Rai Sahib Ram Jawaya Kapur v. State of Punjab
Supreme Court of India · 12 April 1955
The State executive may carry on a trade or business without specific legislation, since its power under Article 162 extends to all matters within State legislative competence; the text book scheme violated no fundamental right of the publishers.
Facts
Recognised schools in Punjab had to use text books prescribed or authorised by the Education Department. From 1905 private publishers submitted books, and several alternatives were approved on each subject. From May 1950 the Government itself published books on some subjects, approved only one book per subject and charged a 5% royalty. A notification of 9 August 1952 invited only 'authors and others', who had to vest the copyright in the Government for a 5% royalty, so that the Government alone printed, published and sold the books. The petitioners, publishers trading as Uttar Chand Kapur and Sons, sought mandamus under Article 32 to withdraw the notifications as infringing Articles 19(1)(g) and 31.
Questions before the Court
- Whether the executive Government of a State can carry on a trade or business without specific legislation authorising it.
- Whether the text book notifications infringed the publishers' right under Article 19(1)(g).
- Whether the publishers were deprived of property within Article 31(2).
What the Court held
- Articles 73 and 162 do not define executive function; they distribute executive power between the Union and the States. The State executive's power extends to matters on which the State Legislature can legislate, not only to matters on which it has already legislated.
- Executive power is broadly the residue of governmental functions after legislative and judicial functions are taken away. It includes formulating policy and carrying it out, but the executive can never act against the Constitution or any law.
- Specific legislation is not always needed for the Government to run a trade or business. Expenditure sanctioned by Appropriation Acts suffices, though legislation is needed where private rights must be encroached upon.
- Publishers had only a chance of their books being approved, which is not a right under Article 19(1)(g) or property under Article 31(2). The petitions were dismissed.
Why it matters
The judgment explains the nature and extent of executive power under Articles 73 and 162: it is not limited to executing existing laws, and it is coextensive with legislative competence, subject to the Constitution and the law. It describes the parliamentary executive, with the President and Governor as formal heads and real power in the Council of Ministers, and holds that a mere business expectation is not protected by Articles 19(1)(g) or 31(2).
In the Court's words
Copied from the official judgment; each passage links to its page.
“Neither of these articles contain any definition as to what the executive function is and what activities would legitimately come within its scope. They are concerned primarily with the distribution of the executive power between the Union on the one hand and the States on the other. They do not mean, as Mr. Pathak seems to suggest, that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them.”
“It may not be possible to frame an exhaustive definition of what executive function means and implies. Ordinarily the executive power connotes the residue of governmental functions that remain after legislative and judicial functions are taken away. The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that-essentially belong to another.”
“Suppose now that the Ministry or the executive Government of a State formulates a particular policy in furtherance of which they want to start a trade or business. Is it necessary that there must be a specific legislation legalising such trade activities before they could be embarked upon? We cannot say that such legislation is always necessary. If the trade or business involves expenditure of funds, it is certainly required that Parliament should authorise such expenditure either directly or under the provisions of a statute.”
“As in our view the petitioners have no fundamental right in the present case which can be said to have been infringed by the action of the Government, the petition is bound to fail on that ground. This being the position, the other two points raised by Mr. Pathak do not require consideration at all.”
Provisions interpreted
- Article 162, Constitution
- Article 73, Constitution
- Article 19(1)(g), Constitution
- Article 31(2), Constitution
- Article 298, Constitution (text as it stood in 1955)
Case and bench
- Parties
- Rai Sahib Ram Jawaya Kapur and Others v. The State of Punjab (and connected petitions)
- Case
- Petitions Nos. 652 of 1954 and 71 to 77 and 85 of 1955 (Original Jurisdiction)
- Decided
- 12 April 1955
- Bench
- Mukherjea, C.J.
- Opinions
- The judgment in Petition No. 652 of 1954, which also governs the connected petitions, was delivered by Mukherjea C.J. The file does not print the other members of the Bench and shows no separate opinion.
Questions on this case
2 questions in live Law Maker papers mention this case. A few from free papers:
Question 1 · Administrative Law Practice Set 1
In Rai Sahib Ram Jawaya Kapur v. State of Punjab (1955), the Supreme Court described the position of the doctrine of separation of powers under the Indian Constitution as follows:
- A. The Constitution rejects the doctrine altogether, so that any organ may freely perform the functions of another
- B. The doctrine is not applied rigidly, but one organ may not take over functions essentially belonging to another
- C. The Constitution adopts the rigid American model, so that the executive can never make subordinate rules of any kind
- D. The doctrine applies between the legislature and the judiciary but not to the executive at all
Show the answer
B. The doctrine is not applied rigidly, but one organ may not take over functions essentially belonging to another
Ram Jawaya Kapur (1955) said that the Constitution has not recognised separation of powers in its absolute rigidity, but the functions of the branches are sufficiently differentiated, so one organ cannot assume functions that essentially belong to another. The executive may make subordinate legislation and exercise limited judicial functions when empowered by law.