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1994 Supreme(Mad) 120
High Court of Judicature at Madras
JANARTHANAM
R.M. Salam
Versus
Government of Tamil Nadu rep. by its Secretry Education Department Fort St., George Madras & Others
Writ Petition Nos. 677 & 678 of 1994 & WMP Nos. 1113 & 1114 of 1994
Decided On :Decided on: 25-01-1994
For the Petitioner:Dr. K.P. Krishna Shetty, Advocate.
For the Respondents: P. Shanmugham, Special Government Pleader (Education).
A Bill, which is yet to receive the assent of the Governor or the President, as the case may be, cannot be challenged on the ground of it being unconstitutional in a High Court, under Art. 226 of the Constitution.
Headnote:
CONSTITUTIONAL LAW - WRIT PETITION - MAINTAINABILITY - LEGISLATIVE PROCESS - BILLS YET TO RECEIVE GOVERNOR'S ASSENT - CHALLENGE TO CONSTITUTIONALITY - JURISDICTION OF HIGH COURT - ARTICLES 13(3)(A), 226, 361 OF THE CONSTITUTION OF INDIA.
Fact of the Case:
The petitioner, a social worker and Joint Secretary of the Tamil Nadu Congress Committee (I), challenged the constitutional validity of two Bills passed by the Tamil Nadu Legislative Assembly, namely, the Madras University and the Annamalai University Bill, 1994, and the Tamil Nadu Universities Bill, 1994. The petitioner contended that the Bills were unconstitutional on various grounds, including the absence of proper instructions or permission from the President of India for the introduction of the Bills, the destruction of the vital link between the Centre and the State maintained by the institution of the Governor, the destruction of the autonomy of the Universities, and the excessive delegation of legislative power to the Syndicate. The petitioner also sought an interim direction to the Governor and the Secretary to the President not to give assent to the Bills pending the disposal of the writ petitions.
Finding of the Court:
The High Court held that the writ petitions were not maintainable at the admission stage. The Court held that a Bill, which is yet to receive the assent of the Governor or the President, as the case may be, cannot be challenged on the ground of it being unconstitutional in a High Court, under Art. 226 of the Constitution. The Court further held that the prayer for issuance of an interim direction sought for, not to give assent to the Bills in question, as against respondents 2 and 3, who are, after all, members of the Staff of the Secretariat attached to the Governor or the President, as the case may be, not to give assent to the Bills in question is nothing but one camouflaged in such a way that what could not be done directly, is required to be done in an indirect way, which is not legally permissible, in the sense of affording of such relief would come within the interdict or inhibition of the salutary provisions of Art. 361.
Issues: 1. Whether a Bill, which is yet to receive the assent of the Governor or the President, as the case may be, can be challenged on the ground of it being unconstitutional in a High Court, under Art. 226 of the Constitution? 2. Whether the prayer for issuance of an interim direction sought for, not to give assent to the Bills in question, as against respondents 2 and 3, who are, after all, members of the Staff of the Secretariat attached to the Governor or the President, as the case may be, not to give assent to the Bills in question is maintainable?
Ratio Decidendi: 1. The High Court held that a Bill, which is yet to receive the assent of the Governor or the President, as the case may be, cannot be challenged on the ground of it being unconstitutional in a High Court, under Art. 226 of the Constitution. The Court relied on the Supreme Court's decision in In re Special Courts Bill, 1978 (AIR 1979 S.C. 478), which held that the right to Indian Judiciary to pronounce a Legislation void is with the Supreme Court and the High Courts and in no other body. 2. The High Court held that the prayer for issuance of an interim direction sought for, not to give assent to the Bills in question, as against respondents 2 and 3, who are, after all, members of the Staff of the Secretariat attached to the Governor or the President, as the case may be, not to give assent to the Bills in question is not maintainable. The Court held that such a direction would come within the interdict or inhibition of the salutary provisions of Art. 361 of the Constitution, which provides that the President or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
Final Decision: The High Court dismissed both the writ petitions and the writ miscellaneous petitions.
1. The challenge in these actions, by one R.M. Salam, stated to be a social worker and Joint Secretary of the Tamil Nadu Congress Committee (I) is relatable to the Constitutional vires and validity of the two Bills, namely, the Madras University and the Annamalai University Bill, 1994 (Legislative Assembly Bill No. 4 of 1994) and the Tamil Nadu Universities Bill, 1994 (Legislative Assembly Bill No. 5 of 1994), to amend and consolidate the laws relating to Madras, Annamalai and certain other Universities in the State of Tamil Nadu and for matters, connected therewith and incidental thereto, recently passed by the Tamil Nadu Legislative Assembly, replacing the Governor by the Chief Minister, as Chancellor of all the Universities in the State and more particularly, Cls. 1O
(1) and 24(1) of both the Bills and Cle. 2(11) of the earlier Bill.
2. The emergence of such a challenge is founded on manifold grounds thus:
(1) After the 42nd Amendment to the Constitution, ‘education’ had been brought under Concurrent List (Entry 25 of List III of the Seventh Schedule) and the State had no competence to pass legislation, pertaining to Universities and Institutes of/Higher Education, in including technical education, medical education and Universities.
(2) Non-compliance of obtaining proper instructions or permission or sanction from the President of India, for the introduction of the Bills in the Assembly, as per Art. 213 of the Constitution renders the Bills invalid.
(3) The Bills would destroy the vital link between the Centre and the State maintained by the institution of the Governor.
(4) The Bills would destroy the autonomy of the Universities and jeopardise independent educational system, free from political influence.
(5) The Bills would suffer from serious vice or infirmity, as they do not provide for a situation, when the State comes under the Presidents rule, when there would be no Chief Minister and in such an eventuality, there would be a vacuum and all the Universities would have to function, without a Chancellor.
(6) The Bills suffer from the vice of excessive delegation, by conferment of Legislative power on the Syndicate-an executive body, to make Statutes and amend or repeal the same.
(7) Cl. 2(11) of the Legislative Assembly Bill No. 4 of 1994, defining ‘Founder’, in relation to Annamalai University, to mean only male descendants, excluding female descendants, regarding the post of Pro-Chancellorship, is discriminatory, as violative of Arts. 15(1) and 16(1) of the Constitution, besides being a Legislative judgment amounting to a Bill of Attainder, and hence unconstitutional as violative of rule of law.
(8) The invalidity is writ large, on the face of the Bills, in as much as the provisions therein relating to the constitution and composition of authorities in the Universities are totally at variance with their Objects and Reasons.
3. The parties as impleaded in these actions are Government of Tamil Nadu represented by its Secretary, Education Department, Fort St. George, Madras-600009 (first respondent); and the Secretary to the Governor, Raj Bhavan, Guindy, Madras-600032 (second respondent), besides Secretary to the President, President of India, Rashtrapathi Bhavan, New Delhi-110001 (third respondent).
4. The petitioner also filed WMP Nos. 1113 and 1114 of 1994 seeking interim directions to respondents 2 and 3, not to give assent to those Bills, pending disposal of these actions, on the ground that the assent, if given, would result in opening floodgates of political interference, in the governance of the Universities, resulting in irreparable damage to the higher education system in the State.
5. When these Writ Petitions, along with WMPs, came up for admission, Dr. K.P. Krishna Shetty, learned Counsel appearing for the petitioner, would resort to make his submissions, in a flamboyant style, on the merits of the contentions taken in the respective affidavits filed in support of the Writ Petitions, in an elabora
