Facts in Brief

This petition under Article 32 of the Constitution was preferred by six persons who purported to carry on the business of preparing, printing, publishing and selling textbooks for different classes in the schools of Punjab. It was alleged that the Education Department of the Punjab Government, in pursuance of its so-called policy of nationalisation of textbooks, had issued a series of notifications since 1950 regarding the printing, publication and sale of these books, which had not only placed unwarrantable restrictions upon the rights of the Petitioners to carry on their business, but had practically ousted them and other fellow-traders from the business altogether.

It was submitted that no restrictions could be imposed upon the Petitioners’ right to carry on trade, which was guaranteed under Article 19(1)(g) of the Constitution, by mere executive orders without proper legislation; and that the legislation, if any, must conform to the requirements of clause (6) of Article 19 of the Constitution. Accordingly, the Petitioners prayed for the issuance of a writ in the nature of mandamus, directing the Punjab Government to withdraw the notifications which had affected their rights.

Arguments

It was contended that the executive Government of a State was wholly incompetent, without any legislative sanction, to engage in any trade or business activity; and that the acts of the Government in carrying out their policy of establishing a monopoly in the business of printing and publishing textbooks for school students were wholly without jurisdiction and illegal.

It was argued that, assuming the State could create a monopoly in its favour in respect of a particular trade or business, this could be done not by any executive act, but only by means of proper legislation, which should conform to the requirements of Article 19(6) of the Constitution. It was further argued that it was not open to the Government to deprive the Petitioners of their interest in any business or undertaking — which amounts to property — without authority of law, and without payment of compensation as required under Article 31 of the Constitution. It was also argued that the Government had no power in law to carry on the business of printing or selling textbooks for the use of school students, in competition with private agencies, without the sanction of the legislature.

Judgment

The Supreme Court dismissed the petition, holding that the executive wing of the State could issue such notifications regulating or restricting the rights of the Petitioners from carrying on the trade of publishing books. The Court held that the power of the Executive was co-extensive with that of the legislature, as provided for under Article 162 of the Constitution. Therefore, the Court held, such a restriction on the right to carry on trade and profession, as provided for in Article 19(1)(g), could be placed by the Executive without there being a law to enforce the same.

For the Common Man

The judgment in the instant case makes the proposition beyond doubt that the power of the Executive is co-extensive with that of the legislature, and thus the Executive is empowered to carry on measures and exercise the powers as vested in it.