Case: State of M.P. and Anr Vs. Bharat Singh

At p. 188, Dicey points out:"In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest of temporary imprisonment of expulsion from its territory, and the like than is either legally claimed or in fact exerted by the Government in England: and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects." We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. 8. Counsel for the State relied upon the terms of Art. 162 of the Constitution, and the decision of this Court in Ram Jawaya Kapur v. State of Punjab, 1955-2 SCR 225 : (AIR 1955 SC 549 ), in support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate or the subject in respect of which action is taken. Article 162 provide that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. But Art. 162 and Art. 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other, and not with the validity of its exercise. Counsel for the State, however, strongly relied upon the observations of Mukherjea, C. J., in Ram Jawaya Kapurs case, 1955-2 SCR 225 : (AIR 1955 SC 549 )."They do not mean, * * * that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Art. 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already" These observations must be read in the light of the facts of the case. The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized school, were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only authors and others" to submit text books for approval by the Government. Under agreement with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners - a firm carrying on the business of preparing printing publishing and selling text books - then moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of Government did not amount to infraction of the guarantee under Art. 19 (l) (g) of the Constitution since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act 1956, amending inter alia, Art. 298 was enacted and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text books. It was contended in support of the petition in Ram Jawayas case, 1955-2 SCR 225 : (AIR 1955 SC 549 ) that without legislative authority the Government of the State could not enter the business of printing publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking, it is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued. 9. We are therefore of the view that the order made by the State in exercise of the authority conferred by S. 3 (1) (b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts gone to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation. 10.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]By Cl. (ii) of the order the respondent was required to reside within the municipal limits of Jhabua town after proceeding to that place on receipt of the order. Under Cl. (b) of S. 3 (1) the State is authorised to order a person to reside in the place where he is ordinarily residing and also to require him to go to any other area or place within the State and stay in that area or place. If the person so ordered fails to carry out the direction. he may be removed to the area or place designated and may also be punished with imprisonment for a term which may extend to one year, or with fine, or with both. The Act it may be noticed does not give any opportunity to the person concerned of being heard before the place where he is to reside or remain in is selected. The place selected may be one in which the person concerned may have no residential accommodation, and no means of subsistence. It may not be possible for the person concerned to honestly secure the means of subsistence in the place selected. Section 3 (1) (b) of the Act does not indicate the extent of the place or the area, its distance from the residence of the person extended and whether it may be habitated or inhabitated: the clause also nowhere provides that the person directed to be removed shall be provided with any residence, maintenance or means of livelihood in the place selected. In the circumstances we agree with the High Court that Cl. (b) authorised the imposition of unreasonable restrictions insofar as it required any persons to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the orderIn our judgment this argument involves grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of Art. 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority. i.e.. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people: (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial - each organ having some check direct or indirect on the other and (3) the rule of law which includes judicial review of arbitrary executive actionCounsel for the State while conceding that if S. 3 (1) (b) was because it infringed the fundamental freedom of citizens void before the proclamation of emergency and that it was not revived by the proclamation submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and therefore, any executive action taken by an officer of the State or by the State will not be liable to he challenged on the ground that it infringes the fundamental freedoms under Art. 19The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized school, were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only authors and others" to submit text books for approval by the Government. Under agreement with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners - a firm carrying on the business of preparing printing publishing and selling text books - then moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of Government did not amount to infraction of the guarantee under Art. 19 (l) (g) of the Constitution since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act 1956, amending inter alia, Art. 298 was enacted and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text books. It was contended in support of the petition in Ram Jawayas case, 1955-2 SCR 225 : (AIR 1955 SC 549 ) that without legislative authority the Government of the State could not enter the business of printing publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking, it is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issuedWe are therefore of the view that the order made by the State in exercise of the authority conferred by S. 3 (1) (b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts gone to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation.