Case: Bimolangshu Roy (Dead) Through LRs Vs. State of Assam &amp; Another

2. Brief facts of the case are as follows:On 1.1.2004 the Constitution 91st Amendment Bill, 2003 was passed by both the Houses of Parliament. This Bill after the assent of the President became an Act with modifications made to Articles 75 and 164 of the Constitution. This Act inter-alia provides under Article 164(1A) [Article 164(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 specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint.] that the size of the Council of Ministers in the State should not exceed 15% of the total strength of the Assembly3. At the time of the coming into force of the 91st Constitutional Amendment Act, 2003, the strength of the Council of Ministers in the State of Assam was at 36 out of a total 126 members, amounting to 28.57% of the strength of the Legislative Assembly. In view of the mandate contained in Article 164(1A) the strength of the Council of Ministers was to be brought down to 19 to be consistent with the ceiling of 15% imposed by Article 164(1A)4. On 3.11.2004, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004 was promulgated. On 29.12.2004 THE ACT was passed and published in the Official Gazette of the State of Assam. We may briefly refer to the crucial provisions of the Act;Section 2(c) of the Act defines Parliamentary Secretary as follows:-Parliamentary Secretary means a Member of the Assam Legislative Assembly appointed as the Parliamentary Secretary under this Act by the Chief Minister.Section 3 stipulates;The Chief Minister may, having regard to the circumstances and the need of the situation, at any time appoint such number of Parliamentary Secretaries and assign to each of them such duties and functions as he may deem fit and proper.Section 4 declares that Parliamentary Secretary should be of the rank and status of a Minister of State and exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister. [Section 4 – A Parliamentary Secretary shall be of the rank and status of a Minister of State and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the official Gazette.]Section 7 deals with the salary and allowances of the Parliamentary Secretary. [Section 7. A Parliamentary Secretary shall be entitled to such salary and allowances as are admissible to a Minister of State under the Assam Ministers, Ministers of State and Deputy Ministers Salaries and Allowances Act, 1958.]5. Writ Petition (PIL) No.30/2005 was filed on 13.04.2005 in the Honble High Court of Gauhati challenging 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 ministry7. 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. [On 08/05/2007 the Petitioners moved an interlocutory application (I.A. No. 1/2007) in the Supreme Court in order to stay the operation of the Act.]

Reasoning:
In our opinion, if the answer to any one of the first two issues is in favour of the petitioner, the other two issues need not be examined.16. In our opinion, the State of Assams reliance on the various extracts from the judgments of this Court is out of the context, ignoring an important caveat contained in the very extract relied upon by the State i.e. each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it. [India Cement Ltd. & Others v. State of Tamil Nadu & Others, (1990) 1 SCC 12  18. … Hence, the language of the entries should be given widest scope, to find out which of 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. …]. However, the more accurate legal position is expounded in Union of India & Others v. Shah Goverdhan L. Kabra Teachers College, (2002) 8 SCC 228     at para 6:In view of the rival submissions at the Bar, the question that arises for consideration is whether the impugned legislation can be held to be a law dealing with coordinated development of education system within Entry 66 of List I of the Seventh Schedule or it is a law dealing with the service conditions of an employee under the State Government. The power to legislate is engrafted under Article 246 of the Constitution and the various entries for the three lists of the Seventh Schedule are the fields of legislation. The different entries being legislative heads are all of enabling character and are designed to define and delimit the respective areas of legislative competence of the Union and the State Legislatures. They neither impose any restrictions on the legislative power nor prescribe any duty for exercise of the legislative power in any particular manner. It has been a cardinal principle of construction that the language of the entries should be given the widest scope 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 ConstitutionIn 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 sovereignty22. Unlike the American Constitution, we chose to adopt a Constitution which regulates and structures not only the authority of the federal government but also the components of the Federation (States and now [After the Constitution 73rd Amendment] even the local bodies). Coming to the question of the authority of the legislatures (Federal and State) we are of the opinion that analysis adopted by the US Supreme Court is equally good for our Constitution with appropriate modifications, because there are areas where the two Constitutions differ substantiallyHowever, the principle that the power to legislate under the Indian Constitution can flow from various sources is recognised by this Court in Synthetics and Chemicals Ltd. & Others v. State of U.P. & Others, (1990) 1 SCC 109     at para 67 that… The power to legislate is given by Article 246 and other Articles of the Constitution [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]a reiteration of the principle that the power to legislate does not flow from a single Article of the Constitution.Relying on the above-mentioned celebrated statements, the Federal Court in the case of Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938, (1939) 1 FCR 18, Gwyer, CJ observed thatI conceive that a broad and liberal spirit should inspire those whose duty it is to interpret it; but I do not imply by this that they are free to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose 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.d States v. Curtiss – Wright Export Corp., 299 U.S. 304, 81 L. Ed.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 sovereignty22. Unlike the American Constitution, we chose to adopt a Constitution which regulates and structures not only the authority of the federal government but also the components of the Federation (States and now [After the Constitution 73rd Amendment] even the local bodies). Coming to the question of the authority of the legislatures (Federal and State) we are of the opinion that analysis adopted by the US Supreme Court is equally good for our Constitution with appropriate modifications, because there are areas where the two Constitutions differever, the principle that the power to legislate under the Indian Constitution can flow from various sources is recognised by this Court in Synthetics and Chemicals Ltd. & Others v. State of U.P. & Others, (1990) 1 SCC 109     at para 67 that… The power to legislate is given by Article 246 and other Articles of the Constitution [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]a reiteration of the principle that the power to legislate does not flow from a single Article of the Constitution.24. Apart from declaration contained in Article 246, there are various other Articles of the Constitution which confer authority to legislate either on the Parliament or on a State legislature, as the case may be in various circumstances. For example, Article 3 authorises the Parliament to make a law either creating a new State or extinguishing an existing State. Such a power is exclusively conferred on the Parliament.25. Article 326 [Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.—The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.] while declaring a right of every citizen who is not less than 18 years of age to register as a voter at any election to the House of the People or to the legislative assembly of a State, authorises the appropriate legislature to disqualify any such citizen to be a voter on any one of the grounds specified under Article 326 by making a law. The authority to make such a law obviously 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 [Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166  , Ramaswami, J. speaking on behalf of the Court, while dealing with the Gold (Control) Act (45 of 1968), observed:Para 8. … Before construing these entries it is useful to notice some of the well-settled rules of interpretation laid down by the Federal Court and by this Court in the matter of construing the entries. The power to legislate is given to the appropriate Legislature by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate. …n of India v. Harbhajan Singh Dhillon (1971) 2 SCC 779 – Para 22. It must be remembered that the function of the lists is not to confer powers; they merely demarcate the legislative field. The Federal Court, while interpreting the Government of India Act in The Governor General in Council v. The Releigh Investment Co., observed:It would not be right to derive the power to legislate on this topic merely from the reference to it in the List, because the purpose of the Lists was not to create or confer powers, but only to distribute between the Federal and the Provincial Legislatures the powers which had been conferred by Sections 99 and 100 of the Act.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 question28. 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 conferred in the Parliament; (iv) taxing entries are distinct from the general entries [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 are not powers of legislation, but fields of legislation. The power to legislate is given by Article 246 and other Articles of the Constitution. Taxation is considered to be a distinct matter for purposes of legislative competence. Hence, the power to tax cannot be deduced from a general legislative entry as ancillary power. …], and (v) List III does not contain a taxing entry,29. At the same time, it can also be noticed that there is no logical uniformity in the scheme of the three lists contained in the Seventh Schedule.31. The doctrine of widest construction propounded by Marshall was in the context of the substantive provisions of the Constitution which are the sources of power to legislate and stipulate the areas with respect to which the Congress shall have the legislative power but not in the context of something like an entry in the 7th Schedule of our Constitution which is not a source of power but only indicative of the field of legislation. Though words and expressions employed in the Constitution must receive widest possible construction, we believe that the principle must be applied with some degree of caution when it comes to the examination of the amplitude of the legislative Entries. There must be some distinction between a provision of the Constitution which confers power to legislate (source of power) and an Entry in one of the 3 lists of the 7th Schedule which are not sources of power but are only indicative of the fields of legislation. Any construction which would run counter to the scheme of the Constitution relevant in the context must be avoided.32. As rightly pointed out by the petitioners, the existence of a dedicated article in the Constitution authorizing the making of law on a particular topic would certainly eliminate the possibility of the existence of the legislative 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.35. There has been a long standing dispute between the States of Karnataka and Tamil Nadu with regard to their respective rights to the water of river Cauvery. For the resolution of the said dispute, a tribunal was constituted by a notification dated 2nd June 1990 of the Government of India in exercise of the power under the Inter State Water Disputes Act, 1956. On an interlocutory application filed by the State of Tamil Nadu, by an order dated 25th June 1991, the tribunal gave certain directions [To release 205 TMC water from its reservoirs located in the State of Karnataka and certain other incidental directions.] to the State of Karnataka. Thereupon, the State of Karnataka issued an ordinance nullifying the directions of the tribunal referred to above. The President of India by a reference under Article 143 [Article 143. (1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon(2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon] of the Constitution sought the opinion of this Court regarding the constitutionality of the ordinance36. The State of Karnataka argued that the ordinance in question fell exclusively within the field of legislation assigned to the States by Article 246 (3) read with Entry 17 of List II. In the absence of any law made by the Parliament dealing with the subject matter of the content of the ordinance in question, the authority of the legislature of Karnataka remained unencumbered37. While examining the said submission, this Court had to examine – whether the Inter State Water Disputes Act, 1956 made by the Parliament was a law made in exercise of the authority of the Parliament under Article 246(1) [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).] read with Entry 56 [Entry 56. Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest] of List I of the Seventh Schedule? This Court reached a conclusion that the Inter State Water Disputes Act, 1956 is not a legislation referable to Entry 56 of List I. It also took note of the fact that none of the Entries in Seventh Schedule mentioned the topic of adjudication of disputes relating to inter State waters and Article 262 [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).] of the Constitution specifically provides for such adjudication.62. 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 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 waters63. 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 by law under Article 262. ...38. The ordinance was found to be beyond the legislative competence of the State of Karnataka. Because of the existence of a dedicated article empowering the Parliament to make laws for the adjudication of inter-State water disputes the subject stood by implication excluded from the field covered under Entries 56 or 17 and the ordinance in substance had the effect of interfering with adjudication process of the machinery for adjudication established by law under Article 262.42. In ascertaining the meaning of the clause, the scheme of Article 194 and the setting in which the said clause is placed is relevant. Article 194 occurs in Chapter III of Part VI of the Constitution which deals with the States. Chapter II of Part VI deals with the State Executive. Chapter III deals with the State Legislature. Various articles of Chapter III provide for establishment of a legislature (either unicameral or bicameral), the composition of such legislative bodies, the qualifications for membership of the legislative bodies and their durations, the offices of the legislature and their powers and responsibilities and all other allied matters43. Article 194 deals exclusively with the powers and privileges of the legislature, its members and committees thereof. While clause declares that there shall be freedom of speech 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 [Article 178. Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.] speaks about the offices of Speaker and Deputy Speaker. Article 179 [Article 179. A member holding office as Speaker or Deputy Speaker of an Assembly — (a) shall vacate his office if he ceases to be a member of the Assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and (c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: 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: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.] deals with the vacation of those offices or resignations of incumbents of those offices whereas Article 182 [Article 182. The Legislative Council of every State having such Council shall, as soon as may be, choose two members of the Council to be respectively Chairman and 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.] and 183 [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.] 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 [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 such Legislature. (2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State. (3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.] which makes stipulations even with reference to the secretarial staff of the Legislature. On the face 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 legislators45. For the above-mentioned reasons, we are of the opinion that the Legislature of Assam lacks the competence to make the impugned Act.In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment.