CASE NOTES Constitutional Law

CASE NOTES – CONSTITUTIONAL LAW

Contents DOCTRINE OF REPUGNANCY ........................... ......................................... ............................ ............................. ............................. ............................ ............................ ............................ .......................... ............2 Ch. Tika Ramji v. v. State of Uttar Pradesh Pradesh : [1956]1 SCR 393 .................... ......... ........... .......... ........... .......... ........... .......... .......... . 2 Deep Chand v State of U.P. – AIR 1959 SC 648 .......................... ......................................... ............................. ............................ ............................ ............................ ................... ..... 2 The Kannan Devan Hills Produce Vs. The State of Kerala and Anr. (1972)2 SCC 218 ............. .......... ........... ......... 5 M. Karunanidhi v. Union of India ( 1979 Indlaw SC 271). (SCC pp. 436-37, para 8) ........... .......... ........... .......... .... 6 PITH AND SUBSTANCE ............................ .......................................... ............................ ............................ ............................ ............................ ............................ ............................ ............................. ...................... .......7 Sajjan Singh Vs. State State of Rajasthan - .......... .......... ........... .......... ........... .......... .......... ........... .......... ........... .......... ...... 7 Subrahmanyan Chettiar Vs. Muttuswami Muttuswami Goundan ................. ........... .......... ........... .......... ........... .......... ........... ....... 8 Prem Chand Jain & Anr. Vs. R. K. Chhabra – AIR 1984 SC 981 ............................................................................. 9 HARMONIOUS CONSTRUCTION .......................... ......................................... ............................. ............................ ............................ ............................ ............................ ............................ ...................... ........10 Gujarat University University Ahmedabad v. Krishna Krishna Ranganath Mudholkar Mudholkar .......... .......... ........... .......... ........... .......... ........... 10 Chitralekha v. State of Mysore ................................................................................................................................ 11 DAV College, Bhatinda v State of Punjab.......... .......... ........... .......... ........... .......... .......... ........... .......... ........... ....... 11 COLOURABLE EXERCISE OF POWER ............................ .......................................... ............................ ............................ ............................ ............................ ............................ ........................... .............13 D.C.Wadhwa v State of Bihar ................................................................................................................................. 13 DOCTRINE OF TERRITORIAL NEXUS ............................ .......................................... ............................ ............................ ............................ ............................ ............................ ........................... .............15 The State of Bombay Bombay vs R. M. D. Chamarbaugwala Chamarbaugwala AIR 1957 SC 699 ................... ........... .......... ........... .......... .... 15

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DOCTRINE OF REPUGNANCY Ch. Tika Ramji v. State of Uttar Pradesh : [1956]1 SCR 393 Bhagwati, J,observed : Industry in the wide sense of the term would be capable of comprising three different aspects: (1) Raw materials which are an integral part of the industrial process, (2) The process of manufacture or production, and (3) The distribution of the products of the industry. The raw materials would be goods which would be comprised in Entry 27 of List II. The process of manufacture or production would be comprised in Entry 24 of List II except where the industry was a controlled industry when it would fall within Entry 52 of List I and the products of the industry would also be comprised in Entry 27 of List II except where they were the products of the controlled industries when they would fall within entry 33 of List III. This being the position, it cannot be said that the legislation which was enacted by the center in regard to sugar and sugarcane could fall within Entry 52 of List I. Before sugar industry became a controlled industry, both sugar and sugarcane fell within Entry 27 of List II but, after a declaration was made by Parliament in 1951 by Act LXV of 1951, sugar industry became a controlled industry and the product of that industry viz., sugar was comprised in Entry 33 of List III taking it out of Entry 27 of List II.

Deep Chand v State of U.P. – AIR 1959 SC 648 56. Mr. Naunit Lal bases his case on the proviso to Art. 254(2) of the Constitution rather than on clause (1) thereof. He contends that by reason of the Amending Act, the U.P. Act was repealed in toto; and because of Section 68B, the operation of the provisions of the General Clauses Act saving things done under the repealed Act was excluded. The learned Advocate General Attempted to meet the double attack by pressing on us to hold that there was no repugnancy at all between the provisions of the Central Act and the U.P. Act and therefore the U.P. Act had neither become void not was repealed by necessary implication by the Central Act. We shall now examine the provisions of Art. 254(1) and254(2). 57. Article 254 : (1) If any provisions of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to Gaurav Rai

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CASE NOTES – CONSTITUTIONAL LAW the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void. (2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State." 58. Article 254(1) lays down a general rule. Clause (2) is an exception to that Article and the proviso qualifies the exception. If there is repugnancy between the law made by the State and that made by Parliament with respect to one of the matters enumerated in the Concurrent List, the law made by Parliament shall prevail to the extent of the repugnancy and the law made by the State shall, to the extent of such repugnancy, be void. Under clause (2), if the Legislature of a State makes a provision repugnant to the provisions of the law made by Parliament, it would prevail if the legislation of the State received the assent of the President. Even in such a case, Parliament may subsequently either amend, vary or repeal the law made by the Legislative of a State. In the present case, the Uttar Pradesh Legislative Assembly, after obtaining the assent of the President on April 23, 1955, passed the U.P. Act. Parliament subsequently passed the Motor Vehicles (Amendment) Act (100 of 1956). Therefore, both the clauses of Art. 254 would apply to the situation. The first question is whether the provisions of the Union Law, i.e., the Motor Vehicles (Amendment) Act (100 of 1956), are repugnant to the provisions of the U.P. Act and if so to what extent. Before we proceed to examine the provisions of the two Acts, it may be convenient to notice the law pertaining to the rule of repugnancy. 59. Nicholas in his Australian Constitution, 2nd Edition, page 303, refers to three tests of inconsistency or repugnancy :"(1) There may be inconsistency in the actual terms of the competing statutes; (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code; and (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject matter."

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CASE NOTES – CONSTITUTIONAL LAW 61. Repugnancy between two statutes may thus be ascertained on the basis of the following three principles : (1) Whether there is direct conflict between the two provisions; (2) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the Act of the State Legislature; and (3) Whether the law made by Parliament and the law made by the State Legislature occupy the same field. 62. We shall now examine the provisions of both the Acts in some detail in order to ascertain the extent of the repugnancy between them. The Scheme of the U.P. Act may be summarized thus : Under the U.P. Act. "State Road Transport Service" is defined to mean transport service by a public service vehicle owned by the State Government. Under s. 3 : "Where the State Government is of the opinion that it is necessary in the interests of the general public and for subserving the common good, or for maintaining and developing efficient road transport system so to direct, it may, by notification in the official Gazette declare that the road transport services in general, or any particular class of such service on any route or portion thereof as may be specified, shall be run and operated exclusively by the State Government, or by the State Government in conjunction with railways or be run and operated partly, by the State Government and partly by others under and in accordance with the provisions of the Act." 65. A comparison of the aforesaid provisions of the U.P. Act and the Amending Act indicates that both the Acts are intended to operate in respect of the same subject matter in the same field. The unamended Motor Vehicles Act of 1939 did not make any provision for the nationalization of transport services, but the States introduced amendments to implement the scheme of nationalization of road transport. Presumably, Parliament with a view to introduce a uniform law throughout the country avoiding defects found in practice passed the Amending Act inserting Chapter IV-A in the Motor Vehicles Act, 1939. This object would be frustrated if the argument that both the U.P. Act and the Amending Act should co-exist in respect of schemes to be framed after the Amending Act, is accepted. Further the authority to initiate the scheme, the manner of doing it, the authority to hear the objections, the principles regarding payment of compensation under the two acts differ in important details from one another. While in the U.P. Act the scheme is initiated by the State Government, in the Amendment Act, it is proposed by the State Transport Undertaking. The fact that a particular undertaking may be carried on by the State Government also cannot be a reason to equate the undertaking with the State Government; for under s. 68A the undertaking may be carried on not only by the State Government but by five other different institutions. The undertaking is made a statutory authority under the Amending Act with a right to initiate the scheme and to be heard by the State Government in regard to objections filed by the persons affected by the scheme. While in the U.P. Act a Board hears the objections, under the Amending Act the State Government decides the disputes. The provisions Gaurav Rai

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CASE NOTES – CONSTITUTIONAL LAW of the scheme, the principles of compensation and the manner of its payment also differ in the two Acts. It is therefore manifest that the Amending Act occupies the same field in respect of the schemes initiated after the Amending Act and therefore to that extent the State Act must yield its place to the Central Act. But the same cannot be said of the schemes framed under the U.P. Act before the Amending Act came into force. Under Art. 254(1)"the law made by Parliament, whether passed before or after the law made by the Legislature of such State........ shall prevail and the law made by the legislature of the State shall, to the extent of the repugnancy, be void."

The Kannan Devan Hills Produce Vs. The State of Kerala and Anr. (1972)2 SCC 218

22. We may first deal with the question of legislative competence. We have set out the relevant provisions of the impugned legislation. It seems to us clear that in pith and substance it is a law dealing with entry 18 of List II and entry 42 of List III. Entry 18 reads : Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. 23. Entry 42 List III reads : Acquisition and requisitioning of property. 24. This Court has upheld the legislative competence of States to deal with land reforms under entry 18 of List II and entry 42 of List III in various cases. 25. The learned Counsel for the petitioner, however, contends that Section 4 and 5 of the impugned Act are a law with respect to entry 52 List I. These provisions, according to him regulate the carrying on of tea industry, within the competence of Parliament, by controlling the land available for tea plantation. He says that it is impossible to run an efficient plantation except by having sufficient land (1) for purposes ancillary to cultivation and plantation of the Corporation and (2) for the preparation of the same for the market.He says that it is also necessary to have land interspersed within the boundaries of the area cultivated with plantation for the preservation of the existing plantation. He urges that if the effect of the legislation is to control the working of the tea plantation the legislation must be regarded as legislation with respect to entry 52 I. 29. It seems to us clear that the State has legislative competence to legislate on entry 18 List II and entry 42 List III. This power cannot be denied on the ground that it has some effect on an industry controlled under entry 52 List I. Effect is not the same thing as subjectmatter. If a State Act, otherwise valid, has effect on a matter in List I it does not cease to be a legislation with respect to an entry in List II or List III. The object of Sub-section 4 and 5 seems to be to enable Gaurav Rai

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CASE NOTES – CONSTITUTIONAL LAW the State to acquire all the lands which do not fall within the categories (a), (b) and (c) of Section. 4(1). These provisions are really incidental to the exercise of the power of acquisition. The State cannot be denied a power to ascertain what land should be acquired by it in the public interest.

M. Karunanidhi v. Union of India ( 1979 Indlaw SC 271). (SCC pp. 436-37, para 8) "It would be seen that so far as clause (1) of Article 254 is concerned it clearly lays down that where there is a direct collision between a provision of a law made by the State and that made by Parliament with respect of one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the State law would be void to the extent of the repugnancy. This naturally means that where both the State and Parliament occupy the field contemplated by the Concurrent List then the Act passed by Parliament being prior in point of time will prevail and consequently the State Act will have to yield to the Central Act. In fact, the scheme of the Constitution is a scientific and equitable distribution of legislative powers between Parliament and the State legislatures. First, regarding the matters contained in List I, i.e., the Union List to the Seventh Schedule, Parliament alone is empowered to legislate and the State legislatures have no authority to make any law in respect of the entries contained in List I. Secondly, so far as the Concurrent List is concerned both Parliament and the State legislatures are entitled to legislate in regard to any of the entries appearing therein, but that is subject to the condition laid down by Article 254(1) discussed above. Thirdly, so far as the matters in List II, i.e., the State List concerned, the State Legislatures alone are competent to legislate on them and only under certain conditions Parliament can do so. It is therefore, obvious that in such matters repugnancy may result from the following circumstances1. Where the provisions of a Central Act and a State Act in the Concurrent List are fully inconsistent and are absolutely irreconcilable, the Central Act will prevail and the State Act will become void in view of the repugnancy 2. Where however a law passed by the State comes into collision with a law passed by Parliament on an entry in the Concurrent List, the State Act shall prevail to the extent of the repugnancy and the provisions of the Central Act would become void provided the State Act has been passed in accordance with clause (2) of Article 254. 3. Where a law passed by the State legislature while being substantially within the scope of the entries in the State List entrenches upon any of the entries in the Central List the constitutionality of the law may be upheld by invoking the doctrine of pith and substance if on an analysis of the provisions of the Act it appears that by and large the law falls within the four corners of the State List and entrenchment, if any, is purely incidental or inconsequential 4. Where, however, a law made by the State legislature on a subject covered by the Concurrent Gaurav Rai

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CASE NOTES – CONSTITUTIONAL LAW List is inconsistent with and repugnant to a previous law made by Parliament, then such a law can be protected by obtaining the assent of the President under Article 254(2) of the Constitution of India. The result of obtaining the assent of the President would be that so far as the State Act is concerned, it will prevail in the State and overrule the provisions of the Central Act in their applicability to the State only. Such a state of affairs will exist only until Parliament may at any time make a law adding to, or amending, varying or repealing the law made by the State legislature under proviso to Article 254."*

PITH AND SUBSTANCE Sajjan Singh Vs. State of Rajasthan In dealing with constitutional questions of this character, courts generally adopt a test which is described as the pith and substance test. In Attorney-General for Ontario v. Reciprocal Insurers and others ([1924] A.C. 328), the Privy Council was called upon to consider the validity of the Reciprocal Insurance Act, 1922 (12 & 13 Geo. 5, Ont., c. 62) and s. 508c which had been added to the Criminal Code of Canada by ss. 7 & 8 Geo. 5, c. 29 Dom. Mr. Justice Duff, who spoke for the Privy Council, observed that in an enquiry like the one with which the Privy Council was concerned in that case, "it has been formally laid down in judgments of this Board, that in such an inquiry the Courts must ascertain the 'true nature and character' of the enactment : Citizens' Insurance Co. v. Parsons ([1881] 7 App. Cas 96); its 'pith and substance' : Union Colliery Co. v. Bryden ([1899] A.C. 580); and it is the result of this investigation, not the form alone, which the statute may have assumed under the hand of the draughtsman, that will determine within which of the categories of subject matters mentioned in ss. 91 and 92 the legislation falls; and for this purpose the legislation must be 'scrutinised in its entirety' : "Great West Saddlery Co. v. The King" ([1921] 2 A.C. 91,117). It is not necessary to multiply authorities in support of the proposition that in considering the constitutional validity of the impugned Act, it would be relevant to inquire what the pith and substance of the impugned Act is. This legal position can be taken to be established by the decisions of this Court which have consistently adopted the view expressed by Justice Duff, to which we have just referred. 12. What then is the pith and substance of the impugned Act ? For answering this question, it would be necessary to recall very briefly the history of Articles 31A and 31B. Articles 31A and 31B were added to the Constitution with retrospective effect by s. 4 of the Constitution (First Amendment) Act, 1951. It is a matter of general knowledge that it became necessary to add these two provisions in the Constitution, because it was realised that legislative measures adopted by certain States for giving effect to the policy of agrarian reform which was accepted by the party in power, had to face a serious challenge in the courts of law on the ground that they contravened the fundamental rights guaranteed to the citizens by Part III. These measures had been passed in Gaurav Rai

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CASE NOTES – CONSTITUTIONAL LAW Bihar, Uttar Pradesh and Madhya Pradesh, and their validity was impeached in the High Courts in the said three States. The High Court of Patna held that the relevant Bihar legislation was unconstitutional, whilst the High Courts at Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in Uttar Pradesh and Madhya Pradesh respectively. [See Kameshwar v. State of Bihar (A.I.R. 1951 Pet 91) and Surya Pal v. U. P. Government MANU/UP/0037/1951]. The parties aggrieved by these respective decisions had filed appeals by special leave before the Supreme Court. At the same time, petitions had also been preferred before the Supreme Court under Art. 32 by certain other zamindars, seeking the determination of the same issues. It was at this stage that Parliament thought it necessary to avoid the delay which would necessarily have been involved in the final decision of the disputes pending before the Supreme Court, and introduced the relevant amendments in the Constitution by adding Articles 31A and 31B. That was the first step taken by Parliament to assist the process of legislation to bring about agrarian reform by introducing Articles 31A and 31B.

Subrahmanyan Chettiar Vs. Muttuswami Goundan It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list, touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared invalid because the Legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its "pith and substance", or its "true nature and character", for the purpose of determining whether it is legislation with respect to matters in this list or in that: Citizens Insurance Co. v. Parsons (1882) 7 AC 96, Russell v. Reg (1882) 7 AC 829, Union Colliery Co. v. Bryden (1899) 1899 AC 580, Att.-Gen. for Canada v. Att.-Gen. for British Columbia (1930) 1930 AC 111, Board of Trustees of Northern Irrigation District v. Independent Orders of Foresters (1940) 1940 AC 513. In my opinion, this rule of interpretation is equally applicable to the Indian Constitution Act. On this point I find myself in agreement with the Madras High Court, and I dissent from the contrary view which appears to have been taken in a recent case by the High Court at Patna: Sagarmal Marwari v. Bhuthu Ram ('41) 28 AIR 1941 Pat 99. 7. It is clear that the pith and substance of the Madras Act, whatever it may be, cannot at any rate be said to be legislation with respect to negotiable instruments or promissory notes; and it seems to me quite immaterial that many, or even most, of the debts with which it deals are in practice evidenced by or based upon such instruments. That is an accidental circumstance which cannot affect the question.

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Prem Chand Jain & Anr. Vs. R. K. Chhabra – AIR 1984 SC 981 `Education including universities' was a State subject until by the 42nd Amendment of the Constitution in 1976, that entry was omitted from the State list and, was taken into entry 25 of the concurrent list. But as already pointed out the Act essentially intended to make provisions for the coordination and determination of standards in universities and that, as already indicated, is squarely covered under entry 66 of list I. While legislating for a purpose germane to the subject covered by that entry and establishing a University Grants Commission, Parliament considered it necessary, as a regulatory measure, to prohibit unauthorised conferment of degrees and diplomas as also use of the word `university' by institution which had not been either established or incorporated by special legislation. We are not inclined to agree with the submission advanced on behalf of the appellants that in doing so Parliament entrenched upon legislative power reserved for the State legislature. The legal position is well settled that the entries incorporated in the lists covered by Schedule VII are not powers of legislation but `fields' of legislation. Harakchand v. Union of India(1). In State of Bihar v. Kameswar(2) this Court has indicated that such entries are mere legislative heads and are of an enabling character. This Court, has clearly ruled that the language of the entries should be given the widest scope or amplitude.. Navinchandra v. C.I.T. (3) Each general word has been asked to be extended to all ancillary or subsidiary matters which can fairly and reasonably be comprehended. See State of Madras v. Gannon Dunkerley(4). It has also been held by this Court in The Check Post Officer and Others. v. K.P. Abdulla Bros(5) that an entry confers power upon the legislature to legislate for matters ancillary or incidental, including provision for avoiding the law. As long as the legislation is within the permissible field in pith and substance, objection would not be entertained merely on the ground that while enacting legislation, provision has been made for a matter which though germane for the purpose for which competent legislation is made it covers an aspect beyond it. In a series of decisions this Court has opined that if an enactment substantially falls within the powers expressly conferred by the Constitution upon the legislature enacting it, it cannot be held to be invalid merely because it incidentally encroaches on matters assigned to another legislature. See State of Karnataka v. Ranganatha (6); KSE Board v. India Aluminium (7); Subramanyam Chettiar v. Mutuswami (8); Prafulla Kumar Mukherjee & Other v. Bank of Commerce (9); Ganga Sugar Co. v. U.P. State (10). We, therefore, do not accept the submission that the definition of university given in s. 2 (f) or the prohibition in s. 23 of the Act are ultra vires the Parliament on the ground that such provisions are beyond its legislative competence.

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H ARMONIOUS CONSTRUCTION Gujarat University Ahmedabad v. Krishna Ranganath Mudholkar The Respondent whose medium of instruction in the first year Arts Class in St. Xaviers College affiliated to the Gujarat University, was English was refused admission to Intermediate Arts courses to study for the examination through the English medium in view of the provisions of the University and certain statutes framed by the Senate which were subsequently amended. One of the provisions challenged was Section 4(27), which empowered the University "to promote the development of the study of Gujarati and Hindi in Devnagri script or both as a medium of instruction and examination". Prior to the amendment the proviso permitted that English may continue to be the medium of instruction and examination for a period not exceeding ten years but in 1961 it was amended and certain other periods were fixed and power given to implement the provisions. The details of the amendment are not relevant for our purpose. The High Court of Gujarat issued Writs not to, enforce the provisions of Sections 4(27) and the other provisions which were challenged. In a appeal two questions were urged before this Court : (1) Whether the University had the power under the Act to prescribe Gujarati or Hindi or both as exclusive medium or media or instruction and examination and (2) whether legislation authorising the University to impose such media was constitutionally valid in view of entry 66 of List I of the VII Schedule. It was held by the majority, Subba Rao, J., as he then was dissenting, that (1) neither under the Gujarat University Act as originally enacted nor as amended in 1961 was the University empowered to impose Gujarati or Hindi as the exclusive medium of instruction. That this was the intention, was clear because of the use of the indefinite article ' a immediately preceding the medium of instruction while in the proviso in relation to English being continued the definite article 'the' preceded the medium of instruction to make that the exclusive medium for the periods specified. (2) While item 11 of List II and item 66 of List I may overlap recourse must be had to a harmonious construction and where they overlapped, Union legislation must prevail over the State legislature, and since medium of instruction is not an item in the legislative list it necessarily falls within item II of List II as also within items 63 to 65 of List I. It was also of the view that insofar as it is a necessary incident of the power under item 66 it must be deemed to be excluded from item II of List II. In the result disagreeing with the Gujarat High Court that Act 4 of 1961 insofar as it amended the proviso to Section 4 (27) is invalid because it was beyond the competence of the State legislature, the order of the High Court relating to the invalidity of the statutes insofar as they purported to impose Gujarati and Hindi or both an exclusive medium or media of instruction and the Circulars enforcing those statutes was confirmed.

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CASE NOTES – CONSTITUTIONAL LAW Chitralekha v. State of Mysore It was held that entries 65 and 66 of List I give the Union power to secure that the standard of research etc. is not lowered at the hands of any State or States to the detriment of national progress and the power of the State legislature must be so exercised as not to directly encroach upon the power of the Union under that entry. Subba Rao, J., as he then was speaking for the majority referring to the Gujarat case with reference to a passage extracted from page 139 of the report, observed at page 379 : "This and similar other law made by the State by virtue of entry II of List II of the Seventh Schedule to the constitution makes impossible or difficult the exercise of the legislative power of the Parliament under the entry "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions reserved to the Union, the State law may be bad".

DAV College, Bhatinda v State of Punjab The main ground of attack by the Petitioners is that Section 4(2) of the Act does not confer a power on the University to make Punjabi the sole medium of instruction and if it does, then the State legislature has no competence to enact such a provision because that power is vested in the Union Parliament under item 66 of List I. In any case the circular and the Notification referred to offend the petitioners right to conserve their script and administer their institutions in their own way. The University does not deny that it had adopted Punjabi. language as the sole medium of instruction and for examinations, but it seeks to justify it on the ground that it is the national policy of the Government of India that the energetic development of Indian languages and literature is a sine qua non for educational' and cultural development. Unless this is done the creative energies of the people will not be released, standards of education, will not improve, knowledge will not spread to the people, and' the gulf between the intellegentia and the masses will remain, if not widened, further. The observations of the Education Com- mission in its report for 1964-66 as well as from the Report of the Committee of Members of Parliament on education in 1967 were referred to in support of this policy in furtherance of which the second respondent says that it "adopted a phased programme for switch over from English to Punjabi as sole medium- of instruction,. For pre-University with effect from academic session 1970-71. It is therefore clear that when the University issued the Circular of 15-6-970 it intended to make Punjabi the exclusive medium of instruction as well as for examination. The use of the word 'sole' in the circular would mean and imply that it is 'exclusive'. In relation to the examination the medium being Punjabi would mean that the script to be used is exclusively Gurumukhi. Now the

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CASE NOTES – CONSTITUTIONAL LAW directive for the exclusive use of the language and script as the medium of instruction and for examination in all Colleges affects the petitioners Colleges which as we said are institutions maintained by a' religious minority and directly infringes their right to conserve their script and administer their institutions. The relaxation made subsequently in the earlier directives of the University makes little difference because in order to be allowed to take English as an alternative medium of examination it is obligatory for a student to have passed the Matriculation examination with English as the medium of instruction and that unless he has studied Punjabi as an elective or optional subject even upto the. middle standard he is required to qualify in the elementary Punjabi paper. This concession However does not benefit students with Hindi as their medium and with Devnagri as their script because for them Punjabi medium is obligatory in the pre-University courses. If as is contended that teaching the regional language, which means in the mother tongue, accelerates the pace of educational and cultural development and makes for improvement and excellence of educational standards this criteria is equally applicable to the religious or linguistic minorities or to any other Section of the citizens who have a distinct language, script and culture and whose right to conserve them, and to administer their institutions are guaranteed under Article 29(1) and 30(1) of the Constitution. The State must therefore harmonise its power to prescribe the medium of instruction with the rights of the religious or linguistic minority or any section of the citizens to have the medium of instruction and script of their own choice by either providing also for instruction in the media of these minorities or if there are other Universities which allow such Colleges to be affiliated where the medium of instruction is that which is adopted by the minority institutions, to allow them the choice to be affiliated to them. When the country has been reorganised and formed into linguistic States it may be the natural outcome of that policy to allow Colleges established by linguistic and religious minorities giving instructions in the medium of language adopted by the Universities in Other States to affiliate to them or if it wants Colleges including the minority institutions to be affiliated to it, to make provision for allowing instruction to be given and examination to be conducted in the media and script of the minorities when it imposes a regional language as the medium of instruction for the University. No inconvenience or difficulties, administrative or financial can justify the infringement of the guaranteed rights. It is also worthy of note that no State has the legislative competence to prescribe any particular medium of instruction in respect of higher education or research and scientific or technical instructions, if it interferes with the Power of the Parliament under item 66 of List I to coordinate and determine the standards in such institutions.

No doubt in the Judgment of the majority in the Gujarat case there are certain observations which might appear to suggest that the legislative power under item 66, List I and item 11, List II may be dependent on certain variable factors which however they said were being made on certain abstract considerations placed before them. That this was so was further emphasised when it was Gaurav Rai

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CASE NOTES – CONSTITUTIONAL LAW observed at page 143 : "We have no specific statute the validity of which, apart from the one which we will presently mention, is challenged". In any case the actual decision in the case turned on the interpretation of Section 4(27) of the Gujarat University Act, and as we have earlier noticed it was held disagreeing with the High Court that the University was not vested with the power to prescribe Gujarati or Hindi as the exclusive medium and the provision which attempted to do so were struck down as invalid. The decision however did not express any opinion on the alleged infringement of the fundamental rights of the petitioners under Article 29 (1) and 30 (1) of the Constitution. Applying the decision to facts of this case there is no difficulty in holding that Section 4 (3) of the Act which is in similar terms to Section 4 (27) of the Gujarat Act, by the use of the indefinite Article a prefixed to the word medium, does not require Punjabi to be made 'the exclusive medium of instruction. This conclusion is further reinforced by the nature of the power which is only "to progressively adopt it as a medium of instruction and examination for as many subjects as possible". The University by adopting Punjabi as the sole or exclusive medium for the Colleges affiliated to the University, notwithstanding the concessions granted, acted in excess of the power conferred on it. While the University can prescribe Punjabi as a medium of instruction it cannot prescribe it as the exclusive medium nor compel affiliated Colleges established and administered by linguistic or religious minorities or by a Section of the citizens who wish to conserve their language script and culture, to teach in Punjabi or take examination in that language with Gurmukhi script. The University Act having compulsorily affiliated these Colleges must of necessity cater to their needs and allow them to administer their institutions in their own way and impart instructions in the medium and write examination in their own script. In this view the petitions are allowed with costs. The impugned Circulars of 15-6-1970 as amended by Circular of 2-7-1970 in terms of the resolution of the Senate Sub-Committee of 1-7- 1970 and that of 7-10-1970 are struck down as being invalid and ultra vires of the powers vested in the University.

COLOURABLE EXERCISE OF POWER D.C.Wadhwa v State of Bihar The law-making function is entrusted by the Constitution to the Legislature consisting of the representatives of the people and if the Executive were permitted to continue the provisions of an Ordinance in force by adopting the methodology of repromulgation without submitting to the voice of the Legislature, it would be nothing short of usurpation by the Executive of the lawmaking function of the Legislature. The Executive cannot by taking resort to an emergency power exercisable by it only when the Legislature is not in Session, take over the lawmaking function of the Legislature. That would be clearly subverting the democratic process which lies Gaurav Rai

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CASE NOTES – CONSTITUTIONAL LAW at the core of our constitutional scheme, for then the people would be governed not the laws made by the Legislature as provided in the Constitution but by laws made by the Executive. The Government cannot by-pass the Legislature and without enacting the provisions of the Ordinance into an Act of the Legislature, re-promulgate the Ordinance as soon as the Legislature is prorogued. Of course, there may be a situation where it may not be possible for the Government to introduce and push through in the Legislature a Bill containing the same provisions as in the Ordinance, because the Legislature may have too much legislative business in a particular Session or the time at the disposal of the Legislature in a particular Session may be short, and in that event, the Governor may legitimately find that it is necessary to repromulgate the Ordinance. Where such is the case, re-promulgation of the Ordinance may not be open to attack. But otherwise, it would be a colourable exercise of power on the part of the Executive to continue an Ordinance with substantially the same provisions beyond the period limited by the Constitution, by adopting the methodology of repromulgation. It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an Act, such provision cannot be allowed to be defeated by adoption of any subter- fuge. That would be clearly a fraud on the constitutional provision. This is precisely what was pointed out by Muk- harji, J. speaking for the Court in K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, [1954] 1 SCR 1: "In other words, it is the substance of the Act that is material and not merely the form or outward appearance, and if the subject matter in substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is. clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method." So also in P. Vajravelu Mudaliar v. Special Deputy Collec- tor, Madras & Anr., [1965] 1 SCR 614 a Constitution Bench of this Court observed that when it is said that Legislation is a colourable one, what it means is that the Legislature has transgressed its legislative power in a covert or indirect manner, if it adopts a device to outstep the limits of its power. It is significant to note that so far as the President of India is concerned, though he has the same power of issuing an Ordinance under Article 123 as the Governor has under Article 213, there is not a single instance in which the President has, since 1950 till today, re promulgated any Ordinance after its expiry. The startling facts which we have narrated above clearly show that the Executive in Bihar has almost taken over the' role of the Legislature in making laws, not for a limited period, but for years together in disregard of the constitutional limitations. This is clearly contrary to the constitutional scheme and it must be held to be improper and invalid. We hope and trust that such practice shall not be continued in the future and that whenever an Ordinance is made and the Government wishes to continue the provisions of the Ordinance in force after the assembling of the Legislature, a Bill will be brought before the Legislature for enacting those provisions into an Act. There must not be Ordinance Raj in the country.

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DOCTRINE OF TERRITORIAL NEXUS The State of Bombay vs R. M. D. Chamarbaugwala AIR 1957 SC 699 The principal question canvassed in this Court related to the validity. or otherwise of the impugned Act. It was contended on behalf of the appellant that the impugned Act was -a law relating to betting and gambling and as such was covered by Entries 34 and 62 of List II in the Seventh Schedule to the Constitution, whereas the contention of the respondents was that the Act was with respect to trade and commerce and came under Entries 26 and 60 of that List. Held, that in testing the validity of an Act it was necessary, in the first place, to decide whether it was with respect to a topic assigned to the legislature and, secondly, where it was so and the legislature was a State Legislature and the Act purported to operate beyond the State, whether there was sufficient territorial nexus to validate such operation and, lastly, whether the powers of the legislature were in any other way fettered by the Constitution. So judged, the impugned Act was a perfectly valid legislation and its constitutionality was beyond question. Regard being had to the purpose and scope of the Act read as a whole there could be no doubt that all the categories of prize competitions included in the definition contained in s. 2(1) (d) of the Act were of a gambling nature. The qualifying' clause appearing at the end of cl. (1) must apply to each of the five kinds enumerated therein, and the word 'or' appearing after the word I promoters' and before the word 'for' in the clause must be read as 'and'. Similarly, cl. (ii), properly construed, could not include any prize competitions other than those of a gambling nature.

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CASE NOTES Constitutional Law

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