RAM JAWAYA KAPUR v. STATE OF PUNJAB- (Case Commentary)


INTRODUCTION

         The Constitution of India is the supreme law in India. The preamble of the Constitution recognizes the sovereign, republic ,democratic country. Parliament cannot override it. Accordingly the Indian Constitution recognizes the concept of separation of powers. The French scholar ‘Montesquie’ propounded the theory of separation of power in 1747 in his book ‘Espirit des Louis’. The concept of Separation of power forms a basic structure of constitution though not explicitly mentioned. The sovereign power of India has been distributed to three wings called Executive, Legislative and Judiciary. The functions of these organs are : the Executive enforces the law, the Legislative passes the law and the judiciary applies it. The concept of separation of power is that the person or the body of the persons should not exercise the powers, functions and personels of all the three organs. These three organs represents the people and the will and it imparts the smooth running of the government in our country. The concept of separation of powers is followed in strict sense but not its function. These three organs are inter dependant only to certain extent when their incidental functions are delegated. While performing this incidental functions of an another there should not be any derogatory or encroachment. Hence there arises a concept of checks and balances. The checks and balances is essential for the proper functioning of all the three organs of the government and to prevent it from encroaching upon others and to balance their functions.

BACKGROUND OF THE STUDY

Ø  FACTS    

In this case the petitioner filed a case under Article 32 of the Indian constitution against the notification passed by the Government of Punjab in 1952 for those who engaged in the business of preparing, printing, publishing and selling text books for different classes in the schools of Punjab. It was alleged that Education department of Punjab Government pursuant to their “policy of nationalization” of text books issued an executive notifications in 1950 for acquiring the copyright in selected books from authors and undertaking printing works. The petition stated that the Government of Punjab was not only unlawfully restricting the activity of regularly carrying the business but also it avoids them from carrying on their trade and business of the petitioners and other traders. Petitioner stated that it is the violation of Article 19[1][g] of Constitution and also it is against the federal structure of constitution as it violates the doctrine of separation of power and Hence should decide as Ultra vires. 

Ø  CONTENTION OF PETITIONER

 According to the petitioner, imposing restriction on publishing printing works on text books is,

i.      Violation of fundamental rights under Article 19[1][g] of the Indian Constitution

ii.    The executive power of the state does not extend to undertaking of the trading activities without legislative sanction 

Ø  ISSUES

1.       Whether there was a violation in the fundamental rights of the petitioner?

2.       Did the executive exercise its functions beyond what was granted by the law or it needs any special law to grant the function ?

Ø  JUDGMENT

The court held that the concept of separation of power under the Indian constitution has not adhered to absolute rigidity but at the same time the functions of all the three organs are differentiated . Also, Article 73 of the Indian Constitution says the executive power of the union shall be extended to the matters with respect to which parliament has power to make laws and Article 162 provides the same provision in case of a state government. It clearly states that the power of the state executive can extend to matters where the state legislature is competent to enact and are not confined to matters which it has been passed already. The specific legislation is required when the government needs extra power where they by default does not posses under ordinary law for the expenditure of fund than that of granted. But in the present case the government of Punjab acted and shows the expenses incurred out of annual financial statement and also sanctioned by the state legislature. Accordingly the Appropriation act were passed. The court held while analyzing the executive action it can perform its functions without backing of any legislation permitting it. Also the notice might have restricted the books used in schools but the publishers were free to approach in private sector for business. Therefore in the present case no fundamental rights of the petitioners were violated under Article 19{1}{g}and the actions taken by the Punjab government was done in furtherance of their policy of nationalization. Hence the apex court dismissed the petition by saying, in India the strict separation of powers is followed but the functions cannot be followed in the strict sense.

ANALYSIS

“ Without check in the power the trust is distrust ”

It has been analyzed that in the Ram Jawaya case, the Supreme Court has to deal with the questions of extent of executive function by co relating it with separation of powers and it has alleged to have violated the fundamental rights of the citizen granted to them by the Indian Constitution. There is no exact definition for the executive function. It is not expected that the executive has to run to the legislature to grant the special legislation in order to perform its daily activities. The executive has the power to issue order, notifications in accordance with Article 73 and Article 162. Even in recent times this case plays a vital role in understanding the concept of separation of power and draws a thin line between essential and incidental functions. It is clearly understood that only the incidental functions of the organs can be delegated and that one organ of the state cannot usurp or encroach the essential functions of an another. While exercising it the executive couldn’t go against the provisions mentioned under Article 154 of the Indian constitution. Though the doctrine of separation of powers cannot be followed in the strictest sense, the independence of the organ must always uphold. In my opinion that the three organs of the government should exercise its power on the principle of “Checks and Balances”.

CONCLUSION

The author concludes by saying that this case apart from separation of power also imparts the understanding of daily need of executive work in order to carry out the public work and need in maintaining peace and harmony without involving in encroaching activities. In contemporary times, the doctrine of separation of power cannot be followed in a strict sense but for the smooth running of the government it is important for mutual and smooth relationship between the organs. Owing to the increase in the complexity of functions of the three organs in recent times and the changes in the paradigm paves the way to constitutional need to interpret broadly by covering all aspects of the constitutional needs for the betterment of society and human lives.

-A. Jai Shree Shivamaithy
School of Excellence in Law

Comments

Post a Comment

Popular posts from this blog

MARITAL RAPES IN INDIA: AN UGLY REALITY- (Blog)

Image
Marriage is a very pure tie of two human beings based on their common love and respect for each other. When it comes to my view on marriage I completely agree with a dialogue in a famous Indian movie Kabhi Alvida Na Kehna Kehte Hain shaadi ki buniyaad sirf aur sirf beinteha mohhabat honi chaahiye kyunki agar buniyaad galat ho to rishte toot jaate hain (A marriage should always be based on immense love for each other cause a relationship based on anything else can’t continue long). In our Indian society, every so often marriages are ‘arranged’ by the parents of a girl and a boy. The girl’s family usually considers a boy who is earning well and has some family property a good match for their girl while the boy’s family every so often looks for a good-looking girl who can cook and do other household chores efficiently as being a perfect match for their boy. So, you can understand very well, love is something most disregarded when we talk about marriage in India. In suc...
Read more

CYBER CRIME : A NEW BREED OF CRIMINAL- (Article)

Image
  ABSTRACT Cybercrimes are a new class of crimes to India speedily expanding due to wide use of Internet. Dishonest and greedy people take gain of easy and free access to Internet and perform any acts to please their needs. The requirement could be physiological or psychological in nature. Online shopping and extensive use of “social media” are root cause of cybercrimes. Much cognizance created for cybercrimes and users were educated. But still individuals do not complain it to authorities. Even somebody do it then also police or crime branch incapable to clear such complains in practical time period. Postponement in justice will lead to NO registration of complain. This is not healthy condition in free democratic INDIA. The law IT (Information Technology) Act 2000 and numerous sections of the IPC are in place but in large population country like India and China, it is very difficult to regulate crime caused by cyber world. We need to have self-discipline for better society. We...
Read more

DIGITAL HEALTHCARE IN CORONA TIMES- (Blog)

Image
In these back-breaking times of unprecedented medical crisis, where it has become impossible to reach out to all the people in need of healthcare facilities, the strenuous efforts of the government are focused on the digital healthcare facilities to attenuate the effect of this pandemic. Amidst this chaos, one of the concerns of the government is regarding the suspected cases which can be broadly divided into two groups. Firstly, those people who have the concerned prodromes but the blood test reports are on hold. Secondly, the ones that came in contact with the positive patients but they have not been tested positive yet and are strictly advised to isolate. These people are required to visit the doctor daily until the final diagnosis report is out. This makes even the doctors more exposed to the virus as on average, 22% of the healthcare workers get infected by the virus. In several such cases, this complication has been deciphered with the introduction of virtual health care progra...
Read more