. 131 of the Constitution against  the Union of India challenging a directive contained in a letter dated  April 18, 1977 issued by the Union Home  Minister  to the  Chief  Ministers  of the  States  as  unconstitutional, illegal,  and  ultra  vires of the Constitution  and  for  a declaration    that   the   plaintiffs   States   are    not constitutionally  or legally obliged to comply with or  give effect  to the directive contained in the said letter.   The power  of  the  Central Government  to  dissolve  the  State Assemblies  was  questioned.  A  preliminary  objection  was raised to the maintainability of the suit on the ground that no  legal  rights of the State were infringed and  that  the State  is different from the State Government and if at  all any  one was aggrieved it was the State Government  and  not the State.  Chief Justice Beg observed that even if there be some  grounds  for making a distinction  between  a  State’s interests  and  rights and those or it,, Government  or  its members,  the  Court need not take a too  restrictive  or  a hyper-technical  view of the State’s rights to sue  for  any rights,  actual,  or  fancied, which  the  State  Government chooses  to  take up on behalf of the State concerned  in  a ’suit  under Art. 131.  Mr. Justice Chandrachud was  of  the view that when the States question the constitutional  right of the Union Government to dissolve the State Assemblies  on the  rounds mentioned in the Home Minister’s letter  to  the Chief Ministers a legal, not a political, issue arising  out of the existence and extent of a legal right squarely arises and  the suits cannot be thrown out as falling  outside  the purview of Art. 131.  The learned Judge proceeded to express his view as follows:               "The  legal  right of the States  consists  in               their  immunity, in the sense of freedom  from               the  power of the-Union Government.  They  are

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 160 of 161  

             entitled,.  under  Art. 131,  to  assert  that               right  either  by contending in  the  absolute               that  the Centre ham no power to dissolve  the               Legislative    Assemblies    or    with    the               qualification  that  such a  power  cannot  be               exercised on the ground stated". Bhagwati and Gupta JJ. were of the view that the exercise of the power in the case would affect the constitutional  right of  the  State  to  insist that the  federal  basis  of  the political structure set up by the Constitution shall not  be violated  by  an unconstitutional, assault  under  Art.  356 (1,).   As the suit sought to enforce a legal right  of  the State  arising under the Constitution the suit could not  be thrown out in limine as being outside the scope and ambit of Art.  131.  Goswami and Untwalia JJ. were of the  view  that the  legal right must be that of the State.  When the  ’Home Minister  asks the Chief Minister of the Government  of  the States  to advice the Governors to dissolve the  Legislative Assemblies  and  the Chief Ministers decline to  accept  the advice it is not a dispute between the State on the one hand and the (1)[1978] 1 S.C.R. 1. 168 Government  of  India on the other.  It is  a  real  dispute between  the Government of the State and the  Government  of India.  It is no doubt a question of life and death for  the State  Government but not so far the State as legal  entity, as even after the dissolution of the Assembly the State will continue to have a government for the time being as provided for in the Constitution.  Fazal Ali, J. was of the view that the mere fact that letters were sent to the State Government containing gratuitous advice would not create any dispute if one did not exist before nor would such a course of  conduct clothe the State Government with a legal right to call for a determination under Art. 131 as the State did not possess  a legal  right.  The State Government who have raised  dispute are not covered by the word ’State appearing in Art. 131 and therefore  the  suits were not maintainable on  that  ground also.  It will be seen that four of the seven Judges were of the view that the suits are maintainable though Bhagwati and Gupta  JJ.  were  of the view that  there  is  a  difference between  the State and the State Government.   Whatever  the question that might have risen regarding the dissolution  of the  Assemblies, in the present case the dispute relates  to the  functioning  of  the State in exercise  of  the  powers conferred  under  the  Constitution and  the  State’s  legal rights  are affected.  The preliminary  objection  therefore fails. To sum up taking into account the history of the development of  the  Indian  Constitution and its  scheme  the  impugned notification impinges on the right of the State to  function in  its limited sphere.  Further, the impugned  notification is beyond the powers conferred on the Union Government under Section 3 of the Commissions of Inquiry Act, 1952.  In  this view  the question whether section 3 of the  Commissions  of Inquiry Act, 1952 is ultra vires of the power of  Parliament or not does not arise. it  is  necessary  that  Commission  of  Inquiry  should  be appointed  in order to maintain and safeguard the purity  of the Union and the State administration.  But such Commission of  Inquiry  should  be strictly  in  accordance  with  the, Constitution  and  should  not  affect  the  Centre-’  State relationship.   The proposal now pending  before  Parliament for  appointment of Lok Pal to conduct such inquiries  is  a move  in the right direction, if  sufficient  constitutional

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 161 of 161  

safeguards are provided for the institution of Lok Pal. In view of the Judgment the first issue whether the suit  is maintainable  is answered ’in the affirmative.  Under  Issue No. 2 the impugned notification is ultra vires of the powers of  the Central Government conferred on it by Section  3  of the  Commissions of Inquiry Act.  In this view Issue  No.  3 does not arise for consideration The suit has to be  decreed as prayed for.                            ORDER In  accordance  with the view of the majority, the  Suit  is dismissed with costs. P.B.R. 169