Bench
A 5-Judge Bench of the Supreme Court:
- B.K. Mukherjea, C.J.
- Vivian Bose, J.
- B. Jagannadhadas, J.
- T.L.V. Venkatarama Ayyar, J.
- Syed Jaffer Imam, J.
Facts
- A writ petition under Article 32 of the Constitution was filed by six petitioners engaged in the business of printing, publishing, and selling textbooks in Punjab.
- They operated under the name “Uttar Chand Kapur & Sons” and had been preparing textbooks for schools, particularly for primary and middle classes.
- In 1950, the Punjab Education Department issued notifications announcing a policy of nationalizing school textbooks.
- These notifications restricted private publishers from printing or selling textbooks, effectively monopolizing the business for the state.
- The petitioners claimed that this violated their fundamental right to carry on their trade under Article 19(1)(g) of the Constitution.
- They further contended that these restrictions were imposed without the authority of law and thus were not protected under Article 19(6).
Issues
- Does the executive government of a state have the power to engage in trade or business without any legislative sanction?
- Can the government monopolize a particular trade (such as textbook publishing) without enacting a law to that effect?
- Does the action of the Punjab government violate the fundamental right to trade under Article 19(1)(g)?
- Does the nationalization policy infringe upon Article 31, which protects the right to property?
Ratio Decidendi (Legal Principle)
- Separation of powers in India is not absolute. The executive can take actions in areas where the legislature has the authority to legislate, provided there is no existing law prohibiting such action.
- Articles 73 and 162 of the Constitution define the scope of executive power for the Union and State governments, allowing them to act in areas where they have legislative authority.
- The state can enter business and trade, but if it wants to create a monopoly, it must pass legislation that meets the requirements of Article 19(6).
- The government’s action did not completely prohibit private publishers from printing books. It only restricted which books could be used in government-recognized schools, which was held not to be a violation of Article 19(1)(g).
- The government did not seize or confiscate the petitioners’ business, so there was no violation of property rights under Article 31.
Observations
- The Indian Constitution does not enforce strict separation of powers like the U.S. Constitution, but it does differentiate between legislative, executive, and judicial functions.
- The executive can act in areas where legislation is possible, even without a specific law, as long as it does not infringe fundamental rights.
- Government monopoly in trade must be backed by legislation, not just executive orders.
- The Punjab Government’s policy did not completely eliminate private publishers—it only affected government-recognized schools, so there was no total exclusion from the trade.
Decision
- The Supreme Court rejected the petitioners’ claim that the government could not enter the business of publishing textbooks.
- However, it held that a complete state monopoly in trade requires proper legislation and cannot be imposed through executive orders alone.
- The Punjab Government’s actions were upheld, as they did not completely ban private businesses, nor did they violate fundamental rights under Articles 19(1)(g) or 31.
Important Terms
Article 32 (Right to Constitutional Remedies)
Article 32 allows individuals to approach the Supreme Court directly if their fundamental rights are violated. In this case, the petitioners filed a writ petition under Article 32, claiming that their right to trade under Article 19(1)(g) was being violated.
Article 19(1)(g) (Right to Trade and Business)
This guarantees every citizen the right to practice any profession or carry on any occupation, trade, or business. However, Article 19(6) allows the government to impose reasonable restrictions, including creating state monopolies through legislation. In this case, the Punjab Government did not impose a total ban on private publishers, so there was no violation of Article 19(1)(g).
Article 19(6) (Reasonable Restrictions on Trade)
This article permits the government to impose restrictions on trade in the public interest. It also allows the government to carry on trade or business and even create state monopolies through proper legislation. The Punjab Government should have passed a law instead of just issuing executive notifications.
Article 31 (Right to Property) [Before It Was Repealed]
At the time, Article 31 protected property rights from being taken away by the government without compensation. The petitioners argued that their business was being taken away, but the Court ruled that no property was actually confiscated.
Separation of Powers
The concept that legislative, executive, and judicial powers should be distinct. The Supreme Court held that India does not follow strict separation of powers like the USA. The executive can take actions that fall under legislative powers, as long as there is no specific law restricting them.
Articles 73 and 162 (Scope of Executive Power)
Article 73 defines the executive power of the Union, while Article 162 defines the executive power of the States. The executive can act in matters where legislation is possible, even without an existing law. However, if a government wants to create a monopoly, it must pass a proper law.
