TMI Blog1963 (8) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... e Constitution, especially, Article 304(b) and, consequently, it falls within the protection of the proviso and that since the requirement as to the assent of the President was not satisfied, the legislation is void; (ii) that the parent Act having been assented to by the President, the amending Act could not become law unless and until the President had accorded his assent to it; and (iii) that the impugned Act was a colourable piece of legislation as in pith and substance this enactment has modified the Central Sales Tax Act, 1956. We will proceed to deal with these contentions seriatim. Dealing first with the argument based upon Part XIII of the Constitution, needless to say that it is devoid of substance. It is convenient to read Article 304 here in so far as it is immediately relevant. It reads: "Notwithstanding anything in Article 301 or Article 303, the Legislature of a State may by law- * * * * (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merce. If it be held that every law made by the Legislature of a State which has a repercussion on tariffs, licensing, marketing regulations, price-control etc., must have the previous sanction of the President, then the Constitution, in so far as it gives plenary power to the States and State Legislatures in the fields allocated to them, would be meaningless. In our view, the concept of freedom of trade, commerce and intercourse postulated by Article 301 must be understood in the context of an orderly society and as part of a Constitution which envisages a distribution of powers between the States and the Union, and if so understood, the concept must recognise the need and the legitimacy of some degree of regulatory control, whether by the Union or the States: this is irrespective of the restrictions imposed by the other Articles in Part XIII of the Constitution. We are, therefore, unable to accept the widest view as the correct interpretation of the relevant Articles in Part XIII of the Constitution." To a like effect are the observations of Subba Rao, J., in the same case. The learned Judge observed that property tax, profession tax, sales tax, excise duty and other taxes may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l part of the State Legislature and, consequently, a legislation amending the parent Act made only by the two Houses of the State Legislature and assented to by the Governor does not acquire any validity in that the President, who has become a part of the law-making body, has not been approached for his assent. According to Sri Lakshmayya, with regard to the Andhra Pradesh General Sales Tax Act, 1957, the Legislature must be deemed to consist of three parties, the President, the Legislative Assembly and the Legislative Council and if any one of the three limbs of the Legislature is ignored in regard to any amendments thereto, such a law is not valid. The amending law must be made in the same manner and subjected to the same conditions and sanctions as the parent Act, proceeds the argument of Sri Lakshmayya. As substantiating this proposition, he draws our attention to section 21 of the General Clauses Act (X of 1897). Section 21 postulates: "Where, by any Central Act or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn to State of Bihar v. Kameshwar Singh A.I.R. 1952 S.C. 252. cited by the learned counsel for the petitioners. One of the questions that posed itself before their Lordships of the Supreme Court was whether a Bill, which had not received the assent of the Governor, could be reserved for the consideration of the President. It was argued for the respondent that the Act challenged there was not valid for the reason that it was submitted to the President for his assent without its having been assented to by the Governor. This contention was rejected by their Lordships of the Supreme Court on a consideration of section 75 of the Government of India Act, 1935, which corresponds to Article 200 of the Constitution. The argument advanced on behalf of the respondent was opposed to the provisions of section 75 of the Government of India Act, 1935, the predecessor to Article 200 of the Constitution. Their Lordships have pointed out that a Bill does not require the assent of the Governor as also the President and since only a Bill has to be reserved for the opinion of the President it is only a Bill which had not received the assent of the Governor that could be reserved for the assent of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nches, or, as in most of the American States, of three branches, and these branches have their several duties marked out and prescribed by the law to which they owe their origin, and which provides for the exercise of their powers in certain modes and under certain forms, there are other questions to arise than those of the mere intent of the law-makers, and sometimes forms become of the least importance. For in such a case not only is it important that the will of the law-makers be clearly expressed, but it is also essential that it be expressed in due form of law." The learned author says at page 359 of the book thus: "So the forms prescribed for legislative action are in the nature of limitations upon its authority. The constitutional provisions which establish them are equivalent to a declaration that the legislative power shall be exercised under these forms, and shall not be exercised under any other. A statute which does not observe them will plainly be ineffectual." The principles enunciated in these passages would have been relevant if the amending Act has to be reserved for the assent of the President and yet this has not been done by the legislative department. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Bill does not desire to question, but which cannot escape criticism if the whole section is proposed for repeal." The author merely pointed out the difficulties attendant on repealing the whole law and re-enacting it merely for the purpose of introducing minor amendments. This does not warrant the conclusion that an amendment of the parent Act would being the whole law into a crucible or that the whole law is being re-enacted and that, consequently, it requires the assent of the President. If we now examine the relevant provisions of the Constitution carefully, it becomes clear that it is not every amendment that should be submitted for the assent of the President irrespective of whether the amendment involves anything which calls for the assent of the President, merely because the main Act was referred to for his assent. We will first notice the proviso to Article 304. It reads: "Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President." It is seen that this proviso mentions specifically the "amendment" independent of the Bill. The implication of this is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t III and it is only to save a law made by such a Legislature from challenge on the plea of repugnancy between it and an existing law or a parliamentary law that the device of obtaining the President's assent is resorted to. In this case, the Andhra Pradesh General Sales Tax Act was reserved for the assent of the President because there are certain provisions in it which deal with subjects coming under the Concurrent List. For instance, section 36 recites: "Save as otherwise expressly provided in this Act, no Court shall entertain any suit, or other proceeding to set aside or modify, or question the validity of any assessment, order or decision made or passed by any officer or authority under this Act or any rules made thereunder, or in respect of any other matter falling within its or his scope." It is plain that this section cuts down the ambit of section 9, Civil Procedure Code, an enactment made by the Parliament in respect of entry 13 of List III. This entry deals with "Civil Procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration." As the Civil Procedure Code was enacted by the Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true that while the statement of objects and reasons should not be relied upon in construing the provisions of an Act it could be looked into for the purpose of ascertaining the conditions that prevailed at the time when the impugned law was made, as laid down by the Supreme Court in State of West Bengal v. Subodh Gopal A.I.R. 1954 S.C. 92. It was held in that case that the statement of objects and reasons could be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the sponsor of the Bill to introduce the same and the extent and urgency of the evil which he sought to remedy. But the reasons and the motives that prompted the Legislature to make a law are not justiciable. That is entirely a matter of legislative policy with which the Courts are unconcerned. The doctrine of colourable legislation revolves round the legislative competence and it has nothing to do with the reasons or the objects behind the legislation. It could not be posited that it was beyond the legislative competence of the Andhra Pradesh Legislature to legislate upon taxes on sales and purchases. The mere fact that the Parliament is also invested with power to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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