REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFERRED CASE (CIVIL) NO.169 OF 2006

Bimolangshu Roy (Dead) Through LRs … Petitioners

Versus

State of Assam & Another … Respondents

J U D G M E N T

Chelameswar, J.

1. Transferred Case  (Civil)  No.169 of  2006 arises out  of

Writ Petition, PIL NO.30/2005 on the file of the High Court of

Gauhati.    The  vires  of  Assam  Parliamentary  Secretaries

(Appointment,  Salaries,  Allowances  and  Miscellaneous

Provisions) Act, 2004 (hereafter THE ACT) is questioned in

the writ petition.    

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2. Brief facts of the case are as follows:

On  1.1.2004  the  Constitution  91st  Amendment  Bill,

2003 was passed by both the Houses of Parliament.  This Bill

after  the  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).

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.

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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  the  Parliamentary Secretary under this Act by the Chief Minister.”

Section 3 stipulates;  

“The Chief Minister may, having regard to the circumstances and  the  need  of  the  situation,  at  any  time  appoint  such number of Parliamentary Secretaries and assign to each of them such duties  and functions as he  may deem fit  and proper.”

Section 4 declares that Parliamentary Secretary should

be of the rank and status of a Minister of State and exercise

such powers,  discharge  such  functions  and  perform such

duties as may be assigned to him by the Chief Minister.2

2 Section 4 – A Parliamentary Secretary shall be of the rank and status of a Minister of State and shall exercise such powers, discharge such functions and perform such duties as may be assigned to him by the Chief Minister by way of a notification published in the official Gazette.

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Section 7 deals with the salary and allowances of the

Parliamentary Secretary.3

5. Writ Petition (PIL) No.30/2005 was filed on 13.04.2005

in  the  Hon’ble  High  Court  of  Gauhati  challenging  the

constitutional validity of THE ACT.  On 24.01.2006, the High

Court of Gauhati adjourned the hearing of the said PIL in

light of similar matters involving the same questions of law

which had come up for  hearing  in  this  Court  in  SLP No.

22038 of 2005 (State of Himachal Pradesh v. Citizen Rights

Protection Forum).

6. On  30.05.2005,  Eight  Parliamentary  Secretaries  were

appointed in exercise of the power under THE ACT and they

took oath of office, but were not assigned any ministry.

7. On  21.08.2006,  this  Court  has  allowed  the  Transfer

Petition (C) No. 433 of  2006 filed by the Petitioners under

Article  139A of the Constitution.    The transferred case is

registered as Transferred Case (Civil) No. 169 of 2005.4

3 Section 7.  A Parliamentary Secretary shall be entitled to such salary and allowances as are admissible to a Minister of State under the Assam Ministers, Ministers of State and Deputy Ministers Salaries and Allowances Act, 1958. 4 On 08/05/2007 the Petitioners moved an interlocutory application (I.A. No. 1/2007) in the Supreme Court in order to stay the operation of the Act.

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8. The case of the petitioners is that:

(i) The legislature of  State  of  Assam does not  have

competence to enact THE ACT;

(ii) THE ACT is violative of the constitutional mandate

under Article 164 (1A)5 which stipulates an upper

limit  of  15%  as  the  strength  of  the  Council  of

Ministers;

(iii) That  THE  ACT  is  intended  to  over-reach  the

mandate of the Constitution Amendment Act and

hence a fraud upon constitution;

(iv) Responsible government is a basic feature of the

Constitution and THE ACT is violative of the basic

structure of the Constitution.

9. The Respondent’s case is that,

5 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 States of Chhattisgarh, Jharkhand, Madhya Pradesh and Odisha 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.  (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.

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i. That  the  State  of  Assam  has  the  legislative

competence  to  make  the  impugned  legislation

under Entry 39 of the List II of the 7th Schedule to

the Constitution;

ii. That  the  functions  of  Parliamentary  Secretary

under THE ACT are different from the functions of

a  Minister  and therefore  neither  the  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?

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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 be

examined.  

THE COMPETENCE OF THE STATE OF ASSAM TO PASS THE ACT:

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11. Elaborating the 1st submission, the Petitioners argued

that the Political Executive (both national and state level) is

the creation of the Constitution itself.  Articles 74(1)6, 75(1)7,

163(1)8 and 164(1)9 of the Constitution create the offices of

the  Prime  Minister,  Chief  Minister  and  other  Ministers

respectively.  The framers of the Constitution were aware of

the  different  offices  in  vogue  (such  as  Parliamentary

Secretaries, Deputy Ministers etc)  in various parliamentary

democracies but chose to make provisions for only the office

of ‘Minister’.10 The word ‘shall’ in these articles indicates that

no other office of  the political  executive can be created by

legislation either of the Parliament or State legislature.

6 Article 74 (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act  in accordance with such advice: Provided  that  the  President  may require  the  council  of  Ministers  to  reconsider  such  advice,  either generally or otherwise, and the President shall act in accordance with the advice tendered 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.

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12. In  support  of  their  submission,  the  petitioners  relied

upon  the  judgment  in  the  case  of  Cauvery  Water

Disputes11.  This  Court  while  dealing with the  Inter-State

Water Disputes Act, 1956, held that the said legislation did

not fall within the ambit of the Entry 56 of the Union List,

this Court opined so because of the presence of Article 262 of

the  Constitution  which  is  dedicated  to  the  question  of

inter-state water disputes.  The petitioners placed reliance on

para 62 of the said judgment:

“It  cannot  be  disputed  that  the  Act,  viz.,  the  Inter-State Water Disputes Act, 1956 is not a legislation under Entry 56. In  the  first  instance  Entry  56  speaks  of  regulation  and development of inter-State rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Secondly, and even  assuming  that  the  expression  "regulation  and development"  would  in  its  width,  include  resolution  of disputes arising therefrom and a provision for adjudicating them,  the  Act  does  not  make  the  declaration required  by Entry 56. This is obviously not an accidental omission but a deliberate disregard of the Entry since it is not applicable to the  subject-matter  of  the  legislation.  Thirdly,  no  Entry  in either of the three Lists refers specifically to the adjudication of disputes with regard to inter-State river waters.”12

and argued that the presence of provisions dedicated to the

creation of a Political Executive oust the competence of the

state legislature to make THE ACT and various entries relied

11 (1993) Supp. 1 SCC 96 (II) 12 In Re: Cauvery Water Disputes Para 62

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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 3913 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

13 Entry 39. Powers, privileges and immunities of the Legislative Assembly 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.

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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  of  the  House  of  legislatures  and  of  the

members  and  committees  thereof.  Article  194(3)

authorises the State legislature to prescribe by law, the

powers, privileges and the immunities of the members

and the committees of a House of such Legislature but

does not make any mention of the authority to create

new offices.  

14. On the other hand, the respondents argued that Entry

39 of List II  of the Seventh Schedule indicates the field of

legislation regarding the powers, privileges, and immunities

of  the  house  of  legislatures.   It  should  not  be  read  in  a

“narrow  restricted  sense”  and  the  words  occurring  in  the

entry  must  be  interpreted  as  extending  and  including  all

ancillary  and  subsidiary  matters  which  can  be

comprehended  in  it.  Since  a  Parliamentary  Secretary  is  a

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member of the legislative assembly, it would be within the

competence of the State legislature to make the ACT.

15. The stand of the State of Assam is reflected in a reply

affidavit  on  behalf  of  the  State  in  I.A.  No.1  of  2007  in

Transferred Case (Civil) No. 169 of 2006.  Relevant portion of

the affidavit reads as follows:-

“It is submitted that it is well settled that legislative entries should  be  given  the  broadest  possible  interpretation  and cannot be read in a restrictive manner.   Entry 39 covers “powers, privileges and immunities …. of the members” of a Legislative Assembly.   This Hon’ble Court has, on various occasions,  held that the Legislative entries “should not  be read in a narrow or pedantic sense but must be given their fullest  meaning  and the  widest  amplitude  and be  held  to extend  to  all  ancillary  and  subsidiary  matters  which  can fairly and reasonably be said to be comprehended in them.” It has also observed that “the cardinal rule of interpretation is that the entries in the legislative lists are not to be read in a  narrow  or  restricted  sense  and  that  each  general  word should  be  held  to  extend  to  all  ancillary  or  subsidiary matters  which  can  fairly  and  reasonably  be  said  to  be comprehended  in  it.   The  widest  possible  construction, according  to  the  ordinary  meaning  of  the  words in  entry, must be put upon them.”   [Gujarat University Vs. Krishna Ranganath 1963 Supp (1) SCR 112; Express Hotels (P) Ltd. Vs.  State  of  Gujarat  (1989)  3  SCC  677;  R.S.  Rekhchand Mohata  Spinning  and  Weaving  Mills  Ltd.  vs.  State  of Maharashtra  (1997)  6  SCC  12;  ITC  Ltd.  vs.  Agricultural Produce Market  Committee  (2002)  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.”

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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”.14

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 conditions  of  an  employee  under  the  State  Government. The power to legislate is engrafted under Article 246 of the Constitution and the various entries for the three lists of the Seventh Schedule are the “fields of legislation”. The different entries being legislative heads are all of enabling character and are designed to define and delimit the respective areas of legislative  competence  of  the  Union  and  the  State Legislatures.   They neither impose any restrictions on the legislative power nor prescribe any duty for exercise of the legislative power in any particular manner.   It has been a cardinal principle of construction that the language of the entries  should  be  given  the  widest  scope  of  which  their meaning is fairly capable and while interpreting an entry of any list it would not be reasonable to import any limitation therein.  The rule of widest construction, however, would

14 India Cement Ltd. & Others v. State of Tamil Nadu & Others, (1990) 1 SCC 12 “18. … Hence, the language of the entries should be given widest scope, to find out which of the meaning is fairly capable because these set up machinery of the government.   Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. …”

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not enable the legislature to make a law relating to a matter  which  has  no  rational  connection  with  the subject-matter of an entry.  When the vires of enactment is  challenged, the  court  primarily  presumes  the constitutionality of  the statute by putting the most liberal construction  upon the  relevant  legislative  entry  so  that  it may have  the  widest  amplitude and the  substance  of  the legislation  will  have  to  be  looked  into.    The  court sometimes is duty-bound to guard against extending the meaning  of  the  words  beyond  their  reasonable connotation  in  anxiety  to  preserve  the  power  of  the legislature.  

18. The  jurisprudential  basis  for  the  “rule  of  widest

construction”  is  the  hallowed belief  that  a  Constitution  is

drafted  with  an  eye  on  future  providing  a  continuing

framework for exercise of governmental power.   Therefore, it

must  be  elastic  enough  to  meet  new  social,  political  and

historical  realities  often unimagined by the  framers  of  the

Constitution15.  

Chief  Justice  Marshall’s  celebrated  statement  in

McCulloch  case16 that  “…  we  must  never  forget  that  it  is  a

constitution we are  expounding”  is the starting point.  It  was a

statement made in the context of the interpretation of Article

15 Hunter v. Southam Inc., (1984) 2 SCR 145, Canadian Supreme Court –  Para 47.   …..“The task of expounding a constitution is crucially different from that  of construing a statute.    A statute defines present rights and obligations.   It is easily enacted and as easily repealed.   A constitution, by contrast, is drafted with an eye to the future.   Its function is to provide a continuing framework for the legitimate exercise of governmental power and, when joined by a Bill or a charter of rights, for the unremitting protection of individual rights and liberties.   Once enacted, its provisions cannot easily be repealed or amended.   It  must, therefore, be capable of growth and development over time to meet new social, political and historical realities often unimagined by its framers.   The judiciary is the guardian of the constitution and must, in interpreting its provisions, bear these considerations in mind. 16 McCulloch v. Maryland, 17 US 316 (1819)  

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I of the US Constitution which declares the authority of “the

Congress”  to  perform  various  functions  enumerated  in

sub-sections (1) to (17) of Section 8 and under sub-Section

(18) “to make all laws necessary and proper to carrying into execution

of  the  powers  vested  in  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

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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.”17 The

submission that  the  expression “necessary”  in  sub-section

(18) has a limited import was rejected.18

20. About 100 years later the Privy Council  in  James v.

Commonwealth of Australia, (1936) AC 578 observed that

a “Constitution must not  be construed in any narrow and

pedantic sense” (See Lord Wright at Page 614).    

17  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, therefore, 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.  That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language.  Why else 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.

18 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 words in a figurative sense.  Almost all compositions contain words, which, taken in their rigorous sense, would convey a meaning different from that which is obviously intended. It  is  essential  to  just  construction,  that  many words  which  import  something  excessive,  should  be understood  in  a  more  mitigated  sense  –  in  that  sense  which  common  usage  justifies.   The  word “necessary” is of this description.  It has not a fixed character peculiar to itself.  It admits of all degrees of comparison; and is often connected with other words, which increase or diminish the impression the mind receives  of  the  urgency it  imports.   A thing  may be  necessary, very necessary, absolutely or indispensably necessary.  To no mind would the same idea be conveyed, by these several phrases.

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Relying on the above-mentioned celebrated statements,

the  Federal  Court  in  the  case  of  Central  Provinces  and

Berar  Sales  of  Motor  Spirit  and  Lubricants  Taxation

Act,  1938,  (1939)  1  FCR 18,  Gwyer,  CJ  observed  that  “I

conceive that a broad and liberal spirit should inspire those whose duty

it  is to interpret it;  but I  do not imply by this that they are free to

stretch or pervert the language of the enactment in the interests of any

legal  or  constitutional  theory,  or  even  for  the  purpose  of  supplying

omissions or of correcting supposed errors.”

21. The  authority  to  make  law  flows  not  only  from  an

express grant of  power by the Constitution to a legislative

body  but  also  by  virtue  of  implications  flowing  from  the

context  of  the  Constitution  is  well  settled  by  the  various

decisions of the Supreme Court of America in the context of

American Constitution.  A principle which is too well settled

in all the jurisdictions where a written Constitution exists.

The US Supreme Court  also recognised that  the Congress

would have the authority to legislate with reference to certain

matters because of the fact that such authority is inherent in

the  nature  of  the  sovereignty.   The  doctrine  of  inherent

powers was propounded by Justice Sutherland in the context

1717

of the role of the American Government in handling foreign

affairs and the limitations thereon.19

In substance, the power to make the legislation flows

from various sources: (1) express text of the Constitution; (2)

by implication from the scheme of the Constitution; and (3)

as an incident of sovereignty.  

22. Unlike the American Constitution, we chose to adopt a

Constitution  which  regulates  and  structures  not  only  the

authority of the federal government but also the components

of the Federation (States and now20 even the local bodies).

Coming to the question of the authority of the legislatures

(Federal  and  State)  we  are  of  the  opinion  that  analysis

adopted by the US Supreme Court is equally good for our

Constitution with  appropriate  modifications,  because  there

are areas where the two Constitutions differ substantially.   

However, the principle that the power to legislate under

the  Indian  Constitution  can  flow  from  various  sources  is

recognised by this Court in Synthetics and Chemicals Ltd.

19 United States v. Curtiss – Wright Export Corp. , 299 U.S. 304, 81 L. Ed. 255  20 After the Constitution 73rd Amendment

1818

& 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”21 -  a reiteration of the principle

that the power to legislate does not flow from a single Article

of the Constitution.   

23. Article  24622 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

21 See also  1995 Supp. (1)  SCC 596 para 7 -  Jilubhai Nanbhai Khachar v. State of Gujarat & Another

“the legislature derives its power from Article 246 and other related Articles of the  Constitution”

22  Article 246. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect  to any of the matters enumerated in List  I in the Seventh Schedule (in this Constitution referred to as the “Union List”).  

(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the “Concurrent List”).  

(3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the “State List”).  

(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a State notwithstanding that such matter is a matter enumerated in the State List.

1919

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

legislature, as the case may be in various circumstances. For

example, Article 3 authorises the Parliament to make a law

either  creating  a  new  State  or  extinguishing  an  existing

State.   Such  a  power  is  exclusively  conferred  on  the

Parliament.   

25. Article 32623 while declaring a right of every citizen who

is not less than 18 years of age to register as a voter at any

election  to  the  House  of  the  People  or  to  the  legislative

assembly of a State, authorises the appropriate legislature to

disqualify any such citizen to be a voter on any one of the

grounds specified under Article 326 by making a law. The

23 Article 326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.—The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is 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.

2020

authority to make such a law obviously flows directly from

the  text  of  Article  326 but  not  from Article  246.  See  also

Articles 2, 3, 11, 15(5), 22(7), 32(3), 33, 34, 59(3), 70, 71(3),

98(2).  The Articles mentioned above are only illustrative but

not exhaustive of the category.

26. It must be remembered that this Court repeatedly held24

that the entries in the various lists of the Seventh Schedule

are  not  sources  of  the  legislative  power  but  are  only

indicative of the fields w.r.t. which the appropriate legislature

is competent to legislate.   

24  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 must be remembered that  the function of the lists is not to confer powers; they merely demarcate the legislative field . The Federal Court, while interpreting the Government of India Act in The Governor General in Council v. The Releigh Investment Co., observed :

“It would not be right to derive the power to legislate on this topic merely from the reference to it in the List, because the purpose of the Lists was not to create or confer powers, but only to distribute between  the  Federal  and  the  Provincial  Legislatures  the  powers  which  had  been  conferred  by Sections 99 and 100 of the Act.”    

Synthetics and Chemicals Ltd. and Others v. State of U.P. and Others (1990) 1 SCC 109 –  “Para 67. …The power to legislate is given by Article 246 and other Articles of the Constitution . The  three  lists  of  the  Seventh  Schedule  to  the  Constitution  are  legislative  heads  or  fields  of legislation.  These demarcate the area over which the appropriate legislatures can operate.   It is well settled that widest amplitude should be given to the language of the entries in three Lists but some of these entries in different lists or in the same list may override and sometimes may appear to be in direct conflict with each other, then and then only comes the duty of the court to find the true intent and purpose and to examine the particular legislation in question.   Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be comprehended in it. …”

2121

27. The task of  this  Court  in  identifying the  scope of  an

entry in the Lists contained in the Seventh Schedule is not

easy.  While examining the scope of the entries this Court

must  necessarily  keep  in  mind  the  scheme  of  the

Constitution relevant in the context of the Entry in question.

28. A broad pattern can be identified from the scheme of

the three lists, the salient features of which are (i) Fields of

legislation perceived to be of importance for sustaining the

federation,  are  exclusively  assigned  to  the  Parliament,  (ii)

State  legislatures  are  assigned  only  specified  fields  of

legislation  unlike  the  US  Constitution,  (iii)  Residuary

legislative  power is  conferred in the Parliament;  (iv)  taxing

entries are distinct from the general entries25, and (v) List III

does not contain a taxing entry,

29. At the same time, it can also be noticed that there is no

logical uniformity in the scheme of the three lists contained

in the Seventh Schedule.

25 M/s. Hoechst Pharmaceuticals Ltd. & Others v. State of Bihar & Others, (1983) 4 SCC 45,  “Para 74 – It is equally well settled that the various entries in the three Lists are not ‘powers’ of legislation, but ‘fields’ of legislation.   The power to legislate is given by Article 246 and other Articles  of  the Constitution.  Taxation is  considered to be a distinct  matter for purposes of legislative competence.  Hence, the power to tax cannot be deduced from a general legislative entry as ancillary power. …”

2222

(a) Power to legislate is conferred by some of the Articles by

an express grant either on the Parliament or the State

Legislature  to  make  laws  with  reference  to  certain

matters specified in each of those Articles but there is

no  corresponding  entry  in  the  corresponding  list

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  24826 and  Entry  97  in  the  List  I  in  our

considered  opinion  virtually  render  most  of  the  remaining

26 Article 248.  Residuary powers of legislation.—(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.

(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.

2323

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 2427 of List II, industries would be a

subject matter falling exclusively within competence of  the

State legislation. However, Entry 5228 of List I indicates that

the Parliament would be competent to legislate with respect

to ‘industries’, “the control of which by the Union of India is

declared  by  the  Parliament  to  be  expedient  in  the  public

interest”.   Similarly,  regulation  and  development  of  mines

and minerals would be a matter which is exclusively within

the competence of the State legislature under Entry 2329 of

List II but for Entry 5430 of List I.  We would like to mention

here that notwithstanding the general stipulations contained

in Article  246 regarding the competence of  the Parliament

27 Entry  24  Industries  subject  to  the  provisions  of  entries  7  and  52  of  List  I.  (In  the  original Constitution Entry 24 didn’t find mention of Entries 7 and 52) 28 Entry 52 Industries,  the control  of which by the Union is declared by Parliament by law to be expedient in the public interest. 29 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. 30 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.   

2424

and the state legislatures with respect to the various fields of

legislation, Articles 24931, 25032 and 25233 contain provisions

which enable the Parliament to legislate with respect to any

matter enumerated in List  II  in the exigencies specified in

those Articles.  The Scheme of Entries, such as 52 and 54

and the corresponding Entries in the List-II in our opinion is

nothing but another instance of special arrangement akin to

31 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 India with respect to that matter while the resolution remains in force.

(2) A resolution passed under clause (I) shall remain in force for such period not exceeding one year as may be specified therein:

Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed in the manner provided in clause (I), such resolution shall continue in force for a further period of one year from the date on which under this clause it would otherwise have ceased to be in force.

(3) A law made  by Parliament  which  Parliament  would  not  but  for  the  passing  of  a resolution under clause (I) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.  32 Article  250.  Power of  Parliament  to  legislate  with respect  to  any matter  in  the State List  if  a Proclamation of Emergency is in operation.  (1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to any of the matters enumerated in the State List.

(2) A  law  made  by  Parliament  which  Parliament  would  not  but  for  the  issue  of  a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.  33 Article 252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State.  (1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards 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.  

2525

the  one  made  in  Articles  249,  250  and  252.   Perhaps,

incorporation  of  another  Article  stipulating  that  the

Parliament would be competent to legislate with reference to

the  fields  of  legislation  contained  in  Entries  23  and  24

whenever Parliament declared that it would be “expedient in

public  interest”  to  legislate  upon those  topics  would  have

achieved the purpose.  We may not be understood as sitting

in judgment over the wisdom of framers of the Constitution.

We are only pointing out the possibility of achieving results

sought  to  be  achieved  by  Entries  52  and  54  by  adopting

another model of drafting.  Such a model is already resorted

to by the framers of the Constitution in making provisions of

Articles 249 and 250 etc.  

Our endeavour is only to demonstrate that a great deal

of  examination of  the scheme of  the entire Constitution is

essential while interpreting the scope of each of the Entries

contained in the three Lists of the Seventh Schedule and no

rule  which has  a  universal  application with  regard to  the

interpretation  of  all  entries  in  the  7th Schedule  can  be

postulated.   The  statement  of  Chief  Justice  Gwyer  that  a

2626

broad and liberal spirit should inspire those whose duty is to

interpret the Constitution and the legislative entries should

not  be  read  in  a  narrow  or  pedantic  sense,  cannot  be

understood  as  a  sutra valid  for  all  times  and  in  all

circumstances.  We have already noticed that this court on

more than one occasion cautioned about the 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

2727

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

some  distinction  between  a  provision  of  the

Constitution which confers power to legislate (source

of power) and an Entry in one of the 3 lists of the 7th

Schedule which are not sources of power but are only

indicative  of  the  fields  of  legislation.   Any

construction which would run counter to the scheme

of the Constitution relevant in the context must be

avoided.   

2828

32. As rightly pointed out by the petitioners, the existence

of  a  dedicated  article  in  the  Constitution  authorizing  the

making of law on a particular topic would certainly eliminate

the possibility of the existence of the legislative authority to

legislate in Article 246 read with any Entry in the Seventh

Schedule indicating a field of legislation which appears to be

closely associated with the topic dealt with by the dedicated

article.   For  example  even if  the  Constitution were  not  to

contain Entries 38, 39, 40 in List II the State Legislatures

would  still  be  competent  to  make  laws  w.r.t.  the  topics

indicated  in  those  3  entries,  because  of  the  authority

contained in Articles 164(5), 186, 194, 195 etc.   Therefore, to

place a construction on those entries which would have the

effect of enabling the concerned legislative body to make a

law not within the contemplation of the said Articles would

be plainly repugnant to the scheme of the Constitution.    

33. Cauvery  Water  Disputes34 may  not  be  an  exact

authority  for  the  proposition  of  law  advanced  by  the

petitioners.   But  the  logical  extension  of  the  principle

34 1993 Supp. (1) SCC 96 (II)

2929

enunciated in  Cauvery would certainly support the case of

the petitioners.

34. To understand the principle laid down in  Cauvery, we

need to examine the factual background of the case and the

issue (relevant) that arose therefrom.   

35. There  has  been a  long standing  dispute  between the

States  of  Karnataka  and  Tamil  Nadu with  regard  to  their

respective  rights  to  the  water  of  river  Cauvery.   For  the

resolution of the said dispute, a tribunal was constituted by

a notification dated 2nd June 1990 of the Government of India

in exercise of the power under the Inter State Water Disputes

Act, 1956.  On an interlocutory application filed by the State

of  Tamil  Nadu,  by  an  order  dated  25th June  1991,  the

tribunal gave certain directions35 to the State of Karnataka.

Thereupon,  the  State  of  Karnataka  issued  an  ordinance

nullifying  the  directions  of  the  tribunal  referred  to  above.

The President of India by a reference under Article 14336 of

35 To release 205 TMC water from its reservoirs located in the State of Karnataka and certain other incidental directions. 36 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

3030

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)37 read with

Entry 5638 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 37 Article 246. (1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the “Union List”). 38 Entry 56. Regulation and development of inter-State rivers and river valleys 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

3131

Schedule  mentioned  the  topic  of  adjudication  of  disputes

relating  to  inter  State  waters  and  Article  26239 of  the

Constitution specifically provides for such adjudication.

“62. It  cannot  be  disputed  that  the  Act,  viz.,  the Inter-State Water Disputes Act, 1956 is not a legislation under Entry 56.  In the first instance, Entry 56 speaks of regulation and development of inter-State rivers and river valleys and does not relate to the disputes between the riparian States with regard to the same and adjudication thereof. Secondly, and even assuming that the expression “regulation and development” would in its width, include resolution of disputes arising therefrom and a provision for  adjudicating  them,  the  Act  does  not  make  the declaration required by Entry 56.  This is obviously not an accidental omission but a deliberate disregard of the entry since it is not applicable to the subject matter of the legislation.   Thirdly,  no  entry  in  any  of  the  three  lists refers  specifically  to  the  adjudication  of  disputes  with regard to inter-State river waters.

63. The reason why none of the Entries in the Seventh Schedule  mention the  topic  of  adjudication of  disputes relating to the inter-State river waters is not far to seek. Article  262  of  the  Constitution  specifically  provides  for such adjudication. …”

67.  ...  Since  the  subject  of  adjudication  of  the  said disputes is taken care of specifically and exclusively by Article  262,  by  necessary  implication  the  subject stands excluded from the field covered by Entries 56 and 17.   It  is  not,  therefore,  permissible either for  the Parliament  under  Entry  56  or  for  a  State  legislature under  Entry  17  to  enact  a  legislation  providing  for adjudication  of  the  said  disputes  or  in  any  manner affecting  or  interfering  with  the  adjudication  or adjudicatory  process  of  the  machinery  for  adjudication established by law under Article 262. ...”

39 Article  262. (1) Parliament may by law provide for the adjudication of any dispute or complaint  with  respect  to  the  use,  distribution  or  control  of  the  waters  of,  or  in,  any inter-State river or river valley. (2) Notwithstanding anything in this Constitution, Parliament may by  law  provide  that  neither  the  Supreme Court  nor  any  other  court  shall  exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).

3232

38. The ordinance was found to be beyond the legislative

competence  of  the  State  of  Karnataka.   Because  of  the

existence of a dedicated article empowering the Parliament to

make laws for the adjudication of inter-State water disputes

the  subject  stood  by  implication  excluded  from  the  field

covered  under  Entries  56  or  17  and  the  ordinance  in

substance  had  the  effect  of  interfering  with  “adjudication

process of the machinery for adjudication established by law

under Article 262”.  

39. The distinction between the scheme of Article 262 Entry

56 of List I and Entry 17 of List II and the scheme of Article

19440 and Entry  3941 of  List  II  is  this  that  in  the  case  of

inter-State water disputes neither of the abovementioned two

40 Article  194.  (1)  Subject  to  the  provisions  of  this  Constitution  and  to  the  rules  and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.  (2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of  anything said  or  any vote given by him in the Legislature or  any committee thereof,  and  no person  shall  be so  liable  in  respect  of  the  publication  by  or  under  the authority of a House of such a Legislature of any report, paper, votes or proceedings.  (3)  In  other  respects,  the  powers,  privileges  and  immunities of  a  House  of  the Legislature of  a State,  and  of the members and the committees  of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, 1 [shall be those of that House and of its members and committees immediately  before the coming into  force of  section  26 of  the Constitution  (Forty-fourth Amendment) Act, 1978].  (4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take 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. 41 Entry 39. Powers, privileges and immunities of the Legislative Assembly 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.

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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 Executive.  Chapter III deals with

the State Legislature. Various articles of Chapter III provide

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for  establishment  of  a  legislature  (either  unicameral  or

bicameral),  the  composition  of  such  legislative  bodies,  the

qualifications for  membership of  the  legislative  bodies and

their durations, the offices of the legislature and their powers

and responsibilities and all other allied matters.   

43. Article  194  deals  exclusively  with  the  powers  and

privileges  of  the  legislature,  its  members  and  committees

thereof.  While clause declares that there shall be freedom of

speech  in  the  Legislature  subject  to  the  limitations

enumerated therein, clause (2) provides immunity in favour

of the members of the Legislature from any legal proceedings

in any court  for  anything  said  or  any vote  given by  such

members  in  the  Legislature  or  any  Committees  etc.

Sub-clause  (3)  deals  with  the  powers,  privileges  and

immunities of a House of the Legislature and its members

with respect to matters other than the ones covered under

clauses (1) and (2).

44. Thus, it can be seen from the scheme of Article 194 that

it does not expressly authorise the State Legislature to create

offices  such as  the  one  in  question.   On the  other  hand,

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Article 17842 speaks about the offices of Speaker and Deputy

Speaker.  Article 17943 deals with the vacation of those offices

or resignations of incumbents of those offices whereas Article

18244 and  18345 deal  with  the  Chairman  and  Deputy

Chairman  of  the  Legislative  Council  wherever  the  Council

exists.   In  our  opinion,  the  most  crucial  article  in  this

Chapter is Article 18746 which makes stipulations even with

42 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. 43 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 unless at least fourteen days' notice has been given of the intention to move the resolution: Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate  his  office  until  immediately  before  the  first  meeting  of  the  Assembly  after  the dissolution. 44 Article 182. The Legislative Council of every State having such Council shall, as soon as may be,  choose  two  members  of  the  Council  to  be  respectively  Chairman  and  Deputy Chairman thereof  and,  so often as the office of Chairman or Deputy Chairman becomes vacant, the Council shall choose another member to be Chairman or Deputy Chairman, as the case may be. 45 Article  183. A member holding office as Chairman or Deputy Chairman of a Legislative Council—  (a) shall vacate his office if he ceases to be a member of the Council;  (b) may at any time by writing under his hand addressed, if such member is the Chairman, to the Deputy Chairman and if  such member is the Deputy Chairman, to the Chairman, resign his office; and  (c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council:  Provided that no resolution for the purpose of  clause (c) shall  be moved unless at  least fourteen days' notice has been given of the intention to move the resolution. 46 Article  187. (1) The House or each House of the Legislature of  a State shall have a separate  secretarial  staff:  Provided  that  nothing  in  this  clause  shall,  in  the  case  of  the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature. (2) The Legislature of a State may by law regulate the recruitment,  and the conditions of  service of  persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State. (3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.

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reference to the secretarial staff of the Legislature.  On the

face  of  such  elaborate  and  explicit  constitutional

arrangement with respect to the Legislature and the various

offices connected with the legislature and matters incidental

to  them  to  read  the  authority  to  create  new  offices  by

legislation would be a wholly irrational way of construing the

scope  of  Article  194(3)  and  Entry  39  of  List  II.   Such  a

construction would be enabling the legislature to make a law

which has no rational connection with the subject matter of

the  entry.   “The  powers,  privileges  and  immunities”

contemplated by Article 194(3) and Entry 39 are those of the

legislators qua legislators.

45. For the above-mentioned reasons, we are of the opinion

that the Legislature of Assam 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.  

..….....................................J.

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         (J. CHELAMESWAR)

….......................................J.   (R.K. AGRAWAL)

……..………….....................J.           (ABHAY MANOHAR SAPRE)

New Delhi July 26, 2017

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