Bimolangshu Roy (dead) Through Lrs v. State of Assam & Another
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 H
308
SUPilEME COURT REPORTS (2017] 13 S.C.R.
!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.
309
A (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
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
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
311
312
SUPREME COURT REPORTS [201"/J 13 S.C.R.
instance Entry 56 speaks of regulation and development of inter
State 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
H 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
in the entry must be interpreted as extending and including all ancillary
and subsidiary matters which can be comprehended in it. Since a C
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
and immunities .... of the members" of a Legislative Assembly.
This Hon 'b!e Court has, on various occasions, held that the E
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 F
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 G
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]. H
314
SUPJU!ME COURT REPORTS [2017] 13 S.C.R.
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
C and subsidiary matters which can fairly and reasonably be said to be
comprebendl!d In It".,.
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
H 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 duty
bound 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
sub-s~ctions (I) to (17) of Section 8 and under sub-Section (18) "to E
make all laws necessary and proper to carrying into execution of the C-•·
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 F
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 G
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) H
316
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
1
use 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. It admits of all degrees of comparison; and is often connected with
other words, \Vhicij increase or diminish the impression the n1ind receives of the urgency
it imports. A thibg may be necessary, very necessary, absolutely or indispensably
necessary. To no n1ind w0u1d the same idea be conveyed, by these several phrases.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF 317
ASSAM & ANOTHER [CHELAMESWAR, J.]
20. About 100 years later the Privy Council in James v. A
Commonwealtli of Australia, (1936) AC 578 observed that a
"Constitution must not be construed in any narrow and pedantic sense"
(See Lord Wrlght at Page 614).
Relying on the above-mentioned celebrated statements, the Federal
Court in the case of Central Provinces and Berar Sales of Motor B
Spirit and Lubricants Taxadon 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 ~upplying C
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 D
juris'Clictions where a written Constitution exists. The US Supreme Court
alw recognised that the Congress would have the authority to legislate
with·reference to certain matters because of the fact that such authority
is ihberent in the nature of the sovereignty. The doctrine of inherent
PP"".eis was propounded by Justice Sutherland in the context of the role E
of the American Government in handling foreign affairs and the limitations
thereon."
In substance. the power to make the legislation flows from various
sources: (I) express text of the Constitution; (2) by implication from the
scheme of the Constitution; and (3) as an incident of sovereignty. F
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 G
adopted by the US Supreme Court is equally good for our Constitution
with· appropriate modifications, because there are areas where the two
Ciifistitutions differ substantially.
19 United States v. Curtiss- Wright Export Corp., 299 U.S. 304, 81 L. Ed. 255
ltl After. the Constitution 73rd An1end1nent H
318
SUPREME COURT REPORTS (2017] 13 S.C.R.
Howeve~. the principle that the power to legislate under the Indian
Constitution can flow from various sources is recognised by this Court
in Synthetics a11d Chemicals Ltd. & Others v. State of U.P. & Others,
(1990) I SCC 109 at para 67 that" ... The power to legislate is given by
Article 246 and other Articles of the Constitution"" - a reiteration of the
principle that the power to legislate docs not flow from a single Article
of the Constitution.
23. Article 246 22 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 th~ Seventh Schedule. It also makes clear that the power of
the Parliament is exclusive with respect to List I and that of the State
Legislature with respect to List II. List III indicates various fields over
which both the Parliament as well as the State legislatures would have
authority to legislate concurrently subject of course to the discipline of
Article 254.
24. Apart from declaration contained in Article 246, there are
various other Artiicl es 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 !lither creating a new State or extinguishing an existing
State. Such a power is exclusively conferred on the Parliament.
21 See also 1995 Supp. (I) SCC 596 para 7 - Jilubhai Nanbhai Khachar v. Slau of
Gujarat & Another
"the legislature1derives its power fron1Article 246 and other related Articles of the
Constitution"
" Article 246. (l)1Notwithstanding anything in clauses (2) and (3), Parliament has
exclusive power to,n1ake laws with respect to any of the n13tters 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 (l), the
Legislature of any State also, have power to make laws with respect to any of the
matters enumerated in List Ill in the Seventh Schedule (in this Constitution referred to
as the "Concurrent List").
(3) Subject to clausies ( J) and (2). the Legislature of any State has exclusive power to
make lav.•s for sucli State or any part thereof with respect to any of the rn_atters
enumerated in List Tl in the Seventh Schedule (in this Constitution referred to as the
··state List").
(4) Parlian1ent has power to make Jaws with respect to any matter for any part of the
territory of India not included in a State notwithstanding that such nmtter is a matter
enun1erated in the State List.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF 319
ASSAM & ANOTHER [CHELAMESWAR, J.]
25. Article 32623 while declaring a right of every citizen who is not A
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
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), B
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 held" that
"Anicle 326. Elections to the House of the People and to the Legislative Assemblies of C
Stales 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 dale as may he 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.
" Harakchand Ratanchand Banthla v. Union of India, ( 1969) 2 SCC 166, Ramaswami,
J. speaking on hehalfofthe Court, while dealing will! the Gold (Control) Act (45of1968),
observed:
"Para 8 .... Before construing these entries it is useful to notice some of the well·
settled rules of interpretation laid do"'.!' 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 E
appropriate Legislatures can operate ......
Union of India "· Harbhajan Singh Dhll/on ( 1971) 2 SCC 779 - Para 22. It must he
remembered that the f••ctlon of ·the lish It not to confer powers; they merely
demarcate the leglsladve field. The Federal Court, while interpreting lhe Government
of India Act in The GovernorGeneral In Councllv. 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 F
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"· Srate ofU.P. and Others (19!10) I SCC
I09-
"Para 67 . .,.The power to lecl1lole Is pven by Arlkle 246 ond other Articles or
the Con111tallon. The three lists of the Sevenlli Schedule to the Constitution are
legislative heads or fields of legislation. These demarcate the area over which the G
appropriate legislatures can operate. It is well settled that widest amplitude should be
given to the language of the enb'ics in three Lists but some of these entries in different
lists or in the same list may override and somctinlCS may appear to be in direct conflict
with each other. then and then only comes Ille 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. ... " H
320
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.
27. The task of this Court in identifying the scope of an entry in
the Lists contaiqed in the Seventh Schedule is not easy. While examining
the scope of th~ entries this Court must necessarily keep in mind the
scheme of the C0nstitution 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 oflegislation perceived
to be ofimportaJ11ce for sustaining the federation, are exclusively assigned
to the Parliameqt, (ii) State legislatures are assigned only specified fields
oflegislation unlike the US 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,
29. At th¢ 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.
(a) Power to legislate is conferred by some of the Articles by an
express gant either on the Parliament or the State Legislature to
make laws with reference to certai~ 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 lthe 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
expresslv 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.
'< M/s. Hoechst P~armaceutlcals Ltd. & Othern. State of Blhar & Othen, (1983)
4SCC45,
"Para 74 - It is equally well settled that the various entries in the three List-; are not
'po,vers' 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 fron1 a general legislative entry as ancillary power . ... "
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
ASSAM & ANOTHER [CHELAMESWAR, J.]
30. Article 24826 and Entry 97 in the List I in our considered opinion
virtually render most of the remaining Entries ofLiSt 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 52" of List I indicates
that the Parliament would be competent t6 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 dcvelopinent 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 and the state legislatures
with respect to the various fields oflegislation, Articles 249", 25032 and
i 6 Article 248. _ Residuary powers of legislntion.- (1) Parliament has exclusive po\ver to
make nny law with respect to any matter not enumernted in the Concurrent List or State
List.
(2) Such power shall include the power of making any lnw itnposing n tnx not 1ncntioncd
in either of those Lists. "· ·
l1 Entry 24 Industries subject to the provisions of entries 7 and 52 of List I. (In the original
Constitution Entry 24 didn ·c find mention of Entries 7 and 52)
211 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 l with respect to regulation and development under the control of the Union.
~
0
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
hnv to be expedient in the public interest.
' 1 Article 249. Power of Parliament to legislate with respect to a matter in the State List
in the nationa,l interest. (l) Notwithsta1Jding 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 men1hers present and voting that it ·is necessary or expedient in the na1ionnl
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 or lndia 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 he 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 (1), such resolution shall
continue in force for a further period of one year from the date on which under this clause
it \vould otheiwise have ceased to he in force.
· (3) A law 1nade by Parliament \vhich Parliament would not but for the passing of a
resolution under clause (J) have been competent to mnke shall, to the e_xtent of the
incompetency, cease to have effect on the cxpirntion 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.
u Article 250. Power of Parliament to legislate with respect to any matter in the State List
if a Proclamntion of Emergency is in operation. (l) Not\vitbstanding anything in this
Chapter, Pnrliamenl shall, while a Proclamation of Emergency is in operation, have
power to 1nake Jaws for the whole or any part of the territory of India with respect to any
of the matters enumerated in the State Lis~.
321
322
SUPRIEME COURT REPORTS (2017] 13 S.C.R
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 the one made in Articles 249,
250 and 252. P~rhaps, incorporation of another Article stipulating that
the Parliament would be competent to legislate with reference to the
fields oflegislation contllined 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 poi)lting 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 provisi0ns 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 the1scope 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 7"' Schedule can be
postulated. The statement of Chief Justice Gwyer that a broad and
liberal spirit should inspire those whose duty is to interpret the Constitution
and the legislatjve entries should not be read in a narrow or pedantic
(2) A law made by Parliament which Parliwnent would not hut for the issue of a
Proclan1ation of En1ergency have been competent to make shall, to the extent of the
incompetency, cease to have effect on the expiration of a period of six n1onths after the
ProclanlBtion has ceased to operate, except as respects things done or omitted to be
done before the expiration of the said period.
u Article 252. Po\\1er of Parliament to legislate for two or more States by consent and
adoption of such legislation by any other State. (I) If it appears to the Legislatures of
two or n1ore States to be desirable that any of the n1atters with respect to which
Parliament has no power to n1akc 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 olher State by which it is adopted
afterwards by resolution pa.o;sed in that behalf by the House or, where there arc two
Houses, by each of the Houses of the Legislature of that State.
(2) Any Act so passed by Parliwnent may be wnended 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.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF 323
ASSAM & ANOTHER [CHELAMESWAR, J.]
sense, cannot be understood as a sutra valid for all times and in all A
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 by B
Justice Venkatachaliah 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"widcst construction" propounded by Marshall
was in the context of the substantive provisions of the Constitution which
are the sources of power to legislate and stipulate the areas with respect
to which "the Congress" shall have the "legislative power" but not in the
context of something like an entry in the 7ili Schedule of our Constitution
which is not a source of power but only indicative pf the field oflegislation.
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 7"' 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.
32. As rightly pointed out by the petitioners, the existence of a
dedicated article in the Constitution authorizing the making oflaw 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 oflegislation 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
324
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 Artiicles would be plainly repugnant to the scheme of the
Constitution.
33. Caui/ery Water Disputes" may not be an exact authority for
the proposition of law advanced by the petitioners. But the logical
extension of the principle 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 fa~tual background of the case and the issue (relevant) that
arose therefrmjn.
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 ofriver Cauvery. For the resolution ofthe said dispute, a tribunal
was constituted by a notification dated 2'~ June 1990 of the Government
ofJndia 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 25" June 1991, the tribunal gave certain
directions" to the State ofKarnataka. Thereupon, the State ofKarnataka
issued an ordinance nullifying the directions of the tribunal referred to
above. The President oflndia by a reference under Article 14336 of the
Constitution sought the opinion of this Court regarding the constitutionality
of the ordinanqe.
36. The State ofKarnataka argued that the ordinance in question
fell exclusively within the field oflegislation 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
" 1993 Supp. rll sec 96 (II)
"To release 2051!MC water from its reservoirs located in the State ofKunataka and
certain other incidental directions.
"Article 143. (I) If at any time it appears to the President that a question of law or fuct
has arisen, or is likely to arise, which is of such a nature and of such public in1portance
G that it is expedient1 to obtain the opinion of the Supreme Court upon it, he n1ay refer the
question to that Court for 1..l.'lnsidcration and the Court may, after such hearing as it
thinks fit, report to the President its opinion thereon
(2) The President p1ay, notwithstanding anything in the proviso to Article 131. refer a
dispute of the kin~ mentioned in the said proviso to the Supreme Court for opinion and
the Supreme Court shall. after such hearing as it thinks fit, report to the President its
H opinion thereon
BiMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF 325
ASSAM & ANOTHER [CHELAMESWAR, J.)
the ordinance in question, the authority of the legislature ofKamataka A
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( I )37 read with Entry 5638 of List I of the B
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
Schedule mentioned the topic of adjudication of disputes relating to inter
State waters and Article 26239 of the Constitution specifically provides C
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 ofregulation and development ofinter
State rivers and river valleys and does not relate to the disputes
between the riparian States with regard tb the same and D
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 S6. 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·
" Article -246. (I) Notwithstanding anything in clauses (2) and (3), Parliament has
exclusive power to 1nake laws wiih respect to any of the ntatters enun1crated in List I
in the Seventh Schedule (in this Cohstitution referred to as the "Union List").
" 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 l'arlian1ent by law to be expedient in the public interest G
"Article 262. (I) Parliament may by law provide for the adjudication of any disp_ute or
. complaint with respect to the use, distribution or control of the waters of, or in, any
incer-State river or river valley. (2) Notwithst!!nding anything in this Constitution,
Pailiament may by law provide that neither the Supre1he Court nor any other court
shall exercise jurisdiction in respect of any such dispute or complaint as is referred to
in clause (I). H
326
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
necessjlry 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 lqgislature under Entry 17 to enact a legislation providing
for adjudication of the said disputes or in any manner affecting
or intetjfering with the adjudication or adjudicatory process of
the machinery for adjudication established by law under Article
262 .... "
38. The ordinance was found to be beyond the legislative
competence of the State of Karnataka. Because of the existence of a
dedicated arti¢1e empowering the Parliament to make laws for the
adjudication ofinter-Statc 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 (listinction between the scheme of Article 262 Entry 56 of
List I and Entry 17 of List II and the scheme of Article 194"" and Entry
3941 ofList II is this that in the case of inter-State water disputes neither
411 Article 194. (I) Subject to the provisions of this Constitution and to the rules and
standing orders r~gulating the procedure of the Legislature, there shall be freedom of
speech in the Legiislature of every State.
(2) No 1nembcr 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 Lcgi~lature or any committee
thereof, and no p¢rson 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 olher re!:.-pects, the powers, privileges and immunities of a House of the Legislature
of a Star.e, and of r~e nlembers and the con1mittecs of a House of such Legislature, shall be
such as nlay from •ime to time be defined by the Legislature by Jaw, and, until so defined,
1 [shall be those of that House and of its members and conlmittees 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 hi relation tjo members of that Legislature.
" 1 Entry 39. Powers, privileges and immunities of the Legislative Assembly and of the
members and the committees thereof, and, if there is n Legislative Council, of that Council
and of the me1nbers and the co1nmittees thereof; enforcement of attendance of persons
for giving evidence or producing documents before committees of the Legislature of the
State.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF 327
ASSAM & ANOTHER [CHELAMESWAR, J.]
of the abovementioned two Entries make any mention of the adjudication A
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) · B
and Entry 39 is wide enough to authorise the legislature to make. THE.
ACT?
41. In view of the fact that the text ofbothArticle 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 C
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
I 94 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 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 ilnruunity in
favour of the members of the Legislature from any legal prbceedings in
any court for anything said or any vote given by such members in the
Legislature or any Cotllmittees 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, Article 17 842 speaks about the
"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 co be Speaker or Deputy Speaker, as the case may be.
328
SUP~EME COURT REPORTS [2017) 13 S.C.R.
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 183" deal with the Chairman and Deputy
Chairman of the Legislative G:ouncil wherever the Council exists. In our
opinion, the mQst crucial article in this Chapter is Article 18746 which
makes stipulations even with reference to the secretarial staff of the
Legislature. O* the face of such elaborate and explicit constitutional
arrangement with respect to the Legislature and the various offices
"Article I 79. A member holding office as Speaker or Deputy Speaker of anAssembly
(a) shall vacate his office ifhe ceases to be a member of the Assembly; (b) may at w1y
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 intentioh to1move the resolution: Provided further that, whenever the' Assembly
is dissolved, the Sj>eaker shall not vacate his office until immediately before the first
meeting of the AS$embly after the dissolution.
4-4 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 Chaimutn or Deputy Chairman
beco111es vacant, the Council shall choose another n1ember to be Chairman or Deputy
Chaim1an, as the <tasc n1ay be.
45 Article 183. A member holding office as Cbainuan or Deputy Chaim1an of a Legislative
Council--
(a} shall vacate hi~ office if he ceases to be a men1ber of the Council;
(b) may at any tip1e by writing under his hand addressed, if such meniber is the
Chaimian, to the ~eputy Chaim10n and if such member is the Deputy Chaim10n, to the
Chairman, resign ~is office: and
(c) n1ay be removed fron1 his office by a resolution of the Council paesed by a nlajority
of all the then nw1nbers of the Council:
Provided that no resolution for the pwpose of clause (c) shall be n1oved unless at least
fourteen days' no~ice has been given of the intention to ntove the resolution.
46 Article 187, (I) The House or en.ch House of the Legislature of a State sha11 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 comn1on 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 1 secretarial staft. of the Hou!SC or Houses of the Legislature of the
State. (3) Until prpvision is made by the Legislature of the State under clause (2), the
Governor nlAy, a-ner consultation with the Speaker of the Legislative Assembly or the
Chairn1an of the Legislative Council, as the case n1~ty be, tnake rules regulating the
recruitment, and the conditions of service of persons .appointed, to the secretarial staff
of the Assen1bly or the Council, and any rules so made shall have effect subject to the
provisions of any
1
law made under the said clause.
BIMOLANGSHU ROY (DEAD) THROUGH LRS v. STATE OF
ASSAM & ANOTHER [CHELAMESWAR, J.]
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
329
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 th is judgment.
The Writ Petition is allowed. The impugned Act is declared C
unconstitutional.
Kalpana K. Tripathy Petition allowed.