Rai Sahib Ram Jawaya Kapurand Others vs The State Of Punjab (And Connected Petitions)

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Petitions Nos. 652 of 1954, 71 to 77 and 85 of 1955

Decision Date: 22 April 1955

Coram: Mukherjea C.J.

In this case the Supreme Court of India considered a petition filed by Rai Sahib Ram Jawaya Kapurand and other private publishers who were engaged in the preparation, printing, publishing and sale of textbooks for recognised schools in the State of Punjab. The petition was brought under article 32 of the Constitution and sought a writ of mandamus directing the Punjab Government to withdraw notifications issued in 1950 and 1952, which the petitioners alleged violated their fundamental rights guaranteed by the Constitution. The factual background set out that for many years before 1950 private publishers independently prepared textbooks at their own expense and submitted them to the Government for approval. The Government would then approve a number of books on each subject as alternatives, allowing school headmasters to choose any of the approved books. In May 1950 the Government began preparing and publishing textbooks on certain subjects such as agriculture, history and social studies without inviting proposals from private publishers, while for other subjects it invited offers from “publishers and authors”. The earlier practice of offering alternative books was abandoned and a single textbook for each subject was selected. The Government also imposed a royalty of five percent on the sale price of all approved textbooks. In 1952 a further notification omitted the term “publishers” and invited only “authors and others” to submit books for Government approval. Those whose books were approved were required to enter into a standard agreement whereby the copyright in the textbook would vest absolutely in the Government and the authors or others would receive a five‑percent royalty on the sale price. The petitioners contended that these steps resulted in the exclusive takeover of the business of publishing, printing and selling school textbooks by the Government, thereby ousting private publishers from the trade. Accordingly they prayed that the Court strike down the 1950 and 1952 notifications as unconstitutional violations of the fundamental rights secured by articles 19(1)(g), 73 and 162 of the Constitution. The Court noted that the issue raised was whether the Government’s actions fell within the definition of an executive function under articles 73 and 162 and whether any fundamental right of the private publishers was infringed by the exclusive control exercised by the State over school textbooks. The judgment concluded with the observation that the action of the Government, whether it was

In this case the Court observed that an action taken by the Government, whether it is regarded as beneficial or detrimental, does not constitute a violation of the fundamental freedom guaranteed by Article 19(1)(g) of the Constitution. Accordingly the Court held that the petitioners’ constitutional rights were not infringed by the notifications issued by the Punjab executive nor by the steps taken by the executive in pursuit of its policy of nationalising school textbooks for the benefit of schoolchildren. The Court further explained that the mere possibility of obtaining a larger share of customers cannot be described as a right to property, nor can it be treated as an interest or undertaking within the meaning of Article 31(2); consequently, there is no basis for claiming compensation on the ground that the petitioners were deprived of such a prospect. The Court then turned to the interpretation of Articles 73 and 162, noting that these provisions do not supply a definition of the executive function or delineate the activities that may lawfully fall within the executive’s domain. Rather, those articles are principally concerned with allocating executive authority between the Union and the States. The Court clarified that the absence of a definition does not imply that the executive may act only when Parliament or the State Legislature has enacted a law on a particular subject falling within its legislative list. On the contrary, the language of Article 162 makes it clear that the powers of a State executive extend to matters over which the State Legislature has competence to legislate, even where no statute has yet been passed on the subject. The same principle, the Court said, underlies Article 73 with respect to the Union executive. The Court cited several authorities to illustrate this principle, including the decisions of the Commonwealth and the Central Wool Committee v. The Colonial Combing, Spinning and Weaving Co. Ltd. (31 C.L.R. 421), Attorney‑General for Victoria v. The Commonwealth (52 C.L.R. 533) and Motilal 1, The Government of the State of Uttar Pradesh (A.I.R. 1951 Allahabad 257). The judgment that follows was rendered in original jurisdiction in respect of Petitions Nos. 652 of 1954 and 71 to 77 and 85 of 1955, all filed under Article 32 of the Constitution for the enforcement of fundamental rights. Counsel for the petitioners in Petition No. 652 of 1954 was G. S. Pathak, assisted by P. N. Mehta and G. C. Mathur. In the other petitions the petitioners were represented by P. N. Mehta and G. C. Mathur. The State of Punjab was represented by the Advocate‑General, S. M. Sikri, with Jindra Lal and P. G. Gokhale assisting. The judgments were delivered on 12 April 1955. The first petition, numbered 652 of 1954, was heard by Chief Justice Mukherjea. That petition was presented under Article 32 by six individuals who claimed to be engaged in the business of preparing, printing, publishing and selling textbooks for various school classes in Punjab, especially for primary and middle schools, under the trade name “Uttar Chand Kapur & Sons”. The petitioners alleged that the Punjab Education Department, invoking its so‑called policy of textbook nationalisation, had issued a series of notifications beginning in 1950 that regulated the printing and publication of textbooks, thereby affecting the petitioners’ commercial activities.

The petitioners alleged that a series of notifications issued by the Punjab Government’s Education Department had imposed unlawful restrictions on their right to print, publish, and sell school textbooks, effectively driving them and other traders out of the business. They contended that such restrictions could not be justified merely by executive orders, because the right to carry on trade is protected by article 19(1)(g) of the Constitution and any limitation must satisfy the requirements of clause (6) of that article. Consequently, the petitioners sought writs of mandamus directing the Government to withdraw the notifications that they claimed infringed upon their constitutional rights. In order to understand the arguments presented by counsel for both sides, the Court found it necessary to set out the relevant background facts concerning the regulation of textbooks in Punjab.

Historically, every recognized school in Punjab was required to follow the curriculum approved by the Government’s Education Department, and the use of textbooks prescribed or authorized by that Department was a condition precedent to a school’s recognition. Prior to 1950, the selection and approval of textbooks for recognized schools followed the “alternative method,” a practice that had been in place since 1905. Under this method, publishers independently prepared books on the relevant subjects, financed the production, and submitted the completed works to the Department for approval. After a thorough examination, the Department would select a number of alternative books—typically between three and ten, though sometimes more—for each subject. The Head Master of each school was then free to choose any one of these approved alternatives for use in his classroom. The Government fixed the price, size, and content of the books, after which the publishers were free to print, publish, and sell them to the pupils according to the choices made by the respective Head Masters. Authors who were not themselves publishers could also submit manuscripts; if their works were approved, they were required to arrange for publication, usually by contracting an existing publisher. This system remained unchanged until May 1950, when a series of governmental resolutions reorganized the Punjab territory into three zones. For subjects such as agriculture, history, and social studies, the Government began preparing and publishing textbooks itself, without inviting submissions from private publishers. For the remaining subjects, the Government discontinued the alternative system, selecting only a single textbook for each subject, class, and zone, and imposed a 5 percent royalty on the sale price of all approved textbooks. These measures gave the Government a near‑monopoly over the publication of certain subjects and secured a royalty from the others. In August 1952, a further notification issued on 9 August omitted the term “publishers” entirely and invited only “authors and others” to submit books for Government approval, a change that formed the core of the petitioners’ complaints.

The government had previously invited offers from both publishers and authors for the preparation of textbooks, but it then adopted a system in which only one textbook for each subject and each class in a particular zone was selected. Under this new arrangement the government also imposed a royalty of five per cent on the sale price of every approved textbook. Consequently, the government effectively assumed a monopoly over the publishing of textbooks for certain subjects, while for the remaining subjects it retained the right to a royalty on the proceeds of sales. A more sweeping change occurred in 1952 when the Education Department issued a notification on 9 August 1952. That notification eliminated the reference to “publishers” altogether and invited only “authors and others” to submit books for government approval. Authors whose works were selected were required to enter into agreements prescribed by the government, under which the copyright in the selected books would vest absolutely in the government. The authors or other copyright owners would receive only a royalty of five per cent on the sale of the textbooks at the prices listed by the government. As a result, the government took exclusive control of publishing, printing and selling the textbooks, completely excluding private publishers from the business. The five per cent royalty therefore functioned as the price for the transfer of copyright, payable to the author or any other person who owned the copyright and was legally capable of transferring it to the government.

The petitioners filed a petition under article 32 of the Constitution challenging the 1950 and 1952 notifications, seeking their withdrawal on the ground that they violated the petitioners’ fundamental rights. The submissions made on behalf of the petitioners were threefold. First, it was argued that a state executive cannot, without legislative authority, engage in any trade or business activity, and that the government’s policy of creating a monopoly in the printing and publishing of school textbooks was wholly beyond its jurisdiction and therefore illegal. Second, the petitioners contended that even if a state could establish a monopoly, such a measure could only be effected through proper legislation that complied with the requirements of article 19(6) of the Constitution. Finally, the petitioners maintained that the government was not authorized to deprive them of their interest in any business or undertaking, which amounted to property, without legal authority and without payment of compensation as required by article 31 of the Constitution.

It was contended that the Government could not lawfully deprive the petitioners of their interest in any business or undertaking that amounted to property without a legal authority and without paying compensation as mandated by article 31 of the Constitution. The principal argument of counsel for the petitioners, Mr Pathak, asserted that the State possessed no legal power to engage in the business of printing or selling textbooks for school children in competition with private enterprises unless such action were sanctioned by the legislature. The submission did not claim that the functions of a modern State were limited to the narrow duties of a police state, such as merely collecting taxes, maintaining law and order, or defending the nation from external or internal threats. Rather, it acknowledged that a contemporary State is expected to undertake all activities necessary to promote the social and economic welfare of its community. According to Mr Pathak, the Constitution clearly divides governmental functions into three categories – legislative, judicial and executive – and therefore the executive may only execute the laws enacted by the legislature or supervise their enforcement. Consequently, the legislature must first pass a measure that the executive can then implement. In support of this position, the counsel relied heavily on articles 73 and 162 of the Constitution and also referred to certain decisions of the Australian High Court, which the Court would later discuss. Article 73 governs the executive powers of the Union, whereas article 162 deals with the executive powers of a State. These provisions are analogous to sections 8 and 49(2) of the Government of India Act, 1935, and they establish the rule for distributing executive authority between the Union and the States, mirroring the analogous distribution of legislative powers. Article 162, which was directly relevant to the present case, states: “Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws: Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.” Accordingly, under article 162 the State’s executive authority is exclusive over matters listed in List II of the Seventh Schedule, and it also extends to the Concurrent List except where the Constitution or a law of Parliament imposes restrictions. Similarly, article 73 provides that the Union’s executive powers apply to matters within the legislative competence of Parliament and to rights and authorities exercisable by the Government of India under any treaty or agreement.

The Court explained that, under Article 73, the Union’s executive power extends to matters over which Parliament has the authority to legislate, as well as to the exercise of rights, authority, and jurisdiction that the Government of India may exercise by virtue of any treaty or agreement. The proviso attached to clause (1) further provides that, although the executive authority in matters listed in the Concurrent List is normally left to the State, Parliament may, in exceptional circumstances, legislate to permit the Union’s executive power to apply to those matters as well. The Court noted that neither Article 73 nor Article 162 defines the scope of the executive function or specifies the activities that legitimately fall within it; their primary purpose is to allocate executive power between the Union and the States. Consequently, the provisions do not support the view expressed by counsel for Mr Pathak that the executive may act only after the Parliament or a State Legislature has enacted legislation on the relevant items in their respective lists. On the contrary, the language of Article 162 makes clear that the State executive’s powers extend to any matters on which the State Legislature is competent to legislate, and are not limited to subjects on which legislation has already been enacted. The same principle is reflected in Article 73. Thus, the constitutional provisions do not substantiate Mr Pathak’s contention. The Court further observed that the Australian cases relied upon by the learned counsel were of little assistance. In the first of those cases, during wartime, the Commonwealth’s executive entered into several agreements with a company manufacturing and selling wool‑tops. One class of agreements allowed the company to sell wool‑tops in return for a share of the profits, described by the parties as “a licence fee”. Another class required the company to act as an agent for the Commonwealth in manufacturing wool‑tops, receiving an annual sum from the Commonwealth. The remaining agreements combined features of the two types. A Full Bench of the High Court held that, except for authority granted by an Act of Parliament or its regulations, the Commonwealth’s executive had no power to make or ratify any of these agreements. The decision was grounded largely on Section 61 of the Australian Constitution, which delineates the executive power of the Commonwealth.

In the cited authority (31 C.L.R. 421) the Court observed that the executive power of the Commonwealth was vested in the Queen, exercised by the Governor‑General as the Queen’s representative, and that this power extended to the execution and maintenance of the Constitution and of the laws of the Commonwealth. The Court further noted that, under section 2, the King could assign additional functions and powers to the Governor‑General, but in the matter before the Court no such assignment of extra powers had been alleged or proved. Consequently the Court held that the agreements in dispute had not been authorised directly by Parliament nor by any statutory provision, and because they were not made for the execution or maintenance of the Constitution, they had to be declared void. Justice Isacs, in his detailed judgment, examined the two categories of agreements. He concluded that the agreements which sought to bind the company to pay the Government money as a price for consents amounted to an imposition of a tax; such agreements were void absent a parliamentary authority. The second category of agreements, which attempted to bind the Government to pay the company a remuneration for manufacturing wool‑tops, was characterised as an appropriation of public revenue; lacking legislative authority, those agreements were also void. The Court then explained that none of the principles articulated in the Australian case could be applied to the present circumstances, because there is no provision in the Indian Constitution that corresponds to section 61 of the Australian Constitution. Moreover, the Government in the present case had not imposed any tax or licence fee, and the petitioners had not shown that the alleged appropriation of public revenue for the so‑called textbook business was unsanctioned; it could be, and presumably was, authorized by the legislature through proper Appropriation Acts. The Court proceeded to consider another decision of a different character. In that case the Commonwealth Government had established a clothing factory in Melbourne to produce naval and military uniforms for the defence forces and, in peace time, also supplied uniforms to other Commonwealth departments and to postal employees. The Governor‑General deemed these peace‑time operations necessary for the efficient defence of the Commonwealth, arguing that maintaining a trained workforce would aid wartime demands. A question was raised whether such peace‑time operations were authorised by the Defence Act; the majority of the Court answered affirmatively. Justice Starke, dissenting and whose view was relied upon by the counsel, emphasised section 61 of the Constitution Act, asserting that the Commonwealth’s executive power extended to the maintenance of the Constitution and its laws and that no provision of the Constitution or any other law conferred authority on the Commonwealth to establish and maintain clothing factories for purposes other than those of the Commonwealth.

The Court observed that there is no provision in the Constitution or any other law of the Commonwealth that authorises the Commonwealth to establish and maintain clothing factories for purposes other than those of the Commonwealth itself. It further noted that whether this view is correct or not depends on the specific facts of the case and on the interpretation of section 61 of the Australian Act, and that such a consideration does not illuminate the issue that the Court must presently resolve. The Court then referred to a closely analogous question that had been considered by a Full Bench of the Allahabad High Court in Motilal v. The Government of the State of Uttar Pradesh (A.I.R. 1951 Allahabad 257). That case examined whether a State Government possessed constitutional authority to operate a bus service in the absence of a statutory provision expressly authorising such activity. The judges expressed differing opinions. Chief Justice Malik held that in a written Constitution like ours, the executive power may be expressed, implied, ancillary or inherent, and must encompass all powers necessary to achieve the Constitution’s aims and objects; it is therefore more than mere execution of existing laws. According to him, the State has the right to hold and manage its own property and to engage in any trade or business that a private citizen may pursue, provided that such activity does not infringe upon the rights of others or contravene law, and consequently the operation of a transport service was not per se beyond the State’s executive authority. Justice Sapru opined that the power to run a government bus service was incidental to the power of acquiring property expressly conferred by article 298 of the Constitution. Judges Mootham and Wanchoo, delivering a common judgment, likewise concluded that no specific legislative enactment was required for a State Government to operate a bus service; they reasoned that an act falls within the State’s executive power if it is not assigned by the Constitution to another authority, does not conflict with any law, and does not encroach upon the legal rights of any member of the public. In contrast, Justice Agarwal dissented, maintaining that the State Government lacked authority to operate a bus service unless a legislative act expressly authorised it. The Court found that Justice Agarwal’s view, while supporting Mr Pathak’s contention, was unduly narrow and could not be sustained. It further remarked that providing an exhaustive definition of the executive function is difficult, since executive power generally denotes the residual governmental functions that remain after legislative and judicial powers have been exercised.

In this case, the Court explained that executive power comprised the functions that remained after legislative and judicial powers had been exercised. The Constitution of India did not adopt an absolute doctrine of separation of powers, but it differentiated the roles of the various branches of government sufficiently to show that the Constitution did not permit one organ of the State to take on functions that essentially belonged to another organ. The Court observed that the executive could exercise powers of departmental or subordinate legislation when such powers were delegated to it by the legislature, and that the executive could also, when authorized, perform limited judicial functions. However, the Court stressed that the executive could never act in violation of the Constitution or any other law, a principle made clear by article 154 of the Constitution. The Court clarified that this principle did not imply that a pre‑existing law was required for the executive to function, nor that the executive’s powers were confined solely to the enforcement of existing statutes. The limits of executive action could be identified readily by referring to the form of the executive established by the Constitution. Although the Constitution was federal in structure, it was modeled on the British parliamentary system, where the executive bore primary responsibility for formulating government policy and transmitting it into law, subject to retaining the confidence of the legislative branch. The Court described the executive function as encompassing both the determination of policy and its implementation, including the initiation of legislation, the maintenance of public order, the promotion of social and economic welfare, the direction of foreign policy, and the overall supervision of the State’s administration. The Court noted that, as in England, the Indian executive was required to act under the control of the legislature, and explained the manner of that legislative control. Under article 53(1) the executive power of the Union was vested in the President, while article 75 required a Council of Ministers headed by the Prime Minister to aid and advise the President in exercising his functions. Consequently, the President served as a formal constitutional head of the executive, with the real executive authority residing in the Ministers or the Cabinet. The same constitutional scheme applied to the governments of the States, where the Governor or the Rajpramukh acted as the head of the executive, but the council of Ministers in each State actually carried out executive governance. Thus, the Constitution established a parliamentary executive similar to that of England, with the council of Ministers forming the core of executive power.

In the judgment the Court described the Council of Ministers, like the British Cabinet, as “a hyphen which joins, a buckle which fastens the legislative part of the State to the executive part.” The Court observed that because the Cabinet normally enjoyed a majority in the legislature, it effectively exercised virtual control over both legislative and executive functions. The Ministers who formed the Cabinet were presumed to agree on fundamental principles and to operate under the doctrine of collective responsibility; consequently, the most significant policy questions were formulated by them.

The Court then considered a hypothetical situation in which the Ministry or the executive Government of a State formulated a policy that required the State to commence a trade or business. The Court asked whether a specific law authorising such trade activities had to be enacted before the State could proceed. It held that such specific legislation was not always required. However, if the proposed trade or business involved the expenditure of public funds, Parliament had to authorise that expenditure, either directly or pursuant to a statutory provision.

To illustrate the usual procedure, the Court explained that the sums needed to run the business were placed in the annual financial statement that the Ministry was required to lay before the House or Houses of the Legislature for each financial year under article 202 of the Constitution. Estimates relating to expenditure that was not charged on the consolidated fund were submitted as demands for grants. The legislature possessed the authority to either assent to or refuse any such demand, or to assent subject to a reduction in amount, as provided by article 203.

Once the legislature sanctioned the grant, an Appropriation Bill was introduced to allocate the required monies out of the State’s consolidated fund in accordance with article 204. After the Appropriation Bill was passed and became an Appropriation Act, the Court said, the expenditure made under the heads covered by the Act was deemed to be properly authorised by law under article 266(3) of the Constitution.

The Court noted the contention of counsel that Appropriation Acts were not a substitute for specific legislation because they only validated expenses out of the consolidated fund for the particular years in which they were passed. The Court agreed that Appropriation Acts did not provide a direct legislative sanction for the trade activities themselves. Nevertheless, the Court held that under article 266(3) no money could be appropriated from the consolidated funds of India or a State except in accordance with law and for purposes and in the manner set out in the Constitution, and that the term “law” clearly included Appropriation Acts.

Consequently, the Court concluded that while Appropriation Acts did not directly authorise the trade activities, they were sufficient so long as the trade was carried out in pursuance of a policy that the executive had formulated with the tacit support of the majority in the legislature.

The Court observed that the Government had formulated its policy with the tacit support of the majority in the legislature, and therefore no objection could be raised on the ground that the policy lacked a specific legislative provision. Objections could be raised only with respect to the expenditure of public funds for carrying on the trade or business, and the Appropriation Acts provided a complete answer to such concerns. The Court noted that specific legislation would become necessary only when the Government required powers beyond those it possessed under ordinary law, especially where the exercise of those powers would encroach upon private rights. In those circumstances, a specific law sanctioning the course of action would have to be enacted. In the present case, the Court found that the entire expenses necessary for the business of printing and publishing textbooks for recognised schools in Punjab had been estimated and shown in the annual financial statement, that the demands for grants had been made under various heads, that those demands had been sanctioned by the State Legislature, and that the appropriate Appropriation Acts had been passed. For the purpose of carrying on the business, the Government did not require any additional powers; it could obtain everything necessary by entering into contracts with authors and other persons. The Court pointed out that the power to contract was expressly vested in the Government by article 298 of the Constitution. Accordingly, the Court was unable to agree with the submission that the carrying on of the business of printing and publishing textbooks was beyond the competence of the executive Government without a specific legislative sanction.

The Court further explained that, although the foregoing discussion was to some extent academic, it was not sufficient by itself to dispose of the petitioners’ case. The executive Government was bound to conform not only to the law of the land but also to the provisions of the Constitution. Because the Indian Constitution is a written Constitution, even the legislature cannot override the fundamental rights guaranteed to citizens. Consequently, even if the acts of the executive were deemed to be sanctioned by the legislature, they could still be declared void and inoperative if they infringed any of the petitioners’ fundamental rights guaranteed under Part III of the Constitution. Conversely, if the executive acts were illegal in the sense that they were not warranted by law, but no fundamental rights of the petitioners had been infringed, the petitioners would have no right to complain under article 32 of the Constitution, although they might have remedies under other heads of law if other rights were affected. The material question for consideration, therefore, was whether any fundamental rights of the petitioners had been violated by the notifications and actions of the executive Government of Punjab undertaken in furtherance of its policy of nationalisation of textbooks for school students.

The petitioners asserted that they possessed a fundamental right under article 19 paragraph 1 sub‑paragraph g of the Constitution, which guarantees to all persons the freedom to carry on any trade or business. Their trade consisted of printing and publishing books for sale, including the textbooks that are used in the primary and middle classes of schools throughout the State of Punjab. Under the usual practice, it is the school authorities that decide which textbooks shall be prescribed for their pupils, and when such textbooks are available in the market the students may purchase them from any bookseller of their choice. There is no constitutional guarantee that any book printed or published by a particular publisher must be prescribed as a textbook by the school authorities. Equally, the Constitution does not forbid the authorities from later withdrawing or replacing a book that had previously been accepted as a textbook. The situation is even more restrictive for publishers whose books are intended for schools that are recognised by the Government, because these recognised schools receive various kinds of governmental assistance, including maintenance grants, equipment, furniture, scholarships and other benefits. The situation is even more restrictive for publishers whose books are intended for schools that are recognised by the Government. These recognised schools obtain several forms of governmental assistance, such as maintenance grants, equipment, furniture, scholarships and other benefits. Pupils attending recognised schools are also permitted to sit for the school final examinations at lower fee rates than those charged to students of non‑recognised schools. According to the school code, one of the principal conditions for a school to obtain or retain Government recognition is that it must use only those textbooks that have been prescribed or authorised by the Government. Consequently, for the purposes of the present case, which concerns only recognised schools, the choice of textbooks rests entirely with the Government. It is therefore the Government that determines the method by which these textbooks are selected.

The procedure that had been followed until recently required the Government to invite publishers and authors to submit their books for examination and approval by the Education Department. After the Education Department made its selection, the Government fixed the dimensions, the content and the price of each approved book. The publishers or authors were then free to print, publish and offer those books for sale to the pupils. While this system was in operation, the only entitlement that publishers such as the petitioners possessed was the right to submit their books for inspection and possible approval by the Government. They possessed no right to demand that any of their books be accepted as textbooks, and therefore any expectation of approval was merely a chance or prospect, not a guaranteed entitlement. Such chances are incidental to all trades and businesses, because a trader may occasionally secure a particular market for his goods but may lose that market if customers, for any reason, cease to buy from him. Accordingly, there is no fundamental right that guarantees a publisher the continuous or certain approval of his books as textbooks. The Government, on the other hand, enjoys an undisputed authority to adopt any method of selection it deems appropriate for choosing textbooks. If the Government ultimately decides, after approving certain textbooks, to purchase the copyright in those books from the authors on terms to which the authors agree, that decision does not impede the publishers’ constitutional right to carry on their trade. Their right to print and publish any books they choose remains intact. No one is depriving the publishers of their ability to print and publish any books they wish. Because they have no entitlement that their books must be approved as textbooks, the Government’s actions are immaterial to the exercise of their Article 19 paragraph 1 sub‑paragraph g right.

In the Court’s view, the situation of the publishers is comparable to that of a trader who, although he may have previously supplied goods to certain customers, cannot claim a fundamental right to retain those customers forever; the trader’s continued business depends merely on the chance that customers will keep buying from him. Similarly, the publishers possess only a chance or prospect that the Government may approve their books as textbooks. The State, on the other hand, retains an undisputed authority to adopt any method of selection it deems appropriate, including the power to decide, after approving textbooks, to purchase the copyrights from the authors, provided the latter are willing to transfer them on stipulated terms. The Court found no infringement of any right of the publishers to carry on their trade or business, because no one is preventing them from printing and publishing any books they choose and offering those books for sale. Their lack of a right to have their books designated as textbooks does not affect them, irrespective of whether the Government approves textbooks submitted by other persons who are prepared to sell their copyrights, or chooses to engage authors directly for the purpose of preparing textbooks that the Government itself will publish. The Court was unable to accept Mr. Pathak’s argument that the Government, while exercising its unquestionable right of approval, may not attach to that approval a condition unrelated to its purpose. The Court saw no way in which the petitioners’ position was improved by such a condition. While the Government’s action might be subject to criticism in the legislature or elsewhere, it does not amount to a violation of the fundamental right protected by article 19 (1) (g) of the Constitution. Consequently, because the petitioners do not possess a fundamental right that has been infringed, the petition must fail on that ground. This conclusion renders the other two points raised by Mr. Pathak unnecessary for consideration. Since there is no fundamental right under article 19 (1) (g), the question of whether the Government could create a monopoly without legislation under article 19 (6) is irrelevant. Moreover, a mere chance of having particular customers does not constitute a property right or an interest in an undertaking within the meaning of article 31 (2), and therefore no compensation is payable. Accordingly, the petition was dismissed with costs. The petitions numbered 71 to 77 and 85 of 1955 were brought under article 32 and raise the same points for consideration as Petition No. 652 of 1954, which has just been decided.

In these petitions, the petitioners claimed to be printers, publishers, and sellers of school textbooks for various classes in the Punjab school system, and they asserted that their fundamental right under article 19 (1) (g) of the Constitution had been violated by several notifications issued by the State of Punjab as part of its policy of nationalising textbooks. The counsel appearing for the petitioners adopted, in their entirety, the same arguments that had been presented by Mr Pathak in Petition No. 652 of 1954, and no new or additional argument was advanced by any of the counsel. Because the factual and legal issues raised in these petitions were identical to those considered in Petition No. 652 of 1954, the Court held that the decision rendered in that earlier petition would also govern the present petitions. Accordingly, the Court ordered that the petitions be dismissed in the same manner as Petition No. 652 of 1954, but it expressly refrained from making any order as to costs, leaving the cost issue open.