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TMI Blog1977 (11) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 (hereinafter referred to as ,rho Central Notification) constituting a Commission of Inquiry in purported exercise of its powers under Section 3 of the Commissions of Inquiry Act, 1952 (hereinafter referred to as 'the Act'), is illegal and ultravirus. This declaration is sought on one of two alternative grounds : firstly, that the Commissions of Inquiry Act, 1952, does not authorise the Central Government to constitute a Commission of Inquiry in regard to matters falling exclusively within the sphere of the State's legislative and executive power , and, secondly, that if the provisions of the Act do cover the Central Government Notification, they are ultra-vires for contravention of the terms of the Constitution as well as the federal structure implicit and accepted as an inviolable basic feature of the Constitution . Consequentially, the plaintiff seeks a perpetual injunction to restrain the respondents, the Union of India and Shri A. N. Grover, the one-man Commission of Inquiry into charges of corruption, nepotism, favouritism and misuse of Governmental power, against the Chief Minister and other Ministers of the State of Karnataka , from acting under the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the public so as to destroy the support which the Congress party had from the people of the State. it was thus a charge of malice in fact. The Chief Minister also admitted, in his letter to the Union Home said to be embodied in our Constitution and described them as the comer-stone of national unity and national integrity . He asserted: the constitution is the source of all power for the various organs of the Centre and the State and all actions and exercise of all power under any of the statutes either by the Centre or by the State must conform to and be subordinated to the scheme of distribution of powers, legislative and executive, under the Federal Scheme of the Constitution . The Chief Minister also admitted in his letter to the Union Home Minister, that the Constitution in certain exceptional circumstances provides for the Centre making inroads into the exclusive domain of the State Legislature or the State executive . But, lie denied that the exceptional circumstances, expressly provided for in the Constitution, for interference by the Centre, existed in the instant case. Evidently, the Chief Minister meant that there was no room for invoking the emergency provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, in the Lok Sabha, on 5th May 1976, where it was stated that some memoranda bad been sent, containing allegations of corruption and misuse of power made against the Chief Minister and other ministers of Karnataka by some members of the Legislative Assembly, as long ago as 1973. According to that statement, there were 99 allegations out of which 16 concerned the Chief Minister personally. Shri Mehta was said to have declared that the allegations against the Chief Minister were found to lack substance after the settled procedure of inviting comments from the Chief Minister Iliad been observed. The Chief Minister then dealt at considerable length with the individual charges. In the plaint before us, it was pointed out that charges of the nature now referred to the one man Commission by the Central Government had been made over since 1972 elections both on the floor of the Legislature and elsewhere. It also said that they had been explained and answered on the floor of the Legislature repeatedly. The Chief Minister complained that the same allegations had been repeated after a new Government had assumed office at the Centre. It was also asserted in the plaint that, in order to all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State. The State of Karnataka is not directly interested in the inquiry proposed to be held against the Chief Minister and certain other Ministers of the State. The individuals occupying the office of Chief Minister and Ministers are distinct from the State it . 2. Article 131 of the Constitution of India gives original jurisdiction to the Hon'ble, Supreme Court in any dispute between the Government of India and one or more States etc., if the dispute involves any question of law or fact or which the existence or extent of a legal right depends. There being no dispute between the Government of India and the State, the suit is not maintainable. There is no legal right of the plaintiff-State to Me the present suit. The Union of India denied that the matters now to be enquired into by the Grover Commission constituted a resuscitation of previous charges and allegations which had been disposed of. Mala fides in the institution of the Commission of Inquiry is denied. The validity of all provisions of the Act is staunchly defended. The Inquiry ordered by the Central Government is, its asserted, quite competent and not covered by the State Government notification. It is denie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whole case. It is certainly not a question we could abstain from deciding simply because no specific issue was framed separately on it at the outset. Although, in view of the fact that the question has been put in issue and so understood and very fully argued by the parties, a separate and specific issue need not be framed upon it, yet, because of the crucial importance of it, we formulate it now separately and specifically as follows : Do both the State and the Central Government inquiries relate to the 'same matter within the meaning of proviso (b) to Section 3(1) of the Act so as to bar an inquiry by the Central or Union Government so long as the State Commission is functioning? The State Government's notification dated 18-5-1977, reads as under Government of Karnataka Karnataka Government Secretariat Vidhana Soudha Bangalore, May 19, 1977 NOTIFICATION WHEREAS allegations have been made on the floor of the Houses of the State Legislature and elsewhere that irregularities have been committed/excess payments made in certain matters relating to contracts, grants of land, allotment of sites, purchase of furniture, disposal of food grains, etc. : WHEREAS the State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown to M/s. EICIL in respect of the contracts awarded to them for- (1) the construction of the head race tunnel from the Bom- manhalli pick up dam to the surge point; (2) the construction of the surge tank and the pressure shaft ? VI. Whether any undue favour was shown to M/s. Ghansham Commercial Co. Ltd., in the sale of 25,000 tonnes of bajra at the rate of ₹ 73.50, per quintal in 1972 ? VII. Whether any undue favour was shown to m/s. Krishna Flour Mills in respect of the lease of the land next- to its premises, measuring 200x200' for a period of 30 years ? VIII. Whether any improper or excessive payment was made or any undue favour was shown to M/s. Shah Construction Company in the settlement of their claims for the contract awarded to them for the construction of the Almatti Dam ? IX.Whether any undue favour was shown to M/s. Poornima Electronics in the placing of orders on them for supply of electronic equipments like Intercome etc. ? X. Whether there was any disappropriation or fraud in the dealings of the State Co-operative Marketing Federation during the period 1971-72 and 1972-73 ? XI. Whether any undue favour has been shown by the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chassis by the KSRTC in August 1972 was against the Corporation's interests ? XXVI. Whether the appointments of agents, sub-agents and dealers during the years 1967-77 by the Visvesvaraya Iron and Steel Ltd., Bhadravathi for the distribution of Steel and cement were adverse to the Company's interests ? XXVII. Whether the appointments of agents, sub-agents and dealers for the years 1967-77 by the Mysore Paper Mills Ltd., Bhadravathi for the distribution of paper were adverse to the Company's interests ? XXVIII. Whether improper or excessive payment was made to Shri M. S. Ramaiah, contractor, in respect of the contract awarded to him for the construction of the Talakalele dam and its appurtenant works, which form part of the Sharavathi Valley Project. XXIX. Whether there were any defects in the construction of Talakalele Dam owing to bad design, use of sub-standard materials caused by negligence or wilful commission of the contractor or any individual ? XXX. Whether unjust or excessive payment was made to M/s. Tarapore Co., in respect of the contract awarded to them for the rock fill work both up and down stream, in the Lingannamakki earthen dam? XXXI. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ataka, on the part of any person in relation to any matter referred to in the allegations aforesaid; (c) to inquire into any other matter which arises from, or is connected with or incidental to, any act, omission or transaction referred to in the allegations aforesaid; Explanation -In the Annexures to this notification, Chief Minister means Shri Devraj Urs, the Chief Minister of the State of Karnataka. 3. The headquarters of the Commission will be at New Delhi. 4. The Commission will complete its inquiries and report to the Central Government on or before the 1st day of December, 1977. 5.And whereas the Central Government is of opinion having regard to the nature of the inquiry to be made by the Commission and other circumstances of the case, that all the provisions of sub-section (2), sub-section (3), sub-section (4) and sub-section (5), of section 5 of the Commissions of Inquiry Act, 1952 (60 of 1952) should be made applicable to the Commission, the Central Government hereby directs, in exercise of the powers conferred by subsection (1) of the said section 5, that all the provisions of the said sub-sec- tion (2), (3), (4) and (5) of that section shall apply t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raud was practised in connection with the said matter. 8. Whether appointment was made of fictitious persons as dealers in sandal soap by Mysore Sales International under the orders of the Chief Minister and the Minister for Industry and payment was made of hugs amounts by way of commission. 9. Whether gross misuse of powers and position was made by Shri H.M. Channa Bassappa, formerly Minister-in-charge of Public works Department and Electricity (now Minister of Health) in converting The residential site which he got allotted to him by the Trust Board into a commercial site and starting a company with his family members as directors. 10. Whether any favouritism was shown or whether there was. any corruption in the purchase of new types and in body building contract for the new chassis by Karnataka State Road Transport Corporation under the undue influence of the Chief Minister and the Minister for Transport Shri Aziz Sait. 11. Whether there was any nepotism and favouritism and misuse of power by the Chief Minister and the Minister of Transport in the matter of nationalization of contract carriages and wilfully benefiting certain parties with whom the Chief Minister' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d involving excess payment to the extent of ₹ 3.5 lakhs; (6) Excess payment of ₹ 1 crore to Messrs TICIL Contractors, in Kali Hydel Project, for the benefit of the contractors; (7) Whether about 5,000 tons of rice, purchased by the Government of Karnataka from the Tamil Nadu Government on government-to- government basis, was allowed to be marketed by a private party, Shri H. R. Athu Ahmed, without the knowledge of the Food Department instead of the Mysore State Co-operative Marketing Federation as was earlier agreed, with the sole intent of benefiting the private party; (8) Undue favour shown to a fictitious cooperative society in regard to conversion of 270 acres of agricultural land called Dinshaw Estate into ;non-agricultural purpose in violation of the mandatory provisions of the Land Reforms Act and the Land Revenue Act; (9) Whether undue favour was shown to one Ghanshyam in the sale of 2500 tons of Bajra at the rate of ₹ 73.50 p. per quintal without calling for tenders and allowing Shri Ghanshyam to sell the Bajra in the State of Maharashtra at the rate of ₹ 125.00 per quintal during the time of drought in Karnataka. (10) Whether undue f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any undue favour was shown by the Minister of State for Small-scale Industries, Shri Koulajgi in 1974, in the issue of Essentiality Certificate to parties many of which are fictitious and bogus. (19) Whether undue favour was shown by the Chief Minister and the Minister of Transport, Shri Aziz Sait in 1973-74, to M/s. Fargo in buying 150 chassis against the advice of the Chief Mechanical Engineer of the Karnataka State Road Transport Corporation. (20) Whether any undue favour was shown by the Minister of Industries, Shri S. M. Krishna, in allotting of paper, cement and steel of the, State-owned Industries to Non- traditional dealers/agents including his kith and kin. (21) Whether an excess payment of ₹ 30.00 lakhs was made to M/s. Shankaranarayana Construction Company in regard to the construction of combined Board Administrative Building Complex at Bangalore over and above the contract rates. (22) Whether any excess payment was made to M/s. Balaji Engineering Company to the tune of ₹ 80.00 lakhs in Harangi Project with an intent to favour the contractor. (23) Whether Shri K. H. Patil, the then Minister for Agriculture and Forest, was guilty of any misuse o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, or misappropriation, or irregularity, mentions certain contracts in favour of various companies, or parties under 32 heads. It then states, as a separate item of inquiry, the question as to who were the persons responsible in the lapses, if any, mentioned earlier. In other words, apart from their parts in certain lapses the responsibility of the Chief Minister or any other Minister of the Government of Karnataka could not be inquired into by the Commission appointed under the State notification. And, all that the State notification seems to empower its Commission to enquire into, with regard to transactions mentioned there is whether there was any excessive payment or irregularity involved. Hence, it speaks of responsibility for lapses as though one could assume that there was no dishonest motive. The emphasis, in the State notification, is on the question of observance or non-observance of rules coupled with the question whether certain payments were proper. And, the question of affixation of responsibility is confined to lapses in the course of these transactions only. Even if a transaction has been made completely in accordance with the rules, it may, nevertheless, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, however highly placed, is really responsible for the commission of that irregularity and whether any dishonesty or corruption has operated at the highest levels in the State even if the form is proper and regular. If the State notification shows no concern for what seem to us to be the much more important objects of the Central Government notification, one could perhaps guess that the indifference of the State towards the more serious matters is not without some object or significance. Nevertheless, we do not propose to pass any judgment on the motives of the State Government or the fact that the most important or significant features of what has been alleged against the Chief Minister and members of his Government have been left out by the State Government notification even if the object of that notification was quite bonafide and proper so far as it went. We think, however, that the State notification does not go far enough. But, the Central Government notification does proceed further. It squarely levels charges against persons who, according to the allegations made, may have acted in a manner which makes them not only theoretically responsible but actually guilty of corrupti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o in undertaking to place all the material before whichever commission may be found to have jurisdiction to inquire into the allegations made against him. He could take the opportunity to honourably face and repel the charges which, according to him, have been repeatedly but Unjustifiably and maliciously made against him over a sufficiently long period. He could thus be able to establish that he is serving the interests of his State, its inhabitants, and, indeed, of the country as a whole, if his assertions are correct. The plaintiff has not suggested anywhere that the Grover Commission is not presided ever by an individual of unquestionable integrity and independence who has been a Judge of this Court., Mr. Lal Narain Sinha, appearing for the plaintiff, has, very frankly and properly, conceded that he cannot successfully press want of bona fides on the part of the Central Government in issuing its notification. This means that the question whether the Commission is either unnecessary, except as a weapon of political warfare, as well as any doubts about whether it could be or was to be misused in this case, must be dismissed as unsustainable. The State Government must itself be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 's own Commission did not even remotely appear to have been set up merely in anticipation of a thorough investigation by an outside Central authority which would, presumably, appear more impartial and objective, or, to impede or embarrass the proceedings of the Central Government Commission. Such doubts as could arise on these grounds will be dispelled by the, withdrawal of the State notification. Although the prompt action toy the State Government may seem quite commendable and bonafide, in appointing its own Commission in the context and circumstances disclosed above, its continued existence may not give exactly that impression after what we have held above on an analysis of the apparent objects of the two Commissions judged by the contents of the two notifications. In any case, the subject matter, not being substantially same, the Central Government Commission could proceed with its investigations if other objections, which we now proceed to examine, are not really fatal to the validity of the Central Government's notification. Those other objections to the validity of the Central Government's notification may be summarised as follows: Firstly, it is submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to be outside the ordinary legislative competence of Parliament. Sixthly, the plaintiff's counsel submitted that, in any event, the provisions of the Act must be so construed or interpreted, by reading them down if necessary, as to preclude interference by the Union Government with the operations of the State Government or the conduct of its Ministers keeping in view all the submissions mentioned above. It is true that learned counsel for the plaintiff kept reverting to what he really meant to put forward as the basic or inviolable features of the Constitution, yet, he felt reluctant to unequivocally commit himself to the view that the Act contained provisions which constituted a violation of the basic structure of the Constitution which has been held to include both Democracy and Federalism. Apparently, this somewhat shifting position arose from a realisation that the Act may, have very little, if anything at all, to do with provisions meant to ensure Democratic Government, and that our Constitution has, despite whatever federalism may be found in its structure, so strongly unitary features also in it that, when the totality of these provisions is examined, it becomes diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igating allegations of public misconduct-particularly as the subject matter of the inquiry often has highly charged political overtones. He observed : The history of such investigations in England by Parliamentary committees is, to say the least, unfortunate. Let me give you but one example. Early in the present century there occurred what became known as the Marconi Scandal. In 1912 the Post Master General in a Liberal Government accepted a tender by the English Marconi Company for the construction of State- owned wireless telegraph stations throughout the Empire. There followed widespread rumours that the Government had corruptly favoured the Marconi Company and that certain prominent members of the Government had improperly profited by the transaction. The Select Parliamentary Committee appointed to investigate these rumours represented the respective strengths of the Liberal and Conservative Parties. The majority report of the Liberal members of the Committee exonerated the members of the Government concerned whereas a minority report by the Conservative members of the Committee found that these members of the Government had been guilty of gross impropriety. When the reports ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and figures List I or List II or List III in the Seventh Schedule to the Constitution the words and figures List I or List III in the Seventh Schedule to the Constitution as applicable to the State, of Jammu and Kashmir shall be substituted; (b) in sub-clause (ii) thereof, for the words and figures List II or List III in the Seventh Schedule to the Constitution , the words and figures List III in the Seventh Schedule to the Constitution as applicable to the State of Jammu and Kashmir shall be substituted; (b) Commission means a Commission of Inquiry appointed under section 3; (c) Prescribed means prescribed by rules made under Act. Section 3 of the Act reads as follows: 3. (1) The appropriate Government may. if it is of opinion that It is necessary so to do, and shall, if a resolution in this behalf is passed by the House of the people, or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and Performing such functions and within such time as may be specified in the notification, and the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estions not required by the Commission to be answered, or, those made on matters which are not relevant to the subject-matter of the inquiry. The Act, however, contains no provisions for giving any effect to the findings of the Commission or for enforcing any order which could be made by the Commission against any person as a result of an inquiry. In fact, the only orders a Commission under the Act is empowered to make against anybody are those relating to abduction of evidence, whether oral or documentary, and those which may be required to protect the Commission against acts calculated to bring the Commission or any member thereof into disrepute . The proceedings of a Commission could only result in a Report which is to be laid before the Legislature concerned under the provisions of s. 3 (4) of the Act. Hence, the obvious intention behind the Act is to enable the machinery of democratic government to function more efficiently and effectively. it could hardly be construed as an Act meant to thwart democratic methods of government. Even in countries with undiluted unitary systems of Govt. there is devolution of powers of local self-Government for restricted purposes. In 'our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is certainly a recognition of the, federal principle. But, this does not mean that the Central Government is precluded from all interference in matters concerning individual States. For determining the extent of that interference and the circumstances in which it is ,possible we have to turn to other provisions of our Constitution. Article 245(1) of our Constitution gives the territorial operations of the laws made by Parliament and the State legislatures. Article 246(1) enacts that items in List I of the Seventh Schedule fall exclusively within the domain of Parliament and those in List II come exclusively within the legislative power of the State legislatures, but those in List III are to be concurrent. Article 248, however, vests Parliament with exclusive power to legislate with respect to matters not enumerated in either the concurrent or State list. This is what is spoken of generally as the residuary power . In addition, Parliament has over-riding powers of legislating even for matters in the State list for limited durations if the Council of States by resolution supported by not less than two thirds of its members declared that it is necessary to do so in national intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as follows by Article 73(1) of the Constitution : 73(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend- (a) to the matters with respect to which Parliament has power to make laws; and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement; Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State to matters with respect to which the Legislature of the State has also power to make laws . And, the extent and limitations of the executive power of a State given in Article 162 as follows: 162. Subject to the provisions of this 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: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f dissolution should be exercised by the Governor on the advice of a Council of Ministers in the State, yet if a direction on that matter was properly given by the Union Government to a State Government, there is a duty to carry it out. The time for the dissolution of a State Assembly is not covered by any specific provision of the Constitution or any law made on the subject. It is possible, however, for the Union Government, in exercise of its residuary executive power to consider it a fit subject for the issue of an appropriate direction when it considers that the political situation in the country is such that a fresh election is necessary in the interest of political stability or to establish the confidence of the people in the Govt. of a State . (p. 1383-84). In that case, after considering the extent of federalism in (our constitution it was also observed (p. 1383) : If then our Constitution creates a Central Government which is 'amphibian' in the sense that it can move- either on the federal or unitary plane, according to the needs of the situation and circumstances of a case, the, question which we are driven back to consider is whether an assessment of the & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to say, a power to order an inquiry for the purposes of the satisfaction required by article 356. And the machinery provided by the Act could, it seems to us, be utilised to decide whether action under article 356 is really called for. Reliance was, however, placed strongly on provisions of the Constitution setting up what, in the words of Dr. Ambedkar, one of the prime architects of our Constitution, is a Dual Polity by which, as was explained in the case of State of Rajasthan (supra), he meant a Republic both unitary as well as federal according to the needs of the time and circumstances. This Dual Polity of ours is a product of historical accidents, or, at any rate, of circumstances other than those which result in genuine federations in which the desire for a separate identity and governmental independence of the federating units is so strong that nothing more than a union with a strictly demarcated field of Central Government's powers is possible. A nonfederal polity carries the attenuation of Central authority to the extent of confining combined or concerted action to the more strictly limited field of collaboration only to matters such as foreign affairs and de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntiments which could threaten the sovereignty and integrity of the Indian Republic to which members of our Constituent Assembly seemed ardently devoted, particularly after an unfortunate division of the country with certain obviously disastrous results. However, we may examine the express provisions of our Constitution relating to the organs of Government in the States which, no doubt, give the appearance of full-fledged separate States for certain purposes. Each State has its own Governor exercising the executive power of that State. But, all Governors, although undertaking to devote themselves to the service and well-being of the people of their respective States, owe an undivided allegiance to the Constitution and the law . Each of them is appointed by the President and holds office during the pleasure of the President to whom he sends his reports with a view to any proposed action under Article 356 of the Constitution. The Governor's authority, under the Warrant of his appointment, is traceable to the President to whom he is to submit his resignation if he resigns. Article 163 speaks of the, Council of Ministers with the Chief Minister at the head to. aid and advise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rule that no member of the Government may properly remain a member and dissociate himself from its policies (except on occasions when the Government permits a free vote in the House) . 'They add : The substance of the Government's collective responsibility could be defined as its duty to submit its policy to and defend its policy before the House of Commons, and to resign if defeated on an issue of confidence . Each Minister can be and is separately responsible for his own ,decisions and acts and omissions also. But, inasmuch as the Council of Ministers is able to stay in office only so long as it commands the support and confidence of a majority of Members of the Legislature of the State, the whole Council of Ministers must be held to be politically responsible, for the decisions' and policies of each of the Ministers and of his department which could be presumed to have the support of the whole Ministry. Hence, the whole Ministry will, at least on issues involving matters of policy, have to be treated as one entity so far as its answerability to the Legislative Assembly representing the electors is concerned. This is the meaning of the principle underlying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hus described in 1878 by Lord Salisbury: For all that passes in Cabinet every member of it who does not resign is absolutely and irretrievably responsible and has no right afterwards to say that he agreed in one case to a compromise, while in another he was persuaded by his colleagues.... It is only on the principle that absolute responsibility is undertaken by every member of the Cabinet, who, after a decision is arrived at, remains member of it, that the joint responsibility of Ministers to Parliament can be upheld and one of the most essential principles of parliamentary responsibility established. The whole question of responsibility is related to the continuance of a Minister or a Government in office. A Minister's own acts or omissions or those of others in the Department in his charge, for which he may feel morally responsible, or, for which others may hold him morally responsible, may compel him to resign. By an extension of this logic, applied to individual Ministers at first, emerged the principle of collective responsibility which we find enacted in Articles 75(2) and 164(2) of our Constitution. The only sanction for its enforcement is the pressure of publi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matters dealt with by a Commission. Indeed, the legal relevance or evidentiary value of a Commission's report or findings on issues which a Court may have to decide for itself, is very questionable. The appointment of a Commission of Inquiry to investigate a matter which should, in the ordinary course, have gone to a Court of law is generally a confession of want, of sufficient evidence-as in the case of the appointment of the Warren Commission in the U.S.A. to inquire into facts concerning the murder of the late President Kennedy-to take it to Court combined with an attempt to satisfy the public need and desire to discover what had really gone wrong and how and where if possible. A Commission of Inquiry has, therefore, a function of its own to fulfill. It has an orbit of action of its own within which it can move so as not to conflict with or impede other forms of action or modes of redress. Its report or findings are not immune from criticism if they are either not fair and impartial or are unsatisfactory for other reasons as was said to be the case with the Warren Commission's report. Provisions of either Article 75(2) or Article 164(2) could not operate as bars against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of these two articles subjects the powers, privileges and immunities of each House as well as all its Members and its Committees not only to the laws made by the appropriate legislature but also to all the other provisions of the Constitution. It is clear, from these articles, that they do not apply to legislative powers of Parliament or of the State Legislatures which are specifically dealt with by articles 245 to 255 of the Constitution. Articles 105 and 194, far from dealing with the legislative powers of Houses of Parliament or of State Legislatures respectively, are confined in scope to such powers of each House as it may exercise separately functioning as a House. It also covers immunities and privileges of each House as a House as well as of its members The correct principle of interpretation to apply is no scitur a sociis , or, in other words, the word powers gets its meaning and colour not only from its context but also from the other words used in association with it. It is evident, from the Chapter in which article 194 occurs as well as the heading and its marginal note that the powers meant to be indicated here are not independent. They are powers which depen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution and not the British Constitution that the provisions of the Act before us are within the legislative competence of Parliament. But, if we could ignore the provisions of our Constitution relating to distribution of legislative powers, which is what the arguments based on Article 194(3) seem to imply, we would be left with no yard-stick for determining the legislative competence of our Parliament. It would be absurd to take that view simply because that is the position in England. Nobody could, in England, question the validity of an Act of Parliament on the ground that it is in excess of the power vested in a sovereign Parliament to legislate. If we could apply that principle here the Act before us would be a sufficient answer to all argument against its validity. If that principle does not apply in our country because of the provisions of our Constitution, which constitute courts judges of constitutionality of even Acts of Parliament, we have to test the provisions of the Act on the anvil of express provisions of our own Constitution and not on the erroneously supposed powers of a House of Commons in England which could never ignore or invalidate the provisions of any Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Legislatures. A House of Parliament or State Legislature cannot try anyone or any case directly, as a Court of Justice can, but it can proceed quasi-judicially in cases of contempt of its authority and take up motions concerning its privileges and immunities because, in doing so, it only seeks removal of obstructions to the due performance of its legislative functions. But, if any question of jurisdiction arises as to whether a matter falls here or not, it has to be decided by the ordinary courts in appropriate proceedings. For example, the jurisdiction to try a criminal offence, such as murder committed even within a House vests in ordinary criminal courts and not in a House of Parliament or in a State legislature. In Smt. Indira Nehru Gandhi v. Shri Rai Narain([1976] 2 S.C.R. 347.), this Court held that a House of Parliament cannot, in exercise of any supposed powers under article 105, decide election disputes for which special authorities have been constituted under the Representation of People Act, 1961, enacted in compliance with article 329. Similarly, appropriate provisions for. appointments of suitable persons, invested with power to determine, in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als of good government may be wanting. Neither Chapter 11, part XI of the- Constitution, dealing with the administrative relations between the Union and the States, nor any other part of the Constitution could be held to imply a prohibition against the exercise of any legislative power of Parliament. Indeed, a glance through Chapter 11 in part XI shows that, apart from articles 25 6 and 25 7 (1 ), it deals only with some special matters, such as maintenance of national highways, water ways, and railways, constructions to be undertaken for objects of national or military importance, delegation of certain powers, some arbitrations, recognition throughout the territory of India of certain public acts and judicial proceedings of the Union and of every State, determination of disputes relating to waters, and certain other matters involving co-ordination between the States. It could not be said to exhaust all matters which may involve the interests of particular States as well as of the Union. There is nothing in any of the provisions here or elsewhere in our Constitution which could, by a necessary implication, be said to impose conditions on the exercise of legislative powers distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed use of the term it means the rules which regulate the structure of the principal organs of government and their relationship to each other, and determine their principal functions. In other words, it could be expected to contain only the basic framework. It is not part of its nature to exhaustively deal with all governmental matters. As there is no written Constitution in Britain, the authors quoted above said the Constitution has no separate existence since it is the ordinary law of the land . They added : There is a common body of law which forms the constitution, partly statutory, partly common law, and partly conventions . It is not possible in England to equate all that passes as constitutional law With rules enforceable through Courts of law because conventions, which cannot be so enforced, are also, apparently, treated as parts of it since they also contain rules of conduct. Thus, not all constitutional law need be written or be even law in the commonly accepted sense of this term. In any case, there can be no clear-cut distinction between what could or should and what could not or should not be comprehended within the body of rules called constitutional law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or ingredients ,which compose those objects be deduced from the nature of the objects themselves. It is true that our Constitution-makers did not try to conform to the standards indicated above. This was due largely to the historical background and the manner of our Constitution making. We did not start with a clean slate. We accepted as our starting point the scheme embodied in the Government of India Act, 1935, enacted by the British Parliament, evidently in an attempt to provide quite a comprehensive and foolproof set of legal rules for the governance of. our country. On it, were engrafted a set of provisions containing principles, sometimes conflicting, culled from the Constitutions of various countries, including Japan, and results of judicial wisdom and experience gathered from all comers of the earth, so that we have a Constitution which, as Mr. Granville Austin suggests in his book on The Indian Constitution: The cornerstone of a Nation , resembles a coat of various colours. Our Constitution may be lengthy and considerably more comprehensive and elaborate than Constitutions of other countries. Nevertheless, to expect its contents to be so all embracing as to necessa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions dealing with entirely different topics. There is no indication anywhere in our Constitution that, while enacting the provisions from which we are asked to infer a bar against or limitation upon legislation on such a topic as inquiries, that our Constitution-makers had any such bar or limitation even remotely in their minds. There seems no legal or rational nexus between such a supposed bar or limitation and the subjects dealt with in the articles relied upon. As already indicated above, the Constitution makers cannot always mention and exhaust every conceivable topic. We think that it is in order to meet precisely such a situation that article 248 read with Entry 97 was inserted. Hence, we think that article 248 read with Entry 97 of list I will fully cover Section 3 of the Act even if item 94 of List I does not. Alternatively, Entry 45 of the Concurrent List III of the Seventh Schedule was relied upon on behalf of the Union. This item reads as follows 45. Inquiries and statistics for the purposes of any of the matters 'specified in List II or List III . To fall under item 45 of List III the topic of inquiry must relate to one of the specified items in List II or L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase for a criminal offence facts have to be necessarily investigated or inquired into. But, of every type of inquiry and investigation except one by the House of the Legislature of which he is a member is burred, the very first stop towards a prosecution for any serious crime would be shut out in limine. No question of any further legal proceedings would arise under any enactment. Such a consequence of the constitutional provisions relied upon by learned counsel for the plaintiff could not, in our opinion, be possible within the contemplation of our Constitution makers. Indeed, such a view would clearly violate the express and very salutary provisions of Article 14. We prefer to infer and hold that the term 'inquiries', as used in item 94 of List I and Item 45 of List III, without any limitations upon their nature or specification of their character or objects, is wide enough to embrace every kind of inquiry, whether a criminal offence by anyone is disclosed or not by facts alleged. Entry 45 in List III must include inquiries to cover allegations against all persons which bring them within the sphere of Entry I of List II relating to criminal law. All that Inquiries co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office, are the best means of clearing them of charges which are really unfounded and malicious. As we think that the powers conferred by Section 3 upon the Central and State Governments, including the power to institute inquiries of the kind set up under each of the two Notifications, are covered by the express constitutional provisions mentioned above, no question of any exclusion, either by necessary implication or by any principle supposed to form a part of or to flow from the basic structure of the Constitution, can arise here. Nor can we, upon the view we take, read down and so interpret Section 3 of the Act as to exclude from its purview inquiries of the kind instituted under the two Notifications. To do so would be to give an incentive to possible misuse and perversion of governmental machinery and powers for objects not warranted by law. Such powers carry constitutional obligations with them. They are to be exercised like the powers and obligations of trustees who must not deviate from the purposes of their trusts. Whether a Minister has or has not abused his powers and privileges could be best determined by fair and honest people anywhere only after a just and impartia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law, the Court cannot fill it. The rule, however, is equally clear that the Court cannot so interpret a statute as to produce a casus omissus where there is really none (see : The Mersey Docks and Harbour Board v. Penderson Brothers([1888] 13A.C.595@ 602). If our Constitution 'itself provides for legislation to fill what is sought to be construed as a 'lacuna how can legislation seeking to do this be held to be void because it performs its intended function by an exercise of an expressly conferred legislative power ? In declaring the purpose of the provisions so made and the authority for making it, Courts do not supply an omission or fill up a gap at all. It is Parliament which can do so and has done it. To hold that parliament is incompetent to do this is to substitute an indefensible theory or a figment of one's imagination that the Constitution stands in the way somehow-for that which only a clear Constitutional bar could achieve. This brings me to the next question to be considered Are there any special rules relating to the construction of Constitutions in general or of our Constitution in particular? And, if there be any such rules, would their application s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and purposes, evident from the contents, must prevail over lesser terms ones obscurely embedded here and there. The Constitutional document, in other words, must be read as a whole and construed in keeping with its declared objects and its functions. The dynamic needs of the nation, which a Constitution must fulfill, leave no room for merely pedantic hairsplitting play with words or semantic quibblings. This, however, does not mean that the Courts, acting under the guise of a judicial power, which certainly extends to even making the Constitution, in the sense that they may supplement it in those parts of it where the letter of the Constitution is silent or may leave room for its development by either ordinary legislation or judicial interpretation, can actually nullify, defeat, or distort the reasonably clear meaning of any part of the Constitution in order to give expression to some theories of their own about the broad or basic scheme of the Constitution. The theory behind the Constitution which can be taken into account for purposes of interpretation, by going even so far as to fill what have been called the interstices or spaces left unfilled, due perhaps to some deliberate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting-to remember that it is a Constitution, a mechanism under which laws are to be made and not a mere Act which declares what the law is to be'. In In re the Central Provinces and Berar Act XIV of 1938 (1939 FCR 18 (1937), Sir Maurice Gwyer, C.J., after adopting these observations said: 'especially is this true of a federal Constitution with its nice balance of jurisdictions. I 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 legal or constitutional theory or even for the purpose of supplying omissions or of correcting supposed errors'. There is considerable authority for the statement that the Courts are not at liberty to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade, the Constitution but not expressed in words. Where the fundamental law has not limited, either in terms or by necessary implication, the general powers confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;s case (supra) Sikri C.J., said about the mode of construing the Constitution: One must not construe it as an ordinary statute. The Constitution, apart from setting up a machinery for Government, has a noble and grand vision in the Preamble. In the very case Khanna J. observed A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is constitution like a plaint or a written statement filed in a suit between two litigants. xx xx xx xx xx It provides for the framework of the different organs of the State, viz the executive, the legislature and the judiciary. A Constitution also reflects the hopes and aspirations of a people . Repeatedly, this Court has declared that a broad and liberal construction in keeping with the purposes of a Constitution must be given preference over adherence to too literal an interpretation (see : e.g. Sakal Papers (P) Ltd. v. Union of India,( [1962] 3 S.C.R. 842;), of the Constitution. In particular, the plenitude of power to legislate, indicated by a legislative entry, has to be given as wide and liberal an interpretation as is reasonably possible. Thus, in Jagannath Baksh Singh v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... II it would fall in List I apparently because, of the amplitude of the residuary field indicated by entry 97, List I, Legislative entries only denote fields of operation of legislative power which is actually conferred by one of the articles of the Constitution. It was, pointed out that Article 248 of the Constitution conferring legislative power is framed in the widest possible terms . The validity of the Wealth Tax Act was upheld in that case. The argument that a wide range given to entry 97 of List I, read with Article 248 of the Constitution, would destroy the federal structure of our Republic was rejected there. On an application of a similar test here, the powers given to the Central Government by Section 3 of the Act, now before us, could not be held to be invalid on the ground that the federal structure of the State is jeopardized by the view we are adopting in conformity with the previous decisions of this Court. I may next refer to what may be regarded as certain special features of our Constitution so as to indicate its broad purposes and objectives. Our Constitution has, in it, not only an elevating preamble setting forth the presumed will of the whole people o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Article 248 read with entry 97 of List I, if it falls neither in List II nor in List III. As indicated above, the contention on behalf of the plaintiff, if accep- ted, would expel the power of legislation itself on any matter involving an inquiry into the conduct of Governmental affairs by a minister in a State Government from the legislative Lists and place it under Article 368. This means that, although the express provisions of the Constitution, broadly interpreted, as they should be, would prima facie authorse a provision.. such as Section 3 of the Act, yet, we should imply a Constitutional prohibition against such an enactment by Parliament even if its wide terms could as they prima facie do, include inquiries against State Ministers exercising Governmental powers. As indicated above, the first step of the argument mentioned above is a theory of what the Constitution must necessarily contain as contrasted with ordinary law. To support this submission, a passage was cited from the judgment of Wanchoo J, in I. C. Golak Nath Ors. v. State of Punjab and Anr.( [1967] 2 S.C.R. 762 @ 828.) which contains the following question front Ivor Jennings on The Law and the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s subject to the provisions of this Constitution and any law made by Parliament whether under Art. 246 read with List I or under Art. 248 read with item 97 of List I must be subject to the provisions of the Constitution. If therefore the power to amend the Constitution is contained in Art. 248 read with item 97 of List I, that power has to be exercised subject to the provisions of Constitution and cannot be used to change the fundamental law (namely, the Constitution) itself. The passages cited above cannot provide a foundation for the theory that constitutional Law and the rest of the law can, in respect of their contents or subject matter be placed in two sharply divided or distinct and water-tight compartments with no overlapping or uncertain fields between them. It must not be forgotten that Wanchoo, J. repeatedly explained, by putting in the words namely, the Constitution within brackets, that he 'was really concerned with indicating the special features of a very detailed or comprehensive Constitution such as ours. Indeed as regards the subject matter of the laws contained in the Constitution and these which may be introduced by the ordinary law ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the Constitution could not, however, be used to infer some bar on legislative power which is not there in the Constitution at all for reasons repeatedly indicated above. In an earlier part of this judgment, it is held that legislative power to enact a provision such as Section 3 of the Act could be found, in any event, in Article 248 read with entry 97 of List I, even if it could possibly be urged that it is not covered by entries 94 of List I and 45 of List III, which seem to exhaust the three Lists in so farms the subject matters of enquiries are concerned. Learned Counsel for the plaintiff tried to introduce some doubts on the ground that there is no specific entry in any of the lists to cover the conduct of Ministers in St-ate Governments in relation to governmental functions. And, it was submitted, reference to subjects specified in the Lists would exclude those which are unspecified. It could be urged in reply that, as indicated in Dhillon's case (supra), a legislative entry only indicates the field of operation of the power, but the sources of ordinary legislative power are to be found in one of the Articles 245, 246, 247, 248, 249, 250, 252, or 25 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated the legislative power in one of the articles of the Constitution, authorising ordinary legislation by Parliament for inquiries covered by section 3 of the Act, and we find also the appropriate entries in legislative Lists I and III indicating the fields of operation of that legislative power of Parliament, the well recognised principle which would apply and exclude an implied bar against the exercise of that plenary power has been stated by this Court and also by other Courts in Commonwealth countries on several occasions. That principle follows logically from R. v. Burah (1878) (3 A. C. 889) which is the locus classics on the subject. The general principle laid down in Burah's case was that once what is conferred upon a Parliament or other Legislature is legislative power, its plenary character must be presumed so that, unless the instrument conferring the power to legislate itself contains some express limitation on the exercise of legislative power, the ambit of that power cannot be indirectly cut down by supposed implications. The cases on this subject were comprehensively considered by this Court in Kesavananda Bharati's case (supra) where the majority view was t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion self-government and the decisions just cited entirely preclude, in our opinion, an a priori contention that the grant of legislative power to the Commonwealth Parliament as representing the will of the whole of the people of all the State,,, of Australia should not bind within the geographical area of the Commonwealth and within the limits of the enumerated powers, ascertained by the ordinary process. of construction, the States and their agencies as representing separate sections of the territory. In Victoria's case (supra), Barwick C.J., although not in entire agreement with the way in which Sir Owen Dixon, C.J., had expressed himself in West v. Commissioner of Taxation (N.S.W.( (1937) 56 C.L.R. 657 @ 682.) opined that it was only- another way of putting what had been consistently. laid down as the principle of interpretation of Constitutions of British self governing Dominions since Burah's case (supra). The passage thus explained was : ........ the principle is that whenever the Constitution confers a power to make laws in respect of a specific subject matter prima facie it is to be understood as enabling the Parliament to make laws affecting the operations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Judges of this Court, expressing the majority views on this doctrine, federalism is a part ? We can only answer this question by quoting from certain passages from the opinions of the learned Judges who were parties to the decision of this Court in Kesavananda Bharati's case (supra). Sikri C. J., who accepted the doctrine of implied limitations, and, consistently with its logic, found that the basic structure of the Constitution forms an orbit of exercise of power which is outside the purview of Article 368, relied on the observations and dicta found in Melbourne Corporation v. The Conzmonwealth((1947) 74 C.L.R. 31.) and Australian National Airways Pvt. Ltd. v. The Commonwealth ((1945) 71 C.L.R. 29.). The learned Chief Justice cited Starke J.'s views expressed in Melbourne Corporation's case (supra) : The federal character of the Australian Constitution carries implications of its own..................... xx xx xx xx The position that I take is this The several subject matters with respect to which the Commonwealth is empowered by the Constitution to make laws for the peace, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have been a common understanding that the fundamental features of the constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state. In view of the above reasons, a necessary implication arises that- there are implied limitations on the power of Parliament that the expression 'amendment of this Constitution' has consequently a limited meaning in our Constitution and not the meaning suggested by the respondents . Sikri C.J . recorded his finding on the basic structure in Kesavananda Bharti's case (supra) as follows (at pp. 165-166) : The true position is that every Provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same. The basic structure may be said to consist of the following features: (1) Supremacy of the Constitution; (2) Republican and Democratic form of Government; (3) Secular character of the Constitution; (4) Separation of powers between the Legislature, the executive and the judiciary; (5) Federal character of the Constitution. The above structure is built on the basic foundation, i.e. the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is plain and unambiguous, the game must be given effect to irrespective of the consequences that may arise. But if the language employed is reasonably capable of more meanings than one, then the Court will have to call into aid various well settled rules of construction and in particular, the history of the legislation to find out the evil that was sought to be remedied and also in some cases the underlying purpose of the legislation-the legislative scheme and the consequences that may possible flow from accepting one or the other of the interpretations because no legislative body is presumed to confer a power which is capable of misuse'. They cited the Preamble and the objectives underlying the Constitution, and found (at p. 316) : Implied limitations on the powers conferred under a statute constitute a general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in general terms or even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by considerations arising out of what appears to be the gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th those on the basic structure, which at least resembled implied limits on the plenary power of legislation. He also relied heavily on the preamble to the Constitution. He explained later, in Shrimati Indira Nehru Gandhi v. Raj Narain([1976] 2 S.C.R. 347.), that he did not exclude such amendments in the chapter on Fundamental Rights as may form parts of the basic structure from the purview of what could not be touched by the power of amendment contained in Article 368 of the Constitution. The judgment of Khanna J. tilted the balance, by a narrow majority of one, in favour of the the basic structure of the Constitution as a limitation on the expressly conferred legislative power of amendment. I need not set out similarly the views of Ray, Palekar Mathew, Beg, Dwivedi, and Chandrachud, JJ, as they, while accepting the undeniable proposition that the Constitution contained what was basic, held the, view, supported also by reference, to the history of our Constitution-making and to its express provisions, that the power to amend or change the Constitution in any manner and in any respect desired by the representatives of the people was also a part of that basic structure or the ur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e interpretations that it may become im- possible to decipher or fix its meaning with reasonable certainty could be accepted by us because that would amount to declaring its futility. In Kesavananda Bharti's case (supra), this Court had not worked out the implications of the basic structure doctrine in all its applications. It could, therefore, be said, with utmost respect, that it was perhaps left there in an amorphous state which could give rise to possible misunderstandings as to whether it is not too vaguely stated or too loosely and variously formulated without attempting a basic uniformity of its meanings or implications. The one principle, however, which is deducible I in all the applications of the basic structure doctrine, which has been used by this Court to limit even the power of Constitutional amendment, is that whatever is put forward as a basic limitation upon legislative power must be correlated to one or more of the express provisions of the Constitution from which the limitation should naturally and necessarily spring forth. The doctrine of basic structure, as explained above, requires that any limitation on legislative power must be so definitely discernible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the limitation on the, power of amendment under Article 368 read into it by the majority in Bharati's case because of their assumption that there are certain fundamental features in the- Constitution which its makers intended to remain there in perpetuity. But I do not find any such in- hibition so far as the power of Parliament or State Legislatures to pass laws is concerned. Articles 245 and 246 give the power and also provide the limitation upon the power of these organs to pass laws. It is only the specific provisions enacted in the Constitution which could operate as limitation upon the power. The Preamble, though a part of the Constitution, is neither a source of power nor a limitation upon the power. The preamble sets out the ideological aspirations of the people. The essential features of the great Concepts set out in the preamble are delineated in the various provisions of the Constitution. It is these specific provisions in the body of the Constitution which determine the type of democracy which the founders of that instrument established; the quality and nature of justice, political, social and economic which was their desideratum, the content of liberty of thoug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia, set out in the Preamble as well as other parts of the Constitution, provided general guidance in judging the Constitutionality of all laws whether constitutional or ordinary. I specifically said there that the doctrine of the basic structure of the Constitution could be used to test the validity of laws made by Parliament either in its constituent or ordinary law making capacities because ordinary law making cannot go beyond the range of constituent power . No doubt, as a set of inferences from a document (i.e. the Constitution), the doctrine of the basic structure arose out of and relates to the Constitution only' and does not, in that sense, appertain to the sphere of ordinary statutes or arise for application to them in the same way. But, if, as a result of the doctrine, certain imperatives are inherent in or logically and necessarily flow from the Constitution's 'basic structure , just as though they are its express mandates, they can be and have to be used to test the, validity of ordinary laws just as other parts of the Constitution are so used. In Smt. Indira Gandhi's case (supra), the differences of approach between the learned Judges, were not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Gandhi's case (supra), parts of the Constitution (Thirty-Ninth Amendment) Act of 1975 were struck down primarily because specific provisions of Article 368 of the Constitution left no room for doubt that what was conferred by the Constitution upon a majority of not less than two thirds of the members of the two Houses of Parliament present and voting, supported by resolutions of legislatures of not less than one half of the States, was a legislative power and not a judicial power judged both by its contents and procedure. Hence, it was held that, on the very terms of the specific power conferred, an exercise of judicial power, in purported exercise of legislative powers contained in Article 368 of the Constitution, was prima facie ultra vires. Such exercise of power contravenes the basic structure of the Constitution of which the legislative orbit of power indicated by Article 368 of the Constitution is also a necessary part. The principle asserted there was stated by me as follows : Neither of the three constitutionally separate organs of State can, according to the basic scheme of our Constitution today, leap outside the boundaries of its own constitutionally assigned s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structure, as a mode of interpreting the Constitution only, the so-called federalism as a fetter on legislative power must find expression in some express provision to be recognised by Courts. It may be mentioned here that a majority of Judges who decided the Kesavananda Bharati's case (supra) have not treated Federalism as part of the basic structure of the Constitution. And, none of them has discussed the extent of the federal part of this structure. It is not enough to point to Article I of the Constitution to emphasize that our Republic is a Union of States. That, no doubt is true. But, the word union was used in the context of the peculiar character of our federal Republic revealed by its express provisions. We have still to find, from other express provisions, what this Union means or what is the extent or nature of federalism implied by it. The Constitution itself does not use the word federation at all. In any case, after examining all the express provisions of the Constitution, relied upon by the learned Counsel for the plaintiff, I am unable to discover there any such fetter which could, by a necessary implication, prevent Parliament from enacting Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iries themselves. Furthermore, relying on Kathi Raning Rawat v. State of Saurashtra, [1952] S.C.R. 435) it was pointed out (at p.293): The Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore. A clear distinction must, on the authorities, be drawn between a decision which, by itself, has no force and no penal effect and a decision which becomes enforceable immediately or which may become enforceable by some action being taken. It is true that in R. K. Dalmia's case (supra) the provisions 'of the Act were not assailed on all the extensive grounds on which they have now been questioned before us. Nevertheless, the objects of the Act were considered and indicated there. The purposes for which a Commission can be set up under the Act was considered long ago by a Division Bench of the Nagpur High Court in M. V. Rajwade v. Dr. S. M. Hasan Ors ([1954] I.L.R. Nagpur p. I @ 13.), which was cited with approval by this Court in Brajnandan Sinha v. Jyoti Narain([1955] 2 S.C.R. 955.) and the following passage was quoted from the judgment: The Commission in question was obviously appointed by the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that the conduct of an individual may assume such a dangerous pro- portion and may so prejudicially affect or threaten to affect the public well-being as to make such conduct a definite matter of public importance, urgently calling for a full enquiry . The learned Judges felt that since Bakshi Ghulam Mohammad was out of office, he had become innocuous; apparently, it was felt that he could not long threaten the public well-being by his acts and so was outside the observation in Dalmia's case. We are clear in our mind that this is a misreading of this Court's observation this Court, as the learned Judges themselves noticed, was not laying down an exhaustive definition of matters of public importance. What is to be inquired into in any case are necessarily past acts and it is because they have already affected the public well-being or their effect might do so, that they became matters of public importance. It is irrelevant whether the person who committed those acts is still in power to be able to repeat them. The clear implication of the last mentioned pronouncement, with which I find myself in complete and respectful agreement, was that even if a Minister in the exer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ews expressed by Kailasam C.J., of the Madras High Court, in M. Karunanidhi v. The Union of India Anr.( A.I.R. 1977 Mad. 192.) I may mention that the considerations placed before us for assailing the legislative competence of Parliament, having been rejected by us as quite insubstantial, could not be utilised for reading down the provisions of section 3 of the Act a procedure which may be some-times available for saving a provision from partial or total invalidity. Reading down is, after all, only a logical outcome of the principle of constitution Res Magis Valeat Quam Pereat (See : Craies on Statute Law 6th. ed. p. 103). The last question I propose to advert to relates to the preliminary objection to the maintainability of the suit under Article 131 of the Constitution on which I share the conclusions of Chandrachud J. and of Bhagwati J. and Kailasam J. as against those, with due respect, of our learned brethren who have held that the plaintiff should be non-suited on the ground that a suit such as the one now before us does not lie at all under Article 131 of the Constitution. I have dealt at length with all the arguments which were advanced on behalf of the State of K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inter alia, on this question (at p. 1393) : I do not think that we need take a too restrictive or a hypertechincal view of the State's rights to sue for any rights, actual or fancied which the State Government chooses to take up on behalf of the State concerned in a suit under Art. 131. It may be, explained here that this observation was not meant to lay down more than that there would be presumed to be a nexus between the interests of the State and of the people it represents when the Government of the State, takes up an issue relating to the interpretation of the Constitution against an action taken, or, even, as was the case there, one contemplated by the Central Government. I would like to remove the impression that no such nexus is needed if the use of the words actual or fancied , in the observations quoted above, create it. I however, think that, in the case before us, the nexus between the rival claims advanced and the interests of the public of the State is reasonably made out. It is a different matter that I do not accept the view put forward on behalf of the State of Karnataka that it alone and not the Union Government also has the power to set up a Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Constitution. In King-Emperor v. Sibnath Banerji Ors.( L.R. 72 I.A. 241 @ 266.) the Privy Council had held that a Minister is an officer subordinate to the Governor for the purposes of Section 49 of the Government of India Act only. This observation was no doubt relied upon by this Court in A. Sanjeevi Naidu ,etc. etc. v. State of Madras Anr.([1970] 3 S.C.R. 505 @ 512.) with regard to the position of our Ministers for the purposes of Article 154(1) of the Constitution. These provisions, far from establishing any antithesis between the official capacity of a Minister and the State for which he acts, only show that, as a Minister, he is an agent or a limb of the Government of the State, and, therefore, he can be treated as an officer for purposes of Article 154(1) which corresponds to Section 49 of the Government of India Act. The result is that a Minister's official acts cannot be distinguished from those of the State on whose behalf he acts. With great respect for the view of my learned brethren who seem to hold otherwise, this feature cannot make a suit by the State tinder Article 131 of the Constitution incompetent merely because it relates to the exercise of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent interest to maintain a suit under Article 131 because it involves claims to what appertains to the State as a State. It may be that, if the effect upon the rights or interests of a State, as the legal entity which constitutes the legally set up and recognised governmental Organization of the people residing within certain territorial limits is tore mote, indirect, or infinitesimal, upon the facts of a particular case, we may hold that it is not entitled to maintain a suit under Article 131. But, I do not think that we can say that here. The following cases were cited by the plaintiff's Counsel : The Governor-General in Council v. The Province of Madras,( [1943] F.C.R. p. 1.) United Provinces v. Governor-General in Council; (A.I.R. 1939 F.C. 58.) Attorney-General for Victoria at the Relation of Dale and Ors. v. The Commonwealth Ors.( 71 C.L.P.. 237.) Attorney-General for Victoria (at the Relation of the Victorian Chamber of Manufacturers) v. The Commonwealth(1943-1934 (2) C.L.R.533.). State of Rajasthan v. Union of India (supra). Except for the last mentioned case they are not directly helpful on the scope of Article 131 or on the right of a State to sue under it. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t before us. He contended that the, federal structure enshrined in the Constitution is the corner-stone of national integrity; that the Constitution is the source of the power of the Centre and the States; that the exercise of all powers, whether by the Central Government or by the State Governments, must conform to the scheme of distribution of powers devised under the federal scheme of our Constitution that the erring ministers of State Governments are accountable to the State legislature only; and that, the Central Government has no authority or control over the government of a State in respect of matters which are within the State's exclusive domain, save in exceptional times when an emergency is in operation. The Chief Minister asserted that an enquiry into the charges levelled against him could only be held by or at the instance of the State Government. By a notification dated May 18, 1977 issued under section 3(1) of the Commissions of Inquiry Act, 60 of 1952 the Government of Karnataka appointed a Commission of Inquiry consisting of Shri Mir lqbal Hussain, a retired Judge of the Karnataka High Court, for the purpose of conducting an inquiry into the allegations speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s written statement. It has, in the first instance, raised a preliminary objection that the suit itself is not maintainable as the appointment of the Commission to inquire into the personal conduct of the Chief Minister and other ministers does not affect any legal right of the State of Karnataka. It further contends that the notification issued by the State Government neither covers the questions comprised in the notification of the Central Government nor does it cover ail of the matters mentioned in the latter notification; that the Central Government is competent to constitute a Commission to inquire into a definite matter of public importance, namely, the conduct of a minister of State Government; and that, the appointment of the Commission is neither destructive of the federal structure of the Constitution nor of any other basic feature thereof. Three issues were framed by this Court on these pleadings. The first relates to the maintainability of the suit, the second to the question whether the notification issued by the Central Government is ultra vires the powers possessed by it under section 3 of the Act of 1952 and the third to the contention whether, if section 3 authoris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommon suit so as to apply to an original proceeding under article 131 the canons of a suit which is ordinarily triable under section 15 of the Code ofCivil Procedure by a court of the lowest grade competent to try it. Advisedly, the Constitution does not describe the proceeding whichmay be brought under article 131 as a 'suit' and significantly, article 131 uses words and phrases not commonly employee, for determining the jurisdiction of a court of first instance to entertain and try a suit. It does not speak of a 'cause of action, an expression of known and definite legal import in the world of witness actions. Instead,, it employs the word 'dispute,' which is no part of the elliptical jargon of law. But above all, article 131 which in a manner of speaking is a self-contained code on matters falling within its purview, provides expressly for the condition subject to which an action can lie under it. That condition is expressed by the clause : if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends . By the very terms of the article, therefore, the sole condition which is required ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon each other's constitutional functions or powers. Therefore, a challenge to the constitutional capacity of the 'defendant' to act in an intended manner is enough to attract the application of article 131, particularly when the 'plaintiff' claims that right exclusively for itself. If it fails to establish that right, its challenge may fail on merits but the proceeding cannot be thrown out on the ground that the impugned order is not calculated to affect or impair a legal right of the plaintiff. In an ordinary civil suit, the rejection of a right asserted by the defendant cannot correspondingly and of its own force establish the right claimed by the plaintiff. But proceedings under article 131 are adjudicatory of the limits of constitutional power vested in the Central and State Governments. The claim that the defendant (the Central Government here) does not possess the requisite power involves the assertion that the power to appoint the Commission of Inquiry is vested exclusively in the plaintiff (the State Government here). In a civil suit the plaintiff has to succeed on the strength of his own title, not on the weakness of his adversary's because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not even have the legal right to contend that the provision of a parliamentary statute authorising the Central Government to act in a particular manner is unconstitutional. The palliative of a writ petition under article 226 which is suggested on behalf of the Union Government as a sovereign remedy in such matters is hardly any substitute for a proceeding under article 131. It is notorious that writ petition has its own limitations and indeed many a petition under article 226 is rejected with the familiar quip : Why don't you file a suit ? Apart from disputes between the Government of India and a State Government, article 131 contemplates other per-mutations and combinations in the matter of array of parties. A dispute between one or more States or between the Government of India and a State on one hand and another State or other States on the other hand cannot appropriately be decided by a High Court under article 226 and that could not have been the intendment of the constitution. Disputes of the nature described in article 131 are usually of an urgent nature and their decision can brook no delay. It is therefore expedient in the interest of justice that they should, as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een committed/excess payments made in certain matters relating to contracts, grants of land, allotments of sites, purchase of furniture, disposal of food grains etc. NOW THEREFORE The Government of Karnataka hereby appoint the Commission of inquiry for the purpose of making an inquiry into the said allegations, particularly specified below The preamble of the Central Government notification on the other hand recites : Whereas the Central Government is of opinion that it is necessary to appoint a Commission of Inquiry for the purpose of making an inquiry into a definite matter of public importance, namely, charges of corruption, nepotism, favouritism or misuse of Governmental power against the Chief Minister and certain other Ministers of the State of Karnataka, hereinafter specified.......... The terms of reference of the two commissions disclose the same fundamental difference. The primary object of the State Government in appointing the Commission is to ascertain whether improper or excessive payments were made, undue favours were shown, irregularity or fraud had occurred in the conduct of official business etc; and secondarily to find out as to who are the persons responsi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Inquiry Act should not be construed as authorising the Central Government to appoint a Commission of Inquiry for the purpose of inquiring into the conduct of a sitting minister of a State Government. It is impossible, on a plain reading of the section, to accept this contention. Section 2(a) (i) and (ii) of the Act define 'appropriate Government' to mean: (i) the Central Government, in relation to a Commission appointed by it to make an inquiry into, any matter relatable to any of the entries enumerated in List I or List II or List III in the Seventh Schedule to the Constitution; and (ii) the State Government, in relation to a commission appointed by it to make an inquiry into any matter relatable to any of the entries enumerated in List II or List III in the Seventh Schedule to the Constitution. Section 3(1) empowers the 'appropriate Government' if it is of opinion that it is necessary so to do, and obliges it if a resolution in that behalf is passed by the House of the People or the Legislative Assembly of the State as the case may be, to appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government to direct the holding of inquiries into the conduct of sitting State ministers, the provision would be rendered unconstitutional for a variety of reasons. Those reasons must now be considered. It is said in the first place that if the language of section 3 (1) is construed widely, it will not only enable the Central Government to appoint a Commission of Inquiry to inquire into the conduct of sitting Ministers of State Governments but it will, applying the same rule of construction, also enable the State Government to appoint similar Commissions of Inquiry to inquire into the conduct of the Central Ministers. This, according to the State's counsel, would offend against the provisions of articles 75(3) and 164(2) of the Constitution. These articles provide respectively that the Central Council of Ministers shall be collectively responsible to the House of the People and the State Council of Ministers shall be collectively responsible to the Legislative Assembly of the State. The argument is that the power to appoint a Commission of Inquiry for the purpose of inquiring into the conduct of sitting ministers of another Government is destructive of the principle of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective responsibility in England shows that it was originally developed as against the King. The ministers maintained a common front against the king, accepted joint and several responsibility for their decisions whether they agreed with them or not, and resigned in a body if the king refused to accept their advice. In relation to, the British Parliament, collective responsibility means that the cabinet presents a common front. In Melbourne's famous phrase, 'the cabinet ministers must all say the same thing'. The principle of collective, responsibility perhaps compels ministers to compromise with their conscience. but in matters of policy they have to speak with one voice, each one of them being responsible for the decision taken by the cabinet.( Chamber's Encyclopaedia, 1973 Ed. Vol. 2, page 736 under the heading Cabinet.... Collective Responsibility'.) In his book on Constitutional and Administrative Law (Ed. 1971, page 175), S.A. de Smith says that the collective responsibility of the cabinet to the House of Commons is sometimes spoken of as a democratic bulwark of the British Constitution. According to the learned author, collective responsibility implies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant under article 194(3), do not support the State's contention. That disposes of an important limb of the State's submission. The other contentions of the State Government directed towards showing that the impugned notification is unconstitutional are these : (a) the charges contained in the impugned notification relate to corruption, nepotism, favouritism and misuse of governmental power by the Chief Minister and other ministers in relation to the executive powers exercisable directly or through subordinate officers find neither the Central Executive nor the Parliament can exercise any control, over the State executive, except during an emergency; (b) India being a Union of States one must, while interpreting the Constitution, have regard to the essential features and general scheme of our federal or quasi-federal Constitution in which the powers of the Union of India' and the States are clearly defined and demarcated. To hold otherwise would mean that the Union executive would effectively control the State executive which is opposed to the basic scheme of our Federal Constitution; (c) Neither article 248 of the Constitution which confers exclusive resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executive brings into existence a new relationship between the Central executive and the State executive which is not a permissible exercise of legislative power. Such an empowerment can be made in the exercise of constituent power only after following the procedure prescribed by article 368 of the Constitution; and (h) Legislative and administrative relations between the Union and the States having been defined in the Constitution, the provisions relating thereto are exhaustive of that subject and therefore legislation in regard to Centre-State relationship is prohibited by necessary implication. By providing by article 164(2) that the Council of Ministers shall be collectively responsible to the Legislative Assembly of the State, by conferring on the Legislative Assembly by article 194(3) the necessary powers to effectuate that responsibility, by enumerating the situations in Part XI, Chapter II as to when the Central executive can control the State executive, and finally by providing for emergencies in articles 355 and 356, the Constitution has impliedly prohibited the imposition of the control of the Central executive over the State executive in any other mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 5(1) direct that all or any of the provisions contained in sub-sections (2), (3) (4) and (5) of section 5 shall apply to the Commission. Some of these sub-sections empower the Commission to require any person to furnish information to the Commission and to enter into any building or place where any document relating to the subject matter of the inquiry may be found. For the purpose of conducting any investigation pertaining to the inquiry, the. Commission by section 5A can utilise the services in the case of a Commission appointed by the Central Government, of any officer or investigation agency of the Central Government. It is clear from these provisions and the general scheme of the Act that a Commission of Inquiry appointed under the Act is a purely fact-finding body which has no power to pronounce, a binding or definitive judgment. It has to collect facts through the evidence led before it and on a consideration thereof it is required to submit its report which the appointing authority may or may not accept. There are sensitive matters of public importance which, if left to the normal investigational agencies, can create needless controversies and generate an atmosph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Government or that it confers on the ,Central Government the power to control the functions of the State executive. After all, it is in the interest of those against whom open allegations of corruption and nepotism are made that they should have an opportunity of repelling those allegations before a trained and independent Commission of Inquiry which is not hide-bound by the technical rules of evidence. It is only by establishing the truth that the purity and integrity of public life can be preserved and that is the object which the Commissions of Inquiry Act seeks to achieve. In M. V. Rajwade v. Dr. S. M. Hassan Ors.,( AIR 1954 Nag. 71.) it was held by the Nagpur High Court that section 4 of the Act merely clothes the Commission with certain powers of a civil court but does not confer on it the status of a court and that the Commission is only fictionally a civil court for the limited purposes enumerated in section 5(4). The Court observed that there is no accuser, no accused and no specific charges for trial before the Commission, nor is the Government, under the law, required to pronounce one way or the other on the findings of the Commission.. In other words, The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that the Union executive would effectively control the State executive, which is opposed to the basic scheme of our federal Constitution. The statement from the Constitutional Law of India on which counsel relies is out of context because it occurs in relation to the question whether in dismissing the ministry or in dissolving the legislature, the Governor acts as an agent of the President or under his directions. While expressing the opinion that a responsible Union ministry would not be justified in advising the removal of a Governor merely because he takes action which does not fall in line with the policy of the Union ministry, the learned author says that any other view would vest in the Union executive effective control over the State executive, which is opposed to the basic scheme of our federal Constitution. Apart from the consideration that the statement relied upon is out of context, I have already rejected the submission that the appointment by the Central Government of a fact-finding Commission of Inquiry for inquiring into the conduct of sitting State Ministers can be deemed to vest effective control over the State executive in the Central executive. Counsel' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f State Governments which is comprehended within section 3(1) of the Act does not offend against the principle of collective responsibility ,of the State's Council of Ministers or against the privileges of the Legislative Assembly and since it does not also confer on the Central Government the power of control over the State executive, the provision must be held to be a valid exercise of the legislative competence of the Parliament. Shri Ram Krishna Dalmia (supra) in so far as it decides that the Commissions of Inquiry Act, 1952 falls within the legislative competence of the Parliament in view of entry 94 of List I and entry 45 of List Ill must, with respect, be` affirmed and accepted as good law. I may, however, add that if for any reason it were to appear, which it does not, that these entries do not justify the passing of the Act, the residuary entry 97 of List I will in any- event support the legislative validity of the Act. That entry confers on Parliament the power to legislate on 'Any other matter not enumerated in List II or List Ill........ Entry 97 is in the nature of a residuary entry and the words 'Any other matter' which appear therein mean 'Any mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided for in the Constitution, and (v) Since the provisions contained in Chapter 11 of Part XI are exhaustive of matters, governing the administrative relations between the Union and the States, any legislative addition thereto or supplementing thereof must be held to be impliedly prohibited. The short answer to the first four points, (i) to (iv) above, is that though it is true that administrative relations between the Union and the States are dealt with by Chapter II Part XI of the Constitution and though the provisions contained therein cannot be altered save by a constitutional amendment, the Commissions of Inquiry Act does not bring about any change in the Centre-State relationship as envisaged by Part XI. The Act merely empowers the Central Government to appoint a Commission of Inquiry for the purpose of collecting facts with a view to informing its own mind; and the report of the Commission, not being binding on any one, has no force of its own. Revelations before the Commission may conceivably produce an impact on the credibility of the State Government, but the inquiry is directed not to the manner in which the State Government or the State executive conducts itself in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India is the subject matter of article 297, no legislature, even if it possesses legislative competence to do so, can legislate on that subject-matter. It is elementary that the legislature cannot, while legislating on a topic enumerated in the relevant list, violate or infringe any provision of the Constitution. But so long as there is no such infringement, legislation on the subject dealt with by article 297 cannot be declared unconstitutional on the ground that it supplements the provisions of that article. Article 299 of the Constitution deals with contracts. It seems to me equally inarguable that a legislation dealing with the subject-matter of contracts, even though not lacking in legislative competence, becomes unconstitutional for the reason that it deals with the subject-matter of contracts. The argument of the State in this behalf is therefore wholly devoid of substance, apart from the consideration that the impugned legislation does not bear on the Centre-State relationship. The fifth and the last contention is also capable of being disposed of with the answer that the Commissions of Inquiry Act does not deal with the subject of Centre-State relationship, directly or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ghts case([1973] Supp. S.C.R. 1,608, 916-917, 977-78.) and in Shrimati Indira Nehru Gandhi v. Shri Rai Narain([1976] 2 S.C.R. 347.). I am, therefore, of the opinion that though the suit filed by the State of Karnataka is maintainable under Article 131 of the Constitution, the notification issued by the Government of India on May 23, 1977 is within the scope of section 3(1) of the Commissions of Inquiry Act, 1952 and that the Act is not unconstitutional for any of the reasons mentioned on behalf of the State Government. Accordingly, I agree respectfully with the conclusions reached by my .Lord the Chief Justice in the case. BHAGWATI, J.- I entirely agree with the judgment just delivered by my learned brother Chandrachud so, far as the merits of the claim in the suit are concerned, but on the question of maintainability of the suit under Article 131 of the Constitution, I would like to express my opinion in a separate judgment, not only because the constitutional issue it raises is one of some importance, but also because I find that though there was some discussion in regard to the scope and ambit of this article in the judgment delivered by me on behalf of my learned brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the subject-matter. The article provides in so many terms that the dispute must be between the Government of India and one or more States or between two or more States. The object of the article seems to be that since in a federal or quaasi-federal structure, which the Constitution seeks to set up, disputes may arise between the Government of India; and one or more States, or between two or more States, a forum should be provided for the resolution of such disputes and that forum should be the highest Court in the land, so that final adjudication of such disputes could be achieved speedily and expeditiously without either party having to embark on a long, tortuous and time consuming journey through a hierarchy of Courts. The article is a necessary concomitant of a federal or a quasi-federal form of Government and it is attracted only when the parties to the dispute are the Government of India or one or more States arrayed on either side. This is the limitation as to parties. The other limitation as to subject-matter flows from the words if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personnel, namely, the Chief Minister and other ministers and the State Government may legitimately claim to have sufficient interest to maintain a petition under Art. 226 to challenge the impugned action. But it cannot file a suit under Article 131 because it is only the State which can maintain such a suit and not the State Government. The learned Additional Solicitor General contended that the expression used in Article 131 is 'State' and not State Government and there is a fundamental distinction between 'State' and 'State Government' and it is, therefore, not enough to attract the applicability of Article 131 that the State Government should have a cause of action. It is the State whose legal right must be infringed and who must have a cause of action in order to invoke the jurisdiction under Article 131. The impugned action of the Central Government in the present case, argued the learned Additional Solicitor General, affects the legal right of the Chief Minister and the concerned Ministers and also possibly of the State Government, but it does not infringe the legal right-of the State as a legal entity as distinct from the legal right of its executi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or lack of it in the State Government would not affect the State and the State would not be interested in it. This is to ignore the integral rela- tionship between the 'State' and the 'State Government'. Any action which affects the State Government or the ministers in their capacity as ministers-for in that capacity they would be acting on behalf of the State-would raise a matter in which the State would be concerned. It is true that analogies and metaphors are apt to mislead and it would be unsafe to base an argument upon them, but to reinforce what I have said, I may take the analogy given by Willoughby in the above quoted passage and ask the question if any action or capacity or lack of it is attributed to the material physical body , would it not be ascribable to the individual whose body it is and would he not be affected by it ? I agree with Dr. Rajeev Dhavan and Prof. Alice Jacob when they say in their forthcoming article on the Assembly dissolution case namely, the State of Rajasthan v. Union of India that: Any communication that is made to a Chief Minister in his capacity as Chief Minister and equally to a minister in his capacity as minister, must ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fected if such direction is unconstitutional and would be entitled to complain against it. Then is the position any different, if the Central Government, instead, proceeds, without any constitutional authority, to inquire how the executive power of the State is exercised by the Chief Minister and other ministers and whether it is exercised in a proper manner. The State would clearly in such a case have locus to challenge the unconstitutional action of the Central Government- It may also be noted that, on a proper construction of Article 131, it is not necessary that the plaintiff should have some legal right of its own to enforce, before it can institute a suit under that article. It is not a sine qua non of the applicability of article 131 that there should be infringement of some legal right of the plaintiff. What article 131 requires is that the dispute must be one which involves a question on which the existence or extent of legal right depends . The article does not say that the legal right must be of the plaintiff. It may be of the plaintiff or of the defendant. What is necessary is that the existence or extent of the legal right must be in issue in the dispute between th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest in raising the dispute in the sense that it is affected by the action taken, it can bring the dispute before the Supreme Court under Article 131, even if no legal right of its is infringed, provided of course the dispute is relatable to the-existence or extent of a legal right. It would also be convenient at this stage to consider what is the meaning of the expression 'legal right' as used in Article 131. It is obvious that the word 'right' is used here in a generic sense and not according to its- strict meaning. 'Right' in its narrow sense constitutes the correlative of duty, but in its generic sense it includes not only right strict to sensu, but any advantage or benefit conferred upon a person by a rule of law . Dias in his jurisprudence, 1976 ed., pages 33-34, says that the word 'right' has undergone successive shifts in meaning and Hohfeld in his Fundamental Legal Concepts as Applied to Legal Reasoning gives four different meanings of the word right,. One is right strict to sensu, the other is liberty, the third is power and the fourth is immunity. In its strict sense 'right' is defined-as interest which the law protects by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ason of the impugned action of the Central Government in setting up a Commission of Inquiry against the Chief Minister and other ministers who constitute the State Government, any legal right of the State is infringed, but, as already pointed out above, it is not necessary, in order to invoke the jurisdiction of the Supreme Court under Art. 131, that the State should be able to show that some legal right of ots ps breacheds. That is enough to show that the averments in the led, not as a busy body or as a meddlesome interloper, but in a real sense in questioning the power of the Central Government to set Up such Commission of Inquiry. If we look at the averments in the plaint, and for the purpose of determining the question of jurisdiction we must proceed on the assumption that the averments are correct, it is clear that according to the claim made by the State, the legislature of the State and the State Government alone have power to investigate and control misuse of governmental power by the Chief Minister other ministers of the State and the Central Government has no power to inquire into the same or to set up a Commission of Inquiry or that purpose. This claim of the State clear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purpose of challenging the validity of Commonwealth legislation which extends to, and operates within the State whose interests be represents . Now, if a State has sufficient title to challenge the validity of Union legislation on the ground that it interferes with the exercise of State legislative power, it must follow a fortiori that the State would have locus to challenge unconstitutional exercise of power by the Central Government which encroaches upon its exclusive sphere in relation to the conduct of its Council of ministers. The State would also be entitled to challenge the impugned action of the Central Government as unconstitutional, because it prevents the State from exercising its power to direct inquiry into matters which are specified in the notification issued by the Central Government, by reason of proviso (a) to sub-section (1) of section the Commissions of Inquiry Act, 1952. The suit filed by the State against the Union of India must, in the circumstances, be held to be maintainable under Article 131. Since, however, the claim made by the State in the suit is not sustainable on merits as pointed out by my learned brother Chandrachud in his judgment, I agree wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iry by the State Government. Five days later, on May 23, 1977, the Central Government, in exercise of their power under section 3 of the Act, appointed another Commission consisting of a single Member, namely, Shri Justice A. N. Grover,, Judge of the Supreme court of India, to inquire into,- the allegations in Annexures 'I' and 'II' to the notification excluding, however, from the latter- any matter covered by the notification of the Government of Karnataka in the Chief Secretariat DPAR 7 GAN 77, dated the 18th May, 1977 . Thereupon the of Karnataka filed the present suit claiming certain- relief mainly on two grounds: (1) On a proper interpretation of the Act the State Government is the appropriate Government and not the Central Government to set up a Commission of Inquiry; and (2) in the alternative the provisions in the Act in so far as they authorise the Central Government to issue the impugned notification- are ultravires the Constitution. The first defendant in the suit is the Union of India, the second being Shri A. N. Grover. The contest is by the first defendant only and hereinafter in this judgment it will be referred to as the defendant. In subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment of India Act, 19 which is not necessary to be pin-pointed here. In specific terms has not been stated in the Article as to whose legal right the question involved in the dispute must relate and in what respect. Chandrachud J., in this regard has expressed his opinion in the case of State of Rajasthan Ors. v. Union of India(A.I.R. 1977 S.C. 1361) at page 1396 as follows It is sufficient in order that its provisions may apply that the plaintiff, questions the legal or constitutional right asserted by the defendant, be it the Government of India or any other State . The learned Chief Justice in his leading judgment did not decide this question. The other five Judges including one of us (Untwalia J.) took a contrary view. Yet, Bhagwati and Gupta JJ. on the facts of that case held that the legal right of the State, the plaintiff, had been infringed. The other three, even on merits, expressed an opposite view. If we may say so with great respect, we are unable to agree with the view aforesaid, expressed by Chandrachud J. Ordinarily and generally, in any suit including the one under Article 131 the competition is between the legal right of the plaintiff and the defendant. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Government has no right, that it has put an impediment in the right of the State, Government to modify or issue a subsequent notification for the purpose of enlarging or clarifying the scope of the inquiry and that it has, thus affected the legal right of the State. We find no substance in this argument. There may be a competition between the power of one authority and the other, here in this case between the Central Government and the State Government. But unless the power exercised by one authority brings about a dispute impinging upon the legal right of the other authority, the latter cannot come under Article 131 and say that merely because it was within its power to do so its legal right is affected by the illegal exercise of the power by the other authority. The said exercise of the power must directly or by necessary implication affected the legal right of the other authority. We may support the proposition by an illustration. Suppose, the Central Government, in pursuance of a law made by the Parliament in respect of an: Entry in List II,, say, Entry 8, relating to, intoxicating liquors, makes an order against a person residing in or an officer of any State. The order w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle 131, in our opinion, is too obviously wrong to be accepted. As we have said above, a Minister is an Officer of the State. An order affecting him cannot confer a right of suit on the State under Article 131. So the present suit, in our opinion, is not maintainable. We, however, do not propose to non-suit the plaintiff on that ground alone, and proceed to discuss the other issues. The other two issues framed for consideration in this suit are in the following terms : 2. Is the impugned notification ultra vires the powers of the Central Government under Sec. 3 of the Commissions of Inquiry Act ? 3. If section 3 of the Commissions of Inquiry Act authorises the Central Government to issue the impugned notification, is the Section itself unconstitutional ? Both these issues may conveniently be dealt with together. Several points of view were canvassed by Mr. Lal Narayan Sinha for the plaintiff with his usual clarity and precision but, at times, because of the inherent difficulties of the points involved and the case being one of first impression, he was obliged to change and modify his line of argument. Mr. Soli Sorabjee, the learned Additional Solicitor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e over-lapping and, therefore, the, impugned notification is bad on that account too. We proceed to discuss and consider briefly, as far as possible, the propositions aforesaid, but not strictly in the order we have set out above. Strictly speaking, our Constitution is not of a federal character where separate, independent and sovereign States could be said to have joined to form a nation us in the United States of America or as may be the position in some other countries of the World. It is because of. that reason that sometimes it has been characterised as quasi-federal in nature. Leaving the functions of the Judiciary apart, by and large the legislative and the executive functions of the Centre and the States have been defined and distributed, but, even so, through it all runs an overall thread or rein in the hands of the Centre in both the fields. The Parliament has the exclusive authority to legislate on matters enumerated in List I. So has the State Legislature the exclusive legislative power with respect to the various entries in List II. Both have concurrent powers in regard to the entries of List III. The residuary power in accordance with Article 248 and Entry 97 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution by the Constitution (Seventh Amendment) Act, 1956, to lend support to his argument. But, in our opinion, instead of strengthening the point as urged, it weakens it because the said Article provides: 258A. Power of the States to entrust functions to the Union.-Notwithstanding anything in the Constitution, the Governor of a State may, with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the State extends. Of course, the Governor of a State would mean the State Government or the Council of Ministers and it is not meant to authorise the Governor to act in his discretion in this regard. We may now refer to some other characteristics and features of our Constitution to demonstrate the weak character of our federal structure and the controlling hand of the Centre on States in certain matters. Some of the salient ones are the following : 1. The Governor of a State is appointed by the President and holds office at his pleasure. Only in some matters he has got a discretionary power but in all others the State administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action taken under it makes an inroad on the executive power of the State in express violation of any provision of the Constitution or, even assuming, as was argued by Mr. Sinha, violating the provisions of the Constitution by necessary implication, then such a law or the action taken thereunder would be invalid. The Constitution does not permit the Centre to violate it in any matter. But in order to appreciate as to whether the Act or the action taken by the Centre under Section 3 thereof has gone against the Constitution either expressly or by necessary implication, one has to appreciate the nature of the provisions made and the scope and functions of the Commission in question. The extent of the executive power of the Union is co-extensive with the legislative Power of the Parliament. The position in respect of the executive power of the State is identical ('vide' Articles 73 and 162 respectively). Entry 94 in the Union List empowers the Parliament to legislate concerning inquiries for the purpose of any of the matters in that list, that is to say, if any kind of inquiry is necessary for any kind of purpose connected with any of the matters in List I then the Parliam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 8 of List I in the Seventh Schedule to the Constitution. It is in respect of Central Bureau. of Intelligence and Investigation. The Central Parliament is therefore, competent to legislate on this topic and the Central Government can make an executive order asking the Central Bureau of Intelligence and Investigation to make any enquiry in relation to the acts of commission and omission whether amounting to an offence or not of any person including any officer or Minister of any State. It that be so, will it be reasonable to say that the Commission appointed by the Central Government under the Act cannot be appointed for finding facts in relation to the allegations made against the Minister of a State ? Obviously not. It was strenuously submitted on behalf of the plaintiff that no such fact-finding Inquiry Commission could be set up against the Judiciary either Subordinate or Higher. Reference was made to the cases of The State of West Bengal v. Nripendra Nath Bagchi,( [1966] 1 S.C.R. 771.) and Shamsher Singh Anr. v. State of Punjab ([1975] 1 S.C.R. 841,) in support of this proposition. But the exclusion of the inquiry under the Act against the Judiciary is based on entirel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided for in Article 194. It may be so. It may well be, as further argued by Mr. Sinha, that not only the State Legislature but the State Government itself is competent to appoint a Commission of Inquiry against itself or its Ministers and officers. But it sounds incongruous and highly anomalous that the State Government would think of instituting an inquiry against itself. It is equally strange to think that the Ministers in power, while remaining in office, would set up a Commission of Inquiry for inquiring into their alleged misdeeds in the matter of administration of the State. We shall assume for the purpose of argument that legally and technically the position is correct. Even so, how does it lead to the conclusion that their power is exclusive and excludes the power of the Central Government under the Act? We fail to find any words in any of the Articles of the Constitution to indicate that the power of the State Legislature or the State Government in this matter is exclusive. It may be co- extensive. and such a situation is undoubtedly postulated and provided for in the proviso appended to sub-section (1) of section 3 of the Act. Although technically and literally the Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e- teenth century, and in both cases the practice was established before the doctrine was announced (page 131). In Government and Law by T. C. Hartlay and J. A. C. Griffith, the position in regard to the collective responsibility of Ministers to the Legislature is tersely stated as under Ministers are said to be collectively responsible. This is off-en elevated by writers to the level of a 'doctrine' but is in truth little more than a political practice which is commonplace and inevitable. Ordinarily, Ministers form the governmental team, all being appointed by the Prime Minister from one political party. A Cabinet Minister deals with his own area of policy and does not normally have much to do with the area of other Ministers. Certainly no Cabinet Minister would be likely to make public statements which impugned on the work of another Minister's department. On a few important issues, policy is determined by the Cabinet after discussion. Collective responsibility means that Cabinet decisions bind all Cabinet Ministers, even if they argued in the opposite direction in Cabinet. But this is to say no more than a Cabinet Minister who finds himself in a minority mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid shall Section 37 or the Constitution of Jammu and Kashmir corresponds to Article 164 of the Constitution of India, be deemed to be an amendment of the Constitution for the purposes of Article 368 vide, for example, Articles 4(2) and 169(3). Although the law made under clause (1) of Article 4 and clauses (1) and (2) of Article 169 will be tantamount to an amendment of the Constitution, by a legal fiction clauses (2) and (3) of the said Articles respectively provide that such law shall not be deemed to be an amendment of the Constitution and the procedure prescribed by Article 368 will not be necessary to be followed. A quotation from Hood Phillips' Constitutional Law was given to us by Mr. Sinha to say: The Constitutional Law of a State is the law relating to the constitution of that State (Page 1). The Constitution of a State is the system of laws, customs and convention which define the composition and powers of organs of the State and regulate the relations of the various State organs to one another and to the private citizen. (p. 4) It is not necessary to multiply the quotations. In no sense the impugned law is a constitutional, law. Mr. Sinha also contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of a power once ascertained in accordance with ordinary rules of construction, was definitely rejected by the Privy Council in Webb v. Outrim, (1907) A.C., 81 . Reference may also be made to The State of Victoria and The Commonwealth of Australia. (8) These and many earlier cases of this Court were all considered and the doctrine of implied prohibition' was definitely rejected by overwhelming majority in the case of His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala,( [1973] Suppl. S.C.R. 1.) popularly known as Fundamental Rights case. We may just refer to the observations of Palekar J., at page 608, Dwivedi J., at page 916 and Chandrachud J., at page 977. To the same effect is the view expressed by Ray J., as, he then was, Khanna J., and others. The power granted to the Central Legislature under Entry 45 of the Concurrent List is clear and explicit I for passing a law of inquiry in regard to any of the matters in List II. That being so, the power cannot be curtailed on the doctrine of implied prohibition . As a matter of fact one had to search in vain the basis for even applying this doctrine in this, case. Wynes in his book Legislative, Executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the Commission of Inquiry appointed by the Centre is for the purpose of making an inquiry into the definite matter of public importance within the meaning of Section 3(1) of the Act could not be and was not disputed. The only point debated was whether another Commission appointed by the Central Government to inquire into the same matter for which a Commission had already been set up by the State Government is violative of proviso (b) to section 3(1). But there is no substance in this argument. Firstly, the notification of the State Government has not in terms appointed any Commission for inquiry into the matters of alleged corruption, nepotism, favouritism and maladministration of the Chief Minister or any other Minister of the Government of Karnataka. The items specified in clauses (I) to (XXXII) are said to be irregularities committed or excess payments made in certain matters relating to contracts, grant of land, allotment of sites, purchase of furniture, disposal of food-grains etc.' In none of those clauses it is mentioned as to who is said to be responsible for the alleged irregularities or maladministration. There is no reference to any alleged misconduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of the Commissions of Inquiry Act as ultra vires both the terms of the Constitution as well as the federal structure implicit and accepted as inviolable basic feature of the Constitution; (d) for a perpetual injunction restraining the respondents from acting or taking any further steps in furtherance of the notification No. S.O. No. 365(E) dated 23rd May, 1977. The facts of the case briefly are: The Union Home Minister addressed a communication dated April 26, 1977 to the Chief Minister of the State of Karnataka enclosing a copy of a memorandum of allegations purporting to be submitted by certain members of the opposition party in the Karnataka State Legislature seeking his comments thereon. The Chief Minister of the State of Karnataka replied to the Union Home Minister on May 13, 1977 answering the various allegations and charges. The Chief Minister of Karnataka also questioned the powers of the Central Government to ask for the comments of the State Government. On May 18, 1977 the State Government by a notification appointed a Commission of Inquiry under section 3(1) of the Commissions of Inquiry Act, 1952 to inquire into various allegations and irregulari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the powers' of the Central Government under section 3 of the Commissions of Inquiry Act? 3. If section 3 of the Commissions of Inquiry Act authorises the Central Government to issue the impugned notification. is the section itself unconstitutional? The main question involved in the suit is one of Centre- State relationship and whether the impugned notification is within the powers of the Central Government under section 3 of the Commissions of Inquiry Act. Though certain allegations are made in the plaint that the impugned order was mala fide it was not pressed during arguments. So also the power of the State Government to appoint a commission of inquiry is not challenged. It is therefore not necessary to go into the reasons which induced the State Government to appoint a commission of inquiry. Before dealing with the various contentions of the counsel on behalf of the State and the Central Government it is necessary to set out the background and the relevant provisions of the Constitution dealing with the Centre-State relationship and the scope of the Commissions of Inquiry Act, 1952. The British Crown assumed sovereignty over India from East India Company in 1858 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian States into a federation under the Crown. The unitary State was to be broken into a number of autonomour, provinces deriving their authority directly from the Crown instead of from the Central Government and then building them up into a federal structure in which both the federal and provincial governments Would get Powers directly from the Crown. The basis of the change is the resumption into the hands of the Crown all rights, authority and juris- diction in or over the territories of the British India and redistribution of the powers between the Central Government and the provinces. Though the federal structure contemplated under the Government of India Act, 1935 did not come into existence as the Indian States ,refused to, join the federation, so far as the provinces were concerned it took effect. The Government of India Act, 1935 divided legislative powers between the Central and the provincial Legislatures and within 'its defined sphere, the Provinces were no longer delegates of the Central Government but were autonomous units of administration. The Government of India assumed the role of the federal government. With regard, to provincial governments the executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Crown over the Indian States would lapse and from that date United Kingdom would cease to have any responsibility in respect of the Government of the territories included in British India. The Central Legislature of India ceased to exist from August 14, 1947. The Constituent Assembly came into existence for framing of the Constitution and also functioned as the Central Legislature of the Dominion. The new Constitution adopted the bulk of the provisions of the Government of India Act, 1935. The provisions relating to distribution of powers between the units and the centre were adopted and in fact extended. The constitution-makers gave up the unitary bias and adopted detailed provisions regarding the distribution of powers and functions between the Union and the States in all aspects of their administrative and other activities. Inter-state relations, co-ordination and adjudication of disputes amongst the States were also provided for. The Indian Constitution cannot be described as a federal Constitution as the Indian Federation is not a result of an agreement by various States and the territorial integrity of the States is not guaranteed as the territories of the States can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment was the Crown, under the Constitution of India, the source of power for the States as well as the Union is the Constitution. In its own field i.e. as regards the power conferred on the State, it is supreme so also the Central, Government. But in determining what are the powers of the Union and the State one has to look into the Constitution and nowhere else. The States are not the delegates of the Central Government and the ,Central Government cannot exercise any power over the State which is not provided for in the Constitution. Part V of the Constitution deals with the Union. Chapter deals with the Executive, Chapter 11 with Parliament, Chapter III with Legislative Powers of the President, Chapter IV the Union Judiciary :and Chapter V with the Comptroller and Auditor-General of India. Part VI of the Constitution deals with the States. Chapter I is General, Chapter 11 deals with the Executive, Ch. III with the State Legislature. Ch. IV with legislative Power of the Governor, Ch. V with the High Courts in the States and Ch. VI with Subordinate Courts. Part XI deals with the Relations between the Union and the States. ,Ch. I of Part XI deals with Legislative Relations an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Union of States and in interpreting. the Constitution one must keep in view the essential structure of a federal or quasi-federal Constitution, namely, that the units of the Union have also certain powers as has the Union itself. The learned' Judge further observed : In evolving an integrated policy on this subject our Constitution-makers seem to have kept in mind three main, considerations which may be broadly stated thus: first, in the larger interests of India there must be free flow of trade, commerce and intercourse, both inter-State and intra-State; second, the regional interests. must not be ignored altogether; and third, there must be a power of' intervention by the Union in any case of crisis to deal with particular problems that may arise in any part of India. the learned Judge concluded: Therefore, in interpreting the relevant articles in PartXIII we must have regard to the general scheme of the Constitution of India with special reference to Part III (Fundamental Rights), Part XII (Finance, Property etc. containing Arts. 276 and 286) and their inter-relation to Part XIII in the context of a federal or quasi-federal constitution in which the States h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates is not in accordance with the decisions of this Court in Atiabari Tea Co. Ltd. v. The State of Assam Others (supra) and the Automobile Transport (Rajasthan) Ltd. vs. the State of Rajasthan and Others (supra) which is a decision of a Bench of seven Judges of this Court. The observation of the Court that from the powers conferred on the Parliament under Art. 4 it cannot be held that it is incompetent for the Parliament to acquire by legislation the, property owned by the States on the theory of the absolute sovereignty of the, States, cannot be understood as having laid down that the States have no sovereignty even in their own sphere or that Parliament has any overriding or supervening powers. The observation of Subba Rao J. as he then was in the dissenting judgment that the Indian Constitution accepts the federal concept and distributes the sovereign powers between the coordinate constitutional entities, namely, the Union and the States and that this concept implies that one cannot encroach upon the Governmental functions or instrumentalities of the other, unless the Constitution expressly provides for such interference, is in accordance with the. accepted view of this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Government of India Act, 1935. Our Constitution accepted a federal scheme though limited in extent having regard to the regional interests, resources, language and other diversities existing in the vast subcontinent. These facts have been taken into account by the Constitution-makers and a limited federalism was made a part of the Constitution by Art. 1 itself providing that India shall be a Union of States. Effect is given to this intention by separation of the Lists and by providing legislative and executive power to the Union and the States in separate chapters of the Constitution. This principle has been accepted by the- Supreme Court in the decisions in Atiabari Tea Co. Ltd. V. The State of Assam Others and 'the Automobile Transport (Rajasthan) Ltd. v. The State of Rajasthan and Others cited earlier. The observations made in the West Bengal case (supra) which have been referred to already are not in conformity with the otherwise consistent view of the Supreme Court that the Constitution is supreme and that the Union as well as the States will have to trace their powers from the provisions of the Constitution and that the Union is not supreme and the States are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Union Government is given powers to give directions in certain specified matters under Articles 256 and 257, when a Proclamation of Emergency is made under Art. 352, the power of the Union executive to give directions to the State Government will extend to any matter and the legislative power of the Union Parliament. will extend to matters, in the State List under Art. 250. There are provisions in the Constitution conferring wider powers on the Union in case of Financial Emergency. The executive authority of the Union becomes enlarged enabling the Union to give directions to the State requiring financial discipline. The Union Parliament can assume the legislative powers over any subject included in the State List by a Resolution under Art.249 if such legislation is necessary in the national interest. Whenever the State Government cannot be, carried out in accordance with the provisions of the Constitution the President is empowered to take over and the Union can assume the executive and. Legislative powers of the State under Art. 356. Though there is a division of powers between the Union and the States there is provision for control by the Union Government both ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se his functions or any of them in his discretion under Art. 164 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 Minis- ter. It further provides that the Ministers shall hold office during the pleasure of the Governor and the Council of Ministers shall. be collectively responsible to the Legislative Assembly of the State Chapter III deals with the State Legislature. Art. 168 relates to constitution of legislatures in the States. This Chapter confers executive powers of the State in the Governor who shall exercise it with the aid and advice of the Council of Ministers with the Chief Minister at the head. It is also provided that the executive power of the State shall extend to matters with respect to which the legislature of the State has power to make laws. So far as the executive and legislative power of the State is concerned it is absolute subject only to the other provisions of the Constitution Part XI of the Constitution deals with relations between the Union and the states : Ch. I with legislative relations and Ch. II with administrative relations between the Union and' the States. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the purpose of the List was not to create or confer power but only to distribute to federal and provincial legislatures the powers which had been conferred by ss. 99 and 1 00 of the Act . While approving the observations of the Federal Court in Union of India v. ff. S. Dhillon ([1972] 2 S.C.R. 33.) the majority for whom Chief Justice Sikrispoke held that It (Art. 248) is framed in the widest possible terms. On its terms the only question to be asked' is is the matter sought to be legislated included in List II or in List III or is the tax sought to be levied mentioned in List II or in List III No question has to be asked about List I. If the answer is in the negative, then it follows that Parliament has power to make laws with respect to that matter or tax. But this observation does not decide the question whether the residuary legislative power of the Union includes a right to direct inquiry into the governmental functions of the State for as laid down by the Federal Court in the Governor-General in Council v. The Raleigh Investment Co. the purpose of the Lists is not to create or confer powers and the powers conferred under Articles 245 and 246 are subject to the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. It was not contended before the Court that the restriction on the powersof the Victoria Constitution is enacted by any express provision of the Commonwealth Constitution Act but was argued that inasmuch as the imposition of an income-tax might interfere with the free exercise of the legislative or executive power of the Commonwealth, Such interference must be impliedly forbidden by the Constitution of the Commonwealth, although no such express prohibition can be found therein. The Court held : The enactments to which attention has been directed do not seem to leave any room for implied prohibition. It was further held that It is impossible to suppose that the question now in debate was left to be decided upon an implied prohibition when the power to enact laws upon any subject whatsoever was before the Legislature. The basic principles of construction of the Constitution are laid down by Lord Selbourne in R v. Burah ([1878] 3 A.C. 889.) which is accepted and applied by Earl Lorebum L. C. in Attorney-General for the Province of Ontario and Others v. Attorney General for the Dominion of 'Canada and another. ([1912] A.C. 571 at 583.) The rule laid down in R v. Burah is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of this Court in The State of West Bengal v. Nripendra Nath Bagchi ([1966] 1 S.C.R. 771.). The question that arose in that case was whether the inquiry ordered by the Government and conducted by an Executive Officer of the Government against a District and Sessions Judge contravened the provision-, of Article 235 of the Constitution which vests in the High Court the control over the District Court and the courts subordinate thereto. The Court construed the word 'control' used in Article 235 as including disciplinary control or jurisdiction over District Judges. Relying on the history which lay behind the enactment of these articles the Court came to the conclusion that 'control' was vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary and unless it included disciplinary control as well, the very object would be frustrated. It also took into account the fact that the word 'control' is accompanied by the word 'vest' which is a strong word which showed that the High Court is made the sole custodian of the control over the judiciary. The Court observed : This aid to construction ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uction and maintenance of means of communication declared in the direction to be of national or military importance sub-article (3) extends the power of the Union to the giving of directions to a State as to the measures to to be taken for the protection of the railways within the State. By 42nd Amendment to the Constitution Art. 257A was introduced by which Government of India is empowered to deploy any armed force of Union or any other force subject to the control of the Union for dealing with any grave situation of law and order in any State. Sub-article (2) of Article 257A provides that any Armed Force or other force or any contingent or unit thereof replayed under clause (1) in any State shall act in accordance with such directions as the Government of India may issue and shall not, save otherwise provided in such directions, be subject to the superintendence or control of the State Government or any officer or authority subordinate to the State Government. No reliance was placed by the, Government of India on any of its inherent or overriding powers. Except in cases referred to in articles 256 and 257 and 257A, the Constitution does not provide for the Union Government to giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses of Article 368. So also Art. 169(1) enables the Parliament by law to provide for the abolition of the Legislative Council of a State and Sub- article (3) provides that no such law as aforesaid shall be deemed to be an amendment of the Constitution for the purposes of Article 368. Similar provisions are found in Schedule V, cl. 7 and Schedule VI, cl. 21 where the law made by Parliament is deemed not to be an amendment of the Constitution for the purposes of Art. 368. So far as the other Articles mentioned above are concerned the Articles themselves enable the Parliament to make law for the purposes mentioned in the various Articles. Regarding the Articles in which no- power is conferred on the Parliament to make laws, Parliament cannot add to the Constitution by ordinary law making process. The Union Government relied on Entry 94 in List I and Entry 45 in List III in the Seventh Schedule as empowering it to enact the Commissions of Inquiry Act, 1952, and to issue the impugned notification. Entry 94 in List I runs as follows: 94. Inquiries, surveys and statistics for the Purpose of any of the matters in this List. Entry 45 in List III, Concurrent List, is as follows : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l construction should be put upon the words is not a universal rule as is seen from the judgment of Lord Blackburn in River Wear Commissioners v. Adamson([1877] S A.C. 743.) where Lord Blackburn expressed his view that in interpreting the words, the object is to ascertain the intention expressed by the words used and that the object of interpretation of documents and statutes is to ascertain of the intention of them that made it . Lord Coke in Heydon's case applied the principle which was laid down by Lord Blackburn. In R.M.D. Chamarbaugwalla v. The Union of India ((1957] S.C.R. 930.) I Venkatarama Ayyar J. cited with approval the rule in Heydon's case and added that the principles laid down are well-settled and have been applied in Bengal Immunity Co. Ltd. V. State of Bihar([1955] 2 S.C.R. 603.), and observed that the legislative history of the impugned law showed that prize competitions involving skill had presented no problems to the legislatures, and that having regard to that history, and also the language, used hi the Act, the definition must, by construction, be limited to prize competitions of a gambling nature. Thus there is ample authority for the proposition tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf is passed by the House of the People or, as the case may be, the Legislative Assembly of the State, by notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification, and the Commission so appointed shall make the inquiry and perform the functions accordingly : The proviso to section 3(1) bars the State Government except with the approval of the Central Government to appoint another Commission to inquire into the same matter when a Commission appointed by the Central Government is functioning and bars the Central Government from appointing a commission from inquiring into the same matter so long as the Commission appointed by the State Government is functioning unless the scope of the inquiry is extended to two or more States. Under section 3(1) the appropriate Government may appoint a commission but shall appoint one if a resolution is passed by the House of the People or, the Legislative Assembly of the State as the case may be. The purpose of the commission is to make an inquiry into any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation within the meaning of sections 176 ; and 177 of the Indian Penal Code. The Commission may also cause search and seizure of books of account and documents or take extracts or copies therefrom so far as they are applicable. The commission is deemed to be a civil court, for certain purposes mentioned in sub-sections (4) and (5) of section 5. Section 5A empowers the commission to utilize the services of certain officers in the case of a commission appointed by the Central Government of any officer or investigation agency of the Central Government or any State Government with the concurrence of the Central Government or the State Government, as the case may be, or in the case of a Commission appointed by the State Government of any officer or investigation agency of the State Government or Central Government with the concurrence of the State Government or the Central Government, as the case may be. The commission may summon and enforce the attendance of any person and examine him, require the discovery and production of any document, and requisition any public record or copy thereof from any office. Section 8-B provides that if at any stage of inquiry the commission considers i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission in question was obviously appointed by the State Government for the information of its own mind, in order that it should not act,, in exercise of its executive power, otherwise than in accordance with the dictates of justice and equity, in ordering a departmental inquiry against its officers. It was therefore a fact finding body meant only to instruct the mind of the Government without producing any document of a judicial nature. So far as the scope of the inquiry in the case was concerned it falls strictly within section 3 as the inquiry related to a definite matter of public importance and not an inquiry into the misuse of governmental functions of a Chief Minister or a State Minister. On the facts of the case it was appropriate that the court found that it was merely a fact finding body meant to instruct the mind of the Government. In Branjnandan Sinha v. Jyoti Narain([1955] S.C.R. 955.) the Supreme Court considered the question whether the Commission appointed under the Public Servants (Inquiries) Act, 1850, is not a court within the meaning of the Contempt of Courts Act, 1952. The Court approved the view taken by the Nagpur High Court that the Commission was only a fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. (10) which called upon the Commission of Inquiry to make recommendations about the action to be taken as and by way of securing redress or punishment cannot be said to be at all necessary or ancillary to the purpose of the Commission. The Court held that the words as and by way of securing redress or punishment clearly go outside the scope of the Act, and such a provision was not covered by the two legislative entries in the Constitution and should therefore be deleted. Considering the scope of section 3 it observed that the answer is furnished by the statute itself for section indicates that the appropriate Government can appoint a Commission of Inquiry only for the purpose of an inquiry into any definite matter of public importance and to no other matter. In other words, the subject matter of inquiry can only be of a definite matter of public importance . Rebutting the contention on behalf of the appellant that the delegation of the authority to the appropriate Government is unguided and uncontrolled, the Court observed that the executive action of setting up a Commission of Inquiry must conform to the condition of the- section, that is to say, that there must exist a def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the definite matter of public importance) should be construed as to include the right to inquire into the abuse of governmental functions by' a, State Government when no such intention could have been in the minds (if the Parliament. In State of Jammu and Kashmir v. Bakshi Ghulam Mohammad([1966] Supp. S.C.R. 401.) the State Government of Jammu and Kashmir issued a notification under section 3 of the Jammu and Kashmir Commission of Inquiry Act, 1962, setting up a commission to inquire into the wealth acquired by the first respondent and certain specified members of his family during his period of office. It may be noted +that the Commission of Inquiry was set up by the State Government after Bakshi Ghulam Mohammad resigned and ceased to be, the Chief Minister of the State. Two of the three Judges of the High Court took the view that, the matter referred to was not of public importance because on the date of the notification Bakshi Ghulam Mohammad did not hold any office in the Government and that there was no evidence of public agitation in respect of the conduct complained of and that showed that they were not matters of public importance. The Supreme Court rejected the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the wording of the section it was submitted that the inquiry is normally only into a definite matter of public importance and inquiries into the conduct of a person can arise only as incidental or ancillary to such an inquiry. As the section contemplates the necessity of inquiry into the conduct of a person arising at any stage of the Inquiry Commission's proceedings, it was submitted that the inquiry into the conduct of a person is only incidental. This Court rejected the contention on the ground that section 3 which permits a Commission of Inquiry to be appointed is wide enough to cover an inquiry into the conduct of an individual and it could not be natural reading of the Act to cut down the scope of section 3 by an implication drawn from section 10. This observation was, as the subsequent sentence makes it clear, made in rejecting the plea that section 10 does not apply to a person whose conduct comes up directly for inquiry before a Commission set up under section 3. In Bakshi's case as the inquiry was ordered by the State Government into the affairs of a Chief Minister who had ceased to be in office, the Court was not called upon to consider the question whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act to be applicable in the main to any definite matter of public importance while an inquiry into the affairs of persons would be permissible if it arose-as incidental or ancillary to such inquiry. This construction appears to be justifiable, for otherwise section 3 would have the result of empowering the delegate i.e. the Union Government, to order an inquiry into the affair of the Chief Minister of a State and inviting the same treatment from the State Government. The decision in P. V. Jaganmohan Rao Ors. v. State of Orissa Ors.( [1968] 3. S.C.R. 789.) also relates to the appointment by the State Government of a Commission of Inquiry into the conduct of the Chief Minister and Ministers who ceased to hold office on the date of the notification in regard to the in regularities committed during the tenure of their office and it does not relate to the Commission of Inquiry appointed by the Central Government to inquire into the abuse of governmental functions by the Chief Minister and other Ministers. It will be, seen on an examination of the cases cited above that in no case the Central Government bad ordered an inquiry into the abuse of powers by the State Chief Minister ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void such a contingency provisos (a) and (b) to section 3(1) enact that when the Central Government has appointed a commission of inquiry the State Government 'shall not appoint another commission to inquire into the same matter without the approval of the Central Government-,as long as the commission appointed by the Central Government is functioning and the Central Government shall not appoint another commission to inquire into the same matter as long as the commission appointed by the State Government is functioning. These provisions are for the purpose of avoiding any conflict by the two Governments appointing two separate commissions to inquire into the same matter. in a speech made by the Minister for Law Shri C. C. Biswas while introducing the Bill on August 6, 1952 in the Rajya Sabha, he explained the provisions of section 3 and its underlying purposes as follows : Then there is also the question whether and bow far there may be overlapping inquiries by the Centre appointing Commission on its own and a State also a commission of its own to deal with the 'same matter. That is dealt with here in the proviso. The danger of overlapping is avoided by providing that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making an inquiry on charges of corruption, nepotism, favouritism or misuse of governmental power against the Chief Minister and certain other Ministers of the State of Karnataka. The notification of the Karnataka: State Government appointing a Commission of Inquiry runs as follows: Whereas allegations have been made on the floor of the Houses of the State Legislature and elsewhere that irregularities have , been committed/excess payments made in certain matters relating to contracts, grant of land, allotment of sites, purchase of furniture, disposal of food grains, etc.; Whereas the State Government is of the opinion that It is necessary to appoint a Commission of Inquiry to inquire into the said allegations; NOW THEREFORE, in exercise of the powers conferred by sub-section (1) of section 3 of the Commissions of Inquiry Act, 1952 (Central Act 60 of 1952) the Government of Karnataka hereby appoint Justice Shri Mir Iqbal Hussain, Retired Judge of the Karnataka High Court to be the Commission of Inquiry............. The plea on behalf of the State is that the inquiry is directed against all the allegations that have been made on the floor of the Houses of the State ]Le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the distinction that is maintained in the Constitution between the State and the State Government it was submitted that the State itself is an ideal person intangible, invisible, and immutable, and the Government is its agent. In order to appreciate the contentions of the parties it is necessary to refer to the relevant articles of the Constitution to determined the question as to whether any of the legal rights of the State is affected Part VI of the Constitution relates to the States and Art. 154 provides that the executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through the officers subordinate to him in accordance with the Constitution. Article 162 provides that subject to the provisions of the Constitution the executive power of the State shall extend to the matters with respect to which the Legislature of the State has power to make laws. In other words the executive power of the State is co-extensive with the legislative power of the State. The executive power of the State will be exercised by the Governor with the aid and advice of the Chief Minister and other Ministers of the State. According to the impugned no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan and Others v. Union of India.( [1978] 1 S.C.R. 1.) The States of Rajasthan, Madhya Pradesh, Punjab, Bihar, Himachal Pradesh and Orissa filed suits under Art. 131 of the Constitution against the Union of India challenging a directive contained in a letter dated April 18, 1977 issued by the Union Home Minister to the Chief Ministers of the States as unconstitutional, illegal, and ultra vires of the Constitution and for a declaration that the plaintiffs States are not constitutionally or legally obliged to comply with or give effect to the directive contained in the said letter. The power of the Central Government to dissolve the State Assemblies was questioned. A preliminary objection was raised to the maintainability of the suit on the ground that no legal rights of the State were infringed and that the State is different from the State Government and if at all any one was aggrieved it was the State Government and not the State. Chief Justice Beg observed that even if there be some grounds for making a distinction between a State's interests and rights and those or it,, Government or its members, the Court need not take a too restrictive or a hyper-technical view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exist before nor would such a course of conduct clothe the State Government with a legal right to call for a determination under Art. 131 as the State did not possess a legal right. The State Government who have raised dispute are not covered by the word 'State appearing in Art. 131 and therefore the suits were not maintainable on that ground also. It will be seen that four of the seven Judges were of the view that the suits are maintainable though Bhagwati and Gupta JJ. were of the view that there is a difference between the State and the State Government. Whatever the question that might have risen regarding the dissolution of the Assemblies, in the present case the dispute relates to the functioning of the State in exercise of the powers conferred under the Constitution and the State's legal rights are affected. The preliminary objection therefore fails. To sum up taking into account the history of the development of the Indian Constitution and its scheme the impugned notification impinges on the right of the State to function in its limited sphere. Further, the impugned notification is beyond the powers conferred on the Union Government under Section 3 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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