IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.20278 of 2012 (O&M) DATE OF DECISION: January 16, 2013 Sukhpal Singh Khaira …..Petitioner versus State of Punjab and others .....Respondents CORAM:- HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE HON’BLE MR. JUSTICE RAKESH KUMAR JAIN, JUDGE Present: Mr.H.C. Arora, Advocate for the petitioner Mr.Ashok Aggarwal, Advocate General, Punjab with Mr.H.S. Sidhu, Addl. Advocate General, Punjab .. A.K. SIKRI, C.J.
1. The present civil writ petition is filed by way of a Public Interest Litigation invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India for seeking issuance of writ of mandamus or any other appropriate writ direction or order thereby directing the State of Punjab and its functionaries to recover the amount of Rs.1 Crore given by them to Lawrence School, Sanawar, Himachal Pradesh out of ‘Punjab Nirman Programme’ (hereinafter referred to as ‘the Programme’). It is alleged that the said amount is given in gross violation of objects and purposes for which the said Programme funds can be spent, as per the official publication of the Government of Punjab, Department of Planning containing the details of Annual Plan, 2012-13. Another direction is sought against the CWP No.20278 of 2012 -2- respondent No.5, Headmaster of The Lawrence School, Sanawar to refund the amount of Rs.1 Crore.
2. The petitioner, who is an Ex. M.L.A., claims to be a public person, who has always been agitating the cause of development of Punjab. It is stated that the petition is being filed by the petitioner with an object to stop the misuse of funds of the State Government and its functionaries since he strongly believes that the tax payers’ money cannot be doled out just at the pleasure of the State Government.
3. Explaining the budgetary provision of Rs.1 Crore in the said Programme, the petition goes on to mention that the Finance Minister of Punjab during the presentation of Budget, 2012-13 in the Punjab Vidhan Sabha had distributed a booklet containing his speech dated 20.6.2012. Para 20 of the said speech contained the plan proposal is in the following manner: “Plan Proposal 20. The Plan Performance during the 11th Plan period has been 80%. During the year 2011-12, the plan expenditure was Rs.7374 crore against Rs.11520 crore. The outlay for Annual Plan 2012-13 has been increased by 22% to Rs.14000 crore. It has already been approved by the Planning Commission in its meeting in May, 2012. The Annual Plan 2012-13 focuses on development of infrastructure in power, roads, rural water supply and sanitation, water supply, sewerage and sewage treatment plants in municipal areas. Health and medical education also continue to be the thrust areas of the annual plan. The outlays of major welfare schemes for disadvantages groups have been increased and the scope of the most of the welfare schemes has been widened to include more number of families. Sir, I not present the plan proposals for the year 2012-13.”
4. In another book titled ‘ Twelfth Five Year Plan 2012-13 – Annual Plan:
2012. 13, Volume-I’ published by the Govt. of Punjab, Department of Planning Chandigarh, which was the basis of budget speech of the Finance Minister, under the heading of “MP-10 – State Level Initiatives (Punjab Nirman Programme)”., the total outlay as well 2 CWP No.20278 of 2012 -3- as the purposes for which the funds of ‘Punjab Nirman Programme’ could be spent were stated as under: “PM-10 State Level Initiatives (Punjab Nirman Programme) 8.1.20 An outlay of Rs.296.85 crore was provided for the State Level Initiatives (Punjab Nirman Programme) in the Annual Plan 2006-07. Out of this, an amount of Rs.262.87 crore has been utilized so far. Under this programme, different development activities such as Municipal Corporation Roads, Punjab State Tubewell Corporation-Installation of Tubewells, Development of Historical villages, Ambedkar Bhawans, Sports Stadiums, Water Supply Schemes, Construction of Dharamashalas, Streets & Drains, Toilets, Cremation grounds, Pavement of Streets in Municipal areas etc. have been taken up. An outlay of Rs.25.00 crore was provided for the 11th Five Year Plan. Against an actual expenditure of Rs.22.26 crore was incurred during 11th Five Year Plan, an outlay of Rs.5.00 crore is provided for the 12th Five Year Plan. Against an actual expenditure of Rs.1.81 crore was incurred during 2011-12 an outlay of Rs.1.00 crore is provided for the Annual Plan 2012-13.”
5. It is, thus, stated that a combined reading of the extract of the budget speech of Finance Minister as reproduced above and the contents of the Programme shows that there was only an outlay of Rs.1 Crore kept for spending for development of the State of Punjab under the Programme. It was further stated therein that the funds under this programme can be spent for different development activities such as Municipal Corporation Roads, Installation of Tubewells by Punjab State Tubewell Corporation, Development of Historical villages, Ambedkar Bhawans, Sports Stadiums, Water Supply Schemes, Construction of Dharamshalas, Streets and Drains, Toilets, Cremation grounds, Pavement of Streets in Municipal areas, etc. The outlay of an amount of Rs.1 Crore only for such an ambitious developmental programme indicates towards the financial stringency through which the State of Punjab is passing at present. 3 CWP No.20278 of 2012 -4- 6. However, contrary to the aforesaid budgetary provision, the respondent No.4, who had been the student of the respondent No.5 school, during his visit to the said institution on 04.10.2012 to preside over the Valedictory Function of 165th Foundation Celebration of the institution, handed over a cheque of Rs.1 Crore to the Principal of the said School as a gift from the State of Punjab. This cheque has been issued out of funds kept for the aforesaid Programme for the Financial Year, 2012-13. According to the petitioner, this is not only illegal and contrary to the budgetary provision, which does not permit giving of donation to the school, but amounts to misuse of the funds by the State Government. It is also highlighted by the petitioner that on the one hand, a huge amount of Rs.1 crore is given to such a school which does not need the same as it is otherwise cash-rich, on the other hand, the financial position of the State Government is far from satisfactory. The petitioner refers to news report published in ‘Hindustan Times’ dated 03.10.2012, wherein it has been stated that around 2500 teachers of 150 Government aided private schools have not been given salaries for the last seven months, since the Finance Department has been unable to release the funds for the grant of the said purpose.
7. Notice of motion in this petition was issued on 10.10.2012. The respondents filed their replies and on the next date of hearing, i.e., 01.1.2012 statement was made by Mr. Ashok Aggarwal, learned Advocate General of Punjab that a cheque of Rs.1 Crore given to the school had not been encashed and it was taken back from the school and further course of action would be taken only after the decision in the present writ petition. 4 CWP No.20278 of 2012 -5- 8. The respondents have strongly objected to the maintainability of this writ petition and the submission is that the spending of the amount by the State cannot be the subject matter of judicial scrutiny by the Courts. Mr. Aggarwal made strong plea predicated on the doctrine of separation of powers with the submission that the matter pertains to exclusive domain of the Legislature and whether the expenditure was incurred wisely or there was irregularity could be decided only by the Legislature at the Floor of the House. His submission in this behalf was that the Constitution of India has laid down an elaborate procedure in respect of financial matters, the essential features of which are (i) that no tax can be imposed or levied without authority of law (Article 265) and (ii) no money out of the Consolidated Funds of India or the Consolidated Funds of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in the Constitution (Article 266[3].). The Legislative procedure in regard to financial matters of the States is outlined in Articles 202 to 207 of the Constitution. Article 202 of the Constitution incorporates the requirement to lay before the House of the State Legislature the statement of the estimated receipts and expenditure of the State for the year showing separately the sums required to meet expenditure charged upon the Consolidated Fund of the State and the sums required to meet other expenditure proposed to be made from the Consolidated Fund of the State. As per Article 203 (1) so much of the estimates as relates to expenditure charged upon the Consolidated Fund of the State shall not be submitted to the vote of the Legislative Assembly. As per Article 203(2) so much of the estimates as relates to other expenditure shall be submitted in the form 5 CWP No.20278 of 2012 -6- of demands for grants to the Legislative Assembly and the Legislative Assembly shall have the power to assent, or to refuse to assent to any demand or assent to a demand with reduction. Article 204 provides that after the grants have been made by the Assembly under Article 203, a Bill shall be introduced to provide for the appropriation out of the Consolidated Fund of the State of all moneys required to meet the grants made by the Assembly and the expenditure charged on the Consolidated Fund of the State. In accordance with the above provisions, the budget proposals are introduced in the State Legislature in the beginning of the Financial Year and once these proposals are approved, the Budget becomes final. The amount indicated in the Budget can thereafter be spent as per the guidelines of the relevant scheme. If the amount authorized for a particular service for the current financial year is found to be insufficient for the purposes of that year or when a need has arisen during the current financial year for supplementary or additional expenditure upon some new service not contemplated in the annual financial statement or if any money has been spent on any service during a financial year in excess of the amount granted for that service and for that year, the needed amendments are submitted as revised estimates and subsequently got approved as supplementary, additional or excess grants (Article 205). He also referred to Article 282 of the Constitution of India, which empowers the State Government for any grant for any purpose. Article 282 reads as under:
“282. Expenditure defrayable by the Union or a State out of its revenues The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws.”
. 6 CWP No.20278 of 2012 -7- 9. The appropriation of the amount for the aforesaid purpose was also sought to be justified by stating that the Government had necessary authority to do so.
10. Mr. H.C. Arora, learned counsel for the petitioner, on the other hand, submitted that ex facie it was a case of diversion of funds and rather misuse of funds inasmuch as scheme approved by the Legislature could not be tinkered with by the Executive and judicial review of such a misuse of funds is permissible, which comes within the domain of judiciary.
11. The preliminary issue which needs to be determined is as to whether this Court can entertain such a plea raised in the petition having regard to the objections raised by the respondents to the exercise of judicial powers over this expenditure.
12. As per Article 282, it is permissible for the Union or the State to make any grant for any purpose, even when that is not the purpose for which the Legislature may make laws. It was argued by the learned Advocate General that the grant sanctioned in the present case to the school, as financial assistance for its various new development works/upgradation of existing infrastructure of the school, where a large number of youngsters of Punjabi origin study since independence, is lawful. It was also stressed that it has been a democratic practice to give grants to institutions and for causes or for any other public purpose or as goodwill gestures even though the institution or cause has no direct connection with the State concerned. The submission was that such an expenditure was beyond the pale of scrutiny by the Court. Learned A.G. referred to certain judgments wherein provisions of Article 282 of the Constitution have been interpreted. First judgment 7 CWP No.20278 of 2012 -8- on which he placed reliance is that of Karnataka High Court in the case of K.N. Subba Reddy Vs. State of Karnataka and Others, AIR 199.Karnataka 66. That was a case where the State Government had incurred expenditure on a function to mark 2nd Anniversary of Assumption of Office of the Chief Minister. Proprietary of incurring such an expenditure was assailed by filing a writ petition on the ground that this was a wasteful expenditure spent to glorify the Chief Minister and the expenditure was also without the authority of law, which was even contrary to the austerity policy adopted by the Government as disclosed in the budgetary speech made by the Chief Minister. It was also argued that the release of buses in the State for the said function would cause great public inconvenience and the land where the function was sought to be held itself was involved in litigation between the Government and the private parties. Therefore, it was not appropriate to hold a conference on such a land. Some of the other arguments, which were advanced by the petitioner are contained in the following para of the said judgment: “2…………….. Reference was also made by the learned counsel for the petitioner to Art. 267 of the Constitution and the Manual of Contingent Expenditure. He relied upon several decisions of the Supreme Court and other High Courts to contend that the State in order to incur expenditure must be duly authorised and unless it is so authorised it cannot incur such expenditure. The principal submission made on behalf of the petitioner is that the convention in question is going to be held only for the benefit of the second respondent and not for the benefit of the public of the State. The learned counsel for the petitioner further urged that every action of the Government must be informed with reason and unless the action of the Government is one informed with reason and in public interest the same is liable to be struck off by the Court. However, such an issue is not before me. When there is a lis between the Government or any party or between any two parties where such parties have rights of State in distributing its largesse to any particular individual or 8 CWP No.20278 of 2012 -9- lacks in fairness in treating all equally such questions may arise. Here the question is one relating to powers of the Government to spend money out of public exchequer for a set of purposes. Thus the question really is one on the nature and extent of power of expenditure, scope and limit thereof and the ambit of judicial audit.”
13. The respondent/State had objected to the maintainability of such a petition relying upon the provisions of Article 282 of the Constitution. This contention was accepted by the High Court resulting into the rejection of the petition. After referring to the judgments of Bomaby High Court and Orissa High Court in the cases of Laxman Moreshwar Mahurkar Vs. Balkrishna Jagannath Kinikar, AIR 196.Bom. 167 and Bira Kishore Mohanty Vs. State of Orissa, AIR 197.Orissa 8, respectively, the Court went ahead to discuss the matter in the following manner:
“5. So far as the power of expenditure of the State is concerned, the scheme of the Constitution of India is that the power of the Union or a State Legislature is not limited to the legislative powers to incur expenditure only in respect of powers conferred upon it under the VII Schedule, but it can incur expenditure on any purpose not included within its legislature powers. However, that purpose must be public purpose. The position is elucidated in "Commentary on the Constitution of India" Volume I, at pages 1 & 2, by Basu in the following manner, with reference to American Constitution on a provision similar to Article 282 of Constitution of India:-- "It has been held that the above spending power is not restricted to the purposes with respect to which Congress has legislative power delegated to it by the Constitutional extends to any public purpose, provided it provides for the general welfare. This, however, does not mean that the 'spending power' grants to Congress any legislative power to provide for 'general welfare'. It only enables Congress to spend the revenue for a purpose of general welfare even though that subject matter does not come within its legislative competence. For instance, it enables Congress to make grants and subsidies to State Governments for agriculture, irrigation or reclamation of land, education, 9 CWP No.20278 of 2012 - 10 - unemployment, highways etc., which are outside the legislative powers delegated to Congress. This power has also been availed of to make federal grants or loans direct to municipal or local bodies or agencies subordinate to the State, e.g., to promote construction of municipal public works, or to create a corporation authorised to use federal funds for financing private debtors throughout the nation. The power to make grants has been held to include the power to impose terms and conditions as to expenditure of the moneys granted. Courts have never sought to interfere with the Congressional determination of what is 'general welfare'. The result is, that once the money is collected by legitimate means, there is no judicial review over the distribution or spending of that money and Congress is free to make any law authorising expenditure for any purpose that appears to it to be conducive to the 'general welfare'. A taxpayer cannot question expenditure of the money raised by taxation on the ground that the expenditure will deplete the public funds and thus increase the burden of future taxation."
Considering the nature of the problem raised before me, I called upon the learned Advocate-General to place the necessary files and materials before this Court to enable the Court to knot the nature of the expenditure to be incurred by the State. The learned Advocate-General was able to produce only one file and it does not contain all the information on the questions raised by me. The learned Advocate-General was not able to produce all those files on account of paucity of time.
6. In the background of this analysis made by the various High Courts of the constitutional scheme on financial powers of the State, I do not think this Court is competent to go into the question as to whether the expenditure incurred by the Government is for a public purpose or not or whether it is wise or not. Our Constitution envisages that the executive is responsible to the legislature and every policy and action is subject to its scrutiny and that is in con-sonance with Westminster system of Parliamentary democracy. Judicial interference is permissible when the action of the Government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for good of the State. All such questions must be thrashed out 10 CWP No.20278 of 2012 - 11 - in the legislature and not in Courts. The complaint of the petitioner is in the nature of criticism of the Governmental expenditure and the wisdom thereof. But as held by various Courts such an exercise can be done only in other forums and not before this Court. This Court cannot control the purse strings of the Government. not that I approve of the expenditure to be incurred or the purpose for which it is incurred is in the interests of public. If such questions are allowed to be raised before Courts every expenditure of the State can be called in question both as to the nature and extent thereof in which event the functioning of the Government itself will be hampered. In that view of the matter, I decline to entertain this petition. Petition is rejected.”
14. In Laxman Moreshwar Mahurkar (supra) referred to above, Bomaby High Court speaking through Madholkar, J.(as His Lordship then was), the legal position was explained in the following manner:
“5. Apart from that, it seems to us that a tax payer has no right to challenge expenditure of public monies by Government. In this connection, our attention was invited by Mr. Phadke to the decision of this Court in Municipal Corporation, Bombay v. Govind Laxman, AIR 194.Bom 229 in which a Division Bench of this Court allowed a rate payer or Bombay to challenge the spending of municipal funds by the Bombay Corporation contrary to the provisions of the City of Bombay Municipal Corpora-lion Act. In that case the learned Chief Justice Followed an Irish decision, The Queen v. Drury, (1894) LR 2 Ir. 489, and held that a rate payer can, without establishing special injury to himself, come before the Court under Section 45 of the Specific Relief Act and ask for the issue of a writ corresponding to a high prerogative writ issued by the High Court, restraining a public authority from misspending public funds. A distinction must however be drawn between the powers of a municipal corporation and the powers of the Government of a State. The municipal funds vest in the corporation as trustees on behalf of the public and they are by statute required to expend those funds only for purposes permitted by the statute. The position of a Government is however different. The powers of a State Government are much wider as would appear from Article 282 of the Constitution which runs thus: "The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws". 11 CWP No.20278 of 2012 - 12 - This provision confers a very wide discretion on a State Government. It is for the State Government to decide what is public purpose and what is not a public purpose. It is true that Rule 189 is one of those rules which has been framed by the Government for indicating a public purpose for which public funds may be expended by it. But that rule, though it should be observed as far as possible by the Government in its dealings, is not one which curtails the powers of the Government conferred upon it by Article 282 of the Constitution. It can only be regarded as a rule for the guidance of Government servants and nothing more. If the Government purports to spend money for a purpose which it characterises as a public purpose though in point of fact it is not a public purpose, the proper place to criticise the action of the Government would be the legislature or the Appropriation Committee-The Courts are not the forum in which the Government's action could be sought to be criticised or restrained. Wide as the powers of the High Court are under Article 226 of the Constitution, they do not extend as far as the petitioner would like them to go. The business of governing the State is entrusted by the Constitution to the executive government. How to spend public monies is part of the executive functions of the Government and it is not permissible to the High Court to interfere with the powers of the Government in this respect.”
15. Likewise, the proposition of law stated in Bira Kishore Mohanty (supra) by the Orissa High Court runs as under:
“7. It was faintly suggested at the time of hearing that there is nothing on record to show that the amount of Rupees 3,00,000 granted for renovation of the tanks had been specifically voted by the Assembly and that consequently the expenditure is an unauthorised one. This being essentially a question of fact it required a specific pleading. No such plea was raised in the petition. The State had, therefore, no opportunity of meeting this challenge. Assuming for a moment that no provision had been made for this expenditure in the budget already passed by the Assembly, recourse can be had to Article 205(1)(a) of the Constitution. That Article specifically provides for cases where the need arises during the financial year for additional expenditure upon some new service not contemplated in the annual financial statement for that year.”
. 12 CWP No.20278 of 2012 - 13 - 16. The aforesaid dicta stating the legal position enshrined in Article 282 of the Constitution is affirmed by the Constitution Bench of the Supreme Court in a recent judgment as well in the case of Bhim Singh Vs. Union of India and Ors., 2010 (5) SCALE 37 The Apex Court in that case held that considering the quasi judicial nature of the Constitution, Article 282 should be given the widest possible interpretation. On that, the Court upheld the validity of M.P.L.A.D. Scheme and the Annual Recurring Public Welfare Expenditure Scheme from Consolidated Funds as intra-vires the Constitution. It was held that the Central or State powers under Article 282 for public purpose are not restricted by Schedule VII and on the following considerations, M.P.L.A.D. Scheme was held to be justified: (i) Directive Principles of State policies; (ii) Public property and the insertion of Article 282 from the very beginning of the Constitution; (iii) Several past welfare measure/schemes under Article 282; (iv) Similar provision was contained in Section 150(2) under the heading “Miscellaneous Financial Provisions”. under the Government of India Act, 1935 and foreign Constitution of democratic country like USA and Australia.
17. While considering the validity of such a scheme, the scope of judicial review was held to be limited and following pertinent discussion ensued on this principles:
“45. From the perusal of the above clauses contained in the guidelines of MPLAD Scheme, it is clear that there has been a close coordination between the authorities, namely, the Central 13 CWP No.20278 of 2012 - 14 - Government, State Government and the District Authorities. It is also clear that every Member of Parliament (Lok Sabha) is authorized to only recommend such works which would be of general public utility in his own constituency that too for a public purpose. The Member of Rajya Sabha is to select work as per the scheme in his State. The role of the Member of Parliament is very limited to the initial choice of a selection of projects subject to the choice of project being found eligible by the District Authority/Commissioner or Municipal Authority, if found otherwise feasible. xxx xxx xxx 49. In order to bring financial discipline at the district level and reduce the accumulation of unspent funds with the Districts, a new condition of unspent balance for the MP being less than rupees one crore was imposed during the financial year (2004- 05). The release procedure was further streamlined and strengthened by prescribing for the original (not photo-copy) of the Monthly Progress Report, duly signed by DC/DM under his seal. This resulted in bringing down the unspent balance. To reduce the accumulated funds further and to improve accountability, some more conditions have been laid down for release of MPLADS funds in a new MPLADS funds release and management procedure which was adopted with effect from 1st June 2005. not the District Authorities have to submit Utilization Certificates and Audit Certificates also for the earlier releases in addition to fulfilling the aforesaid two conditions before second installment in any given year is considered for release to any MP. xxx xxx xxx 52) The information furnished shows that the Scheme has benefited the local community by meeting their various developmental needs such as drinking water facility, education, electricity, health and family welfare, irrigation, non- conventional energy, community centres, public libraries, bus stands, roads, pathways, bridges, sports infrastructure etc. Mere allegation of misuse of the funds under the Scheme by some MPs by itself may not be a ground for scrapping of the Scheme as checks and safeguards have been provided. Parliament has the power to enquire and take appropriate action against the erring members. Both Lok Sabha & Rajya Sabha have set up Standing Committee to monitor the works under the Scheme. 14 CWP No.20278 of 2012 - 15 - 53) The second level of accountability is provided by the Guidelines themselves. As noted above, these guidelines have been continuously revised, the latest being the fourth time resulting in the Guidelines of 2005. As we have already adverted to, the Guidelines make it clear that the MPLAD Scheme is for the recommendation of works of developmental nature, especially for the creation of durable community assets based on local needs. According to the Guidelines, these include durable assets of national priorities like drinking water, primary education, public health, sanitation and roads. Clearly, the Scheme does not give a carte blanche to the MPs with respect to the kind of works they can recommend. xxx xxx xxx 56. All these information which are available through their website clearly show that the Scheme provides various levels of accountability. The argument of the petitioners that MPLADS is inherently arbitrary seems unfounded. No doubt there may be improvements to be made. But this court does not sit in judgment of the veracity of a scheme, but only its legality. When there is evidence that an accountability mechanism is available, there is no reason for us to interfere in the Scheme.”
18. The Constitution Bench also discussed the concept of ‘Separation of Powers’ in great details, which is enumerated in Paras 58 to 69 of the judgment. We would like to reproduce the discussions contained therein on this aspect, which reads as under: “Separation of Powers:
58. Another contention raised by the petitioners is that the Scheme violates the principle of Separation of Powers under the Constitution. The concept of Separation of Powers, even though not found in any particular constitutional provision, is inherent in the polity the Constitution has adopted. The aim of Separation of Powers is to achieve the maximum extent of accountability of each branch of the Government. 59) While understanding this concept, two aspects must be borne in mind. One, that Separation of Powers is an essential feature of the Constitution. Two, that in modern governance, a strict separation is neither possible, not desirable. Nevertheless, till this principle of accountability is preserved, there is no violation of separation of powers. We arrive at the same conclusion when we assess the position within the Constitutional text. The 15 CWP No.20278 of 2012 - 16 - Constitution does not prohibit overlap of functions, but in fact provides for some overlap as a Parliamentary democracy. But what it prohibits is such exercise of function of the other branch which results in wrestling away of the regime of constitutional accountability. 60) In Rai Sahib Ram Jawaya Kapur and Ors. v. The State of Punjab, AIR 195.SC 549.this Court held that: “The Indian Constitution has not indeed recognised the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption, by one organ or part of the State, of functions that essentially belong to another. The executive indeed can exercise the powers of departmental or subordinate legislation when such powers are delegated to it by the legislature. It can also, when so empowered, exercise judicial functions in a limited way. The executive Government, however, can never go against the provisions of the Constitution or of any law.”
. 61) In Kesavananda Bharati vs. State of Kerala & Another, (1973) 4 SCC 22.and later in Indira Gandhi vs. Raj Narain, AIR 197.SC 69.this Court declared Separation of Powers to be a part of the Basic Structure of the Constitution. In Kesavananda Bharati's case, (supra) Shelat & Grover, JJs. in para 577 observed the precise nature of the concept as follows: “There is ample evidence in the Constitution itself to indicate that it creates a system of checks and balances by reason of which powers are so distributed that none of the three organs it sets up can become so pre-dominant as to disable the others from exercising and discharging powers and functions entrusted to them. Though the Constitution does not lay down the principle of separation of powers in all its rigidity as is the case in the United States Constitution but it envisages such a separation to a degree as was found in Ranasinghe's case . The judicial review provided expressly in our Constitution by means of Articles 226 and 32 is one of the features upon which hinges the system of checks and balances.”
. 62) The specific nature of this concept in our polity has also been reiterated time and again. In Special Reference No.1 of 1964 (1965) 1 SCR 413.this court held:
16. CWP No.20278 of 2012 - 17 - “Whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and there functions are normally confined to legislative functions, and the function and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country.”
. [Emphasis supplied]. 63) In Indira Nehru Gandhi v. Raj Narain (1975) Supp SCC 1.Ray, J.noted that: “The doctrine of separation of powers is carried into effect in countries like America and Australia. In our Constitution there is separation of powers in a broad sense...the doctrine of separation of powers as recognized in America is not applicable to our country.”
. 64) The learned Chief Justice noted (in para 47) that the rigid separation of powers as under American Constitution or Australian Constitution does not apply to our country. He further noted that: “The American Constitution provides for a rigid separation of governmental powers into three basic divisions the executive, legislative and judicial. It is an essential principle of that Constitution that powers entrusted to one department should not be exercised by any other department. The Australian Constitution follows the same pattern of distribution of powers. Unlike these Constitutions, the Indian Constitution does not expressly vest the three kinds of power in three different organs of the State. But the principle of separation of powers is not a magic formula for keeping the three organs of the State within 17 CWP No.20278 of 2012 - 18 - the strict confines of their functions. As observed by Cardozo, J., in his dissenting opinion in Panama Refining Company v. Ryan (1934) 293 US 388.440 the principle of separation of powers “is not a doctrinaire concept to be made use of with pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in response to the practical necessities of Govt. which cannot foresee today the developments of tomorrow in their nearly infinite variety.”
. Thus, even in America, despite the theory that the legislature cannot delegate its power to the executive. a host of rules and regulations are passed by nonlegislative bodies, which have been judicially recognised as valid.”
. [Emphasis supplied]. 65) In State of Rajasthan v. Union of India (1978) 1 SCR 1.this Court observed: “This Court has never abandoned its constitutional function as the final Judge of constitutionality of all acts purported to be done under the authority of the Constitution. It has not refused to determine questions either of fact or of law so long as it has found itself possessed of power to do it and the cause of justice to be capable of being vindicated by its actions. But, it cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other departments of State which may be better equipped to perform them. The scrupulously discharged duties of all guardians of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. Questions of political wisdom or executive policy only could not be subjected to judicial control. No doubt executive policy must also be subordinated to constitutionally sanctioned purposes. It has its sphere and limitations. But, so long as it operates within that sphere, its operations are immune from judicial interference. This is also a part of the doctrine of a rough separation of powers under the Supremacy of the Constitution repeatedly propounded by this Court and to which the Court unswervingly adheres even when its views differ or change on the correct interpretation of a particular constitutional provision. 66) In Minerva Mills Ltd. and Ors. v. Union of India (UOI) and Ors. ( 1980 ) 3 SCC 62.it was observed:
“93. It is a fundamental principle of our constitutional scheme, and I have pointed this out in the preceding paragraph, that every organ of the State, every authority under the Constitution, derives 18 CWP No.20278 of 2012 - 19 - its power from the Constitution and has to act within the limits of such power.... Under our Constitution we have no rigid separation of powers as in the United States of America, but there is a broad demarcation, though, having regard to the complex nature of governmental functions, certain degree of overlapping is inevitable. The reason for this broad separation of powers is that “the concentration of powers in any one organ may”. to quote the words of Chandrachud, J.(as he then was) in Smt. Indira Gandhi's case (supra) “by upsetting that fine balance between the three organs, destroy the fundamental premises of a democratic Government to which we are pledged.”
. [Emphasis supplied]. 67) Again, in the Constitution Bench judgment in A.K. Roy v. Union of India AIR 198.SC 710.Chandrachud, C.J.speaking for the majority held at para 23 pg. 723 that “our constitution does not follow the American pattern of strict separation of powers”.. 68) This court has previously held that the taking away of the judicial function through legislation would be violative of separation of powers. As Chandrachud, J.noted in Indira Nehru Gandhi case (supra), “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”. [para. 689]. This is because such legislation upsets the balance between the various organs of the State thus harming the system of accountability in the Constitution. Thus, the test for the violation of separation of powers must be precisely this. A law would be violative of separation of powers not if it results in some overlap of functions of different branches of the State, but if it takes over an essential function of the other branch leading to lapse in constitutional accountability. It is through this test that we must analyze the present Scheme. 69) In the present case, we are satisfied that there is no violation of concept of separation of powers. As we have noted above, there is no rigid separation of powers under the Constitution and each one of the arms at times perform other functions as well. The Member of Parliament is ultimately responsible to Parliament for his action as an MP even under the Scheme. All Members of Parliament be it a Member of Lok Sabha or Rajya Sabha or a nominated Member of Parliament are only seeking to advance public interest and public purpose and it is quite logical 19 CWP No.20278 of 2012 - 20 - for the Member of Parliament to carry out developmental activities to the constituencies they represent. There is no reason to believe that the MPLAD Scheme would not be effectively controlled and implemented by the District Authority in the case of Panchayats and Commissioners/Chief Executive Officers, in the case of Municipalities and Corporations with adequate safeguards under the guidelines.”
19. Mr. Arora could not cite any case law or legal provision to the contrary and was candid in his submission that on the proposition stated by him, no case law was available. He, however, rested his case on the general principle of judicial review of executive action and hammered the principles of good governance as well.
20. Going by the aforesaid legal position, we are afraid that we cannot go into the questions raised in the petition inasmuch as the scrutiny of the expenditure incurred/proposed to be incurred lies within the exclusive domain of the Legislature. Bound by the principles of separation of power, as we are, we are constrained to dismiss this petition as not coming within four-corners of the judicial review.
21. We make it clear that because of the reason that petition is rejected as not maintainable, we have not gone into the proprietary wisdom and justification of the expenditure involved. It is for the Legislators to debate, at the Floor of the House, as to whether the expenditure is justified and can be treated as in ‘public interest’ or not; whether it serves any public interest to give donation of Rs.1 Crore to the school, which is not located in the State of Punjab, but in Himachal Pradesh; whether the expenditure could be appropriated to the said Programme/scheme for which it was allocated and spending the amount in the aforesaid manner amounts to violating the provisions of the said Programme or not; whether a sum or Rs.1 Crore should be 20 CWP No.20278 of 2012 - 21 - given to a school, which otherwise enjoys robust financial health and on the other hand, the State of Punjab is unable to even release grant-in- aid to the aided schools situated in its own State because of which the teachers of this State are not able to get salaries for several months as alleged by the petitioner; whether the amount is sanctioned only because the respondent No.4 is the alumni of the said school and was invited to the valedictory function of 165th Foundation Celebration of the said School?.
22. All these issues need to be debated by the Legislature and are to be left to its wisdom, adhering to the principles of separation of powers. Giving respect to the doctrine of separation of powers and realizing that judicial scrutiny of such expenditures is not permissible and leaving the matter to the Legislative wing of the State, we are left with no option but to dismiss the writ petition.
23. It is ordered accordingly. However, there shall be no orders as to costs. ( A.K. SIKRI ) CHIEF JUSTICE January 16, 2013 (RAKESH KUMAR JAIN) pc JUDGE 2