M KARUNNANIDHI Vs. UNION OF INDIA NEW DELHI

JUDGEMENT

(1.) THIS petition is filed by Mr. Karunanidhi, former Chief Minister of Tamil Nadu, under Art. 226 of the Constitution for the issue of a writ of certiorari calling for the records relating to Notification No. SO-74 (E) dated 3-2-1976, issued by the department of Personnel Administrative Reforms, Government of India, under s. 3 of the Commissions of Enquiry Act 1952, and quash the same. The affidavit filed in support of this petition, after setting out the history of the Government of Tamil Nadu and the Dravida Munnetra Kazhagam, which was running the government from 1967 upto 31st January 1976, refers to the proclamation issued by the President of India on 31-1-1976 under Art. 356 of the Constitution of India assuming to himself the functions of the Government of the State of tamil Nadu and the powers of the Government of the State, suspending the provisions of the Constitution relating to the Council of Ministers in the State and dissolving the Legislative Assembly. The Proclamation imposing President's rule was based on a report of the Governor of the State made on 29-1-1976. In his report, the Government also recommended the appointment of a commission of inquiry to enquire into the allegations made against the D. M. K. Government. On 3-2-1976 the Central Government notified the appointment of a Commission of Inquiry under S. 3 of the Commission of Inquiry Act, 1952, to enquire into the allegations made by four persons who are named in the notification. In challenging the validity of the Notification the main grounds are stated in paragraph 9 of the affidavit of the petitioner. The first and foremost ground is stated as follows-

(2.) WE will, first of all, take up the question which was stressed at great length before us, that is the federal nature of the Constitution does not empower the central Government to lay down standard of good Government for the State governments and to initiate an inquiry under the Commissions of Inquiry Act for what, in the opinion of the Central Government might constitute maladministration. It is stated that taking into account the federal character as the basic structure of the Constitution, S. 3 cannot be construed in such a way as to militate against the basic principles of federalism. According to the learned counsel for the petitioner, S. 3 of the Act was construed by the Central government so as to empower it to order an enquiry so as to empower it to order an enquiry into State Ministers also, subordinating the State Ministers to the control of the Union Government, which is not at all warranted by the constitution. The contention of the learned counsel is that the Constitution is a federal one and that the States are autonomous having definite powers. The basis of the argument is that states being autonomous in a federal structure, they have got independent rights to govern and that so far as their executive actions are concerned, the Central Government has no right to interfere. The learned counsel was at great pains to state what a federation is, what autonomous States are and what are the rights and functions of the federating states. We feel that the words 'federation', 'autonomy' and 'federating States' have varying meanings and what a particular word means will depend upon the context. For example, there may be a federation of independent States, as it is into he case of United States of America. As the name itself denotes, it is a union of States, either by treaty or by legislation by the concerned States. In those cases, the federating units gave certain powers to the federal government and retained some. To apply the meaning of the Word 'federation' or 'autonomy' used in the context of the American Constitution, to our constitution will be totally misleading. Taking the history of the Indian government under the 1919 Act is was principally a unitary Government. In 1935 there was some attempt at federation in the context of presence of Indian states. As it is well-known, Indian States were governed by the Rulers of the states subject to paramountcy and when they were proposed to be drawn into a federation consisting of what was known as British India, and the Indian states, 1935 Constitution was framed in order to achieve this object. Ultimately, the present Constitution came to be framed. The feature of the indian Constitution is the establishment of a Government for governing the entire country. In doing so, the Constitution prescribes the powers of the central Government and the power of the State Governments and the relations between the two. In a sense, if the word 'federation' can be used at all, it is a federation of various States which were designated under the Constitution for the purpose of efficient administration and governance of the country. The powers of the Centre and the States are demarcated under the Constitution. It is futile to suggest that the States are independent, sovereign or autonomous units which had joined the federation under certain conditions. No such State ever existed or acceded to the Union. When the Constitution was framed in Part xi of the Constitution he relations between the Union and the States are set out. Arts. 245 to 248 of the Constitution demarcate the powers between the centre and the States. In Art. 246 (4) it is provided that the Parliament has power to make laws with respect to any matter for any part of the territory of india not included in a State notwithstanding that such matter is a matter enumerated in the State List. Three Lists are drawn up in the Seventh schedule. List I is Union List, List II is State List and List III is concurrent List. It is significant that in List I Entry 97 it is provided that any other matter not enumerated in List II or List III including any tax not mentioned in either of those Lists would fall within the purview of the Union List. This will have to be read along with Art 248, which provides that the Parliament has exclusive power to make any law with respect to any matter no enumerated in the Concurrent list or State List and that such power shall include the power of making any law imposing a tax not mentioned in any of those lists. That the power of the parliament extends to legislate in all matters not covered by Lists II and III cannot be questioned for, it ahs been so laid down in Union of India v. H. S. Dhillon, of the report, Chief Justice Sikri has Stated the position thus-"at any rate, whatever doubt that may be on the interpretation of entry 97, List I is removed by the wide terms of Art. 248, it is framed in the widest possible terms. On its terms the only question to be asked is; Is the matter sought to be legislated included in List II or in list III or is the tax sought to be levied mentioned in List II or in List iii. No question has to be asked about List I. If the answer is in the negative, then it follows that Parliament has power to make laws with respect to that matter of tax. " According to the Constitution, as construed by the Supreme Court, there could be no difficulty in concluding that the States as such has no inherent power or autonomous power which cannot be encroached upon by the Centre. The power of the Centre and the States will have to be looked for in the Lists and other Articles in the Constitution.

(3.) THE theory of federation and the States having some powers apart from the constitution is without any basis, for, it will be seen that under Art. 3 of the constitution, the Parliament may by law form a new State by separation of territory from any State or by uniting two or more State or Parts of States or by uniting any territory to a part of any State, increase the area of any State, diminish the area of any State, alter the boundaries of any State and alter the name of any State. This has in fact been done. With a view to form linguistic states for the better administration, the boundaries of the States were realigned in some States and new States were formed. If the words 'federation' and 'autonomy' have to be given any meaning, certainly it would not mean that the States have any existence apart from that provided under the Constitution. The very fact that the President has powers to take over the administration of the States, which is not disputed, would demolish the theory of nay independent or autonomous existence of a State. These undeniable facts can give no room for the contention of the learned counsel for the petitioner that the Central Government is no empowered to order an enquiry against State ministers to the control of the Union Government. On the other hand, the proper thing to do is to determine whether S. 3 of the Commissions of Inquiry act, 1952 is intra vires the powers of the Central Government, and whether the notification issued by the Central Government under S. 3 constituting what is known as Sarkaria Commission is valid. The learned counsel for the petitioner did not question the competence of the Parliament to enact the Commissions of inquiry Act, and it s validity was not questioned. But what the learned counsel contended was that under S. 3 of the Act the notification should not only appoint a Commission of Inquiry for the purpose of making an enquiry, but also specify the definite matter of public importance for the purpose of making the enquiry and that the persons against whom the enquiry is directed also should be mentioned. In other words, according to the learned counsel, the notification is invalid, as it fails to comply with the requirements of S. 3 of the Act. Referring to the actual notification, the learned counsel submitted that the purpose of appointing the Commission of Inquiry is to enquire into the allegations namely. 1. the allegations contained in the memorandum dated 1-12-1975 received from Sarvshri K. Manoharan and G. Viswanathan, addressed to the President; and 2. such of the allegations contained in the memorandum dated 4-111972, received from Sri M. G. Ramachandran and Memorandum dated 6-11-1972, and 20-12-1972, received from Sri M. Kalayanasundaram M. P. as are specified in the Annexure to the notification. The annexure refers to 27 allegations.