Chennakesav Reddy, Ag. C.J.
1. This big batch of writ petitions is spawned by the Constitution (Forty-sixth Amendment) Act. 1982 (hereinafter referred to as 'the Amendment Act'). The petitioners are hoteliers or licensees of bars and restaurants. They seek a writ of mandamus to interdict the State Government from levy and collection of sales tax from them in pursuance of the provisions of section 4(f) and 6 of the Amendment Act contending intra alia that the said provisions are ultra vires of article 368 of the Constitution and illegal and void and that in any case the absence of any amendment of the Andhra Pradesh General Sales Tax Act, 1957 (hereinafter referred to as 'the Sales Tax Act') incorporating the meaning of 'sale' as provided in the Amendment Act, the provisions of sections 4(f) and 6 of the Amendment Act do not authorise the levy and collection of sales tax from the petitioners in respect of sale of foodstuffs to their customers.
2. The facts are not in dispute and lie in a narrow compass : The petitioners in the course of their business as hoteliers or keepers of bars and restaurants supply eatables and beverages to their customers. They are consumed in the premises and are not carried away.
3. In State of Himachal Pradesh v. Associated Hotels of India : [1972]2SCR937 the Supreme Court ruled that the supply of meals by the hotels to resident visitors was not sale of food and hence not liable to sales tax. The Supreme Court again in Northern India Caterers v. Lt. Governor of Delhi : [1979]1SCR557 held that there was no distinction between a case of meals supplied to a resident in a hotel and those served to customers in restaurants and even in the latter case the principles laid down in State of Himachal Pradesh v. Associated Hotels of India : [1972]2SCR937 apply. A review sought for of the said decision was also subsequently dismissed by the Supreme Court in Northern India Caterers v. Lt. Governor of Delhi : [1980]2SCR650 .
4. This Court in Durga Bhavan v. Deputy Commercial Tax Officer [1981] 47 STC 104 rendered in September, 1980 held that the true effect of the earlier decision of the Supreme Court was that supply of food and drinks in restaurants and hotels to customers, where there was no right to carry away the food, was not a sale, but service and hence not exigible to sales tax under the A.P. General Sales Tax Act. The Court, however, held that sale of foodstuffs across the counter would obviously be transactions of sale within the meaning of the expression 'sale' as defined in section 2(1)(n) of the Sales Tax Act and the transactions were, therefore, exigible to sales tax. Accordingly this Court set aside the impugned orders of assessment and directed the assessing authorities to consider the matter afresh in the light of the principles laid down in the said decision. The hoteliers were accordingly reassessed and food supplied and consumed in the hotels was held not exigible to sales tax and sales tax was levied only on counter sales, i.e., parcels of food taken away from the premises. In some cases, refund of tax already collected was also ordered.
5. Constitution (Forty-sixth Amendment) Act, 1982 was enacted by Parliament in its thirty-third year which came into force from 2nd February, 1983. By the said amendment, article 366 of the Constitution was amended by adding clause (29A) to article 366 of the Constitution. Clause (29A)(f) is relevant and reads as follows :
'a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration,
and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made.'
6. Under section 6 of the Amendment Act tax collected was sought to be validated and it reads as follows :
'Section 6. Validation and exemption. - (1) For the purposes of every provision of the Constitution in which the expression 'tax on the sale or purchase of goods' occurs, and for the purposes of any law passed or made, or purporting to have been passed or made, before the commencement of this Act, in pursuance of any such provision, -
(a) the said expression shall be deemed to include, and shall be deemed always to have included, a tax (hereinafter in this section referred to as the aforesaid tax) on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating) for cash, deferred payment or other valuable consideration; and
(b) every transaction by way of supply of the nature referred to in clause (a) made before such commencement shall be deemed to be, and shall be deemed always to have been, a transaction by way of sale, with respect to which the person making such supply is the seller and the person to whom such supply is made, is the purchaser,
and notwithstanding any judgment, decree or order of any court, tribunal or authority, no law which was passed or made before such commencement and which imposed or authorised the imposition of, or purported to impose or authorise the imposition of, the aforesaid tax shall be deemed to be invalid or ever to have been invalid on the ground merely that the legislature or other authority passing or making such law did not have competence to pass or make such law, and accordingly :-
(i) all the aforesaid taxes levied or collected or purporting to have been levied or collected under any such law before the commencement of this Act shall be deemed always to have been validly levied or collected in accordance with law;
(ii) no suit or other proceeding shall be maintained or continued in any court or before any tribunal or authority for the refund of, and no enforcement shall be made by any court, tribunal or authority of any decree or order directing the refund of, any such aforesaid tax which has been collected;
(iii) recoveries shall be made in accordance with the provisions of such law of all amounts which would have been collected thereunder as such aforesaid tax if this section had been in force at all material times.
(2) Notwithstanding anything contained in sub-section (1), any supply of the nature referred to therein shall be exempt from the aforesaid tax -
(a) where such supply has been made, by any restaurant or eating house (by whatever name called), at any time on or after the 7th day of September, 1978 and before the commencement of this Act and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that time; or
(b) where such supply, not being any such supply by any restaurant or eating house (by whatever name called), has been made at any time on or after the 4th day of January, 1972 and before the commencement of this Act and the aforesaid tax has not been collected on such supply on the ground that no such tax could have been levied or collected at that time :
Provided that the burden of proving that the aforesaid tax was not collected on any supply of the nature referred to in clause (a) or, as the case may be, clause (b), shall be on the person claiming the exemption under this sub-section.
(3) For the removal of doubts, it is hereby declared that, -
(a) nothing in sub-section (1) shall be construed as preventing any person -
(i) from questioning in accordance with the provisions of any law referred to in that sub-section, the assessment, reassessment, levy or collection of the aforesaid tax, or
(ii) from claiming refund of the aforesaid tax paid by him in excess of the amount due from him under any such law; and
(b) no act or omission on the part of any person, before the commencement of this Act, shall be punishable as an offence which would not have been so punishable if this Act had not come into force.'
7. After the said amendment, the sales tax authorities issued notices to the petitioners for payment of sales tax on the supply of food and drinks to customers visiting hotels, restaurants and bars on the ground that consequent to the Amendment Act the definition of 'sale' has been widened and that the hoteliers were not entitled to any exemption claimed by them. The petitioners objected to the levy. The sales tax authorities provisionally assessed the petitioners on the gross and net turnover of their sales from the month commencing April, 1983 to July, 1983 and issued notices to pay the tax retrospectively with effect from 1978 onwards. The Commissioner of Commercial Taxes issued a circular dated 26th October, 1983 directing all the Commercial Tax Officers concerned to take immediate action and make final assessments for the past years and provisional assessment for the year 1983-84. The Commissioner also directed that appeals and revisions pending with the authorities should be disposed off at once and that the assessment records should be submitted for revision and imposing tax on the turnover of supply of food and drinks. The petitioners aggrieved against the levy and collection of tax, filed writ petitions challenging the constitutional validity of sections 4(f) and 6 of the Amendment Act as being ultra vires of article 368 of the Constitution and violative of the fundamental rights of the petitioners guaranteed under articles 14, 19(1)(g) and 21 of the Constitution as the sales tax authorities had no power or jurisdiction to levy and collect sales tax under the Sales Tax Act on the supply of foodstuffs made by the petitioners to the customers visiting their restaurants. It is also contended that the definition of 'sale' in the Sales Tax Act has not been amended by the State Legislature and hence the sales tax authorities have no jurisdiction to levy or impose and collect tax on the foodstuffs supplied to the customers.
8. The learned Advocate-General appearing on behalf of the respondents submits that the Parliament in exercise of the constituent power conferred under article 368 of the Constitution passed the Amendment Act, that it is part of the Constitution and such a constitutional amendment cannot be questioned as being violative of articles 14, 16, 19 and 21 of the Constitution. It is also submitted that there was no necessity to amend the definition of 'sale' in the Sales Tax Act as the definition of 'sale or purchase' given in article 366(29A) automatically applied to the definition of 'sale' in the Sales Tax Act. Further by virtue of the Amendment Act, the expression 'tax on the sale or purchase of goods' shall be deemed to include and shall be deemed always to have included a tax on the supply, by way of or as part of any other service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink for cash, deferred payment or other valuable consideration and hence there was no necessity to amend the definition of 'sale' in the Sales Tax Act after the amendment of the Constitution introducing clause (29A) to article 366 of the Constitution and section 6 of the Amendment Act. So the contention further proceeds that in view of the Amendment Act, the definition of 'sale' under the Sales Tax Act shall include service or transaction of supply of food or drinks in hotels, restaurants and bars for consumption with retrospective effect.
9. Broadly stated the two questions that arise for consideration and are debated before us in detail are : (1) Whether section 6 of the Amendment Act falls within the amending power of the Parliament under article 368 of the Constitution and is valid, and (2) assuming that section 6 of the Amendment Act is valid and validates the levy and collection of tax made on the foodstuffs supplied by the petitioners, does it authorise the levy of sales tax on the supply of foodstuffs without amending the definition of the expressions 'sale' and 'turnover' in the Sales Tax Act.
10. (1) Validity of section 6. - There is no dispute that the procedure prescribed for amending the Constitution under article 368 of the Constitution has been complied with. The Bill was passed by both the Houses of Parliament and ratified by the Legislatures of not less than half of the States in accordance with the proviso to clause (2) of article 368. After more than half of the States passed resolutions ratifying the Constitution (Amendment) Bill, it was presented to the President for the assent of the President and the President gave his assent on 2nd February, 1983. Therefore, the procedure contemplated under article 368 of the constitution for constitutional amendments has been complied with. But the learned counsel for the petitioners submits that section 6 of the Amendment Act purports not to amend, very or repeal any provision of the Constitution, but amends the State law falling outside article 368 of the Constitution, that section 6 falls under entry 54 of the State List and therefore section 6 does not fall within article 368(1) of the Constitution. He invited our attention to the Statement of Objects and Reasons appended to the Constitution (Forty-sixth Amendment) Bill, the relevant portion of which reads as follows :
'8. Besides the above-mentioned matters, a new problem has arisen as a result of the decision of the Supreme Court in Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi : [1979]1SCR557 . States have been proceeding on the basis that the Associated Hotels of India case : [1972]2SCR937 was applicable only to supply of food or drink by a hotelier to a person lodged in the hotel and that tax was leviable on the sale of foodstuffs by a restaurant. But overruling the decision of the Delhi High Court, the Supreme Court has held in the above case that service of meals whether in a hotel or restaurant does not constitute a sale of food for the purpose of levy of sales tax but must be regarded as the rendering of a service in the satisfaction of a human need or ministering to the bodily want of human beings. It would not make any difference whether the visitor to the restaurant is charged for the meal as a whole or according to each dish separately.
9. It is, therefore, proposed to suitably amend the Constitution to include in article 366 a definition of 'tax on the sale or purchase of goods' by inserting a new clause (29A). The definition would specifically include within the scope of that expression tax on -
(i) transfer for consideration of controlled commodities;
(ii) the transfer of property in goods involved in the execution of a works contract;
(iii) delivery of goods on hire-purchase or any system of payment by instalments;
(iv) transfer of the right to use any goods for any purpose for cash, deferred payment or other valuable consideration;
(v) the supply of goods by an unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration;
(vi) the supply, by way of or as part of any service, of food or any drink for cash, deferred payment or other valuable consideration (see clause 4).
10. A new entry is sought to be inserted in the Union List in the Seventh Schedule, as entry 92B, to enable the levy of tax on the consignment of goods where such consignment takes place in the course of inter-State trade or commerce (see clause 5).
11. Clause (1) of article 269 is proposed to be amended so that the tax levied on the consignment of goods in the course of inter-State trade or commerce shall be assigned to the States. Clause (3) of that article is proposed to be amended to enable Parliament to formulate by law principles for determining when a consignment of goods takes place in the course of inter-State trade or commerce (see clause 2).
12. Clause (3) of article 286 is proposed to be amended to enable Parliament to specify, by law, restriction and conditions in regard to the system of levy, rates and other incidents of the tax on the transfer of goods involved in the execution of a works contract, on the delivery of goods on hire-purchase or any system of payment by instalments and on the right to use any goods (see clause 3).
13. The proposed amendments would help in the augmentation of the State revenues to a considerable extent. Clause 6 of the Bill seeks to validate laws levying tax on the supply of food or drink for consideration and also the collection or recoveries made by way of tax under any such law. However, no sales tax will be payable on food or drink supplied by a hotelier to a person lodged in the hotel during the period from the date of the judgment in the Associated Hotels of India case : [1972]2SCR937 and the commencement of the present Amendment Act if the conditions mentioned in sub-clause (2) of clause 6 of the Bill are satisfied. In the case of food or drink supplied by restaurants this relief will be available only in the respect of the period after the date of judgment in the Nothern India Caterers (India) Limited case : [1979]1SCR557 and the commencement of the present Amendment Act.'
11. The learned counsel submits that the Statement of Objects and Reasons shows that it is an amendment or purported amendment to the State law on the subject of tax on the sale of goods and that the power under article 368 is only a power to amend any provision of the Constitution and not to amend any laws made by the States nor to make a declaration whether by deeming fiction or otherwise in respect of laws enacted by competent State Legislature in matters dealt with in the State laws. It is, therefore, submitted that section 6 of the Amendment Act is ultra vires of article 368(1) and cannot be said to have been made or purported to have been made under article 368(1) of the Constitution. It is pleaded that the provisions of section 6 of the Amendment Act cannot be read into as part of the law made by a competent State Legislature, namely, A.P. General Sales Tax Act.
12. In Minerva Mills Ltd. v. Union of India : [1981]1SCR206 Chandrachud, C.J., observed :
'Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution.'
13. In Smt. Indira Nehru Gandhi v. Raj Narain : [1976]2SCR347 Mathew, J., said that in the exercise of constituent power, the exercise of ordinary legislative power is not permitted. He observed in para 329 :
'Article 368 does not confer on the amending body the competence to pass any ordinary law whether with or without retrospective effect.'
14. The exercise of constituent power to pass a validating provision like section 6 of the Amendment Act, it is submitted, could only be valid if the Parliament possessed legislative power on the subject of tax on sale of or purchase of goods, that the definition in section 4 of the Amendment Act only enables a State Legislature to make laws levying taxes on supply of food and drinks, that the State has not passed any such law and that section 4 of the Amendment Act cannot validate laws that have not been passed.
15. In Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality : [1971]79ITR136(SC) Hidayatullah, C.J., observed :
'If the legislature has the power over the subject-matter and competence to make a valid law, it can at any time make such a valid law and make it retrospectively so as to bind even past transactions. The validity of a validating law, therefore, depends upon whether the legislature possesses the competence which it claims over the subject-matter and whether in making the validation it removes the defect which the Courts had found in the existing law and makes adequate provisions in the validating law for a valid imposition of the tax.'
16. In State of Tamil Nadu v. M. Rayappa Gounder : AIR1971SC231 wherein the validity of section 7 of the Madras Entertainments Tax (Amendment) Act, 1966 was questioned, the Supreme Court observed that the section does not change the law retrospectively, but attempts to validate invalid assessments and overrule the decision of the High Court and therefore the section is invalid.
17. It is argued that in this case also section 6 of the Amendment Act does not remove or purport to remove the basis of the judgment of the Supreme Court in Northern India Caterers's case : [1979]1SCR557 and this Court in Durga Bhavan v. Deputy Commercial Tax Officer, Anantapur [1981] 47 STC 104 or to so alter the State laws as to render the judgment inapplicable under altered circumstances, but merely legislates contrary to the judgment and therefore section 6 is invalid. Further, it is submitted that the said judgment did not declare any State law invalid, but it only held that supply of food in a restaurant was not exigible to sales tax as there was no transfer of title in the goods, transfer of title being an essential ingredient in the definition of 'sale' in section 2(1)(n) of the Sales Tax Act. Therefore, it is pleaded that the amendment would amount to encroachment of judicial power. Reliance is placed on the decision of the Supreme Court in Smt. Indira Nehru Gandhi v. Raj Narain : [1976]2SCR347 . There, while considering the constitutional validity of clauses (4) and (5) of article 329 of the Constitution, Chandrachud, J. (as he then was), observed :
'under the said clauses the Parliament had exercised purely and indubitably a judicial function and is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.'
18. The learned Advocate-General on the other hand maintains that only the basis of the judgment is taken away and no inroad is made into the judicial power in Tirath Ram v. State of Uttar Pradesh : AIR1973SC405 , the Supreme Court pointed out that there is always distinction between encroachment on the judicial power and the nullification of the effect of a judicial decision by changing the law retrospectively, and the former is outside the competence of the legislature but the latter is within the permissible limits.
19. Ray, C.J., in Smt. Indira Nehru Gandhi v. Raj Narain : [1976]2SCR347 pointed out :
'Rendering ineffective of judgments or orders of competent Courts and tribunals by changing their basis by legislative enactment is a well-known pattern of all validating Acts. Such validating legislation which removes the causes for ineffectiveness or invalidity of actions or proceedings is not an encroachment on judicial power.'
20. In I. N. Saksena v. State of Madhya Pradesh AIR 1976 SC 2250 the Supreme Court echoed the view expressed in the aforesaid decisions.
21. In Krishnamurthi & Co. v. State of Madras : [1973]2SCR54 the Supreme Court held :
'Such an amending and validating Act in the very nature of things has a retrospective operation. Its aim is to effectuate and carry out the object for which the earlier principle Act has been enacted. Such an amending and validating Act to make 'small repairs' is a permissible mode of legislation and is frequently resorted to in fiscal enactment.'
22. What is sought to be achieved by the Constitution (Forty-sixth Amendment) Act is to remove the causes for ineffectiveness or invalidity and the effect of the judgment of the Supreme Court in Northern India Caterers's case : [1979]1SCR557 . It is clear from the Statement of Objects and Reasons that section 6 was intended to invalidate (sic) laws levying tax on the supply of goods mentioned in the provision and also recoveries of tax made under any such law. We are unable to hold that there has been any inroad into judicial power by section 6 of the Amendment Act.
23. The question then is whether the exercise of the amending power to validate a State law is lawful and whether it affects the basic features of the Constitution since the power is exercised to amend a law falling in the State List. Sri Subbarayan, learned counsel for some of the petitioners, submits that the amendment amounts to usurpation of the jurisdiction of the State Legislatures under the guise of amending power and under a federal Constitution wherein there is demarcation of powers, such an exercise of power amounts to amending the basic structure of the Constitution. Reference is made to the decision in Chhotabhai v. Union of India : AIR1962SC1006 wherein the Supreme Court observed that the Indian Constitution is unlike any that had been called to their Lordships' notice in that it contained an exhaustive enunciation and distribution of powers between the federal and provincial Legislatures. In Sasanka Sekhar Maity v. Union of India : [1980]3SCR1209 the Supreme Court observed that the Courts will have no power to go into the constitutionality of an enactment included in the Ninth Schedule under article 31-B of the constitution except on grounds of want of legislative competence.
24. The learned Advocate-General on the other hand submits that the constituent power falls outside the ambit of article 13; it is sui juris and Parliament under article 368 can legislate for any of the entries in any of the lists in the Seventh Schedule to the Constitution. He submits that article 368 is itself part of the Constitution and every part of the Constitution can be amended in exercise of the amending power. The Supreme Court had occasion to consider what is the amending power in the celebrated case of Kesavananda Bharati v. State of Kerala : AIR1973SC1461 . Sikri, C.J., observed :
'I am driven to the conclusion that the expression 'amendment of this Constitution' in article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the Preamble and Constitution to carry out the objectives in the Preamble and the Directive Principles.'
25. Ray, J. (as he then was), observed that the Parliament in exercise of the constituent power can amend any provision of the Constitution under article 368 and the power to amend can also be increased.
26. Jaganmohan Reddy, J., observed :
'Parliament could amend article 368 and article 13 and also all the fundamental rights and though the power of amendment is wide, it is not wide enough to include the power of totally abrogating or emasculating or damaging any of the fundamental rights or the essential elements in the basic structure of the Constitution or of destroying the identity of the Constitution.'
27. Chandrachud, J. (as he then was), observed :
'The power of amendment of the Constitution conferred by article 368 was wide and unfettered. It reached every part and provision of the Constitution.'
28. Therefore, there can be no doubt that every part of the Constitution including article 368 can be amended in exercise of the amending power, subject, however, to the limitation that it cannot be exercised so as to alter the basic structure or the framework of the Constitution.
29. The question, however, is whether in exercise of the constituent power the Parliament can legislatate or validate in respect of State law. It is argued by the learned Advocate-General that the constituent power is a sovereign power and the Constitution flows from the constituent power. The argument goes that there is no question of separation of powers when the constitutional authority exercises constituent power and in exercise of the constituent power the constitutional authority can legislate in respect of any subject in any of the lists in the Seventh Schedule to the Constitution. The source from which the power flows is important. The question to be asked to determine legislative competence is : Is it constituent power or legislative power In A. K. Roy v. Union of India : 1982CriLJ340 Chandrachud, C.J., speaking for the Court observed :
'What is permissible to the legislature by way of conditional legislation cannot be considered impermissible to the Parliament when, in the exercise of its constituent power, it takes the view that the question as regards the time of enforcement of a constitutional amendment should be left to the judgment of the executive.'
30. In Smt. Indira Gandhi's case : [1976]2SCR347 Ray, C.J., observed :
'When the constituent power exercises powers the constituent power comprises legislative, executive and judicial powers. All powers flow from the constituent power through the Constitution to the various departments or heads. In the hands of the constituent authority there is no demarcation of powers. It is only when the constituent authority defines the authorities or demarcates the areas that separation of power is discussed. The constituent power is independent of the doctrine of separation of powers. The constituent power is sovereign. It is the power which creates the organs and distributes the powers.'
31. Echoing the same view, Khanna, J., held that if the legislature can pass legislation in respect of matters relating to election disputes with retrospective effect, the constituent authority which is a super authority a fortiori be entitled to do so.
32. Chandrachud, J. (as he then was), held that the constituent power must be held to be a plenary power on which the only limitation is as regards the inviolability of the basic structure.
33. In Sasanka Sekhar Maity v. Union of India : [1980]3SCR1209 the Supreme Court held :
'The submission that Parliament cannot in exercise of its constituent power under article 368 validate a 'State law', proceeds on the misconception arising from failure to distinguish between a law made in exercise of legislative power and the law made in exercise of the constituent power. When article 31-B was introduced in the Constitution by the Constitution (First Amendment) Act, 1951 it validated retrospectively 13 Acts specified in the Ninth Schedule, which, but for this provision, were liable to be impugned under article 13(2). Article 31-B conferred constitutional immunity to such laws (all being enactments of State Legislatures) and Parliament alone could have done so by inserting the said article in the Constitution in exercise of its constituent power under article 368. In substance and reality it was a constitutional device employed to protect State laws from becoming void under article 13(2).'
34. In Minerva Mills Ltd. v. Union of India : [1981]1SCR206 Chandrachud, C.J., speaking for himself and Gupta, Untwalia and Kailasam, JJ., said :
'Indeed, a limited amending power is one of the basic features of our Constitution and therefore the limitations on that power cannot be destroyed. In other words, Parliament cannot, under article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or destroy its basic and essential features.'
35. Bhagwati, J., echoed the same view and observed :
'I am of the view that if there is one feature of our Constitution which, more than any other, is basic and fundamental to the maintenance of democracy and the rule of law, it is the power of judicial review and it is unquesionably, to my mind, part of the basic structure of the Constitution .................... If by a constitutional amendment, the power of judicial review is taken away and it is provided that the validity of any law made by legislature shall not be liable to be called in question on any ground, even if it is outside the legislative competence of the legislature or is violative of any fundamental rights, it would be nothing short of subversion of the Constitution, for it would make a mockery of the distribution of legislative powers between the Union and the States and render the fundamental rights meaningless and futile. So also if a constitutional amendment is made which has the effect of taking away the power of judicial review and providing that no amendment made in the Constitution shall be liable to be questioned on any ground, even if such amendment is violative of the basic structure and therefor, outside the amendatory power of Parliament, it would be making Parliament sole judge of the constitutional validity of what it has done and that would, in effect and substance, nullify the limitation on the amending power of Parliament and affect the basic structure of the Constitution.'
36. We are unable to hold that section 6, which validates a State law, is outside the amending power of the Parliament. We, therefore, hold that section 6 falls within the limited amending power.
37. The question then is does the amendment affect the basic features of the Constitution. In the Statement of Objects and Reasons, it is stated that the proposed amendment would help in the augmentation of the State revenues to a considerable extent and therefore clause 6 of the Bill seeks to validate laws levying tax on the supply of food or drink for consideration and also collection or recoveries made by way of tax under any such law. Therefore, it is submitted by the learned Advocate-General that such amendment cannot affect the basic features of the Constitution or division of powers under the Constitution.
38. In the book, Constitutional Law of India, by H. M. Seervai, Third Edition, the author says at page 150 :
'It is not enough to say that, in law, a Constitution is federal; we must inquire further and find out whether the Constitution works as a federal Government. For the law of the Constitution is one thing; the practice is another. The mere presence of unitary features in a Constitution, which may make a Constitution quasi-federal in law, does not prevent the Constitution from being predominantly federal in practice ...................... The most important feature of a federal Constitution is the distribution of legislative power between the Centre and the States; and our Constitution has bodily adopted the scheme of G.I. Act, 35 with small verbal changes, with substantially enlarged Legislative Lists of Schedule 7.'
39. According to Dicey, the leading characteristics of federalism are : (1) the supremacy of the Constitution, (2) the distribution of different powers of the Government among bodies which are co-ordinate with and independent of each other, and (3) the authority of the Courts to act as interpreters of the Constitution. A federal State derives its existence from the Constitution, just as a corporation derives its existence from the grant by which it is created. Hence, every power, executive, legislative, or judicial, whether it belongs to the nation or to the individual States, is subordinate to and controlled by the Constitution.
40. The bills of federalism are said to be : Weakness of the Government since no one authority can wield the same amount of power as under a unitarian Constitution is possessed by the sovereign, conservatism because of the rigidness of the Constitution which cannot be changed by ordinary process of legislation and legalism, namely, the predominance of the judiciary in the Constitution - the prevalence of a spirit of legality among the people.
41. In the text book, Commentary on the Constitution of India, by Dr. Durga Das Basu, Sixth Edition, at page 26, the author says :
'Since the framers of our Constitution sought to combine the best features of the different constitutional systems of the world and to avoid the vices inherent in any particular system, they had, naturally, to effect a compromise between opposite theories and models on several vital points. One of these is the combination of a federal structure with unitary features.'
42. The main features of a federal system on which there is common agreement among political scientists are : (1) Supremacy of the Constitution, (2) Dual Government, namely, Federal Government and Government of each component State, (3) Distribution of powers, namely, division of authority between the Federal Government and the States and (4) Authority of Courts : Power of the Courts to interpret the Constitution and to nullify any action on the part of the Federal and State Governments or their different organs which violate the provisions of the Constitution.
43. In the text book, The Indian Constitution : Cornerstone of a Nation by Granville Austin, First Indian Edition, the author says at page 186 :
'The political structure of the Indian Constitution is so unusual that it is impossible to describe it briefly. Characterisations such as 'quasi-federal' and 'statutory decentralization' are interesting, but not particularly illuminating.'
44. Again at page 187 the author says :
'Co-operative federalism, according to Birch, is distinguished by the practice of administrative co-operation between general and regional governments, the partial dependence of the regional governments upon payments from the general governments, and the fact that the general governments, by the use of conditional grants, frequently promote developments in matters which are constitutionally assigned to the regions.'
45. At page 188 the author says :
'Yet the Constitution, said Ambedkar, avoided the 'tight mold of federalism' in which the American Constitution was caught, and could be both unitary as well as federal according to the requirements of time and circumstances.'
46. At page 191, the author says :
'K. M. Panikkar believed 'Federation is a fair weather constitution' and would be definitely dangerous to the strength, prosperity and welfare of India.'
47. Again at page 255 the author says :
'Dr. B. R. Ambedkar said that one can safely say that the Indian Federation will not suffer from the faults of rigidity or legalism. Its distinguishing feature is that it is a flexible federation.'
48. Articles 249, 250 and 252 of the Constitution delineate the circumstances under which the Parliament may legislate in respect of matters in the State List. Article 248 invests Parliament with exclusive residuary power of legislation with respect to any matter not enumerated in the Concurrent List or State List. Article 356 and 357 of the Constitution deal with the power of the President in case of failure of constitutional machinery in the States to assume to himself all or any of the functions of the Government of the State, and the authority of the Parliament to exercise the powers of the Legislature of the State.
49. These provisions do indicate that the Indian federation is a flexible federation or a quasi-federation and does not suffer from the twin evils of rigidity and legalism. It is a new kind of federalism, which the Constituent Assembly Produced to meet India's peculiar needs. There is absence of conflict between the centralisers and provincialisers. What is contemplated is co-operative federalism which provides for a strong Central Government. It does not necessarily result in weak provincial governments which are administrative agencies for central policies. Indian federalism demonstrated that it is real co-operative federalism as the provincial governments have been working in co-operation for implementing the policies and programmes of the Central Government. Articles 256 and 257 of the Constitution make it obligatory for the States to ensure compliance with the laws made by the Parliament and to comply with the directions given to States by the Government of India. Article 365 of the Constitution provides for enforcing the directions given by the Central Government under article 256 of the Constitution. The key concept of co-operative federalism is partnership locking the States and the Central Government in joint endeavours to pursue commonly shared goals. Co-operative programmes are developed in the fields of agriculture, highway construction, education etc. The levels of Government which reinforces hierarchical or pyramidal concept places Central Government at the top and the State Governments at the bottom. The President is placed at apex and the Governor a level below him. There is no horizontal concept between the States and the Centre, although they are two centres of power and not a single centre of power. However, within the constitutional limits the constituent units can have their own way unless strong case is made to the contrary.
50. The aforesaid discussion leads to the conclusion that the Indian Constitution does not suffer from rigidity and legalism of federalism, but it is Constitution having federal structure with unitary features intended to meet the peculiar conditions of India. Mr. K. Santhanam in his book Union-State Relations said :
'India has practically functioned as a unitary State though the Union and the States formally and legally tried to function as a federation. The working of our Constitution for the last 33 years shows that the unitary bias in some respects has strengthened and accentuated it.'
51. Let us now turn to the reported decisions on the discussion. The Supreme Court in State of West Bengal v. Union of India : [1964]1SCR371 referring to the structure and framework of the Constitution, the Supreme Court said :
'The result was a Constitution which was not true to any traditional pattern of federation. There is no warrant for the assumption that the Provinces were sovereign, autonomous units which had parted with such power as they considered reasonable or proper for enabling the Central Government to function for the common good. The legal theory on which the Constitution was based was the withdrawal or resumption of all the powers of sovereignty into the people of this country and the distribution of these powers - save those withheld from both the Union and the States by reason of the provisions of Part III - between the Union and the States.'
52. Beg. C.J., in State of Rajasthan v. Union of India : [1978]1SCR1 referred to what Dicey postulated for the existence of federalism, observed :
'Without the desire to unite there could be no basis for federalism. But, if the desire to unite goes to the extent of forming an integrated whole in all substantial matters of Government, it produces a unitary rather than a federal Constitution. Hence, he said, a federal State 'is a political contrivance intended to reconcile national unity with the maintenance of State rights'. The degree to which the State rights are separately preserved and safeguarded gives the extent to which expression is given to one of the two contradictory urges so that there is a union without a unity in matters of government. In a sense, therefore, the Indian Union is federal. But, the extent of federalism in it is largely watered down by the needs of progress and development of a country which has to be nationally integrated, politically and economically co-ordinated, and socially, intellectually and spiritually uplifted. In such a system, the States cannot stand in the way of legitimate and comprehensively planned development of the country in the manner directed by the Central Government.'
53. Chandrachud, J. (as he then was), in Smt. Indira Nehru Gandhi's case : [1976]2SCR347 quoting Harold Laski observed :
'The 'separation of powers does not mean the equal balance of powers'. But the exercise by the legislature of what is purely and indubitably a judicial function is impossible to sustain in the context even of our co-operative federalism which contains no rigid distribution of powers but which provides a system of salutary checks and balances.'
54. In A. K. Roy v. Union of India : 1982CriLJ340 the Supreme Court again observed that our Constitution does not follow the American pattern of strict separation of powers.
55. In an unreported decision in W.P. No. 4388 of 1979 dated 18th April, 1983 the Karnataka High Court held :
'Section 6 finds its place in the 46th Constitution Amendment Act. Section 6 has been inserted by the Parliament in exercise of its constituent power only. On any constitutional or legal principle, it is impermissible to hold that section 6 has been enacted by the Parliament in exercise of its ordinary legislative power and not in exercise of its constituent power. On this and the earlier conclusions reached, it follows that section 6 does not suffer from any infirmity.'
56. From the aforesaid discussion of the relevant texts on Constitutional Law and precedents, it can be gleaned that there is no strict separation of powers under the Indian Constitution, that the Indian Constitution, though federal, has unitary bias and tended to be unitary in the actual working, that the Amendment Act was passed in exercise of the constituent power, which is sovereign and therefore sections 4(f) and 6 of the Amendment Act are not ultra vires of article 368 of the Constitution and are not violative of the fundamental rights of the petitioners guaranteed under articles 14, 19(1)(g) and 21 of the Constitution.
(2) Does the Amendment authorise levy of tax Then the next question is whether section 6 of the Amendment Act authorises the taxing authorities to levy and collect tax on the supply of foodstuffs and beverages in restaurants. It is argued that the Sales Tax Act defines the expressions 'sale' and 'turnover' and that the expression 'tax on the sale or purchase of goods' employed in section 6 of the Amendment Act to include tax on the supply of foodstuffs and beverages does not even purport to provide a definition or amend the definition of 'sale' or 'turnover' in the Sales Tax Act, and therefore the taxing authorities cannot avail the provisions of section 6 of the Amendment Act to levy and collect tax on the supply of goods. Section 6 provides that the expression 'tax on the sale or purchase of goods', for the purpose of any law passed or made, or purporting to have been passed or made, before the commencement of the Amendment Act shall be deemed to include and shall be deemed always to have included a tax on the supply, by way of or as part of any service or in any manner whatsoever of goods being food or any other article for human consumption or any drink for cash, deferred payment or other valuable consideration. The expression 'tax on the sale or purchase of goods' in article 366 has been amended by section 4(f) of the Amendment Act by adding that the definition 'tax on the sale or purchase of goods' includes tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink for cash, deferred payment or other valuable consideration.
57. Under the Sales Tax Act, the expressions 'sale', 'tax' and 'turnover' are defined in section 2(1)(n), (q) and (s) respectively. Section 5 provides for the levy of tax on sale or purchase of goods. Section 5(2)(a) provides for the levy of tax, notwithstanding anything contained in sub-section (1) of section 5, in the case of goods mentioned in the First Schedule. Items 44 and 44-A of the First Schedule relate to milk foods and other foodstuffs respectively. Items 33 and 34 relate to coffee and chicory. Still, the question is whether there is sale within the meaning of 'sale' as defined in section 2(1)(n) of the Sales Tax Act. The Supreme Court had clearly laid down in Northern India Caterers v. Lt. Governor of Delhi : [1979]1SCR557 that the service of meals, foodstuffs, snacks or drinks to the visitors in a restaurant is not a sale and therefore not exigible to sales tax.
58. It is clear from the Statement of Objects and Reasons as well as the counter-affidavit filed by the respondents that the effect of the judgment of the Supreme Court in Northern India Caterers v. Lt. Governor of Delhi : [1979]1SCR557 was sought to be neutralised by the Amendment Act by a constitutional device. While the learned counsel for the petitioners, Sri Nariman submits that there is no law authorising the levy of any tax since September, 1980 after the judgment of this Court in Durga Bhavan v. Deputy Commercial Tax Officer [1981] 47 STC 104 by a valid legislative amendment of the Sales Tax Act, the learned Advocate-General maintains that the Amendment Act is intended to remove the mischief, that amendment of statute by incorporation or by a referential statute is permissible, that the expression employed in section 6(1)(a) of the Amendment Act 'shall be deemed to include and shall be deemed always to have included a tax on the supply, by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human consumption or any drink for cash, deferred payment or other valuable consideration' remove the defect in law and changes the law and therefore levy and collection of tax, except in respect of the matters mentioned in sub-section (2) for which exemption is granted, is valid.
59. In the textbook, Maxwell on the Interpretation of Statute, Twelfth Edition, the author says at page 40 :
'In Heydon's case [3 Co Rep 7a] in 1584, it was resolved by the Barons of the Exchequer (at p. 7b) 'that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered : (1st) What was the common law before the making of the Act, (2nd) What was the mischief and defect for which the common law did not provide, (3rd) What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, and (4th) The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.''
60. In the textbook 'Craies on Statute Law', Seventh Edition, the author says at page 60 :
'A Remedial Act is defined by Blackstone as one made to 'supply such defects and abridge superfluities in the common law as arise, either from the general imperfection of all human laws, from change of time and circumstances, from the mistakes and unadvised determinations of unlearned (and even learned) Judges, or from any other cause whatever.'
61. Therefore, the Act being a Remedial Act, the learned Advocate-General argues, by which an earlier enactment is amended, legislation by reference can be resorted to.
62. In Craies on Statute Law, the author says at page 29 :
'Legislation by reference. - Legislation by reference occurs where an earlier enactment is amended, applied, etc., by a mere specific reference to the section or part affected without any description of its subject-matter, necessitating in consequence resort to the enactment cited to appreciate what the later enactment is effecting.'
63. The Supreme Court in Bajya v. Smt. Gopikabai : [1978]3SCR561 observed :
'Broadly speaking, legislation by referential incorporation falls in two categories : First, where a statute by specific reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject, as a genus. In the case of the former, the subsequent amendments made in the referred statute cannot automatically be read into the adopting statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also, made from time to time in the generic law on the subject adopted by general reference. This principle of construction of a reference statute has been neatly summed up by Sutherland, thus :
'A statute which refers to the law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference statute was enacted.''
64. But it is still contended by the learned counsel for the petitioners that section 6 only validates past transactions and does not authorise future levy and collection of tax, while the learned Advocate-General asserts that since the definition of 'sale' is enlarged by section 4(f) of the Amendment Act, tax can be levied and collected de hors section 6. Therefore, the question is whether section 6(1) covers both the past and future transactions of sale or section 6(1) only validates past transactions of sale. The learned counsel places reliance on the following passage in Principles of Statutory Interpretation by G. P. Singh, Second Edition, at page 173 :
'But a legislation proceeding upon an erroneous assumption of the existing law without directly amending or declaring the law is ineffective to change the law.'
65. At page 206 the author says :
'In interpreting a provision creating a legal fiction, the Court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corrollaries to the giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose for which it is created or beyond the language of the section by which it is created. it cannot also be extended by importing another fiction.'
66. In Craies on Statute Law, the author says at page 113 :
'It is well established rule that the subject is not to be taxed without clear words for that purpose.'
67. At page 112, the author says :
'Express and unambiguous language appears to be absolutely indispensable in statutes passed for the following purposes : Imposing a tax, etc.'
68. A reading of the Statement of Objects and Reasons appended to the Amendment Act and the marginal note to section 6 leaves no doubt that the object of section 6 is only to remove the defect in the law, to validate levying of tax on the supply of goods, being food or any other article for human consumption or any drink and also collection or recoveries made by way of tax under any such defective law. The marginal note of section 6 is 'Validation and exemption'. Clause (b) clearly says that every transaction by way of supply made before such commencement shall be deemed to be and shall always be deemed to have been a transaction by way of sale. A careful reading of clause (1) of section 6 shows that it does not clearly and unambiguously allow or authorise the levy or imposition of tax on the supply by way of or as part of any service or in any other manner whatsoever of goods, being food or any other article for human consumption or any drink. Clause (2) deals with only exemptions in respect of transactions covered by sub-section (1).
69. The learned Advocate-General, however, submits that in view of the enlargement of the definition of 'tax on the sale or purchase of goods' by section 4 of the Amendment Act, further amendment of the Sales Tax Act is not necessary.
70. By section 4 of the Amendment Act, clause (29A) is inserted in article 366 of the Constitution. Sub-clause (f) of clause (29A) defines 'tax on the sale or purchase of goods' to include a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink, whether or not intoxicating, whether such supply or service is for cash, deferred payment or other valuable consideration and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer. The words 'tax on the sale or purchase of goods' appear in entry 92-A of the Union List and entry 54 of the State List. It is argued that when once the entry in the legislative list relating to 'sale' is widened, the same definition should be given to 'sale' in section 2(1)(n) of the Sales Tax Act. In Gannon Dunkerley's case : [1959]1SCR379 the Supreme Court held that the expression 'sale of goods' as used in the entries in the Seventh Schedule to the Constitution should bear the precise and definite meaning it has in law and no inference to the contrary can be drawn from the fact of the absence of words linking up the meaning of the word 'sale' with what it might bear in the Sale of Goods Act. By a series of subsequent decisions, the Supreme Court, on the basis of the decision in Gannon Dunkerley's case : [1959]1SCR379 reiterated the view that the expression 'sale of goods' used in the legislative entries in the Constitution bears the same meaning which it has in the Sale of Goods Act, 1930 (vide New India Sugar Mills Ltd. v. Commissioner of Sales Tax, Bihar : AIR1963SC1207 , Bhopal Sugar Industries v. Sales Tax Officer, Bhopal : [1964]1SCR488 and Deputy Commercial Tax Officer, Saidapet v. Enfield India Ltd. Co-operative Canteen Ltd. : [1968]2SCR421 ). In Joint Commercial Tax Officer, Harbour Division, Madras v. The Young Men's Indian Association : [1970]3SCR680 the Supreme Court held that the expression 'sale of goods' has the same meaning which it bears in the Sale of Goods Act, 1930.
71. Reliance is placed by the learned counsel on the decision of the Allahabad High Court in Northern India Hotels Ltd. v. Commissioner of Sales Tax [1984] 55 STC 68 wherein the learned single Judge held :
'Clause (1) read with its sub-clauses (a) and (b) of section 6 of the Amendment Act, by its own force, incorporates a definition of the word 'sale' in the States' Sales Tax Acts and is, in effect, and amendment of the definition. In this view of the matter, if sub-section (1) of section 6 is attracted to a particular statute, the definition of the term 'sale' must be deemed to have stood altered.'
72. The Supreme Court in Mahendra Lal Jaini v. State of Uttar Pradesh : AIR1963SC1019 held :
'The doctrine of eclipse would apply to pre-Constitution laws which are governed by article 13(1) and would not apply to post-Constitution laws which are governed by article 13(2).'
73. It was further ruled that the constitutional validity of a legislation must be judged on the basis of the Constitution as it was on the date the legislation was passed, subject to any retrospective amendment of the Constitution.
74. Therefore, it is argued that in view of the retrospective amendment of the Constitution itself by the Amendment Act, the question of invalidity of the provisions under the General Sales Tax Act cannot be canvassed. Reliance is also placed on the passage in 'Principles of Statutory Interpretation', Third Edition, by G. P. Singh, at page 230 :
'The merit of legislation by incorporation is brevity which is largely counterbalanced by 'difficulties and obscurities' which it is likely to create. Criticising this mode of legislation, Mathew, J., said 'sometimes whole Acts of Parliament, sometimes groups of clauses of Acts of Parliament, entirely or partially, sometimes portions of clauses are incorporated into later Act, so that the interpreter has to keep under his eye, or, if he can, bear in his mind, large masses of bygone and not always consistent legislation in order to gather the meaning of recent legislation. There is very often the further provision that these earlier statutes are incorporated only so far as they are not inconsistent with the statute into which they are incorporated; so that you have first to ascertain the meaning of a statute by reference to other statute, and then to ascertain whether the earlier Acts qualify only or absolutely contradict the later ones, a task sometimes of great difficulty, always of great labour, a difficulty and labour generally speaking wholly unnecessary'.'
75. We cannot but deprecate brevity at the expense of lucidity and certainty. Laws are made for the people and not for the lawyers. They must be clear and easily understandable. More so, a taxing statute because there is no equity about tax. The House of Lords recently deprecated the attempt at brevity at the expense of lucidity in legislation by reference (see Minister of Housing and Local Government v. Hartnell [1965] 1 All ER 490]).
76. The Amendment Act by the expansion of the legislative entry has merely conferred legislative competence in respect of a matter the State Legislature was found not competent to legislate. Now the Amendment Act enables the State Legislature to enact the law imposing tax on foodstuffs supplied or served to customers. Without an amendment to section 2(1)(n) and (s) of the Sales Tax Act relating to the definition of 'sale' and 'turnover' respectively, there will be no law providing for levy and collection of tax. It is not disputed that several States have amended their respective Sales Tax Acts after the Constitution (Forty-sixth Amendment) Act, 1982 amending the definitions of 'sale' and 'turnover' (vide Act No. 28 of 1984 of the Tamil Nadu Government and Act No. 23 of 1983 of the Karnataka Government.) Therefore, we reject the contention that no further amendment of the Sales Tax Act is necessary to levy and collect tax on sale of foodstuffs and beverages from the date of the Amendment Act.
77. On a close reading of section 6 and the marginal note, we are clearly of the opinion that the section is only intended to validate transactions already made and levy and collection of tax on transactions by way of sale of foodstuffs and beverages and does not authorise imposition and collection of tax in future and such a levy and collection can only be done after the amendment of the State law by the legislature. The provisional assessment orders for 1983-84 are accordingly quashed.
78. In the result, we hold that the Amendment Act
(i) is valid and does not offend any of the basic features of the Constitution;
(ii) is not ultra vires of article 368 of the Constitution and is not violative of articles 14, 19(1)(g) and 21 of the Constitution; and
(iii) it does not authorise imposition and collection of tax on the supply of foodstuffs from 2nd February, 1983 on which date the Amendment Act came into force, but confers legislative competence on the State Legislature so to do and merely validates the collection and recovery of tax by removing the invalidity in the existing law subject to the exemption granted under sub-section (2) of section 6. The writ petitions are partly allowed to the extent indicated above. No costs. Advocate's fee Rs. 75 in each.
Both the learned counsel for the parties make oral applications for leave to appeal to the Supreme Court. We do not think that any substantial question of law of general importance which requires to be considered by the Supreme Court arises in these cases. The oral applications are, therefore, rejected.