TaxTMI 
TaxTMI 
2017 (7) TMI 1260
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....e assent of the President became an Act with modifications made to Articles 75 and 164 of the Constitution. This Act inter-alia provides under Article 164(1A)^[1] that the size of the Council of Ministers in the State should not exceed 15% of the total strength of the Assembly. 3. At the time of the coming into force of the 91st Constitutional Amendment Act, 2003, the strength of the Council of Ministers in the State of Assam was at 36 out of a total 126 members, amounting to 28.57% of the strength of the Legislative Assembly. In view of the mandate contained in Article 164(1A) the strength of the Council of Ministers was to be brought down to 19 to be consistent with the ceiling of 15% imposed by Article 164(1A). 4. On 3.11.2004, the Assam Parliamentary Secretaries (Appointment, Salaries, Allowances and Miscellaneous Provisions) Ordinance, 2004 was promulgated. On 29.12.2004 THE ACT was passed and published in the Official Gazette of the State of Assam. We may briefly refer to the crucial provisions of the Act; Section 2(c) of the Act defines Parliamentary Secretary as follows:- "'Parliamentary Secretary' means a Member of the Assam Legislative Assembly appointed as th....
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....principle of collective responsibility nor the mandate of the Constitution under the Constitution 91st Amendment is violated. iii. The question of violation of 'basic structure' of the Constitution cannot arise in the context of a legislation. The doctrine is confined only to the Constitutional amendments. 10. The following issues arise out of the above rival submissions: I. Whether the Legislature of Assam is competent to make THE ACT? II. Whether the creation of the office of Parliamentary Secretary would amount to a violation of the constitutionally prescribed upper limit of 15% on the total number of Council of Ministers? III. Whether the concept of a 'Responsible Government' envisaged under various provisions of the Constitution is in any way violated by the impugned enactment and therefore unconstitutional as being violative of the basic structure of the Constitution. IV. Whether the theory of basic structure could be invoked at all to invalidate an enactment which is otherwise not inconsistent with the text of the Constitution. In our opinion, if the answer to any one of the first two issues is in favour of the petitioner, the other two issues need not b....
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.... entries relied upon by the State cannot be construed to authorise the creation of the position of Parliamentary Secretaries. 13. Dealing with the submission of the State of Assam that Entry 39 of the List-II of the 7th Schedule read with Article 246(3) authorises the making of THE ACT the petitioners submitted that: Entry 39^[12] of the State List (List II), speaks of powers, privileges and immunities of the Legislative Assembly and the members of the committees of the legislative assembly and similarly of the legislative council - if there is one. The latter part of the entry refers to enforcement of attendance of persons before committees of the legislature. There is not even the slightest indication in the text of the Entry that it authorises the creation of offices other than those specified in the Entry. The impugned Act neither describes the power of the members of the legislative assembly nor the committees nor their immunities. Instead, the ACT creates offices and makes stipulations regarding the rank, status and functions of Parliamentary Secretaries. Entry 39 corresponds to Article 194 of the Constitution, which deals with the powers, privileges and the immunities ....
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....002) 9 SCC 232]. Since a Parliamentary Secretary is a Member of the Legislative Assembly, it would be within the competence of the State Legislature to enact laws providing for the creation of the post of Parliamentary Secretary. In this view of the matter, it is reiterated that the impugned Act is clearly within the competence of the State Legislature." 16. In our opinion, the State of Assam's reliance on the various extracts from the judgments of this Court is out of the context, ignoring an important caveat contained in the very extract relied upon by the State i.e. "each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be said to be comprehended in it".^[13] 17. However, the more accurate legal position is expounded in Union of India & Others v. Shah Goverdhan L. Kabra Teachers' College, (2002) 8 SCC 228 at para 6: "In view of the rival submissions at the Bar, the question that arises for consideration is whether the impugned legislation can be held to be a law dealing with coordinated development of education system within Entry 66 of List I of the Seventh Schedule or it is a law dealing with the service con....
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....n the Congress by the preceding 17 sub-sections.". 19. The question that arose for consideration in McCulloch case was whether "the Congress" could establish a bank by its legislation. None of the "enumerated powers" in Article 1, Section 8 contain any mention of the power to establish a bank or create a corporation. It was argued that (i) Congress could only legislate w.r.t. the matter expressly enumerated in Section 8 and make only those laws which are "indispensable and without which the power would be nugatory", (ii) that the word "necessary" occurring in sub-section (18) "excludes the choice of means and leaves to Congress in each case that only which is most direct and single". Repelling the above submissions Marshall declared that to provide in the Constitution minute details of every aspect of governance would make the Constitution a very prolix document similar to a legal code. By the nature of the instrument it only contains "the great outlines of the power and important objects sought to be achieved."^[15] The submission that the expression "necessary" in sub-section (18) has a limited import was rejected.^[16] 20. About 100 years later the Privy Council in Jame....
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....ces is recognised by this Court in Synthetics and Chemicals Ltd. & Others v. State of U.P. & Others, (1990) 1 SCC 109 at para 67 that "... The power to legislate is given by Article 246 and other Articles of the Constitution"^[19] - a reiteration of the principle that the power to legislate does not flow from a single Article of the Constitution. 23. Article 246^[20] is one of the sources of authority to legislate under the Constitution of India. It declares that Parliament and the legislatures of the various states have the "power to make laws with respect to any of the matters enumerated" in each of the three lists contained in the Seventh Schedule. It also makes clear that the power of the Parliament is exclusive with respect to List I and that of the State Legislature with respect to List II. List III indicates various fields over which both the Parliament as well as the State legislatures would have authority to legislate concurrently subject of course to the discipline of Article 254. 24. Apart from declaration contained in Article 246, there are various other Articles of the Constitution which confer authority to legislate either on the Parliament or on a State legisla....
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....t indicating the field of such legislation. For example, under Article 3 the Parliament is competent to create or extinguish a State. There is no entry in the List I of the Seventh Schedule indicating that the Parliament could make a law with regard to the creation of a new State or the extinguishment of an existing State. (b) On the other hand, with reference to some of the powers conferred expressly by the text of the Constitution, there is also a corresponding entry in the List. Entries 38, 39 and 40 in List II fall in this category. 30. Article 248^[24] and Entry 97 in the List I in our considered opinion virtually render most of the remaining Entries of List I superfluous, except Entries, such as 52 and 54. By these entries, (which form the exception) the framers of the Constitution carved out certain areas of legislation which otherwise are exclusively within the domain of the competence of the state legislatures. By virtue of the enumeration in Entry 24^[25] of List II, industries would be a subject matter falling exclusively within competence of the State legislation. However, Entry 52^[26] of List I indicates that the Parliament would be competent to legislate wit....
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....he perils of placing a construction on the expressions contained in the various Entries in the three Lists of Seventh Schedule as taking within their sweep, matters that have no rational connection with the subject matter of the Entry. The caution sounded in Shah Goverdhan L. Kabra Teachers' College (supra) that: "... the court sometimes is duty-bound to guard against extending the meaning of the words beyond their reasonable connotation ...". is a constitutional imperative. 31. The doctrine of "widest construction" propounded by Marshall was in the context of the substantive provisions of the Constitution which are the sources of power to legislate and stipulate the areas with respect to which "the Congress" shall have the "legislative power" but not in the context of something like an entry in the 7th Schedule of our Constitution which is not a source of power but only indicative of the field of legislation. Though words and expressions employed in the Constitution must receive widest possible construction, we believe that the principle must be applied with some degree of caution when it comes to the examination of the amplitude of the legislative Entries. There must be ....
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....e President of India by a reference under Article 143^[33] of the Constitution sought the opinion of this Court regarding the constitutionality of the ordinance. 36. The State of Karnataka argued that the ordinance in question fell exclusively within the field of legislation assigned to the States by Article 246 (3) read with Entry 17 of List II. In the absence of any law made by the Parliament dealing with the subject matter of the content of the ordinance in question, the authority of the legislature of Karnataka remained unencumbered. 37. While examining the said submission, this Court had to examine - whether the Inter State Water Disputes Act, 1956 made by the Parliament was a law made in exercise of the authority of the Parliament under Article 246(1)^[34] read with Entry 56^[35] of List I of the Seventh Schedule? This Court reached a conclusion that the Inter State Water Disputes Act, 1956 is not a legislation referable to Entry 56 of List I. It also took note of the fact that none of the Entries in Seventh hearing as it thinks fit, report to the President its opinion thereon Schedule mentioned the topic of adjudication of disputes relating to inter State waters and Ar....
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.... of Article 194^[37] and Entry 39^[38] of List II is this that in the case of inter-State water disputes neither of the abovementioned two Entries make any mention of the adjudication of water disputes and only Article 262 deals with the topic. In the case on hand, the relevant portion of the text of Article 194(3) and Entry 39 of List are almost identical and speak about the "powers, privileges and immunities" of the House, its members and Committees. 40. The question therefore is - whether the text of Article 194(3) and Entry 39 is wide enough to authorise the legislature to make THE ACT? 41. In view of the fact that the text of both Article 194(3) and the relevant portion of Entry 39 are substantially similar, the meaning of the clause "the powers, privileges and the immunities of a House of the Legislature of a State ........ and of the members of a House of such Legislature" must be examined. 42. In ascertaining the meaning of the clause, the scheme of Article 194 and the setting in which the said clause is placed is relevant. Article 194 occurs in Chapter III of Part VI of the Constitution which deals with the States. Chapter II of Part VI deals with the State Execut....
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....sam lacks the competence to make the impugned Act. In view of the above conclusion, we do not see it necessary to examine the various other issues identified by us earlier in this judgment. The Writ Petition is allowed. The impugned Act is declared unconstitutional. --------------------- Notes: 1. Article 164(1A). The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister, in a State shall not be less than twelve; Provided further that where the total number of Ministers, including the Chief Minister, in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date as the President may by public notification appoint. 2....
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....ered after such reconsideration. 7. Article 75 (1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister. 8. Article 163 (1) There shall be a council of Ministers with the chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this constitution required to exercise his functions or any of them in his discretion. 9. Article 164(1) The chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the State of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work. 10. Constituent Assembly Debates (Dated 30.12.1948) on draft Article 61 corresponding to Article 74 of the Constitution - proposed amendments by Prof. K.T.Shah - Page 1146, 1148. 11. In Re: Cauvery Water Disputes Para 62 1....
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....were some of the limitations, found in the ninth section of the 1st article, introduced? It is also, in some degree, warranted by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget, that it is a constitution we are expounding. 16. Is it true, that this is the sense in which the word "necessary" is always used? Does it always import an absolute physical necessity, so strong, that one thing, to which another may be termed necessary, cannot exist without that other? We think it does not. If reference be had to its use, in the common affairs of the world, or in approved authors, we find that it frequently imports no more than that one thing is convenient, or useful, or essential to another. To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea; and nothing is more common than to use....
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....s to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate legislature and is not otherwise disqualified under this constitution or any law made by the appropriate Legislature on the ground of non residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election. 22. Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166, Ramaswami, J. speaking on behalf of the Court, while dealing with the Gold (Control) Act (45 of 1968), observed: "Para 8. ... Before construing these entries it is useful to notice some of the well-settled rules of interpretation laid down by the Federal Court and by this Court in the matter of construing the entries. The power to legislate is given to the appropriate Legislature by Article 246 of the Constitution. The entries in the three Lists are only legislative heads or fields of legislation, they demarcate the area over which the appropriate Legislatures can operate. ..." Union of India v. Harbhajan Singh Dhillon (1971) 2 SCC 779 - Para 22. It mu....
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..... (In the original Constitution Entry 24 didn't find mention of Entries 7 and 52) 26. Entry 52 Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest. 27. Entry 23 Regulation of mines and minerals development subject to the provisions of List I with respect to regulation and development under the control of the Union. 28. Entry 54 Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest. 29. Article 249. Power of Parliament to legislate with respect to a matter in the State List in the national interest. (1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of State has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of Ind....
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....wards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State. (2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State. 32. To release 205 TMC water from its reservoirs located in the State of Karnataka and certain other incidental directions. 33. Article 143. (1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon (2) The President may, notwithstanding anything in the proviso to Article 131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President....
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....y and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State. 39. Article 178. Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be. 40. Article 179. A member holding office as Speaker or Deputy Speaker of an Assembly- (a) shall vacate his office if he ceases to be a member of the Assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and (c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unl....