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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 ..... ated 23-5-1977 (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 Kar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Government and to bring him down in the estimation of 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister. He said that be did not want these to be reopened. He cited the speech of Shri Om Mehta, a former Minister of State, 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 rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Karnataka. The inquiry is rather in the interest of State that such corruption, nepotism, favouritism should not exist in the 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 Inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the decision of each of the three issues framed above, a decision on it seems necessary for clearing the ground for a correct approach to the 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reaches from 10,000 to 11,000 and 11,100 to 14,700 ? V. Whether any improper or excessive payment was made or undue favour shown 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 Fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 1st March 1974 to 30th June 1974 ? XXV. Whether the purchase of Fargo and Bedford 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Government of the State of Karnataka, 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 lakh- and whether any fraud 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 Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 favour was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own 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 of power or undue favouritism in r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 an act of favouritism taint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver 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 corruption. Fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking 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 deemed to adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 that express provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinary 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 difficult to assert confiden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estigating 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n sub-clause (i) there of,for the words 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence by making such statements". But; this protection is not extended to statements made in reply to questions 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 undilut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the Parliament (Article 80). The representation of the Legislative bodies of the States and of the Union territories 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y appear to the Government of India to be necessary for that purpose". The extent of the normal executive powers of the Union are indicated 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islation by Parliament is possible. It could, therefore, be argued that although, the. Constitution itself does not lay down specifically when the power of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Government can place reliance on, interalia, provisions of Article 356 of the Constitution for powers which could be held to be necessarily implied in the provisions of the Constitution-that 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iple of division of labour under at least Central supervision. In other words the duality or duplication of organs of government on the Central and State levels did not reflect a truly federal demarcation of powers based on any separatist sentiments 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 Govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) "If responsibility is taken in the formal constitutional sense, there would seem, granted collective governmental responsibility, to be no clear distinction to be drawn between Ministers inside and those outside the Cabinet. To be responsible in this sense simply is to share the consequences of- responsibility-namely to be subject to the 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 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as it became recognised that a single Minister could not retain office against the will of Parliament, so later it became clear that all Ministers must stand or fall together in Parliament, if the Government was to be carried on as a unity rather than by a number of advisers of the Sovereign acting separately". This development of collective responsibility was thus 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 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It is also not meant to serve as a mode of prosecution and much less of persecution. Proceedings before it cannot serve as substitutes for proceedings which should take place before a Court of law invested with powers of adjudication as well as of awarding punishments or affording reliefs. Its report or findings cannot relieve Courts which may have to determine for themselves 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature". Article 194. reproduces the terms of article 105 with this evident difference that, whereas article 194, is applicable to Houses of a State Legislature,, article 105 applies to the two Houses of Parliament. Each 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament, when the King could himself sit, as a part of Parliament, with the Houses of Parliament, to administer justice is now concentrated in the House of Lords, exercised through a Committee of Law Lords. Every power of the House of Parliament in England is subject to an act of Parliament. The Act with which we are concerned is an Act of our Parliament. We have to, satisfy ourselves by reference to our Constitution 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f seemed to suggest was that Ministers, answerable to a Legislature were governed by a separate law which exempted them from liabilities under the ordinary law. This was never the law in England. And, it is not so here. Our Constitution leaves no scope for such arguments, based on a confusion concerning the "powers" and "privileges" of the House of Commons mentioned in articles 105(3) and 194(3). Our Constitution vests only legislative power in Parliament as well as in the 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernmental functions of a State Government ? in, the dissolution of State Assemblies case we have already stated the views of this Court on such a subject at some length indicating there the ]dud of federation we have in this country with what has been characterised as "a strong unitary bias", or, at any rate, with powers given to the Union Government of supervision and even supersession, in certain circumstances, of State Governments temporarily to restore normalcy or to inject honesty, integrity, and efficiency into State administrations where these essentials 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly as a part of "Constitutional law" and should have found a mention explicitly in some part of our Constitution so as to 'be unmistakably identifiable there as such control exercisable through the means adopted for it. We do not think that the term "Constitutional law" can be either, clearly or exhaustively defined although its nature can be roughly indicated in the way in which text-book writers have attempted to do it. For example, Professors E.C.S. Wade and Godfrey Phillips (See Constitutional Law, 8th Ed. page 4) say : "There is no hard and fast definition of constitutional law. In the generally accepted 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 comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harter of the land', as Mr. Podsnap called it". He opined that "the one essential characteristic of the ideal or the best form of constitution is that it should be the shortest possible". And, Chief Justice John Marshall of the United States said in 1819 in McCulloch v. Maryland(4, LEd. 579.) : "A Constitution to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, there- fore, requires that only its great outlines should be marked, its important' objects designated, and the minor 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tern, legislate even though the legislation may not be easily assignable to any specific entry. Such a provision our Constitution makers did make. Item 97 corresponds to the residuary legislative powers of Parliament under Article 248. It reads as follows : "97. Any other matter not enumerated in List II or List III including any tax not mentioned in either of those lists." It gives effect to Article 248. No doubt, resort to Article 248, read with item 97 of List I, could not overcome any specific constitutional bar against legislation on investigation of conduct of Ministers of any State Government in the discharge of their duties had there been one. There is certainly no such express and specific bar in our Constitution. And, it is difficult to see how one can arise by some necessary implication of provisions 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of purported exercise of official powers, act dishonestly and corruptly and even commit criminal offences. This would mean that even if a Minister receives bribes, as we genuinely hope that none in the whole country does, he could not be made answerable in ordinary courts or be subjected to criminal proceedings. If no inquiry under any law into his conduct was possible simply because the act complained of was done by a Minister in purported exercise of a power vested in him by virtue of his ministerial office, he would be placed in a privileged position above the ordinary processes of law applicable to other citizens. Mere holding of Ministerial office would confer immunity from any inquiry. He would thus become a legally irresponsible despot above the ordinary law. The determine whether there is a prima facie, case 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r removal. (See : The Judges' (Inquiry) Act 51 of 1968). Hence, even Judges, who have to be protected against unfounded or malicious charges, as they have to give decisions which must necessarily displease at least one out of two or more parties to a case, are not in a more privileged position. It is true that, as somebody has observed, reckless charges are perhaps hurled against those holding public offices in our country with the abundance of confetti at a wedding, yet, we cannot do away with inquiries under the Act for this reason. The liability to face such inquiries before a duly appointed impartial Commission is one of those hazards which individuals holding ministerial office have to face. They can perhaps find solace in the thought that inquiries which are thorough and impartial, conducted by competent persons who have held high judicial 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 provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in our Constitution to cover an enactment such as Section 3 of the Act. Hence, there is no room whatsoever for applying the "Expressio Unius" rule to exclude what falls within an expressly provided legislative entry. That maxim has been aptly described as a "useful servant but a dangerous master (per Lopes L.J. in Colquhoun v. Brooks([1888] 21 Q.B.D. p. 52 @ 65.). The limitations or conditions under which this principle of construction operates are frequently overlooked by those who attempt to apply it. To advance the balder and broader proposition that what is not specifically mentioned in the Constitution must be deemed to be deliberately excluded from its purview, so that nothing short of a Constitutional amendment could authorise legislation upon it, is really to invent a "Casus Omissus" so as to apply the rule that, where ',.here is such a gap in the 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 'itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said (at p. 19): "Our original Constitution was not an anchor but a rudder. The Constitution of one period has not been the Constitution of another period. As one period has succeeded another, the Constitution has become larger and larger." This elasticity or adaptability of the American Constitution may account for its durability. Although, a written Constitution, which is always embodied in a document, must necessarily be subject to the basic cannons of construction of documents, yet, its very nature as the embodiment of the fundamental law of the land, which has to be adapted to the changing needs of a nation, makes it imperative for Courts to determine the meanings of its parts in keeping with its broad and basic purposes and objectives This approach seems to flow from what may be called a basic principle of construction of documents of this type : that the paramount or predominant objects 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 nati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st the needs of the people, so that Courts could not lightly invalidate statutes. I will briefly refer to some of the past pronouncements of this Court where, emphasis would naturally differ from case to case according to the particular context in which some rule of construction arose for consideration. Kania, C. J., quite clearly laid down a basically sound approach, if I may so characterise it with great respect, to the interpretation of the Constitution in A. K. Gopalan v. State of Madras(1), when he said : "In respect of the construction of a Constitution Lord Wright in James v. The Commonwealth of Australia (1936 A.C. 578 at 614) observed that "a Constitution must not be construed in any narrow and pedantic sense." Mr. Justice Higgins in Attorney-General of New South Wales v. Brewery Employees' Union (1908) 6) Corn. L.R. 469 @ 611-12, observed : Although we are to interpret words of the Constitution on the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ructions may be reasonably possible, is that it should adopt one which harmonizes rather than one which produces a conflict between Constitutional provisions (See : 1. C. Golaknath v. State of Punjab([1967] 2 S.C.R. 762 at 791.) ; K. K. Kochuni v. State of Madras & Kerala([1960] 3 S.C.R. 887 at 905.); Mohd. Hanit v. State Bihar([1959] S.C.R. 629 at 648.); State of M.P. v. Ranojirao Shinde([1968] 3 S.C.R. 489.); Prem Chand Garg v. Excise Commissioner, U.P.( [1963] Suppl. (1) S.C.R. 88 5 at 91 1.), Devadasan v. Union of India([1964] 4 S.C.R. 680 at 695.). Courts have been advised to adopt the construction "which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well-established provisions of existing law nugatory (See : Kesavananda Bharati v. State of Kerala([1973] 4 S.C.C. 225 at 426 (1973 Suppl S.C.R.1).). In Kesavananda Bharati'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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter had to be used because entry 97 List I follows entries 1-96 List I. It is true that the field of legislation is demarcated by entries 1-96 List I, but demarcation does not mean that if entry 97 List I confers additional powers we should refuse to give effect to it. At any rate, whatever doubt there may be on the interpretation of entry 97 List I is removed by the wide terms of Art. 248. It is framed in the widest possible terms. On its terms the only question to be asked is : Is the matter sought to be legislated on included in List II or in List III or is the tax sought to be levied mentioned in List II or in List 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 of tax". It will be seen that the test adopted in Dhillon's case (supra) was, that if a subject does not fall within a specifically demarcated field found in List II or List III 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 on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the basic allegiance contemplated by the Constitution is, legally speaking, to the Constitution itself about whose advent this Court once said (in Virendra Singh & Ors. v. the State of U.P. ([1955] S.C.R. 415 at 436)). "........ at one moment of time the new order was born with the new allegiance springing from the same source for all, grounded on the same basis : the sovereign will of the people of India with no class, no caste, no race, no creed, no distinction, no reservation". The Constitution, as its Preamble makes it clear, is of a sovereign republic. The legal sovereignty which it represents includes legal legislative sovereignty which must embrace the power of making any law on any subject. Such legislative power to enact any law must, therefore, vest somewhere in a legislative organ of the Republic. It cannot be placed anywhere outside these organs. To apply the test formulated in Dhillon's case, (supra) the Parliament alone, would have the power to enact by a simple majority, by reason 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... express power given by the Constitution itself, the fundamental law, namely the Constitution, cannot be changed by a law passed under the legislative provisions contained in the Constitution as all legislative acts passed under the power conferred by the Constitution must conform to the Constitution can make no change therein. There are a number of Articles in the Constitution which expressly provide for amendment by law, as, for example, 3, 4, 1 0, 59(3), 65(3), 73(2), 97, 98(3), 106, 120(2), 135, 137, 142(1) 146(2), 148(3), 149, 169, 171(2), 186, 187(3), 189(3), 194(3), 195, 210(2), 221(2), 225 , 229(2), 239(1), 241(3), 283(1) and (2), 285(2), 287, 300(1), 313, 345, 373, Sch. V. cl. 7 and Sch. VI cl. 21; and so far as these Articles are concerned they can be amended by Parliament by ordinary law- making process. But so far as the other Articles are concerned they can only be amended by amendment of the Constitution under Art. 368. Now Art. 245 which gives Dower to make law for the whole or any part of the territory of India by Parliament is "subject to the provisions of this Constitution" and any law made by Parliament whether under Art. 246 read with List I or under Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by "the Constitution" itself, by adopting only the ordinary law making procedure, a change in the law contained in express provisions of the constitution" itself could not be brought about without complying with Article 368 of the Constitution. follows obviously from the very notion of a Constitution as an embodiment of a "fundamental law" which serves as a touchstone for all other "laws". The "fundamental distinction" between "the Constitutional law" or "the fundamental law" and the ordinary laws, referred to there, was meant to bring out only this difference- in the uses made of laws which, being "fundamental", can test the validity of all other laws on a lower normative level and these other laws which are so tested. In that very special or restricted sense, the law not found in "the Constitution" could not be "constitutional" or "fundamental" law. Other parts of the law, even though they may appertain to important constitutional matters, are not parts of "the Constitution", and, therefore, could not test the validity of laws made by Parliament. What was said wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e related to a variety of fields of operation of legislative power. And, in any case, even if an inquiry on a matter of "public importance" relates to an unspecified field, it should be covered by entry 97 of List I itself. Therefore, it is immaterial whether we hold that entry 97 of List I by itself singly or that entry, read with entry 94 of List I, could be deemed to cover the field of operation of such legislation, what is material and important is that the three entries- Nos. 94 and 97 of List I and 45 of List III are bound to cover, between them, legislation authorising inquiries such as the one entrusted to the Grover Commission. If the subject of inquiries against Ministers in State Governments is not mentioned specifically either in any of the articles of the Constitution or in the legislative lists it does not follow from it that legislation covering such inquiries is incompetent except by means of a constitutional amendment. 'On the contrary, such a subject would be prima facie covered by the wide terms of article 248 for the very reason that the Constitution contains no express or implied bar which could curtail the presumably plenary powers of legislation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reburn had said (at p. 583) "In the interpretation of a completely self- governing Constitution founded upon a written organic instrument such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act." The learned Additional Solicitor General has strongly relied upon the State of Victoria v. The Commonwealth (45 Australian Law Journal Reports 251-22 C.L.R. 353.) where earlier cases applying the reasoning contained in Burah's case (supra) were surveyed and Barwick C. J. cited the two passages set out above by us, one from Lord Selbome's judgment in Burah's case (supra) and the other from the judgment of Earl Loreburn in the Province of Ontario's case (supra) from Canada. Barwick. C.J. also cited the following passage from the Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. "The nature and principles of legislation' (to employ the words of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the fore-front. Whatever may be said about the strategic value for the plaintiff of this mode of using the doctrine of "the basic structure of the Constitution", it does not relieve us from the necessity of considering whether an application of such a doctrine could be involved in the case before us. We cannot overlook that Kesavananda Bharati's case (supra) where although a majority of learned Judges of this Court which rejected the theory of "implied limitations" upon express plenary legislative powers of constitutional amendment, yet, we accepted, I say so with the utmost respect, again by a majority, limitations which appeared to be not easily distinguishable from implied limitations upon plenary legislative powers even though they were classed as parts of "the basic structure of the Constitution." We are bound by the majority view in Kesavananda Bharati's case (supra) which we have followed in other cases. We have, however, to make it clear and explicit enough to be able to determine, without inconsistency and with some confidence, the type of cases to which it could and others to which it could not apply as specific cases come up befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of implications when these are necessary to give effect to the intention of the legislature as revealed in the statute as a whole" ................ . "Thus, the purpose of the Constitution, and the scheme by which it is intended to be given effect, necessarily give rise to implications as to the manner in which the Commonwealth and the States respectively may exercise their powers, vis-a-vis each other." After considering a number of cases the Chief Justice stated conclusion on implied limitations as follows (at p. 163-164) : "What is the necessary implication from all the provisions of the Constitution ? It seems to me that reading the Preamble, the fundamental importance of the, freedom of the individual, indeed its inalienability, and the importance of the economic, social and political justice mentioned in the Preamble, the importance of directive principles, the non-inclusion in art. 368 of provisions like arts. 52, 53 and various other provisions to which reference has already been made an irresistible conclusion emerges that it was not the intention to use the word amendment' in the widest sense. It was the common understanding that fundamental rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be cataloged but can only be illustrated). 1. The Supremacy of the, Constitution. 2. Republican and Democratic form of Government and sovereignty of the country. 3. Secular and federal character of the Constitution. 4. Demarcation of power between the legislature, the executive and the judiciary. 5. The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to, build a welfare State contained in Part IV. 6. The unity and the integrity of the nation". Hegde and Mukherjea, JJ. also considered at length principles of interpretation and construction in this country and in the Commonwealth countries. They distinguished earlier cases of this Court. They purported to apply well established principles of interpretation and construction such as the Mischief Rule in Heydon's case, the need to 'view the Constitution as a whole, and its history and objects. They, said (at p. 307) : "While interpreting a provision in a statute, or, Constitution the primary duty, of the Court is to find out the legislative intent. In the present case our duty is to find out the intention of the founding fathers in enacting article 368. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e are indicated in the preamble and translated in the various provisions of the Constitution. The edifice of our Constitution is built upon and stands on several props,-remove any of them, the Constitution collapses. These are: (1) Sovereign Democratic Republic; (2) Justice, social, economic and political; (3) Liberty of thought, expression, belief, faith and worship; (4) Equality of status and of opportunity. Each one of these is important and collectively they assure a way of life to the people of India which the Constitution guarantees. To withdraw any of the above elements the structure will not survive and it will not be the same Constitution, or this Constitution nor can it maintain its identity, if something quite different is substituted in its place, which the sovereign Will of the people alone can do." Khanna, J., while definitely rejecting the theory of implied limitations on plenary powers of legislation, nevertheless, thought that the need. to reconcile the urge for change with the need for continuity imposed even upon the wide power of amendment of the Constitution the limitation that it must move within the orbit defined by its basic structure. He did not, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich we have to dig in order to discover it. I prefer to think That the doctrine of "a basic structure" was nothing more than a set of obvious inferences relating to the intents of the Constitution makers arrived at by applying the established canons of construction rather broadly, as they should be so far as an organic Constitutional document, meant to govern the fate of a nation, is concerned. But, in every case where reliance is placed upon it, in the course of an attack upon legislation, whether ordinary or constituent (in the sense that it is an amendment of the Constitution), what is put forward as part of "a basic structure" must be justified by references to the express provisions of the Constitution. That structure does not exist in vacuo. Inferences from it must be shown to be embedded in and to flow logically and naturally from the, bases of that structure. In other words, it must be related to the provisions of the Constitution and to the manner in which they could indubitably be presumed to naturally and reasonably function.. So viewed, the doctrine is nothing more than a way of advancing a well recognised mode of construing the Constitution. It sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or legislative measures. One will pertain to legislative power under Articles 245 and 246 and the legislative entries and the provision in Article 13. The other would be that no legislation can be made as to damage or destroy basic features or basic structures. This will mean rewriting the Constitution and robbing the legislature of acting within the framework of the Constitution. No legislation can be free from challenge on this ground even though the legislative measure is within the plenary powers of the legislature". He went on to observe (at p. 437): "The theory of basic structures or basic features is an exercise in imponderable. Basic structures or basic features are indefinable. The legislative entries are the fields of legislation. The pith and substance doctrine has been applied in order to find out legislative competency. and eliminate encroachment on legislative entries. If the theory of basic structures or basic features will be applied to legislative measures it will denude Parliament and State Legislatures of the power of legislation and deprive them of laying down legislative policies. This will be encroachment on the separation of powers". Mathew, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary legislation. (at pp. 669-670) "The Constitutional amendments may, on the ratio of the Fundamental Rights case, be, tested on the anvil of basic structure. But apart from the principle that a case is only an authority for-what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity: (1) The law must be within the legislative competence of legislature as defined and specified in Chapter 1, part XI, of the Constitution and (2) it must not offend against the ions of Article 13(1) and (2) of the Constitution Basic Structure, by the majority judgment. is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the conspectus of the Constitution, and the amending power is subject to it because it is a constituent power. 'The power to amend the fundamental instrument cannot carry with it the power to destroy its essential features'-this, in brief, is the arch of the theory of basic structure. It is wholly out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the test of "free and fair elections" and of "equality before the law" were used by this Court in judging the validity of the impugned provisions of the Representation of People Act in Smt. Indira Nehru Gandhi's case (supra) although the majority of learned judges of the bench preferred to do so without characterising these features as parts of a basic structure of the, Constitution. But, when deciding the question whether the purported constitutional amendment could take away the powers of this Court to hear and decide on merits the election appeals pending before it, all the learned Judges who participated in the decision of that case seemed to rely, in varying degrees, either expressly or impliedly, upon the "basic structure" of the Constitution itself, as revealed by its express provisions, to hold that, under the guise of exercising a legislative power, the Parliament could not, in effect, adjudicate on the merits of in individual case under the Constitution as it stood. It is important to note that majority opinions of Judges who participated in the decision in Kesavananda Bharati's case (supra)and those who took part in the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scheme of the Constitution could certainly be invoked to invalidate legislation by Parliament, acting in its ordinary law making capacity, on a subject which falls either exclusively within the orbit of an amendment of "the Constitution" or in List II of the Seventh Schedule of exclusively State subjects. But, as I have indicated above, this is not so here. Thus, it is clear that whenever the doctrine of the basic structure has been expounded or applied it is only as a doctrine of interpretation of the Constitution as it actually exists and not of a Constitution which could exist only subjectively in the minds of different individuals as mere theories about what the Constitution is. The doctrine did not add to the contents of the Constitution. It did not, in theory, deduct anything from what was there. It only purported to bring out and explain the meaning of what was already there. It was, in fact, used by all the judges for only this purpose with differing results simply because their assessments or inferences as to what was part of the basic structure in our Constitution differed. This, I think, is the 'Correct interpretation of the doctrine of the basic structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the express provisions. In Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors([1955] S.C.R. 279.). I find that the validity of the Act and of a notification under Section 3 of the Act was challenged but upheld by this Court, although a part of clause 10 of the notification which, in addition to requiring it to recommend measures to prevent similar future cases, also directed it to report on "the action which in the opinion of the Commission should be taken as and by way of securing redress or punishment", was held to be outside the purview of the Act in so far as the latter part went beyond the purely investigatory character of the inquiry authorised by the Act. In that case the Commission was required to inquire into and report on the administration of affairs of certain companies specified in a schedule annexed to the notification. It was held there inter-alia that mere possibility of misuse of powers given by the Act could not vitiate the power conferred by the Act. It was also held there that the Act was made by Parliament acting in fields indicated by entries 94 of List I and 45 of List III of the Seventh Schdule so that the inquiries could be ordered &qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rally or in writing by the Minister concerned. Hence, it may become a matter of considerable difficulty, delicacy, and importance, in a particular case, to apportion the blame or responsibility for any act or decision, alleged to be wrongful, between the Minister concerned and the officials who work under his directions. Such apportionments could be safely entrusted only to experts who have had considerable judicial experience and can deal with complete impartiality and dexterity with issues raised. The moral or collective responsibility which is political is a different matter which may no doubt be affected by the reports of a Commission of Inquiry. Individual liability may have even more serious consequences for the Minister concerned than the collective responsibility which carries only political implications. In State of Jammu & Kashmir v. Bakshi Ghulam Mohammad([1966] Supp. S.C.R. 401.) this Court pointed out that even if Bakshi Ghulam Mohammad had ceased to be the Chief Minister of the State of Jammu & Kashmir his past actions would not cease to be matters of public importance. It definitely disapproved the view of the High Court when it said (at p. 407) : "These learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission would be set up for the Ministers wanting the inquiry would have gone. If he went out himself, then the Commission would be set up to inquire into the acts of a person who was no longer in office and for that reason, if the learned Judges of the High Court were right, into matters which were not of public importance. The result would be that the acts of a Prime Minister could never be inquired into under the Act. We find it extremely difficult to accept that view. " In P. V. Jagannath Rao & Ors. v. State of Orissa & Ors. [1968] 3 S.C.R. 789 was held by a Constitution Bench of this Court that the appointment of a Commission of Inquiry under section 3 of the Act with the object of enabling the Government to frame "appropriate legislative or administrative measures to maintain the purity and integrity of the political administration in the State?' was valid. Again in Krishna Ballabh Sahay & Ors. v. Commission of Enquiry & Ors. ([1969] 1 S.C.R. 387.) a similar view was taken and it was observed by this. Court with reference to the charges of corruption into the conduct of Ministers (at p. 394) "It cannot be stated sufficiently strongly that the public life o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union of India, acting through the Central Government, could be said to represent the whole of the people of India. The individual States, acting through their Governments and Ministers, could be said to represent the people of each individual State and their interests. When differences arise between the representatives of the State and those of the whole people of India on questions of interpretation of the Constitution, which must affect the welfare of the whole people, and particularly that of the people of the State concerned, it appears to me, with great respect, to be too technical an argument to be accepted by us that a suit does not lie in such a case under Article 131 of the Constitution. According to both sides to the case before us an exercise of powers under section 3 of the Act is called for. They differ only on the question whether the Government of the State concerned or the Central Government also, on the facts of this case, can exercise those powers. Their claims conflict. There is a lies. The parties to the dispute are before us. We had to decide it and we have done so. It seems to me that a distinction between the State and its Government is, at the most, one be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State. It makes no difference to the maintainability of the action if the powers of the State, which are Executive, Legislative, and Judicial, are exercised through particular individuals as they necessarily must be. It is true that a criminal act committed by a Minister,, is no part of his official duties. But, if any of the organs of the State claim exclusive power to take cognizance of it, the State, as such, becomes interested in the dispute about the legal competence or extent of powers of one of its organs which may emerge. I do not think that the fact that the State acts through its Ministers or officials can affect the maintainability of a suit under Article 131 of the Constitution. Both Article 166(3) of our Constitution as well as Section 59(3)of the Government of India Act of 1935 provided for allocation of the business of the Government among the Ministers for "the more convenient transaction of the business." This implies that the State can act not merely through its Government as a whole but also through its individual Ministers as provided by the rules. Section 49(1) of the Government of India Act made this position absolutely clear by enacting : "The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olds an office which enabled him to act for it. They do not equate or assimilate his status or position with that of a Government servant. In my opinion, the Minister of a State, as the holder of an office provided for by the Constitution is, like a Judge of a High Court, a "dignitary of State" to use the expression employed by Sir William Holds worth the eminent British Constitutional lawyer and jurist, for a High Court Judge. His dignity and position is bound up with that of the State he represents. Hence, his State is entitled to sue to assert it. It may be possible sometimes to distinguish a purely individual wrongful or criminal act, committed by a Minister, falling entirely outside the scope of his legal authority, as disconnected with his office. But, even this cannot, in my opinion, disable the State itself from suing for the protection of its own authority to deal with the Minister concerned. It is, as I have already indicated, a different matter if we, hold, as we have held here, that the claim of the State to have exclusive power to deal with its Minister is not sustainable for some reason. The right to advance a claim, which is all that Article 131 provides f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect in the appointment of its own Commission by the State Government. The validity of the State Government's notification was not challenged before us on any ground whatsoever. The views expressed here will not, therefore, be deemed to have anybearing on questions relating to the validity of the State Government's notification which were not canvassed before us. This clarification seems necessary because the validity of the State Government's notification has also been, I understand, challenged in some other proceedings on grounds which can only be considered by us if aid when they come up before us. Consequently, this suit must be dismissed with costs. CHANDRACHUD, J.-Consequent upon the result of the elections held to the Karnataka Legislative Assembly in 1972, the Congress formed the government with Shri D. Devaraj Urs as the Chief Minister of the State. That party was then in power at the centre too, but it lost its long held majority in the 1977 Lok Sabha elections after which the Janata Party formed the Government at the centre. However in those elections to the Lok Sabha, 26 out of 28 seats allotted to the State of Karnataka were won by the Congress. Certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Commission in the purported exercise of its powers under the Commissions of Inquiry Act, 1952; that the appointment of the Commission of Inquiry by the Central Government of or inquiring into allegations against ministers of the State Government while they continue to be in office and enjoy the confidence of the State legislature is destructive of the federal structure of the Constitution and the scheme of distribution of powers provided for under it, that the cabinet system of government under which the Council of Ministers is responsible to the legislature of the State would fail of its purpose if the Union executive were to assume to itself the power to direct an inquiry into allegations made against State ministers while they are in office; that the provisions contained in section 3 of the Act of 1952 cannot be interpreted so as to clothe the Central Government with the power to appoint a Commission for inquiring into matters relatable to any of the entries in List II of the Seventh Schedule to the Constitution, in respect of which Parliament has no power to make a law and the Union executive no power to take executive action; that such an interpretation would render sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the Commission of Inquiry set- up by the Central Government is not against the State or the State Government but is against an individual minister or ministers and since the setting up of the Commission does not involve any invasion of the legal rights of the State or the State Government, the suit is not maintainable under article 131 at the instance of the State of Karnataka. I am free to confess that I have considerably profited by the judgment of my learned Brethren because their point of view, with, respect, is not to be overlooked simply because I have already expressed a contrary opinion in an earlier decision. But having given a fresh and closer thought to the problem in the light of the view expressed by them and a fuller argument advanced in this case by the learned Additional Solicitor-General, I am inclined to the opinion that even taking a strictly legalistic view of the matter, the preliminary objection to the maintainability of the suit ought to be rejected. The jurisdiction conferred on the Supreme Court by article 131 of the Constitution should not be tested on the anvil of banal rules which are applied under the Code of Civil Procedure for determining whether a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eding brought by the State under article 131 of the Constitution. Far from its being a case of the "omission of the obvious", justifying the reading of words into article 131 which are not there, I consider that the Constitution has purposefully conferred on this Court a jurisdiction which is untrammeled by considerations which fetter the jurisdiction of a court of first instance, which entertains and tries suits of a civil nature. The very nature of the disputes arising under article 131 is different, both in form and substance, from the nature of claims which require adjudication in ordinary suits. The Constitution aims at maintaining a fine balance not only between the three organs of power, the legislature, the executive and the judiciary, but it is designed to secure a similar balance between the powers of the Central Government and those of the State, Governments. The legislative lists in the Seventh Schedule contain a demarcation of legislative powers between the Central and State Governments. The executive power of the Central Government extends to matters with respect to which Parliament has the power to make Laws while that of the State extends to matters with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em alone is what a proceeding under article 131 necessarily involves. That is how in such a proceeding, a denial of the defendant's right carries with it an assertion of the plaintiff's. Firstly, therefore, 1. am unable to appreciate that if a State Government challenges the constitutional rights of the Central Government to take a particular course of action, article 131 will still not be attracted. Secondly, the contention of the State Government in the present proceeding is not only that the Central Government has no power to appoint the Inquiry Commission for inquiring into the conduct of State Ministers but that such a right is exclusi- vely vested in the State Government. There is, therefore, not only a denial of the right claimed by the Central Government but an assertion that the right exclusively resides in the State Government. In a sense, the instant case stands on a stronger footing than the Rajasthan Case because there the challenge made by the State Governments could perhaps be characterised as purely negative in nature since the basic contention was that the Central Government had no power to dissolve the State Assemblies. There is, therefore, an the greater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm such functions and within such time as may be specified in the notification. Clauses (a) and (b) of the proviso to, section 3 (1) cut down the width of that power with a view to ensuring that the Central Government and the State Governments do not appoint parallel Commissions which will simultaneously inquire into the ' same matter'. Since, in the instant case, the State of Karnataka had' appointeda Commission of Inquiry before the Union Government issued the impugned notification, clause (b) of the proviso will be attracted. That clause says that if a Commission has been appointed to inquire into any matter : "(b) by a State Government, the Central Government shall not appoint another Commission to inquire into the same matter for so long as the Commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more states." The question for consideration is whether the appointment of the commission of inquiry by the Central Government violates the injunction contained in this clause. Considering the terms of the notifications issued by the State Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (a) (ii) that the Commission will inquire into the allegation contained in the memoranda submitted by certain members of the Karnataka State legislature, "excluding any matter covered by the notification of the Government of Karnataka." The argument that the two notifications cover the same matter suffers from a lack of recognition of ordinary political realities. It is hardly ever possible, except in utopian conditions, that the State Government will appoint a Commission to inquire into acts of corruption, favouritism and nepotism on the part of its Chief Minister. It is interesting that Sir Thomas More coined the name 'Utopia' from the Greek (not) and topos (place) which together mean "No place." It is inconceivable that a Commission of Inquiry will be appointed by a State Government without the concurrence of the Chief Minister and if the political climate is so hostile that he is obliged to submit to an inquiry into his own conduct, he will quit rather than concur. Indeed, a Council of Ministers which, considers that the conduct of its Chief Minister and some of the Ministers requires examination in a public inquiry, shall have forfeited the conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter of public importance. It is inarguable that-the conduct of ministers of State Governments in the purported discharge of their official functions is not a definite matter of public importance within the meaning of section 3(1). To what extent the principle of federalism will be impaired by such a construction will of course have to be examined with care but I see no substance in the contention that the Central Government does not even possess the power to collect facts in regard to allegations of corruption made by a section of the State legislature against sitting ministers of the State Government. That power must undoubtedly be exercised sparingly and with restraint because under the guise of directing an inquiry under section 3(1), tile Central Government cannot interfere with the day-to-day working of the, State Government. One cannot also contradict that what appears to be a proper use of power may sometimes contain a veiled abuse of power howsoever infinitesimally. But statutory, construction cannot proceed on distrust and suspicion of those who are charged with the duty of administering laws. Section 3(1) must, therefore, receive its proper construction with the reserva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whatever may be the findings of a Commission of Inquiry, the Council of Ministers, whether at the Centre or in the States, continues to be collectively answerable or accountable to the House of the People or the Legislative Assembly. Indeed, neither the appointment of the Commission nor even the rejection by the Commission of all or any of the allegations referred to it for its inquiry would make the Council of Ministers any the less answerable to those bodies. The object of the two articles of the constitution on which the State of Karnataka relies is to provide that for every decision taken by the cabinet, each one of the ministers is responsible to the legislature concerned. It is difficult to accept that for acts of corruption, nepotism or favouritism which are alleged or proved against an individual minister, the entire Council of Ministers can be hold collectively responsible to the legislature. If an individual minister uses his office' as an occasion of pretense for committing acts of corruption, he would be personally answerable for his unlawful acts and no, question of Collective, responsibility of the Council of Ministers can arise in such a case. As observed by Hegd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a 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 learned author says that perhaps Mr. Joseph Chamberlain's definition of collective responsibility was better since he had occasion to study the matter both as enfant terrible under Mr. Gladstone and in his middle age under Lord Salisbury. According to Mr. Chamberlain. "Absolute frankness in our private relations and full discussion of all matters of common interest... the decisions freely arrived at should be loyally supported and considered as the decisions of the whole of the Government. of course there may be occasions in which the difference is of so vital a character that it is impossible for the minority .... to continue their support, and in this case the Ministry breaks up or the minority member or members resign." Thus the argument that section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he matters of public importance dealt with in sect ion 3(1) of the Commissions of Inquiry Act, does not fall within the scope of any of the matters enumerated in List I; (e) Entry 45 of List III : "Inquiries and statistics for the purpose of any of the matters specified in List II or List III" cannot also empower Parliament to pass the impugned legislation. The reason is that if, as contended by the Union Government, the essence of the notification issued by the Central Government is not the transactions described therein but the misuse of power by the Chief Minister or ministers of the Government of Karnataka, there is no entry in List II or List III relating to the misuse of governmental power by ministers of a State Government; (f) A law conferring power on Parliament or the Central executive to inquire into the conduct of a sitting minister of a State Government in regard to alleged misuse of governmental powers, by an agency chosen by the Central executive, is beyond the "Legislative" competence of Parliament because in reality, such a law is supplemental to the provisions of Part XI, Chapter 11 of the Constitution which deals with the adminis- trative pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State's contention in that behalf, it is necessary to examine whether the assumption underlying that contention is at all justified, namely that by the impugned legislation, Parliament has conferred on the Central Government the power to control the executive functions of the State Government. For that purpose it is necessary to have a proper understanding of the scheme and purpose of the Commissions of Inquiry Act and the true effect of its more important provisions. The Commissions of Inquiry Act was passed by the Parliament in 1952 in order to provide for the appointment of Commissions of Inquiry and for vesting them with certain powers. Section 3(1) read with section 2 (a) of that Act empowers, in so far as is relevant, the Central Government to appoint by notification a Commission of Inquiry for the purpose of making an inquiry into any definite matter of public importance and perform such functions as may be specified in the notification. The Commission has thereupon to make the inquiry and perform its functions, one of which of course is to submit its report to the Government. Section 3(4) requires that the Central Government shall cause to be laid before the House ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appens, but when it does it is essential that public confidence should be restored, for without it no democracy can long survive. This confidence can be effectively restored only by thoroughly investigating and probing the rumours and allegations so as to search out and establish the truth. The truth may show that the evil exists, thus enabling it to be noted out, or that there is no foundation in the rumours and allegations by which the pubic has been disturbed. In either case, confidence is restored." A police investigation is, at its very best, a unilateral inquiry into an accusation since the person whose conduct is the subject-matter of inquiry has no right or opportunity to cross-examine the witness whose statements are being recorded by the police. Section 8C of the Act, on the other band, confers the right of cross-.examination, the right of audience and the right of representation through a legal practitioner on the appropriate Government, on every person referred to in Section 8B and with the permission of the Commission, on any other person whose evidence is recorded by the Commission. Clauses (a) and (b) of Section 8B refer respectively to persons whose conduct th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of finding facts in regard to the allegations of corruption, favouritism and nepotism against a sitting Chief Minister or ministers cannot be held to constitute interference with the executive functions of the State Government. On receipt of the Commission's report, the Central Government may or may not take any action, depending upon the nature of the findings recorded by the Commission. If it decides to take any action. the validity thereof may have to be tested in the light of the-constitutional provisions. But until that stage arrives, it is difficult to hold that the Central Government is exercising any control or supervisory juris- diction over the executive functions of the State Government. As observed by this Court in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Others, ([1959] S.C.R. 279, 293.) "the Commission has no power of adjudication in the sense of passing an order which can be enforced proprio vigore". Thus, the very assumption on which the State's counsel, has built up the edifice of his argument seems to me to be fallacious. The, rejection of that assumption furnishes at once an answer to most of his other submissions but, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power ought never to be disturbed, but that is a different thing from saying that inherent or implied limitations should be read into legislative powers or that because India is a Union of States, one must read into the Constitution powers and provisions which are not to be found therein but which may seem to follow logically from what the Constitution provides for expressly. The first question which one must tackle is whether Parliament has the legislative competence to enact the Commissions of Inquiry Act, 1952. This question, in my opinion, is concluded by a judgment of a Constitution ]Bench of this Court in Shri Ram Krishna Dalmia (supra) in which the validity of the very Act was challenged in a matter in which a notification was issued by the Central Government under section 3 of the Act for inquiring into the affairs of certain companies. It was held by this Court that Parliament had the legislative competence to pass the law under entry 94 of List I and entry 45 of List III of the Seventh Schedule of the Constitution. Entry 94 of List I relates to "Inquiries, surveys and statistics for the purpose of any of the matters" in List I, while entry 45 of List III relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Parliament the power to make a law vesting in the Central executive supervisory control over the State executive. That contention having been rejected, entry 97 will in any event sustain the legislative validity of the Act. It is unnecessary to consider the implications of article 248 because that may require an examination of the question, which is needless here in view of the decision in Shri Ram Krishna Dalmia, (supra) whether that article confers power which is not to be found in article 246(1) read with entry 97 of List I and whether an affirmative answer to this question will render entries 1 to 96 of List I otiose. One may sum up the discussion on the question of Parliament's legislative competence by saying that adopting "the construction most beneficial to the widest possible amplitude" of powers conferred by the Constitution and interpreting the legislative entries in "a broad and liberal spirit", the impugned Act cannot be held to suffer from want of legislative competence, in the Parliament to enact it. Entry 94 of List I, entry 45 of List III and failing these, entry 97 of List I must sustain the Act. That disposes of points (a) to (e) set o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot influence the decision of the basic question as to the nature of the Commission's functions. Therefore, the contention that by empowering the Central Government to appoint a Commission for inquiring into the conduct of the sitting ministers of State Government, Parliament has legislated on the Centre-State relationship which is a constitutional subject, is without any force. However, it is necessary to say a word about the somewhat novel argument of the State Government that, by ordinary legislation, the Parliament cannot even supplement a constitutional provision, unless the Constitution expressly authorises it to do so. Ordinary legislation, as contended by the learned Additional Solicitor-General, has to answer only two tests : Firstly, the law must be within the legislative competence of the legislature, and secondly, the law must not offend against the provisions of Part III or infringe any other specific provision of the Constitution. Once the legislative competence is established and no violation of any specific constitutional provision is made out, the validity of the Act cannot be assailed on the ground that it 'supplements' a constitutional provision. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct dealt with by the Constitution. Therefore, even assuming that legislation on the question of Centre-State relationship is impliedly barred, the impugned Act does not fall within the vice of that rule and cannot, therefore, be pronounced as unconstitutional. All the same, it is necessary to examine briefly the validity of the State's contention that since the provisions in Chapter II, Part Xi are exhaustive, of matters governing the administrative relations between the Union and the States, any legislative addition thereto, or supplementing thereof, if impliedly prohibited. As already observed, if a law is within the legislative-competence of the legislature, it cannot be invalidated on 'the supposed ground that it has added something to, or has supplemented, a constitutional provision so long as the addition or supplementation is not inconsistent with any provision of the Constitution. I am, therefore, unable to appreciate the relevance of the State's reliance on the passage from Crawford's Statutory Construction (Ed. 1940 pages 334-335) to the effect that if a statute enumerates the things upon which it has to operate, everything else is necessarily and by impl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment setting up a Commission to inquire into certain charges of corruption and nepotism against the Chief Minister and some other ministers of the State of Karnataka. The question is whether the suit is maintainable under Art. 131, for a preliminary objection against the maintainability of the suit has been raised by the learned Additional Solicitor General on behalf of the Union of India. The answer to the question depends primarily on the true interpretation of Art. 131. This article confers on the Supreme Court, subject to the other provisions of the Constitution, exclusive original jurisdiction in any dispute- (a) between the Government of India and one or more States, or (b) between the Government of India and any State or States on one side and one or more other States on the other, or (c) between two or more States, 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. It is clear on a plain reading of this article that it does not lay down any particular mode of proceeding for exercise of the original jurisdiction conferred by it. No doubt, Part III of the Supreme Court Rules contemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... article is attracted. Hence the suit in the present case would obviously not be maintainable unless it complies with both these limitations. The contention of the learned Additional Solicitor General on behalf of the Union of India was that the test for determining the maintainability of the suit was not whether the right of the Central Government to set up a Commission of Inquiry against the, Chief Minister and other ministers of the State of Karnataka was questioned in the suit, but whether the impugned action of the Central Government infringed any legal right of the State. Even if the impugned action of the Central Government were invalid and I must assume it to be so in order to determine the maintainability of the suit the question is as to whose legal right would be infringed who would have a cause of action ? Can the State say that its legal right is infringed and is therefore, entitled to maintain the suit ? The learned Additional Solicitor General submitted that since the impugned action of the Central Government was directed against the Chief Minister and other ministers of the State, the legal right infringed would be that of the Chief Minister and the concerned minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is only where a legal right of the plaintiff is infringed that the suit can be maintained by the plaintiff under that article. Turning first to the distinction between 'State' and 'State Government, it is true that theoretically this distinction does exist and it finds recognition in sub-.sections (58) and (60) of section 3 of the General Clauses Act, 1897. The majority judges in the State of Rajasthan v. Union of India (supra) also accepted that there is a distinction between 'State' and 'State Government'. Willoughby points out in "The Fundamental Concepts of Public Law" at page 49: "The distinction between the State and its Government is analogous to that between a given human individual, as a moral and intellectual person, and his material physical body. By the term 'State' is understood the political person or entity which possesses the law making right. By the term 'Government' is understood the agency through which the will of the State is formulated, expressed and executed. The Government thus acts as the machinery of the State, and those who operate this machinery-act as the agents of the State'. And to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of any of the permanent institutions of a State that a real dispute may arise." I do not think that this is a valid distinction for determining when a dispute can be said to be one with the State as distinct from the per-sons constituting the State Government. To quote again from the forth-coming article of DR. Rajeev Dhawan and Prof. Alice Jacob: "The hair splitting distinction cannot be between the, permanent institutions of the State and the nonpermanent institutions of the, State; nor can it be between actions which limit the powers of the officials of the Government of a State and those that abolish the institutions of the State. The hair splitting distinction is between those actions which can be attributed to the State or any official thereof and those actions which are personal and not ascribed to the officials in their capacity as officials of the State-A letter sent to the Chief Minister questioning his- capacity or power to rule as Chief Minister may not allege lack of confidence in the Chief Minister as person, wife, husband, father or friend. It alleges lack of confidence in the Chief Minister in his capacity as Chief Minister." I find myself in agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to import the notion of 'cause of action, which is germane in a suit, in the interpretation of Article 131 and to read this article as limited only to cases where some legal right of the plaintiff is infringed and consequently, it has a 'cause of action' against the defendant. But it must be remembered that there is no reference to a suit or 'cause of action' in Article 131 and that article confers jurisdiction on the Supreme Court with reference to the character of the dispute which may be brought before it for adjudication. The requirement of 'cause of action', which is so necessary in a suit, cannot, therefore, be imported while construing the scope and ambit of Art 131. It is no doubt true, that the judgment delivered by me in the State of Rajasthan v. Union of India proceeds on the assumption that a suit under Article 131 can be Instituted only if some right of the plaintiff is infringed, but there was no proper discussion of this question in the course of the arguments in that case and on fuller consideration, I think that no such restriction can be imported in the construction of Article 131 so as to narrow down the ambit and coverage of that arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a right stricto sensu in A, there is a correlative duty in B to do X. Similarly, where A has liberty to do X, there is a correlative no-right in B to interfere in regard to it. The correlative of, power in A is liability in B as regards X and similarly, where there is immunity in A from the legal power of B, its correlative is disability in B as regards X. These are the four different jural relationships recognised by law and they are comprehended within the generic term 'right'. Now, there can be no doubt that the word 'right' is used in Article 131 in this generic sense. If, for example, the State claims to be entitled to legislate exclusively on a particular matter on the ground that it falls within List III of the VII Schedule to the Constitution and the Union of India questions this right of the State, the dispute would be one relating, not to any right of the State in the strict sense of the term, but to the 'liberty' of the State to legislate on such matter and it would come directly within the terms of Art. 131. Even a dispute relating to the power of the Union of India to abolish the legislative assembly of a State or to dissolve it would fall with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the two entities and the State is vitally interested in it. The State is very much concerned whether the conduct of its council of ministers in the discharge of governmental functions can be inquired into only by itself through its own agency or it can also be subjected to scrutiny by the Union of India. The State would certainly have locus to say that the Union of India has no right to encroach upon its exclusive power to investigate into misuse of governmental power by its council of ministers. There can be no doubt that, apart from its council of ministers the State can also competently make a claim that the council of ministers acting on its behalf is immune from subjection to the power of the Central Government to inquire into their conduct as ministers. This immunity claimed in respect of the council of ministers can be ascribed to the State and it can certainly raise a dispute touching upon the existence of this immunity. So far as dispute as to the scope of respective legislative fields between the Commonwealth and the States in Australia is concerned, it is now well settled as a result of the decision in Attorney General for Victoria v. The Commonwealth(71 C.L.R. 237) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also briefly discussed and decided the other issues in the suit on merits. While generally agreeing respectfully with the leading judgment of the learned Chief Justice, we think it advisable. to add a few pages by way of our concurring note. The first issue in this suit is "Is the suit maintainable ?" Although the decision of this issue is interlined with other issues settled for adjudication, it can be dealt with separately also. What, in substance, is this suit filed under Article 131 of the Constitution of India ? Certain allegations of corruption, nepotism and favouritism in relation to the administrative actions of the Chief Minister and some other Ministers of the State of Karnataka were made by some legislators of that State. A memorandum signed by 46 legislators of the State containing the allegations was forwarded to the Central Government. Its Home Minister in his letter dated April 26, 1977, requested the Chief Minister to give information and his comments apropos the allegations made. The Chief Minister, in his reply letter dated May, 13, 1977, inter alia, challenged the authority of the Central Government to call for an explanation and make any inquiry in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of the State. Under Article I of the Constitution, India is a Union of States. The State of Karnataka is one of the constituent units of the Union of India. The concept of State is that by itself it is an ideal person, a legal entity. It is intangible, invisible and immutable. The Government, in a sense, is an agency through which the will of the State is formulated, expressed and executed. Both the expressions have been separately defined in the General Clauses Act, 1917. In relation to the existence of a dispute between the Union of India on the one hand and one or more States on the other, the expression used in Article 131 for the former is the Government of India, signifying that the dispute may be with the Government of India but the other party to the dispute must be the State only and not any limb of the State-the Government, this Legislature or- the Judiciary. Article 300 is an enabling provision to describe the Government of India in a suit as the Union of India and to enable the Government of a State to sue or. be sued in the name of the State. If there is an invasion an the legal right of a State the agency through which the action will be commenced may well be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This proposition of law is so clear and axiomatic that the expression-"the existence or extent of a legal right" used in Article 131 undoubtedly is meant to bring about this result. It was neither necessary, nor perhaps advisable, to state further in the article that the dispute must involve any question on which the legal right of the plaintiff must depend. It is matter of common experience that more often than not absence of a legal right in one party helps the other party to establish its legal right and vice versa. In the case of King-Emperor v. Sibnath Banerji & Ors.( 72 Indian Appeals, 241.) Lord Thankerton opined at page 266 that "a Minister is an officer subordinate to the Governor within the meaning of the Government of India Act, 1935." The same view was expressed by Hegde J., in the case of A. Sanjeevi Naidu etc. etc. v. State of Madras and Anr.( [1970] 3 S.C.R., 505.), with reference to the provisions of the Constitution. In the present case the inquiry set- up by the Central Government is not against the State or the State Government. It is against the Chief Minister and some other Ministers. who are officers of the State. It may be open to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause the order has been made against its resident in accordance with a law which encroached upon the exclusive legislative field of the State ? The answer, in our ,opinion, must be in the negative. In the instant case if the stand on merits taken on behalf of the State Ministers in correct, then the impugned notification is an invasion on their legal right. They can' press into service the power of the State Government to order an inquiry and challenge the impugned notification, but the said notification can in no way be said to have affected or restrained the State Government from giving effect to its notification. Some help may be derived from the definition of the word "State' given at page 856-57 of Vol. 81 Corpus, Juris Secundum. It says : "The word 'State' has various meanings, but as used in the federal Constitution, acts of congress, and State statutes, it has a definite, fixed, and certain legal meaning as designating a member of the Union in contradistinction to the United States as a nation................................ The State is a legal entity, and is entitled to the fundamental rights, privileges, and immunities belonging to every leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Judiciary are in a well-defined and demarcated separate compartment.. 2. Except to the extent permitted by the, Constitution the Centre cannot encroach upon the legislative or executive field of the State. 3. The Act does not and cannot authorise the Centre to set up a, Commission of Inquiry against the State Executive; Section 3 must be read down to save it from 'being constitutionally invalid. 4. If it be not possible to read down the Act in the manner suggested then the Act is invalid in so far as it authorises the Centre to set up a Commission of Inquiry against the State Executive. 5. Such a law is beyond the legislative competence of the Union Parliament as in substance and in effect it violates either expressly or by necessary implication certain provisions of the Constitution, its basic scheme, or the fundamental back-bone of the Centre-State relationship as enshrined in the Constitution. 6. The law having the effect as aforesaid will really be a constitutional law bringing about an amendment in the Constitution which is obviously not permissible; an ordinary legislation unless expressly permitted by the provision of the Constitution cannot in any way amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... late with respect to any matter in the State List. Some inroad in the State legislative field by the Centre is permissible under circumstances mentioned in Articles 252 and 253. As provided for in Article 254 in some situations, the State is under an obligation to reserve a Bill for the consideration of the President and receive his assent before it is made into a law. "It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution". (vide Art. 355, emphasis supplied). In case of failure of the constitutional machinery in States, provision has been made in Article 356 for the Centre to assume legislative and executive powers but not the powers vested in or exercisable by a High Court of a State. The effect of proclamation of emergency under Article 352 is to enlarge the executive power of the Union and extend it to the giving of direction to any State as to the manner in which the executive power thereof is to be exercised as provided for in Article 353. There could not have been, for obvious reasons, any suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration of the State. 2. Making a departure from the corresponding provision in the Government of India Act, Entry 45 in List III of the Seventh Schedule empowers the Parliament to legislate on the subject of "inquiries...... for the purpose of any of the matters specified in List II" also besides List III, and List I as mentioned in Entry 94 of that List. The constituent power of amendment of the Constitution lies with the Parliament under Article 368 providing for concurrence by half the number of the States in certain matters. 3. Article 2 empowers the Parliament by law to admit into the Union, or establish, new States on such terms and conditions as it thinks fit. 4. Parliament is also empowered by Article 3 to make law for the formation of new States and alteration of areas, boundaries of names of existing States. Such is the nature of our federal structure. In State of West Bengal v. Union of India([1964] 1 S.C.R. 371.) in the majority judgment delivered by B. P. Sinha, C.J., the character and nature of our federal structure, has been discussed from pages 396 onwards. The learned Chief Justice observed at page 397 that in our Constitution the supreme authority of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 254, to enact law for the purpose of providing for the machinery of inquiry for the purposes of any of the matters specified in List II and List III. It has been so held in the case of Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors.( [1959] S.C.R. 279.) where Das C.J. has lucidly discussed the matter, if we say so with great respect at pages 289-291. Empowering the Central Legislature to make a law for the purpose of inquiry in regard to the matters specified in List II is in no sense empowering it to legislate vis-a-vis such matters. It is only for the purpose of achieving the object of the inquiry to be set up in regard to the matters enumerated in List III. The purpose may be as a matter of policy in relation to the legislation proposed to be passed by the various States or may be with regard to their executive actions taken apropos such matters. We may just. illustrate our view by referring to Entry 6 of List II., The. State Legislature has the exclusive authority to legislate on "public health and sanitation; hospitals and dispensaries"; of course, within the territory of that State. The executive power being co- extensive, the hospitals may be es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge will be barred because of the constitutional provisions contained in clauses (4) and (5) of Article 124 read with Article 218. As a matter of fact in accordance with clause (5) of Article 124 the Parliament has enacted the Judges Inquiry Act, 1968 (Act 51 at 1968). As already pointed out, in an inquiry set up under the Act there is no prosecution, no framing of a formal charge, no accused before the Commission of Inquiry. There is no exercise of any supervisory or disciplinary jurisdiction by the Central Government against the State Government by the appointment of a Commission, nor is there any usurpation of any executive function of the State. Reference in this connection may be made to the following cases M. V. Rajwade v. Dr. S. M. Hasan & Ors, ([I.L.R.] 1954, Nagpur 1.) Brajnandan Sinha v. Jyoti Narayan([1955] 2 S.C.R. 955.) Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors, ([1959] S.C.R. 279.) State of Jammu & Kashmir v. Bakshi Ghulam Mohammad; ([1066] 1 Suppl. S.C.R. 401.) P. V. Jagannath Rao & Ors. v. State of Orissa & Ors;( [1968] 3 S C.R 789.) and Krishna Ballabh Sahay and Ors. v. Commission of Enquiry & Ors.( [1969] 1 1 S.C.R. 387.) The Centre, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen excludes the power of the Central Government to set up a Commission of Inquiry for finding facts in regard to the alleged maladministration of the Ministers or officers of a particular State. Government? After ascertainment of facts, further action may follow or be taken in accordance with the provisions of the Constitution or the law. But surely the Act does not, nor could it, provide for any kind of disciplinary action such as removal or suspension of a Minister in office by the Centre on ascertainment of the truth of the alleged facts- against him-provisions in the Emergency Chapter apart. If it were otherwise undoubtedly it will be encroaching upon he power of the State Government or the State Legislature. India is a single country as a whole. The nation is one and one alone. Leaving also the special provisions of Article 370 in relation to the State of Jammu & Kashmir, there is no dual citizenship; there are no. different nationalities. While assailing the impugned notification Mr. Lal Narayan Sinha has strenuously contended that Article 164(2) of the Constitution which makes the Council of Ministers collectively responsible to the Legislative Assembly of the State indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er keep quiet or leave" (page 60). Dealing with the collective responsibility of the Council of Ministers to the Legislative Assembly of the State, Sarkar C. J., speaking for the Court said at page 405 as follows in State of Jammu and Kashmir v. Bakshi Ghulam Mohammad([1966] Suppl. S.C.R. 401.) : "Section 37 talks of collective responsibility of Ministers to the Legislative Assembly. That only means that the Council of Ministers will have to stand or fall together, every member being responsible for the action of any other." From the above, it is crystal clear- that the doctrine of collective responsibility on which Mr. Lal Narayan Sinha has so heavily leaned does not grant immunity to the State Ministers from being subjected to the provisions of the Commissions of Inquiry Act and the plaintiff can derive no help from it. If the Act is really a constitutional law as understood and explained by eminent scholars, surely the Parliament has transgressed its limits in enacting such a law. It is axiomatic that the amendment of the Constitution cannot be allowed except as provided for in Article 368. There are certain exceptions to it. Examples of exceptions are very fe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t violate the basic structure of the Constitution. In the case of Smt. Indira Nehru Gandhi v. Shri Rai Narain([1976] 2 S.C.R. 347.) such an argument expressly rejected by this Court. We may rest content by referring to a passage from the judgment of our learned brother Chandrachud J., at pages 669-670 which runs thus: "The Constitutional amendments may, on the ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the principle that a case is only an authority for what it decides, it does not logically follow from the majority judgment in the Fundamental Rights case that ordinary legislation must also answer the same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity: (1 ) The law must be within the legislative competence of the legislature as defined and specified in Chapter 1, Part XI of the Constitution and (2) it must not offend against the provisions of Articles 13 (1 ) and (2) of the Constitution. 'Basic structure', by the majority judgment, is not a part of the fundamental rights nor indeed a provision of the Constitution. The theory of basic structure is woven out of the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ument by which, affirmatively, the legislative powers were created, and by which negatively, they are restricted." ............................................ "The effects of the Engineers' case upon Commonwealth State relations are considered in Chap. IX. What is important for present purposes are the principles of interpretation there laid down and acted upon ever since. The rejection of the doctrines of mutual non- interference and State reserved powers has had a profound effect upon the Constitution inevitably leading to what Professor Sawer has described as an "expansive" interpretation of federal powers. For it followed from the principle that Dominion and Colonial Legislative powers are plenary (a principle from which the High Court has never deviated) and an interpretation of specific grants of power read in their entirety without regard to a reservation of all non-specified powers, that the enumerated powers of the Commonwealth were to be read in their full sense subject only to the prohibitions expressly or by implication set upon them in the Constitution itself. And the express provision for supremacy of Commonwealth over State laws in- the eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the aforesaid and to what extent ?" The terms of reference in the Notification issued by the Centre is to inquire into the specific matters enumerated in Annexure 1, none of Which is covered by the notification of the State Government, as for example, item I of Annexure I reads thus "Whether the Chief Minister practised favouritism and nepotism by appointing his own brother, Shri D. Komparaj Urs, as a Director of the' Karnataka State Film Industries Development Corporation in place of Shri R. J. Rebello, Chiet Secretary to the Government, in 1974, and later as Director-in-Charge with the powers to exercise all the powers of the Managing Director.' In regard to the specific matters in Annexure II there may be found some common matters which are the subject-matter of inquiry by the State Government but then, as we have already stated, in regard to the matters in Annexure II the notification in clear terms excludes ,any matter covered by the notification of the Government of Karnataka dated 18th May, 1977. The Grover Commission, therefore, would be competent to exclude such matters from the purview of its inquiry. KAILASAM, J.-This suit is filed by the State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed another Commission of Inquiry for the purpose of inquiring into charges of corruption, favouritism and misuse of governmental power against the Chief Minister and other Ministers of the State of Karnataka. In this suit the action of the Union Government in constituting a Commission of Inquiry under section 3(1) is challenged as illegal, ultra vires and unconstitutional. The contention of the State Government is that the Central Government has no jurisdiction or authority to constitute the Commission of Inquiry in the exercise of its powers under the Commissions of Inquiry Act, 1952. The plaintiff contended that the impugned notification is destructive of the federal structure of the Constitution and scheme of distribution of powers that the Constitution does not confer any supervisory or disciplinary control by the Union executive over the State Government or its Ministers and that the Constitution does not vest the Central Government with any general supervisory or inquisitorial power over the functioning of the State Governments within the respective fields. As the matter in dispute affects the legal right of the State it was submitted that a suit under Article 131 of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rown were exercised by the Secretary of State for India assisted by a Council of Members. Subsequently the Indian Councils Act, 1861, 1892 and 1909 were passed. Later on the Government of India Acts 1912 and 1915 were passed by the British Parliament. The Government of India Act, 1919, was the first step taken by the British Government for, increasing the association of Indians in every branch of administration and the gradual development of self governing institutions with a view to progressive realisation of responsible government in British India. The Government of India Act, 1919 introduced for the first time dyarchy in the provinces. The central subjects were exclusively kept under the control of the Central Government. The provincial subjects were divided into 'transferred' and 'reserved' subjects. Transferred subjects were administered by the Governor with the aid of Ministers while reserved subjects were administered by the Governor and his Executive Council without any responsibility to the Legislature. By Devolution Rules made under the Government of India Act, 1919 a separation of the subjects of administration into Central and Provincial was made. To som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Governor General and with regard to reserved subjects, defence, external affairs, etc., the Governor General was to act in his discretion, with the help of counsellors appointed by him without being responsible to the Legislature. Governor-General was to act on the advice of the Council of Ministers who were responsible, to the Legislature with regard to subjects other than reserved subjects. The Governor General was to act under the control and directions of the Secretary of State regarding his special responsibilities. The Government of India Act, 1935 distributed the powers between the federal legislature and the provincial governments by having (i) Federal List over which the Federal Legislature had exclusive powers of legislation; (ii) A Provincial List over which the Provincial Legislature had exclusive jurisdiction; and (iii) A Concurrent List over which both the Federal and Provincial Legislatures bad competence. The 'Federal law prevailed over a Provincial law if there was any repugnancy and the residuary power of legislation under the 1935 Act vested with the Governor-General. Under the scheme, the legislative powers of both the central and provincial legislatures w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... saged by the Constitution. The Indian States which acceded to the Dominion were brought under the federal system on the same footing as other Units of the Federation, namely the Provinces. The position of the States in the Constitution is in several respects subordinate to the Central Government in that the formation of the federation was not as a result of any treaty between the States and the federation, and that the State may be reformed or altogether eliminated under Art. 4 of the Constitution. Though the Constitution divides executive power between the Union and the States, the States, are bound to execute certain directions of the Union. The executive power regarding the laws made by the Union hi the Concurrent subjects will be exercised by the States unless the Parliament direct% otherwise and as regards the Union subjects the Union may delegate its executive functions to a State either by legislation by Parliament or by consent of the State Government. It is a duty of the State to execute the Union law and the executive power of the State must be exercised in such manner as not to interfere with the executive power of the union and the State shall be under the direction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V is assigned to the Union executive and Part VI to the, States, Part XI deals with the Relations between the Union and the States. The distribution of powers between the Union and the States can be discerned from the various provisions of the Constitution. A machinery is also provided for, for settling their disputes in the Constitution. In the distribution of powers it is clear there is strong tilt in favour of the Union. According to the Constitution, the Union can assume powers of the State Government by taking over the State Administration under certain contingencies provided for in the Constitution. But the Union Government cannot claim any power which is not vested in it under the provisions of the Constitution. There is no overriding power with the Union Government. It cannot deal with the State Government as its delegate, for the source of power for the Union as well as the State, is the Constitution and the Union Government cannot claim any powers over the State which are not found in the Constitution. The nature of our Constitution has been discussed by the Supreme Court in a few decisions which may be referred to at this stage. In Atiabari Tea Co. Ltd. v. The State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, the units having also certain powers as the Union itself. On this aspect the learned Solicitor-General very strongly relied on certain passages in State of West Bengal v. Union of India,, ((1964] 1 S.C.R. 371.) in the Majority judgment delivered by Sinha C. J. Referring to Art. 4of the Constitution which empowers the Parliament by legislation to alter the territory of the State or abolish it altogether Sinha C. J. observed : "When the Parliament is invested with authority to alter the boundaries of any State and to diminish its areas so as to even destroy a State with all its power and authority, it would be difficult to hold that the Parliament which is competent to destroy a State is, on account of some assumption as to absolute sovereignty of the State, incompetent effectively to acquire by legislation designed for that purpose the property owned by the State for Governmental purposes." The learned Chief Justice, further observed that "Even if the, Constitution were heldto be a federal and the States regarded qua the Unionas sovereign the power of the Union to legislate in respect of the property Situate in the State would remain unrestricted." The Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were not brought to the notice of the Court. In Special Reference No. 1 of 1964([1965] 1 S.C.R. 413.), dealing with the Centre-State relationship this Court observed: "Our Legislatures have undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule; but beyond the Lists, the Legislatures cannot travel. They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution; but the basis of the power is the Constitution itself. Besides, the legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in part III of the Constitution. If the Legislatures step beyond the legislative fields assigned to them, or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the, relevant articles dealing with the said fundamental rights, their legislative actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases on this subject. The question that arose in those cases was how far the Constitution could be amended. In Kesavananda case, the majority was of the view that the basic structure of the Constitution cannot be amended. The Election case proceeded on the basis of Kesavananda's case that the basic structure could not be amended. The learned counsel for the plaintiff Mr. Lal Narain Sinha made it very clear that he is not inviting the Court to find any undefined basic structure but is confining his arguments to point out that the federal structure in the limited sense is an integral part of the Constitution and that the Union Government is not supreme and it has no power apart from what is found in the Constitution. In Kesavananda case it was held by the majority that Art. 368 does not enable the Parliament to alter the basic structure or the framework of the Constitution. Chief Justice Sikri in discussing as to what is the basic structure of the Constitution held that it consisted of (1) Supremacy of the Constitution, (2) Republican and democratic form of Government, (3) Secular character of the Constitution, (4) Separation of powers between legislatures, executive and jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Constitution under Arts. 256 and 257 to execute the Union laws. The executive power of every State shall be so exercised as not to interfere with the executive power of the Union and that in these matters the States shall be under the directions of the Union. These powers are specifically mentioned in the Constitution and it is not disputed that the Union Government can exercise them. The question that arises for consideration is whether the Union Government can order an inquiry into the Governmental functions of the State which is not specifically conferred on the Union by the Constitution. Ile preliminary objection of the Union Government that it is not the State but only the Government of the State or the Ministers that are aggrieved will be dealt with in due course. The position of the States is indicated in Art. I which declares that India shall be a Union of States and the States and the territories thereof shall be as specified in the First Schedule and the territory of India shall comprise the territories of the States, the Union territories and such other territories as may be acquired. Part VI of the Constitution deals with the States. Art. 154(1) vests the execut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1935 Act. Article 245 (1) provides "Subject to the provisions of this Constitution, Parliament may make laws ?or the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State". Art. 246 confers on the Parliament the exclusive power to make laws with respect to, any of the matters enumerated in List I of the Seventh Schedule. The Legislature of the State has exclusive power to, make laws for the State in respect of any matters enumerated in List II i.e. State List. The Parliament and the Legislature of the State shall have power tomake laws with respect to any matter enumerated in List III i.e. Con-current List. It is important to note that the, powers conferred under Articles 245 and 246 are subject to the provisions of the Constitution. Therefore the laws made by a Legislature may not be valid for either lack of jurisdiction in respect of the subject matter or on the ground that they violate the provisions of the Constitution. The residuary power of legislation is conferred on the Parliament under Art. 248 which provides that the Parliament has exclusive power to make any law with respect to any matte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will not solve the problem. The crux of the, controversy is while the, Karnataka State would contend that relation between the Union and the States is a subject matter of the Constitution and is not a subject covered by any of the three Lists, the contention on behalf of the Union Government is that the notification does not contravene any of the specific provisions of the Constitution and as such the legislative competence of the Union cannot be questioned. While on behalf of the State of Karnataka it is submitted that the power to inquire into the conduct of a Minister who is responsible to the Legislature is only with the Legislature of the, State, the submission on behalf of the Union is that the power of the Union is not specifically taken away by any of the provisions of the Constitution and therefore the contemplated inquiry is within the competence of the powers, of the Union. According to the Solicitor General, the right question to ask is "Does the legislation provide for some matter which runs counter to or is inconsistent with or brings about a change in the existing provisions of the Constitution in such manner that the original and the amended provisions are d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by which affirmatively the legislative powers were created and by which negatively they are restricted. If what has been done is legislation within the general scope ,of the affirmative words which give the power and if it violates no express, condition or restriction by which that power is limited, it is not for any court of justice to inquire, further, or to enlarge constructively those conditions and restrictions". In 1912 A. C. 571 it was held that "if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambigious, as, for example. when the words establishing two mutually exclusive jurisdictions are, wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act." The decision of the Australian High Court in The Amalgamated Society of Engineers v. The Adelaide Steamship Company Ltd. and Others, (28 C.L.R. 129.) in which it was held that the doctrine of implied prohibition against, the exercise of power once ascertained in accordance with ordinary rules of construction was rejected by the Privy Council in Webb v. Outrim. The decision in The State of Victoria v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prior state of the law, the evil sought to be removed and the process by which the law was evolved." Though there is no express provision in the Article conferring the disciplinary control and jurisdiction over the District judge it was implied from the wording of the Article. Reading the decision of the Privy Council in Liyanage v. R. (Supra) and the decision of this Court in the State of West Bengal v. Nripendra Nath Bagchi (Supra), the word 'express' in R. v. Burah (Supra) should be construed as including what is necessarily implied. Taking into account the history and the scheme of the Constitution the safeguards in the Constitution regarding the States have necessarily to be implied, though it is conceded on behalf of the State of Karnataka that no particular provision of the Constitution has been expressly modified, amended or altered. The extent of the executive power of the Union is found in Art. 73 and that of the State is given in Art. 162. In Part XI, Chapter II, which deals with the administrative relations between the Union and the States Articles 256 and 257 list the obligations of the States and the Union and control of the Union over the States in cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternal aggression and internal disturbance, it was thought a constitutional amendment was necessary to enable the Govt. of India to deploy armed forces to deal with grave situation of law and order. As there is no specific Article in the Constitution enabling the Union Government to cause an inquiry into the governmental functions of the State the power cannot be assumed by ordinary legislation but resort must be bad to a constitutional amendment. In I. C. Golak Nath & Ors. vs. State of Punjab & Anr.,( 11967] 2 S.C.R. 762.) Wanchoo J. has stated "The Constitution is the fundamental law and no law passed under mere legislative power conferred by the Constitution can affect any change in the Constitution unless there is an express power to that effect given in the Constitution itself. But Subject to such express power given by the Constitution itself, the fundamental law, namely the Constitution, cannot be changed by a law passed under the legislative provisions contained in the Constitution as an legislative Acts passed under the power conferred by the Constitution must conform to the Constitution. There are a number of articles in the Constitution which expressly provide for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t I is confined to matters in List I the learned Solicitor General rightly did not rely on that Entry but relied mainly on. Entry 45 in List Ill. Entry 45 enables the Union to make laws for inquiries for the purpose of any of the matters specified in Lists II & III i.e. State List and the Concurrent List. The question that arises is whether the word 'inquiries' would include the power to make inquiry into misuse of the governmental powers by the Chief Minister and the other Ministers of a State Government while in office. The golden rule of interpretation is that the words should be read in their ordinary, natural and grammatical meaning and in construing words in a Constitution conferring legislative power the most liberal construction should be put upon the words so that they may have effect in their widest amplitude. But this rule is subject to certain exceptions. It is found necessary to prevent conflict between two exclusive jurisdictions a restricted meaning may be given to the words. The Federal Court in Re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 (Central Provinces and Berar Act No. XIV of 1938) ( in Re A Special Refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention of them that made it". It is therefore necessary to discern the intention of the Parliament in enacting the Commissions of Inquiry Act, 1952. The inquiry under Entry 45 is for the purpose of any of the matters specified in List II or List III. It is seen that inquiry into the misconduct in exercising governmental functions by the Chief Minister of a State cannot be discerned from any of the entries in List II or List III. Entry 45 is in the Concurrent List and if a law could be enacted by the Parliament empowering the Union Government to conduct an inquiry into the misuse of the governmental functions by a Minister of State, it cannot be denied that the State Government will have the power to legislate empowering the State to inquire into the misuse of govern- mental powers by a Union Minister relating to matters in List II and List III. Obviously the powers conferred under Entry 45 cannot be construed in such manner, for it could never have been intended. Otherwise the result will not be conducive to the harmonious functioning ofthe Union and the States. This circumstance is a strong indication that Entry 45 in List III 'inquiries' should not be given a wid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;. The Parliament under the Act has delegated its legislative functions to the appropriate Government and has conferred the discretion to appoint a commission if it is in its opinion necessary to do so and make it obligatory on the Government to appoint a commission if there is a resolution by the Legislature concerned. The purpose of appointment of the commission is for making an inquiry into any definite matter of public importance. There is no mention or guidance as to the person against whom an inquiry is to be conducted. In the proviso which bars the State Government from appointing the commission to inquire into the same matter when already the Central Government has appointed a commission and vice versa, it is clear that the section could not have contemplated the appointment by the Central Government of a commission to inquire into the abuse of the power by the State Government being aware of the fact that such a construction would enable the State Government to appoint a commission to inquire into the misuse of the power of the Central Government in any of the matters relating to Lists 11 and III. Such a construction would not reflect, the intention of the Parliament. Bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person and is of opinion that his reputation is likely to be prejudicially affected by the inquiry the commission shall give to that person a reasonable opportunity of being heard and section 8-C confers a right of cross-examination and representation by the legal practitioner to persons referred to in section 8-B of the Act. Reading the Act as a whole the Commission is given wide powers ,of inquiry compelling Pie attendance of witnesses and persons who are likely to be prejudicially affected giving them a right of cross-examination. When a report is submitted by the Commission, section 3(4) contemplates action to be, taken by the appropriate Government. While considering the scope of Entry 45 in List III and particularly the, word 'inquiries' it has been found that in the context a restricted meaning should be given and if the word is given a wide meaning as to an inquiry into the governmental action of the State or the Union, as the case may be, it would not be conducive to the smooth running of the Constitution. Under section 3 the Parliament has conferred the power on the appropriate Government to appoint a commission of inquiry to inquire into any definite matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment and found that a Commission under the Public Servants (Inquiries) Act, 1850, is not a court. In Shri Ram Krishna Dalmia v Shri Justice S. R. Tendolkar and Others([1959] S.C.R. 279.) the Central Government appointed a Commission of Inquiry to inquire into and report in respect of certain companies mentioned in the schedule attached to the notification and in respect of the nature and extent of the control and interest which certain persons named in the notification exercised over these companies. The validity of the Commissions of Inquiry Act was questioned. The Supreme Court held that the Act was valid and intra vires and the notification was also valid excepting the words "as and by way of securing redress or punishment' in clause 10 thereof which went beyond the scope of the Act. The Court also held that the Act does not dele- gate to the Government any arbitrary or uncontrolled power and does not offend Article 14 of the Constitution. The Court further observed that the discretion given to the Government to set up a commission of inquiry is guided by the policy laid down in the Act and the executive action is to be taken only when there exists a definite matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance into which an inquiry is, in the opinion of the appropriate Government, necessary or is required by a resolution in that behalf passed by the House of the People or the Legislative Assembly of the State". The Court proceeded to observe that if the Parliament had declared with sufficient clarity the policy and laid down the principles for the guidance of the exercise of the powers conferred on the appropriate Govern- ment it cannot be said that an arbitrary and uncontrolled power had been delegated to the appropriate Government. On the facts of the case before the Court the conclusion was reached that the power was exercised within the policy laid down by the Parliament and the guidance afforded by the preamble and section 3 of the Act. The decision was not dealing with a case in which the inquiry is ordered into the misuse of governmental functions of the Chief Minister of a State exercising the executive functions of the State. The Court also rejected the plea on behalf of the appellant that the Act and conduct of individual persons can never be regarded as definite matter of public importance, observing that the act and conduct of individuals may assume such dangerous p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court observing : "It is difficult to imagine how a Commission can be set up by a Council of Ministers to inquire into the acts of its head, the Prime Minister, while he is in office. It certainly would be a most unusual thing to happen.. If the rest of the Council of Ministers resolves to have any inquiry, the Prime Minister can be expected to ask for their resignation. In any case, he would himself go out. If he takes. the first course, then no Commission would be set up for the Ministers wanting the inquiry would have gone. If he went out himself, then the Commission would be set up to inquire into the acts of a person who was no longer in office and for that reason, if the learned Judges of the High Court were right, into matters which were not of public importance. The result would be that the acts of a Prime Minister could never be inquired into under the Act. We find it extremely difficult to accept that view." The decision of the Court is that the inquiry into the past and which have affective the public well-being would be matters of public importance and it was irrelevant whether the person who committed those acts is still in power to be, able to repeat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment can appoint a commission of inquiry into the conduct of a Chief Minister of a State in office which implies the determination of Centre-State relationship under the Constitution. In this case the appointment was by the State Government against the erstwhile Chief Minister. Apart from this question it is seen that if section 3 of the Commissions of Inquiry Act, 1952 is construed as enabling the appointment of a commission of inquiry into the conduct of a State Chief Minister in office it would result in empowering the Central Government which is a delegate of the Parliament to exercise the powers which would never have been contemplated by the Parliament, for as already pointed out the result of such construction would be inviting the State Government to appoint a commission of inquiry to the conduct of Central Ministers regarding matters in List II and List III. It is significant to note that after Bakshi's case was decided by the Supreme Court in 1966, amendments were introduced to the Commissions of Inquiry Act by Act 79 of 1971. Section 8-B ins as follows :- "8B. If, at any stage of the inquiry, the Commission,- (a) considers it necessary to inquire into th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s stated that an inquiry was ordered by the Central Government against Pratap Singh Kairon, a State Chief Minister, while in office but the validity of such an ,order was not questioned before a court. The Sarkaria Commission was appointed by the Central Government to inquire into the conduct of the Chief Minister when lie ceased to hold that office and the President took over the administration of the Tamil Nadu State. While in office the Chief Minister questioned the Union Government's power to appoint such a Commission. The impugned notification by the Central Government was challenged on the ground that it is in violation of the proviso to section 3(1) of the Commissions of Inquiry Act. Under the proviso when a State Government has appointed a commission of inquiry, the Central Government shall not appoint another commission to inquire into the same matter for so long as the commission appointed by the State Government is functioning, unless the Central Government is of opinion that the scope of the inquiry should be extended to two or more States. In this case it is common ground that the State Government had appointed a Commission of Inquiry earlier. The scope of the inq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is a Commission appointed-by the Central Government already functioning then it will not be open to a State Government, except with the approval of the Centre, to appoint another commission to inquire into the same matter. Similarly, if there is already a Commission appointed by a State Government functioning with respect to a matter which is within the jurisdiction of the State it will not be open to the Central Government to override the State Commission except in certain circumstances which are indicated, that is, unless the Central Government is of the opinion that the scope of inquiry should be extended to two or more States. Then of course this will be done, obviously not with- out reference to the State. So as you will see, Sir, provision is made in this clause for avoiding conflict between the Centre and the State." It will be seen that the provisos were enacted for the purpose of avoiding conflict between the Union and the State. The very object of the proviso to section 3 is defeated by the construction sought to, be put upon by the Union Government. The objection to the appointment of a commission by the Union Government when there is already a commission appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature and elsewhere and the charges therefore comprehend all the matters that are found in the impugned notification. Further it was submitted that as the commission is to go into and determine as to who are the persons responsible for the lapses the inquiry would include charges against the Chief Minister also. As the purpose of the two provisos to section 3(1) is to avoid conflict, the words "the same matter" in the provisos should be given a wide interpretation and only matters that are not referable to the subject matter of the inquiry by the Commission appointed by the State can be taken over by the Central Government. We were not called upon to go into the two notifications and determine which item in the notification of. the Central Government is not covered by the State Government notification. In giving a wider meaning to the words 'the same matter' with a view to avoid conflict, the contention of the Central Government that the inquiry into- the conduct of the Chief Minister about the same incident will make it a different matter cannot be accepted. The contention as to the maintainability of the suit under Article 131 of the Constitution may now be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed notification Commission of Inquiry is appointed 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. The inquiry therefore is amongst other things regarding the misuse of the governmental power against the Chief Minister and other Ministers of the State. The executive function of the State which is vested in the Governor is exercised by him with the aid and advice of the Chief Minister and the Council of Ministers. The power is also exercised by the Governor either directly or indirectly through officers subordinate to him in accordance with the Constitution. The governmental functions of the State are performed by the Governor as required by the Constitution with the aid and advice of the Ministers The scope of the enquiry would inevitably involve the functioning of the executive of the State. The plea of the State Government is that its powers are derived from the Constitution and its existence and its exercise of powers as executive of the State is guaranteed by the Constitution, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Mr. Justice Chandrachud was of the view that when the States question the constitutional right of the Union Government to dissolve the State Assemblies on the rounds mentioned in the Home Minister's letter to the Chief Ministers a legal, not a political, issue arising out of the existence and extent of a legal right squarely arises and the suits cannot be thrown out as falling outside the purview of Art. 131. The learned Judge proceeded to express his view as follows: "The legal right of the States consists in their immunity, in the sense of freedom from the power of the-Union Government. They are entitled,. under Art. 131, to assert that right either by contending in the absolute that the Centre ham no power to dissolve the Legislative Assemblies or with the qualification that such a power cannot be exercised on the ground stated". Bhagwati and Gupta JJ. were of the view that the exercise of the power in the case would affect the constitutional right of the State to insist that the federal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissions of Inquiry Act, 1952. In this view the question whether section 3 of the Commissions of Inquiry Act, 1952 is ultra vires of the power of Parliament or not does not arise.
it is necessary that Commission of Inquiry should be appointed in order to maintain and safeguard the purity of the Union and the State administration. But such Commission of Inquiry should be strictly in accordance with the, Constitution and should not affect the Centre-' State relationship. The proposal now pending before Parliament for appointment of Lok Pal to conduct such inquiries is a move in the right direction, if sufficient constitutional safeguards are provided for the institution of Lok Pal. In view of the Judgment the first issue whether the suit is maintainable is answered 'in the affirmative. Under Issue No. 2 the impugned notification is ultra vires of the powers of the Central Government conferred on it by Section 3 of the Commissions of Inquiry Act. In this view Issue No. 3 does not arise for consideration The suit has to be decreed as prayed for.
ORDER
In accordance with the view of the majority, the Suit is dismissed with costs.
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