# 13 S.C.R. 301 BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF ASSAM & ANOTHER

- **Citation:** [2017] 13 S.C.R. 301
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Bench:** J. Chelameswar, R. K. Agrawal, Abhay Manohar Sapre
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-s-c-r-301-bimolangshu-roy-dead-through-lrs-v-state-of-assam-another-31799
- **Pages:** 29

## Headnote

Constitution of India:
A
B
Art. 194(3) r!w Entry 39 of List II of VII Schedule - Scope C
of - By Constitution 91" Amendment. Art. 164 was amended whereby
the size of the Council of Ministers in the State was curtailed to
15% of the total strength of the Assembly - The strength of the
Council of Ministers in State of Assam was 36 out of total strength
of Assembly being 126, amounting to 28.57% - State of Assam D
passed Assam Parliame/lfary Secretaries (Appointment. Salaries,
Allowances and Miscellaneous Provisions) Act, 2004, whereby
member of Assembly were to he appoimed as 'Parliamentary
Secretaries· by the Chit;( Mini~ter - They were to be of the rank and
status of a Minister of State - Writ Petition (PIL) was filed before
High Court. challenging the constitutional validity of the Act - The
E
petition was transferred to Supreme Court - Held: The legislature
of State of Assam did not have competence to enact the Act - Scheme
of Art. 194. which deals with powers and privileges of the
Legislature. does not expressly alllhorise the State Legislature to
create offices such as the one in question - Reading the authority
to create new offices by legislation would be a wholly irrational
F
way of construing the scope ofAn.194(3) and Ent1y 39 of List II -
The "powers privileges and immunities" comemplated by Art. 194(3)
and Entry 39 are those of the legislators qua legislators.
Schedule VII - Entries in the Lists - Scope - Imerpretation
of - Held: A great deal of examination of the scheme of the entire
G
Constitution is essential while interpreting the scope of each of the
Entries - No rule which has a universal application with regard to
the interpretation of all the entries in the Vll Schedule can he
postulated - An Entry in VII Schedule is not a source of power. but
301
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SUPREME COURT REPORTS
[2017) 13 S.C.R.
A
is only indicative of 1he field of legislation - Though words and
expressions in Constitution must receive widest possible
construction. the principle must be applied with some degree of
caution when ii comes to examination of amplitude of Legislative Entries.
Art. 246 - Scope of - Held: Existence of a dedicated Article
B
in the Consti111tiun authorizing the making of Jaw on a particular
topic, eliminates the possibility of existence of legislative authority
to legis/ute i71 Art. 246 rlw any Entry in the Seventh Schedule
indicating field of legislation which appears to be closely associated
with the Topic dealt wilh b_,, the dedicated Article.
C
!nterpreitation of Constitution:
'"Rule of widest construction" - Held: The jurisprudential
has is for the "rule of widest construe/ion" is the hallowed belied
that a Constitution is drafted with an eye on future - There.fore.
interpre1atio11 of Constitution must be elastic enough to meet new
D social. politi<;al and hislorical realities often unimagined by the
framers of the Constitution.
Allowit1g the petition, the Court
HELD; 1. The jurisprudential basis for the "rule of widest
construction" is the hallowed belief that a Constitution is drafted
E
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 Constitution. [Para 18] [315-CD]
F
2. The Constitution of India, unlike the American
Constitution, regulates and structures not only the authority of
the federal Government, but also the components of the
Federation {States and after the Constitution 73'" Amendment
even the loc•I bodies). As regards the authority of the legislatures
G (Federal and State), analysis adopted by the US Supreme Court
is equally gnod for the Constitution of India with appropriate
modificati9ns, because there are areas where the two
Constitutions differ substantially. [Para 22) [317-F-G)
H
3. Article 246 is one of the sources of authority to legislate
under the Constitution of India. It declares that Parliament and
BIMOLANGSHU ROY (DEAD)

## Text

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[2017) 13 S.C.R. 301
BIMOLANGSHU ROY (DEAD) THROUGH LRS
v.
STATE OF ASSAM & ANOTHER
(Transferred Case (Civil) No. 169 of2006)
JULY26,2017
(J. CHELAMESWAR, R. K. AGRAWAL AND
ABHAY MANOHAR SAPRE, JJ.J
Constitution of India:
A
B
Art. 194(3) r!w Entry 39 of List II of VII Schedule - Scope C
of - By Constitution 91" Amendment. Art. 164 was amended whereby
the size of the Council of Ministers in the State was curtailed to
15% of the total strength of the Assembly - The strength of the
Council of Ministers in State of Assam was 36 out of total strength
of Assembly being 126, amounting to 28.57% - State of Assam D
passed Assam Parliame/lfary Secretaries (Appointment. Salaries,
Allowances and Miscellaneous Provisions) Act, 2004, whereby
member of Assembly were to he appoimed as 'Parliamentary
Secretaries· by the Chit;( Mini~ter - They were to be of the rank and
status of a Minister of State - Writ Petition (PIL) was filed before
High Court. challenging the constitutional validity of the Act - The
E
petition was transferred to Supreme Court - Held: The legislature
of State of Assam did not have competence to enact the Act - Scheme
of Art. 194. which deals with powers and privileges of the
Legislature. does not expressly alllhorise the State Legislature to
create offices such as the one in question - Reading the authority
to create new offices by legislation would be a wholly irrational
F
way of construing the scope ofAn.194(3) and Ent1y 39 of List II -
The "powers privileges and immunities" comemplated by Art. 194(3)
and Entry 39 are those of the legislators qua legislators.
Schedule VII - Entries in the Lists - Scope - Imerpretation
of - Held: A great deal of examination of the scheme of the entire
G
Constitution is essential while interpreting the scope of each of the
Entries - No rule which has a universal application with regard to
the interpretation of all the entries in the Vll Schedule can he
postulated - An Entry in VII Schedule is not a source of power. but
301
H
302
SUPREME COURT REPORTS
[2017) 13 S.C.R.
A
is only indicative of 1he field of legislation - Though words and
expressions in Constitution must receive widest possible
construction. the principle must be applied with some degree of
caution when ii comes to examination of amplitude of Legislative Entries.
Art. 246 - Scope of - Held: Existence of a dedicated Article
B
in the Consti111tiun authorizing the making of Jaw on a particular
topic, eliminates the possibility of existence of legislative authority
to legis/ute i71 Art. 246 rlw any Entry in the Seventh Schedule
indicating field of legislation which appears to be closely associated
with the Topic dealt wilh b_,, the dedicated Article.
C
!nterpreitation of Constitution:
'"Rule of widest construction" - Held: The jurisprudential
has is for the "rule of widest construe/ion" is the hallowed belied
that a Constitution is drafted with an eye on future - There.fore.
interpre1atio11 of Constitution must be elastic enough to meet new
D social. politi<;al and hislorical realities often unimagined by the
framers of the Constitution.
Allowit1g the petition, the Court
HELD; 1. The jurisprudential basis for the "rule of widest
construction" is the hallowed belief that a Constitution is drafted
E
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 Constitution. [Para 18] [315-CD]
F
2. The Constitution of India, unlike the American
Constitution, regulates and structures not only the authority of
the federal Government, but also the components of the
Federation {States and after the Constitution 73'" Amendment
even the loc•I bodies). As regards the authority of the legislatures
G (Federal and State), analysis adopted by the US Supreme Court
is equally gnod for the Constitution of India with appropriate
modificati9ns, because there are areas where the two
Constitutions differ substantially. [Para 22) [317-F-G)
H
3. Article 246 is one of the sources of authority to legislate
under the Constitution of India. It declares that Parliament and
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
ASSAM & ANOTHER
the legislatures of 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.
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. Article 3 authorises the
Parliament to make a law either creating a new State or
extinguishing an existing State. Article 326 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 he a voter on any one
of the grounds specified under Article 326 by making a law. The
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 arc only illustrative but not exhaustive of the
category. [Paras 23-25] [318-C-E; 319-A-B]
4. The entries in the various lists of the Seventh Schedule
arc not sources of the legislative power but are only indicative of
the fields w.r.t. which the appropriate legislature is competent to
legislate. 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. 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 he of
importance for sustaining the federation, are exclusively assigned
to the Parliament, (ii) State legislatures are assigned only specified
fields of legislation unlike the (JS Constitution, (iii} Residuary
legislative power is conferred in the Parliament; (iv) taxing entries
are distinct from the general entries and (v) List III does not
contain a taxing entry. [Paras 26-28] [320-A-C]
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~. A gteat deal of examination of the srheme of the entire
r~n•t;tt•tion is essential while interpreting the scope of each of
the ~ntries contained in the three Lists of the ~eventh Schedule
and 110 rnle which has a universal application with regard to the
intem1·rtatio1t of all entries in the 7'" Schedule can be postulated.
Tl>r •t<1tement that a broad and liberal spirit shonld inspire those
whose duty Is to interpret the Constitution and the legislativr
rntries shouhl not be read in a narrow or pedantic scn~c. cannot
IJe understood as a sutra valid for all times and in all dn·umstanres.
Thi< court 011 more than one occasion cautionrd about the perils
of phcing a construction on the expressions contained in the
v~rious Ent~ies in the three Lists of Seventh Schedule as taking
within their sweep, matters that have no rational connection with
the subject 1Datter of the Entry. (Para 30) (322-D-E; 323-A-B]
6. The doctrine of "widest construction" propounded by
l\1arsh>1ll was in the context of the substantive provisions of the
lonstitntion which are the sources of power to legislate and
stipulate the areas with respect to which "the Congress" shall
have the "l~gislative power" but not in the context of something
like an entry in the 7•h Schedule of the Constitution oflndia which
is not a soi1rcc of power but only indicative of the field of
J~gislation. Though words and expressions employed in the
Constitution must receive widest possible construction, the
principle must be applied with some degree of caution when it
~omes to tltc examination of the amplitude of the legislative
Entries. Tltere 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 7'" Schedule which
arc not sources of power but are only indicative of the fields of
lrgislation. Any construction which would run counter to the
scheme of the Constitution relevant in the context must be
qvoided. [Para 31] [323-D-F[
7. The existence of a dedicated Article in the Constitution
1P1thorlzing the making oflaw on a particular topic would certainly
eliminate the possibility of the existence of the legislative
~·1thority to legislate in Article 246 read with any Entry in the
SPventh Schedule indicating a field of legislation which appears
to be closely associated with the topic dealt with by the dedicated
BIMOT.ANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
305
ASSAM & ANOTHER
article. For example even if the Constitution were not to contain A
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 coustruction on those
entries which would have the effect of enabling the concerned
B
legislative body to make a law not within the coutemplation of
the said Articles would be plainly repugnant to the scheme of the
Constitution. In the present case, the relevant portion of text of
Article 194(3) and Entry 39 of List JI of Seventh Schedule arc
almost identical and speak about the "powers, privileges and
immunities" of the house, its members and Committees. [Paras
C
32 and 39] (323-F-H; 324-A; 327-A]
8. Artkle 194 occurs in Chapter III of Part VI of the
Constitution which deals with the States. Chapter JI of Part VI
de~ls with the State Executive. Chapter III deals with the State
Legislature. Various Artidcs of Chapter III provide for D
establishment of a legislature (either unicameral or bicameral),
the r.omposilion of surh legislative bodies, the qualifications for
m~mbership of the kgislative bodies and their durations, the
offices of the kghla tu re and their powers and responsibilities
and all other allied matters. [Para 42) (327-D-E)
9. Article 194 deals exclusively with the powers and
privileges of the legislature, its members and committees thereof.
While clause (1) 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. Suh-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 claim's (1) and (2). [Parn 43] (327-E-G]
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10. 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, Article 178 speaks
about the offices of Speaker and Deputy Speaker. Article 179
deals with the vacation of those offices or resignations of H
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incumbents of those offices whereas Article 182 and 183 deal
with the Chairman and Deputy Chairman of the Legislative
Council wherever the Council exists. The most crucial Article in
this Chapter is Article 187 which makes stipulations even with
reference to tile 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 constr11ing 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 rati(;nal connection with the subject matter of
the entry. "Tile powers, privileges and immunities" contemplated
by Article 194(3) and Entry 39 arc those of the legislators qua
legislators. Therefore, the Legislature of Assam lacks the
competence t(> make the impugned Act i.e. Assam Parliamentary
Secretaries
(Appointment. Salaries, Allowances
and
Miscellaneous Provisions) Act, 2004. (Paras 44 and 451 [327-AC; 328-A-B; 329-A-CJ
lndia Cement Ltd & Ors. v. State of Tamil Nadu & Ors.
(1990) 1 SCC 12: (1989] I Suppl. SCR 692; Hunter 1(
Southam lne, [1984] 2 SCR 145; S'mthetics and
Chemicals Ltd & Ors. " State of UP & Or>. (1990) 1
SCC 109 : [1989] I Suppl. SCR 623: Jiluhhai !Vanhhai
Khachar " State of Gujarat & Anr. (1995) Supp. l SCC
596; Harakchand Ratanchand Banthia v. Union of
India (l969) 2 SCC 166: (1970) I SCR 479; Union of
India v. Harhhajan Singh Dhillon (1971) 2 SCC 779 :
[19721 2 SCR 33; MA Hoechst Pharmaceuticals Ltd
& Ors. v. State of' Bihar & Ors. (1983) 4 SCC 45 :
[19831 3 SCR 130; Union of India & Ors. v Shah
Goverdhan L. Kabru Teachers' College (2002) 8 SCC
228 : [20021 3 Suppl. SCR 220 - relied on.
Cauvery Water Disputes (1993) Supp. 1 SCC 96 :
(19911 2 Suppl. SCR 497 - referred to.
Mc Ciilloch v. Maryland 17 US 316 (1819); James v.
Commonwealth of Australia (1936) A(' 578; Cemral
Provinces and Berar Sales of Motor Spirit and
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
307
ASSAM & ANOTHER
Lubricants Taxation Act. 1938 (1939) 1 FCR 18; United
A
States ic Curtiss - Wright Export Corp., 299 U.S. 304,
81 L. Ed. 255 - referred to.
Case Law Reference
[1991) 2 Suppl. SCR 497
referred to
Para 12
[1989] 1 Suppl. SCR 692
relied on
Para 16
[2002) 3 Suppl. SCR 220
relied on
Para 17
[1984) 2 SCR 145
relied on
Para 18
[1989) 1 Suppl. SCR 623
relied on
Para 22
(1995) supp. 1 sec 596
relied on
Para 22
[1970] 1 SCR 479
relied on
Para 26
[1983] 3 SCR 130
relied on
Para 28
[1991) 2 Suppl. SCR 497
referred to
Para 33
CIVIL ORIGINAL JURISDICTION : Transferred Case (Civil)
No. 169/2006.
Under Article 139A of the Constitution oflndia.
Manoj Goel, Sr. Adv., Mr. Abhishek Gupta (for Brij Bhushan),
Adv. for the Petitioner
Ranjit Kumar. S. G.. A.K. Panda, Sr. Adv., Ms. Kiran Bhardwaj,
R. K. Verma. M. K. Maroria, P. Parmeswaran, M/s Corporate Law
Group, Advs. for the Respondents
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The Judgment of the Court was delivered by
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CHELAMESWAR, J. I. Transferred Case (Civil) No.169 of
2006 arises out ofWrit Petition, PIL N0.30/2005 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.
G
2. Brief facts of the case are as follows:
On 1.1.2004 the Constitution 91 st 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
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!64(1A)' that the size of the Council of Ministers in the State should not
exceed 15% of the total strength of the Assembly.
3. At th¢ time of the coming into force of the 91 st 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( IA) 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
(Appointmen1. 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
Legisl~tive 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.'
1 Ai1iclc 164( I A). The total nun1her of!\1inistcrs. including the Chief Minister, in the
Council of Ministers in a State shall not exceed fifteen per cent of the total nun1ber of
n1e1nbcrs of the Legislative Assen1bly of that State:
Provided that the nu111ber ofMinisters, including the ChiefMinister. in a State shall
not be less than twelve;
Provided fi.nther that where the total nun1ber of Ministers, including the Chief
Minister, in the Council of ~iinisters in any State at the con1n1encen1ent of the
Constitution (Ninety-first An1endn1ent) Act, 2003 exceeds the said fifteen per cent or
the nun1ber specified in the first proviso, as the case n1ay be. then the total number of
Ministers in th3.t State shall be brought in confonnity \vith the provisions of this clause
\Vithin six n1onths fro111 such date as the President n1ay by public notification appoint.
2 Section 4 -A Parlian1entaiy Secretary shall be of the rank and status of a !vtinister of
State and shall exercise such powers, discharge such functions and perfornt such duties
as n1ay be assigned to hin1 by th~ Chief Minister by \Vay of a notification published in
the officiaJ Gazette.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
ASSAM & ANOTHER [CHELAMESWAR, J.)
Section 7 deals with the salary and allowances of the Parliamentary
Secretary. 3
5. WritPctition(PIL) No.30/2005 was filed on 13.04.2005 in the
Hon'ble High Court ofGauhati 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 oflaw which had come up for hearing in this Court in SLP No.
22038 of2005 (State ofHimachal 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 of2006 filed by the Petitioners under Article 139Aofthe
Constitution. The transferred case is registered as Transferred Case
(Civil) No. 169 of2005.'
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 (IA)' which stipulates an upper limit of 15% as
the strength of the Council of Ministers;
·1 Section 7. A Parlianrentary Secretary shall be entitled to such salary and ullo\vances as arc
adinissihte to a Minister of State under the Assam Ministers, Ministers of State and Deputy
Ministers Salaries and Allowances Act, 1958.
"' On 08/05/2007 the Petitioners n1oved an interlocutory application {I.A. No. I /2007) .in
ti1e Slipre1ne Court in order to stay the operation or the Act.
~ Article 164. (I) 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 Pn1.desh and Odisha there shall be a Minister in charge
of tribal welfare whv may in addition be in charge of the welfare of the Scheduled Castes
and backward classes or any other work.
(lA) The total nu1nber 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 t\velve:
Provided further that where the total nun1ber of Ministers including the Chief Minister
in the Council of Ministers in any State at the commence111ent of the Constitution (Ninety~
first :Amendment) Act, 2003 exceeds the said fif\een per cent. or the number specified in
the firSt proviso, as the case nlay be, then the total number of Ministers in that State shall
he brOught in confom1ity with the provisions of this clause within six 111onths fron1 such
date• as the President 1nay by public notification appoint.
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(iii) That THE ACT is intended to over-reach the mandate of
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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
strudturc of the Constitution.
9. The Respondent's case is that,
1.
That the State of Assam has the legislative competence to
make the impugned legislation under Entry 39 of the List II of
the 1" Schedule to the Constitution;
IL 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 91 st Amendment is
violated.
D
iii. The1qucstion of violation of'basic structure' of the Constitution
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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:
t.
Whether the Legislature of Assam is competent to make THE
ACT')
II. Whether the creation of the office of Parliamentary Secretary
would amount to" 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
wi1h the text of the Constillltion.
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.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
ASSAM & ANOTHER [CHELAMESWAR, J.]
THE COMPETENCE OF THE STATE OF ASSAM TO PASS
THE ACT:
11. Elaborating the I" submission, the Petitioners argued that the
Political Executive (both national and state level) is the creation of the
Constitution itself. Articles 74(1 )', 75(1 )7, 163(1 )'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.
12. In support of their submission, the petitioners relied upon the
judgment in the case of Cauvery Water Disputesn This Court while
dealing with the Inter-State Water Disputes Act, 1956, held that the said
legislation did not fall within the ambit·ofthe 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 saidjud!,'lllent:
"It cannot be disputed that the Act, viz., the Inter-State Water
Disputes Act, I 956 is not a legislation under Entry 56. In the first
6 A11icle 74 (1) There shall be a Council of !vlinisters \Vith the Prin1e Minister at the
head to aid and advise the President who shall, in the exercise of his functions, act in
accordance \\<ith such advice: Provided that the President 1nav require the council of
Ministers to reconsider such ·advice, either generally or other~vise, and the President
shall act in accordance \Vith the advice tendered after such reconsideration.
; Article 75 (_ 1) The Prin1e Minister shall be appointed by the President and the other
Ministers shall be appcintcd by the President on the advice of the Prin1c lvfinistcr.
x Article 163 (1) There shall he a council of Ministers \Vith the chief Minister at the
head to aid and advise the (Jovernor 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 ofthcn1 in
his discretion.
9 Article 164( 1) The chief Minister shall be appointed by the (Joven1or and the other
~1inisters shall be appointed by the Govc111or on the advice of the Chief Minister, and
the !vfinisters shall hold office during the pleasure of the Governor: Provided that in the
State ofBihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal
\Velfare \Vho 111ay in addition be in charge of the welfare of the Scheduled Castes and
hack\Vard classes or any other work.
10 Constituent Assen1bly Debates l Dated 30.12.1948) on draft Article 61 corresponding
to Article 74 of the Constitution - proposed an1cndn1cnts by Prof. K.T.Shah - Page
1146, 1148.
11 (1993) Supp. 1sec96 mi
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instance Entry 56 speaks of regulation and development of interState rivers and river valleys and docs 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 mi sing therefrom and a provision
for adjudicating them, the Act docs not make the declaration
required! by Entry 56. This is obviously not an accidental omission
but a d~liberate disregard of the Entry since it is not applicable to
the subject-matter of the legislation. Thirdly, no Entry in either of
the thr~e Lists refers specifically to the adjudication of disputes
with regard to inter-State river waters. " 1'
and argued tha~ 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 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 7"' Schedule read with Article 246(3) authorises
the making of THE ACT the petitioners submitted that:
Entry 39u of the State List (List ll), speaks of powers, p1ivilcgcs
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 10 enforcement ofattendancc 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 ACI ·creates
offices and makes stipulations regarding the rank, status and
funetipns of Parliamentary Secretaries. Entry 39 corresponds to
Article 194 of the Constitution, which deals with the powers,
12 In Re: Cauvery \Yater Disputes Para 62
1' Entry 39. PoYt1crs, privileges and i1nn1unit1es of the L.;gislat1vc A~~t:111bly and of the
1nen1bers and the con11nittecs thereof, and, 1f there is a Lcgi~:dal!ve Council, of that
Council and of tbc n1en1bcrs and the conunittee~ th\.·reot': cntOrc~n1cnt ut' attendance of
persons tOr giving evidence or producing docu1nt::nts b1.:rUrc co111n1ittL-c:. uf 1hc L·:gi~laturc
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of the State.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v: STATE OF
313
ASSAM & ANOTHER [CHELAMESWAR, J.]
privileges and the immunities of the House oflegislatures and of , A·
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 TI of the Seventh Schedule indicates the field oflegislation 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
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in the entry must be interpreted as extending and including all ancillary
and subsidiary matters which can be comprehended in it. Since a
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Parliamentary Secretary is amemberofthe 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.I of 2007 in Transferred Case (Civil)
No. 169 of2006. 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 mannet.
Entry 39 covers "powers, privileges
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and immunities .... of the members" of a Legislative Assembly.
This Hon 'b!e Court has, on various occasions, held that the
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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
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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
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them." [Gujarat University Vs. KrishllaRanganath 1963 Supp
(I) 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].
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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 ~tate Legislature."
16. In 011r 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 daveat contained in the very extract relied upon by the
State i.e. "each general word should be held to extend to all ancillary
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and subsidiary matters which can fairly and reasonably be said to be
comprebendl!d In It".,.
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17. However, the more accurate legal position is expounded in
Union of India & Others v. Shah Goverdhan L Kabra Teachers'
Colkge, (200~) 8 SCC 228 at para 6:
"In viqw 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
educa1ion 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
en grafted under Article 246 of the Constitution and the various
entries for the three lists of the Seventh Schedule are the "fields
oflegislation". The different entries being legislative heads are
all of enabling character and are designed to define and delimit
the respective areas oflegislative 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
reasol)able to import any limitation therein. The rule of widest
" lndl• Cement Ltd. & Othen v. Shte of T•mll N8du A Othen, ( 1990) I SCC 12
"18 .... Heni:e, the language ot'the enlri"" 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 lo extend to all ancillary or
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subsidiary matters which can fairly and reasonably be comprehended in it .... "
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
315
ASSAM & ANOTHER [CHELAMESWAR, J.]
construction, however, would 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 dutybound to.guard against extending the meaning of the words
beyond their nasonable connotation in anxiety to preserve
. , ,. ; . the power of the legislature.
18. Thejurisprndential 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 gov~mmental power.
Therefore, it must be elastic enough to meet new social, political and
historical realities often unimagined by the framers of the Constitution 15 •
. '" .
., Chief Justice Marshall's celebrated statement in McCulloch case1'
thiit." ... 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
i11terpretation of Article I of the US Constitution which declares the
authority of"the Congress" to perform various functions enumerated in
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sub-s~ctions (I) to (17) of Section 8 and under sub-Section (18) "to
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make all laws necessary and proper to carrying into execution of the
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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 establi~h a bank by its legislation.
Norte of the "enumerated powers" in Article 1, Section 8 contain any
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mention of the power to establish a bank or create a corporation. It was
,; H~nterv. Southam Inc., (1984) 2 SCR 145, Canadian Supreme Court- Para 47 .
.'.'!.'."';The task of expounding a constitution is crucially different from that of construiri.g
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
fun~tior;i _is tQ provide a continuing framework for the legitin1ate exercis·e of govemn1ental
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po\ver 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 n1ust, therefore, be capable of growth and developn1ent over time to
m~et new social, political and historical realities often unimagined by its framers. The
judic.iW)' is the guardian of the constitution and must, in interpreting its provisions,
b'e8.r these-considerations ip. n1ind.
" McCulloch v. Maryland, 17 US 316 ( 1819)
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argued that (i) Congress could only legislate w.r.t. the matter expressly
enumerated i11 Section 8 and make only those laws which arc
"indispensable and without which the power would be nugatory", (ii)
that the word "necessary" occurring in sub-section (18) "excludes the
choice of meal)s and leaves to Congress in each case that only which is
most direct and single".
Repelling the above submissfons Marshall declared that to provide
in the Constit~ion 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."17 The submission
that the expres~ion "necessary" in sub-section (18) has a limited import
was rejected. 1'
11 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 ofa 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 tl!e minor ingredients which compose those objects be deduced from
the nature of the objects themselves. That this idea was entertained by the franiers of
the An1erican constitution, is not only to be inferred from the nature of the instrument,
but fron1 the lan~age. Why else \vere sonte of the limitations, found in the ninth
section of the lst1article1 introduced? It is also, in some degree, warranted by their
having on1itted to
1use any restrictive tern1 which might prevent its receiving a filir and
just interpretation. In considering this question, then. we must never forget. that it is
a constitution we are expounding.
lk Js it true. that this is the sense in which the word '"necessary" is always used? Does
it always i1nport •.n absolute physical necessity. so strong, that one thing, to which
another nmy be tenned 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, \VC find that it frequently in1ports no· 1nore than that one thing is convenient,
or useful, or essentia1 to another. To employ the means necessary to an end, is generally
understood as en1~loying any n1eans 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 n10re comn1on than to use \VOrds in a
figurative sense. Aln1ost all compositions contain \Vords, which, taken in their rigorous
sense, \vould con'(Cy a meaning different from that which is obviously intended. It is
essential to just construction. that n1any words which in1port son"iething excessive,
should be understood in a more mitigated sense - in that sense which common usage
justifies. The word "necessary" is of this description. Jt has not a fixed character
peculiar to itself.