RAI SAHIB RAM JAWAYA KAPUR VS STATE OF PUNJAB : CASE SUMMARY
The Supreme Court in Rai Sahib Ram Jawaya Kapur Vs State of Punjab (AIR) 1955SC549 observed that the President has been made formal or constitutional head of the Government while real executive powers are vested in ministers or the Cabinet.
FACTS OF THE CASE
In State of Punjab, all recognized schools had to follow the course of studies approved by Education Department of the Government. Prior to 1950, books on several subjects were published by publishers according to principles laid by the Government and submitted to Government for approvals. Government used to approve 3 to 10 books on each subject. Head Master of the School was given discretion to prescribe any book out of them.
State Government changed the policy from 1950 onwards. Books on some of subjects were being published by Government itself. On other subjects one book was being approved by the Government.
In 1952 “publishers” word was even omitted that invitation was given only to “authors” to submit books. In case of approval Government used to publish books.
Because of these policies business of several publishers were impacted. Some of them approached the Supreme Court under Article 32 of the Constitution of India.
FINDINGS OF THE SUPREME COURT
It was contended that Government has no power of printing textbooks without sanction of the legislature.
The Supreme Court observed that it may not be possible to frame an exhaustive definition of what executive functions means and implies. Executive power connotes the residue of governmental functions that remain after legislative and judicial function have been taken away. The Constitution does not recognize separation of powers in strict rigidity but functions of different branches have been sufficiently differentiated. However, it does not follow that in order to enable the executive to function there must be a law already in existence and power of the executive are limited to merely carrying out the law.
The Supreme Court observed that Indian Constitution, though federal, has adopted British Parliamentary System where executive is deemed to have the primary responsibility for formulation of government policy and its transmission into law. The executive function includes both formulation of policy as well its execution.
Under Article 53 (1) of the Constitution vests executive powers with the President of India but Article 75 provides for Council of Ministers with the Prime Minister at its head to aid and advise the President in exercise of his functions. Thus, the President has been made formal and Constitutional head while real powers are vested in Council of Ministers. Similar situation exists in the State also. The Cabinet enjoying, as it does, a majority in the legislature concentrates in itself control of both executive and legislative functions.
If Government formulates policy for start of trade or business, a specific legislation is not necessary.
It was also contended that the policy violates Fundamental Rights granted under Article 19 (1) (g) of the Constitution which guarantees to all persons right to carry on any trade or business. The Supreme Court observed that there is no Fundamental Right in publishers that any of the book published by them should be recognized by the Government as text book. The Court noted even before the impugned policy came into existence publishers had only a chance of their book prescribed as text book. Publishers can publish books of their choice but cannot claim that their books should be approved as text book. The decision of Government can be good or bad but cannot be said to be infraction of Fundamental Right enshrined under Article 19 (1) (g) of the Constitution.
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Mukesh Kumar Suman is an advocate and legal author based at Delhi. He regularly appears before various Judicial Forums including NCLT, NCLAT, High Courts and the Supreme Court. He can be approached at mukesh_suman@outlook.com or +91 9717864570.