News By/Courtesy: Nikshetaa Jain | 20 May 2020 13:32pm IST

HIGHLIGHTS

  • Facts of the case: Nationalization of publication, printing and selling of textbooks by the Punjab government
  • Issues Raised: i) Executive could not function without any law for that purpose; ii) Violation of Article 19(1)(g)
  • Held: Both contentions raised by the petitioners were rejected

This article discusses the case of Ram Jawaya Kapur v State of Punjab. Before 1950, the recognized schools in Punjab used only those books which were prescribed by the Education Department of Punjab. In 1950, the state government of Punjab embarked on the policy of nationalizing textbooks. The Government prepared and published textbooks on few subjects without inviting them from publishers or authors. The Government approved only one textbook on each subject for the remaining subjects. In 1952 another notification was passed. According to this notification, the authors of the book were supposed to transfer the copyrights of the book to the State government in place of 5% royalty on the sale of the textbook through a contract. Thus, the publishing, printing, and selling of textbooks were now exclusively with the State government.
Some individuals engaged in this occupation filed a petition under Article 32 of the Constitution against the notification of 1952. The first issue was that the State government, an executive body, could not engage in any trade or business activity without any law being enacted for that purpose. The second issue was that the petitioners were ousted from their business due to the restrictions placed by the Government and thus their fundamental right of carrying any trade or commerce as per Article 19(1)(g) was violated.
There can be no exact definition of executive function. Executive functions will be the residuary functions after removing the legislative and judicial functions from the state function. India has adopted the British parliamentary system where the President and the governor are formal heads, and the executive will always be subject to the legislature. The question arises as to what extent the legislature exercises control over the executive.
 It is not expected that the executive runs to the legislature to seek its permission through special legislation to perform the day-to-day functions. The executive will have the power to issue orders, notifications, etc. to perform its functions subject to article 73 (for the union executive) and article 162 (for the state executive). According to Article 162, the executive power of a State shall extend to the matters concerning which the Legislature of the State has the power to make laws. Thus, the powers of the Executive run parallel to the powers of the legislature. As long as there is umbrella legislation, the executive will have the power to take decisions. 
In this case, the action of the executive was approved by the State legislature through the Appropriation Act. The Appropriation Act contained the expenses to carry on the business of publishing textbooks, and the same was approved by the State legislature. Hence, the first contention of the petitioners was rejected.  
On the issue of violation of fundamental rights, the court held that the notice might have restricted the books used in schools, but still, these publishers were free to approach private book shops for business. Thus, the second contention was also rejected.

Section Editor: Pushpit Singh | 20 May 2020 14:31pm IST


Tags : #Functions of the Executive

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