TMI Blog2017 (7) TMI 1260X X X X Extracts X X X X X X X X Extracts X X X X ..... of such elaborate and explicit constitutional arrangement with respect to the Legislature and the various offices connected with the legislature and matters incidental to them to read the authority to create new offices by legislation would be a wholly irrational way of construing the scope of Article 194(3) and Entry 39 of List II. Such a construction would be enabling the legislature to make a law which has no rational connection with the subject matter of the entry. The powers, privileges and immunities contemplated by Article 194(3) and Entry 39 are those of the legislators qua legislators. Legislature of Assam lacks the competence to make the impugned Act. - The impugned Act is declared unconstitutional. - Transferred Case (Civil) No.169 of 2006 - - - Dated:- 26-7-2017 - J. CHELAMESWAR, R.K. AGRAWAL, ABHAY MANOHAR SAPRE JUDEGS For Petitioner(s) Mr. Manoj Goel, Adv. Mr. Naman Kamboj, Adv. Mr. Shuvodeep Roy, Adv. Mr. Brij Bhushan, AOR For Respondent(s) Mr. Ranjit Kumar, SGUOI Mr. Ashok Kumar Panda, Sr. Adv. Mr. B.K. Prasad, AORM/s Corporate Law Group, AOR Mr. P. Parmeswaran, AOR JUDGMET Chelameswar, J. 1. Transferred Case (Civil) No.169 of 2006 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allenging the constitutional validity of THE ACT. On 24.01.2006, the High Court of Gauhati adjourned the hearing of the said PIL in light of similar matters involving the same questions of law which had come up for hearing in this Court in SLP No. 22038 of 2005 (State of Himachal Pradesh v. Citizen Rights Protection Forum). 6. On 30.05.2005, Eight Parliamentary Secretaries were appointed in exercise of the power under THE ACT and they took oath of office, but were not assigned any ministry. 7. On 21.08.2006, this Court has allowed the Transfer Petition (C) No. 433 of 2006 filed by the Petitioners under Article 139A of the Constitution. The transferred case is registered as Transferred Case (Civil) No. 169 of 2005. [4] 8. The case of the petitioners is that: (i) The legislature of State of Assam does not have competence to enact THE ACT; (ii) THE ACT is violative of the constitutional mandate under Article 164 (1A) [5] which stipulates an upper limit of 15% as the strength of the Council of Ministers; (iii) That THE ACT is intended to over-reach the mandate of the Constitution Amendment Act and hence a fraud upon constitution; (iv) Responsible g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the political executive can be created by legislation either of the Parliament or State legislature. 12. In support of their submission, the petitioners relied upon the judgment in the case of Cauvery Water Disputes (1993) Supp. 1 SCC 96 (II). This Court while dealing with the Inter-State Water Disputes Act, 1956, held that the said legislation did not fall within the ambit of the Entry 56 of the Union List, this Court opined so because of the presence of Article 262 of the Constitution which is dedicated to the question of inter-state water disputes. The petitioners placed reliance on para 62 of the said judgment: It cannot be disputed that the Act, viz., the Inter-State Water Disputes Act, 1956 is not a legislation under Entry 56. In the first instance Entry 56 speaks of regulation and development of inter-State rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Secondly, and even assuming that the expression regulation and development would in its width, include resolution of disputes arising therefrom and a provision for adjudicating them, the Act does not make the declaration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers which can be comprehended in it. Since a Parliamentary Secretary is a member of the legislative assembly, it would be within the competence of the State legislature to make the ACT. 15. The stand of the State of Assam is reflected in a reply affidavit on behalf of the State in I.A. No.1 of 2007 in Transferred Case (Civil) No. 169 of 2006. Relevant portion of the affidavit reads as follows:- It is submitted that it is well settled that legislative entries should be given the broadest possible interpretation and cannot be read in a restrictive manner. Entry 39 covers powers, privileges and immunities . of the members of a Legislative Assembly. This Hon ble Court has, on various occasions, held that the Legislative entries should not be read in a narrow or pedantic sense but must be given their fullest meaning and the widest amplitude and be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in them. It has also observed that the cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a narrow or restricted sense and that each general word should be held to exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cope of which their meaning is fairly capable and while interpreting an entry of any list it would not be reasonable to import any limitation therein. The rule of widest construction, however, would not enable the legislature to make a law relating to a matter which has no rational connection with the subject-matter of an entry. When the vires of enactment is challenged, the court primarily presumes the constitutionality of the statute by putting the most liberal construction upon the relevant legislative entry so that it may have the widest amplitude and the substance of the legislation will have to be looked into. The court sometimes is duty-bound to guard against extending the meaning of the words beyond their reasonable connotation in anxiety to preserve the power of the legislature. 18. The jurisprudential basis for the rule of widest construction is the hallowed belief that a Constitution is drafted with an eye on future providing a continuing framework for exercise of governmental power. Therefore, it must be elastic enough to meet new social, political and historical realities often unimagined by the framers of the Constitution [14] . Chief Justice Marshall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of supplying omissions or of correcting supposed errors. 21. The authority to make law flows not only from an express grant of power by the Constitution to a legislative body but also by virtue of implications flowing from the context of the Constitution is well settled by the various decisions of the Supreme Court of America in the context of American Constitution. A principle which is too well settled in all the jurisdictions where a written Constitution exists. The US Supreme Court also recognised that the Congress would have the authority to legislate with reference to certain matters because of the fact that such authority is inherent in the nature of the sovereignty. The doctrine of inherent powers was propounded by Justice Sutherland in the context of the role of the American Government in handling foreign affairs and the limitations thereon. [17] In substance, the power to make the legislation flows from various sources: (1) express text of the Constitution; (2) by implication from the scheme of the Constitution; and (3) as an incident of sovereignty. 22. Unlike the American Constitution, we chose to adopt a Constitution which regulates an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... viously flows directly from the text of Article 326 but not from Article 246. See also Articles 2, 3, 11, 15(5), 22(7), 32(3), 33, 34, 59(3), 70, 71(3), 98(2). The Articles mentioned above are only illustrative but not exhaustive of the category. 26. It must be remembered that this Court repeatedly held [22] that the entries in the various lists of the Seventh Schedule are not sources of the legislative power but are only indicative of the fields w.r.t. which the appropriate legislature is competent to legislate. 27. The task of this Court in identifying the scope of an entry in the Lists contained in the Seventh Schedule is not easy. While examining the scope of the entries this Court must necessarily keep in mind the scheme of the Constitution relevant in the context of the Entry in question. 28. A broad pattern can be identified from the scheme of the three lists, the salient features of which are (i) Fields of legislation perceived to be of importance for sustaining the federation, are exclusively assigned to the Parliament, (ii) State legislatures are assigned only specified fields of legislation unlike the US Constitution, (iii) Residuary legislative power is conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 252 [31] contain provisions which enable the Parliament to legislate with respect to any matter enumerated in List II in the exigencies specified in those Articles. The Scheme of Entries, such as 52 and 54 and the corresponding Entries in the List-II in our opinion is nothing but another instance of special arrangement akin to the one made in Articles 249, 250 and 252. Perhaps, incorporation of another Article stipulating that the Parliament would be competent to legislate with reference to the fields of legislation contained in Entries 23 and 24 whenever Parliament declared that it would be expedient in public interest to legislate upon those topics would have achieved the purpose. We may not be understood as sitting in judgment over the wisdom of framers of the Constitution. We are only pointing out the possibility of achieving results sought to be achieved by Entries 52 and 54 by adopting another model of drafting. Such a model is already resorted to by the framers of the Constitution in making provisions of Articles 249 and 250 etc. Our endeavour is only to demonstrate that a great deal of examination of the scheme of the entire Constitution is essential while interp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative authority to legislate in Article 246 read with any Entry in the Seventh Schedule indicating a field of legislation which appears to be closely associated with the topic dealt with by the dedicated article. For example even if the Constitution were not to contain Entries 38, 39, 40 in List II the State Legislatures would still be competent to make laws w.r.t. the topics indicated in those 3 entries, because of the authority contained in Articles 164(5), 186, 194, 195 etc. Therefore, to place a construction on those entries which would have the effect of enabling the concerned legislative body to make a law not within the contemplation of the said Articles would be plainly repugnant to the scheme of the Constitution. 33. Cauvery Water Disputes 1993 Supp. (1) SCC 96 (II) may not be an exact authority for the proposition of law advanced by the petitioners. But the logical extension of the principle enunciated in Cauvery would certainly support the case of the petitioners. 34. To understand the principle laid down in Cauvery, we need to examine the factual background of the case and the issue (relevant) that arose therefrom. 35. There has been a long standing disput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om and a provision for adjudicating them, the Act does not make the declaration required by Entry 56. This is obviously not an accidental omission but a deliberate disregard of the entry since it is not applicable to the subject matter of the legislation. Thirdly, no entry in any of the three lists refers specifically to the adjudication of disputes with regard to inter-State river waters. 63. The reason why none of the Entries in the Seventh Schedule mention the topic of adjudication of disputes relating to the inter-State river waters is not far to seek. Article 262 of the Constitution specifically provides for such adjudication. 67. ... Since the subject of adjudication of the said disputes is taken care of specifically and exclusively by Article 262, by necessary implication the subject stands excluded from the field covered by Entries 56 and 17 . It is not, therefore, permissible either for the Parliament under Entry 56 or for a State legislature under Entry 17 to enact a legislation providing for adjudication of the said disputes or in any manner affecting or interfering with the adjudication or adjudicatory process of the machinery for adjudication established ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Legislature subject to the limitations enumerated therein, clause (2) provides immunity in favour of the members of the Legislature from any legal proceedings in any court for anything said or any vote given by such members in the Legislature or any Committees etc. Sub-clause (3) deals with the powers, privileges and immunities of a House of the Legislature and its members with respect to matters other than the ones covered under clauses (1) and (2). 44. Thus, it can be seen from the scheme of Article 194 that it does not expressly authorise the State Legislature to create offices such as the one in question. On the other hand, Article 178 [39] speaks about the offices of Speaker and Deputy Speaker. Article 179 [40] deals with the vacation of those offices or resignations of incumbents of those offices whereas Article 182 [41] and 183 [42] deal with the Chairman and Deputy Chairman of the Legislative Council wherever the Council exists. In our opinion, the most crucial article in this Chapter is Article 187 [43] which makes stipulations even with reference to the secretarial staff of the Legislature. On the face of such elaborate and explicit constitutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved an interlocutory application (I.A. No. 1/2007) in the Supreme Court in order to stay the operation of the Act. 5. Article 164. (1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work. (1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve: Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. or the number spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning is fairly capable because these set up machinery of the government. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. 14. Hunter v. Southam Inc., (1984) 2 SCR 145, Canadian Supreme Court Para 47. .. The task of expounding a constitution is crucially different from that of construing a statute. A statute defines present rights and obligations. It is easily enacted and as easily repealed. A constitution, by contrast, is drafted with an eye to the future. Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a charter of rights, for the unremitting protection of individual rights and liberties. Once enacted, its provisions cannot easily be repealed or amended. It must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers. The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. 15. A constitution, to contain an accurate detail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... words, which increase or diminish the impression the mind receives of the urgency it imports. A thing may be necessary, very necessary, absolutely or indispensably necessary. To no mind would the same idea be conveyed, by these several phrases. 17. United States v. Curtiss Wright Export Corp. , 299 U.S. 304, 81 L. Ed. 255 18. After the Constitution 73rd Amendment 19. See also 1995 Supp. (1) SCC 596 para 7 - Jilubhai Nanbhai Khachar v. State of Gujarat Another the legislature derives its power from Article 246 and other related Articles of the Constitution 20. Article 246. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the Union List ). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any-State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List ). (3) Subject to clauses (1) and (2), the Legislature of any State h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provincial Legislatures the powers which had been conferred by Sections 99 and 100 of the Act. Synthetics and Chemicals Ltd. and Others v. State of U.P. and Others (1990) 1 SCC 109 Para 67. The power to legislate is given by Article 246 and other Articles of the Constitution. The three lists of the Seventh Schedule to the Constitution are legislative heads or fields of legislation. These demarcate the area over which the appropriate legislatures can operate. It is well settled that widest amplitude should be given to the language of the entries in three Lists but some of these entries in different lists or in the same list may override and sometimes may appear to be in direct conflict with each other, then and then only comes the duty of the court to find the true intent and purpose and to examine the particular legislation in question. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. 23. M/s. Hoechst Pharmaceuticals Ltd. Others v. State of Bihar Others, (1983) 4 SCC 45, Para 74 It is equally well settled that the various entries in the three Lists a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would otherwise have ceased to be in force. (3) A law made by Parliament which Parliament would not but for the passing of a resolution under clause (I) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period. 30. Article 250. Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation. (1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List. (2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rliament by law to be expedient in the public interest. 36. Article 262. (1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1). 37. Article 194. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State. (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. (3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Deputy Chairman thereof and, so often as the office of Chairman or Deputy Chairman becomes vacant, the Council shall choose another member to be Chairman or Deputy Chairman, as the case may be. 42. Article 183. A member holding office as Chairman or Deputy Chairman of a Legislative Council- (a) shall vacate his office if he ceases to be a member of the Council; (b) may at any time by writing under his hand addressed, if such member is the Chairman,to the Deputy Chairman and if such member is the Deputy Chairman, to the Chairman, resign his office; and (c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution. 43. Article 187. (1) The House or each House of the Legislature of a State shall have a separate secretarial staff: Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of s ..... 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