Ram JawayaKapur v. State of Punjab

 

Ram JawayaKapur v. State of Punjab

AIR 1955 SC 549

Bench: Hon’ble Justice C.J. Mukherjee, Hon’ble Justice V Bose, Hon’ble Justice Jagannadhadas, Hon’ble Justice V Ayyar, Hon’ble Justice Imam

FACTS:

1905-1950: Alternative Method

The state government used a specific method for determining the textbooks and course materials for the schools. Books were prepared by the authors/publishers with their own money. They were submitted to the government for their approval. The Education Department, after scrutiny, rated the works submitted from 3 to 10. They even fixed the price, the size, and the content of the books. The discretion was then left to the headmasters of different schools to select the books as alternate books for subjects.

May,1950: Resolutions by Government

The government started publishing certain books. And for the selection of the remaining books, the alternative method was given up. The government approved only one textbook for each subject for each zone (at that time, the entire region of Punjab was separated into three zones)and even charges 5% royalty on the sale price.

August, 1952: The Notification

The Education Department made more stringent changes in the selection process. The word ‘publishers’ was completely removed andonly ‘authors and ors.’ were invited to submit books for approval. They also had to enter into agreements with the government. These agreements made the copyright vest in the government and the authors would get only 5% royalty on sale.Thus, the government had the monopoly on publishing, printing, and selling of the books.

Under Article 32,six persons approached the Hon’ble Supreme Court against the 1952 notification.

ISSUES:

1.     Whether the government of a state can engage in trade or business without any legislative sanction.

2.     Whether the Fundamental Rights of the petitioner under Article 19(6) infringed due to preparation and publication of books by the State government?

3.     Isthe payment of compensation required under Article 31 of the constitution?

ARGUMENTSBY PETITIONER:

1.     The counsel, Mr. Pathak, relying on Article 71 and Article 162, argued that the executive cannot engage in trade or business without any legislative sanction for the same. Hence, thePunjab government’s function of printing and publishing books is without jurisdiction and illegal.

2.     By creating a monopoly in its favour, the State government has infringed the Fundamental Rights of the citizens under Article 19(6) of the Constitution of India.

3.     The government is depriving the citizens of their property without any proper compensation as mentioned in Article 31 of the Constitution of India.

To further establish his argument, the counsel of the petitioner relied upon two Australian cases, The Commonwealth and The Central Wool Committee v. The Colonial Combing, Spinning and Weaving Co. Ltd. And Vide Attorney-General for Victoria v. The Commonwealth. Section 61 of the Australian Constitution states that the executive power of the Commonwealth is vested in the Queen and is exercised by the Governor-General as the Queen's representative and extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. In the first case, based on section 61, the High Court of the Commonwealth held thatthe executive Government of the Commonwealth had no power to make these kinds of agreements without having legislation on the same. In the second case, the court authorized the Commonwealth Government to establish a clothing factory in Melbourne for making naval and military uniform. Here, the counsel of the petitioner relied on the dissenting opinion of judge StarkJ.

The Allahabad High Court, in 1951, dealt with a similar caseMotilal v. The Government of the State of Uttar Pradesh. The High Court in this case held that the State has a right to hold and manage its own property and carry on such trade or business as a citizen has the right to carry but it should not violate the rights of others and must be in accordance with law. The counsel, here, relied on the dissenting opinion of Agarwal, J who stated that the Government had no power to run a bus service in the absence of an Act of the legislature authorizing the State to do so.

Another contention that the petitioner presented was of the Appropriation Acts. All the expenses of the printing and publishing of the textbooks was shown in the annual financial statement. They were sanctioned by the State Legislature and then the Appropriation Acts were passed. Thus, beyond executive’s competence.

JUDGEMENT:

CJ Mukherjea delivered this landmark judgement.He stated that the power of the executive is not restricted to merely carrying on legislations.Although Indian Constitution is federal in structure, it is based on the British Parliamentary system. The executive has the responsibility in carrying on policies and their incorporation into law. And while implementing all these responsibilities, the executive must not lose the confidence of the legislature.It is impossible to come up with an exhaustive definition of the functions of the executive. The powers and functions of the executive changes with time. The court, thus, refrained from a strict interpretation of the separation of powers and held that the functions of the three organs overlap.

The Supreme Court did not consider the Australian judgements because the Indian Constitution contains no provision similar to Section 61 of the Australian Act. Also, the government of Punjab did not impose any taxation or license fee as was the issue in one of the cases.

The counsel of the petitioner relied on the dissenting opinion of Agarwal J from the Motilal case. But this opinion was also rejected. It was held to be too narrow and did not have any substantive basis.

The court further held that there was no violation of the fundamental rights of the petitioner under Article 19(6) as the petitioners cannot claim any fundamental right under Article 19(1)(g). The Punjab Government adopted this method of publishing and printing the textbooks on the government schools. By this method, the petitioner had a chance of getting their books selected by the headmasters of the school. Also, the petitioner was not refrained from printing, publishing, or selling their books. Hence, no fundamental right was breached.

Also, the right to property of the petitioner was enact and no such right was violated.Thus, the compensation regarding the same does not arise.

 

Hence, the petition was dismissed.

References:

1.     Rai Sahib Ram JawayaKapur And Ors. Vs The State Of Punjab AIR 1955 SC 549

2.     https://www.lawinsider.in/judgment/rai-sahib-ram-jawaya-kapur-vs-state-of-punjab

3.     https://www.legalbites.in/case-analysis-rai-sahib-ram-jawaya-kapur-1955/#:~:text=State%20of%20Punjab%20(1955),-By%20Ritika%20Chaturvedi&text=Ram%20Jawaya%20Kapur%20and%20Ors.%20is%20one%20of%20the%20landmark,legislative%20sanction%20for%20its%20functions.