Facts of the Case

From 1905 to 1950, in the State of Punjab, the recognized schools of Punjab had to refer to
the books from the list of alternate text as approved by the Education Department of Punjab.
For the purpose of approval, various publishers or independent authors submitted their
textbooks that were prepared with their own money, to the Government of Punjab. The
Education Department then approved a few text books out of various text books published by
various publishers in accordance with the principles laid down by it.

In May 1950, post partition of the erstwhile Punjab into three zones, this procedure was
changed by certain resolutions passed by the Government of Punjab. The Government
prepared and published textbooks on few subjects without inviting them from the publishers
and authors. On the remaining subjects, the earlier procedure was followed but instead of
approving a list of textbooks, the Government only approved one textbook on each subject.
The Government also charged 5% of the sale price as royalty on all the approved textbooks.

Through another notification in August 1952, the Government only invited textbooks from
authors for approval. Also, the authors whose textbooks were approved were made to enter an
agreement according to which the copyright in these books vested absolutely in the
Government and the authors would get only 5% royalty on the sale of the text books at the
price or prices specified in the list. Thus, the Government took the publishing, printing and
selling of the books exclusively in their own hands.

The present petition was filed under Article 32 of the Indian Constitution against the
notification of the Government passed in August 1952. The six petitioners, who were
individuals engaged in the occupation of publishing, printing and selling textbooks, contented
that the Government of Punjab, was not only imposing on them, unwarranted restriction on
the regular carrying out of their occupation of publishing books but had altogether oust the
petitioners and other fellow traders from their business. It was contended by the petitioner
that this act of government was not only violative of their fundamental right of carrying any
type of trade or commerce mentioned in Art. 19 (1)(g), but was also ultra-vires to the
constitutional power vested in the government, as the government being an executory body of
the State did not have the power to do so without any specific legislation empowering them to
enter into that activity or trade.

The respondent, the Government of Punjab, on the other hand, maintained that the said action
was completely covered under the ambit of their implied executive power as owing to the
changing era, the executive now has an increased ambit of powers and functions as opposed
to the traditional function of maintaining state security and decorum. The government further
contended that they acted in accordance to the procedure required and hence not only making
it completely intra-vires their powers but also in line with the fundamental rights of the
petitioner.

Issues Raised

The issues before the Court were:

Whether there was a violation of the FR of the petitioners in creation monopoly in the
business of printing and publishing text books for schools was ultra vires their powers?

Even if the State could create a monopoly in its favour, whether it could have been done by
any executive act or did it necessarily require a specific legislation?

Law:

Constitution of India

Holding:

While dealing with the issues of the case, the Court had to answer the nature of executive
power and the extent of the functions of executive. In order to determine the nature of
executive power, the Court referred to the two Australian cases of The Commonwealth and
the Central Wool Committee v. The Colonial Combing, Spinning and Weaving Co. Ltd. [3],
and Attorney-General for Victoria v. The Commonwealth [4]. In the opinion of the Court, the
Australian Constitution specifically defines executive power so as to include only
maintenance of the Constitution and of the laws of the Commonwealth. But since no such
restriction on the extent of executive power is defined in the Indian Constitution, the Court
held that the understanding of executive power in the Australian context does not apply to
India and cannot be restricted to mere implementations of legislations.

While dealing with the nature of executive function, the Court relied on the federal structure
of the Indian Constitution that is based on the British Parliamentary system where the
executive is deemed to have the function to formulate governmental policy and to incorporate
it into law while retaining the confidence of the Legislature.[5] Generally, the executive has
the function of implementing the legislations put in place by the legislature. But, in modern
times, owing to the expansion of the functions of the state, there are overlaps between various
functions of the legislature, executive, and the judiciary. In the Indian context, the executive
can exercise legislative function through subordinate legislation when such powers are
delegated to it by the legislature and is also empowered to exercise judicial functions in a
limited way provided that in exercise of such functions, the executive cannot go against the
provisions of the Constitution or of any law as in provided in Article 154 of the Constitution.
Hence, the Court noted that in India there is no strict separation of powers. Also, the Court
relied on the case of Motilal v. Government of State of Uttar Pradesh [6] to conclude that in
order to enable the executive to function, there is no need for a specific law to be already in
existence and the executive function is not merely restricted to implementing such laws.
Backing of specific legislations is only required when the government require certain extra
powers in addition to what they by default possess under ordinary law for carrying a
particular trade or business. In cases where such activities require expenditure of funds, the
only requirement is authorization of the Parliament regarding such expenditure either directly
or under the provisions of a statute.

In the present case, the Government of Punjab, had estimated and shown the expenses to be
incurred in the process in the annual financial statement and were also sanctioned by the State
Legislature and due Appropriation Acts were passed. Hence, the Court did not agree with the
petitioners on their contention that the Government of Punjab was not entitled to make such a
notification without a specific legislation sanctioning such course.

With respect to the question of violation of FR, the Court held that the government action in
question was not in violation of the fundamental right of the petitioner, which are mentioned
in Art. 19(1)(g) of the Constitution of India; as the government by the said notice may have
restricted the book used in schools but still these publishers and authors were free to approach
the private book shops for business.

The Court further held that since there was no violation of any FR of the petitioners in the
first place, the Government could not be said to have infringed such FR through the
notifications.
Furthermore, the court emphasized on the view that with the rising need in change of
paradigm of functions of the State, there needs to be some intrinsic change in the
understanding and constituent of the executive powers. While analysing this concept the
court of law held that now there is a need for the executive body to be capable of taking the
step for fulfilling their obligations without the backing of any legislation permitting the act.
Owing to the changing era, there was a need to redefine the powers and functions of the state
and to shift from the traditional one, which include the protection of the state and its civilians
and territory from both foreign and domestic enemy.

Hence, the Court dismissed the petition holding that in India, there is a strict separation of
powers but the separation of functions is not observed in strictest sense.

Conclusion

This case apart from this separation of power and federalism aspect is also important in
understanding the changing paradigm of the constitutional need, especially the executive
power which, according to the court should now be interpreted broadly to cover all the
necessary power needed to act for the development and uplifting the society.

It can be concluded that the doctrine of separation of power, in contemporary times, is not
restricted to the strict division of powers among various organs of the State but includes the
exercise of such power on the principle of “Checks and Balances” signifying the fact that
none of the organs of Government should usurp the essential functions of the other organs.
The case furthers the understanding of separation of power by protecting those acts of an
organ that might appear to encroach upon the powers and functions of other organs but is
mere incidental to its main powers or functions. Hence, even though it allows for a situation
where an organ might encroach upon the powers of the other, it upholds the independence of
each organ as well.

This understanding of the relationship between the three organs of the State becomes relevant
in contemporary times throughout the world owing to the increase in complexity of functions
of each of the organs.