1. The prayer in the writ petition is for the issue of a writ of declaration, declaring that S. 12-B of the Tamil Nadu Payment of Salaries Act (XX of 1951), hereinafter referred to as the Act, is illegal and unconstitutional being ultra vires the State Legislature and on these grounds the petitioner further wants this court to strike down the same.
2. The petitioner, who appeared in person, is an advocate practicing in the Supreme Court of India, Delhi. The question raised in this writ petition was argued on merits without adverting to the competency of the petitioner to maintain the writ petition. The Act is apparently a post Constitutional statute. Mrs. Lily Thomas, the petitioner has no grievance with reference to the enacting of the Act and she would concede that the Act is perfectly valid having the sanction of Arts. 186 and 195 of the Constitution of India, read with Entry 38 of List II of the Seventh Schedule. The above constitutional provisions stand extracted as follows:-
' 186. There shall be paid to the Speaker and the Deputy Speaker of the Legislative Assembly, and to the Chairman and the Deputy Chairman of the Legislative Council, such salaries and allowances as may be respectively fixed by the Legislature of the State by law and. until provision in that behalf is so made, such salaries and allowances as are specified in the Second Schedule.'
195. Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time, be determined by the Legislature of the State by law and. Until provision in that respect is so made. Salaries and allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Legislative Assembly of the corresponding Province.'
S. 12-B was not there originally in the Act. It was introduced by the Tamil Nadu Payment of Salaries (Second Amendment) Act Tamil Nadu Act 52 of I975). There was a substitution of this provision by the Tamil Nadu Payment of Salaries is (Amendment) Act (10 of 1980). The provision underwent a further change by the Tamil Nadu Payment of Salaries (Amendment) Act 10 of 1982). No further amendment has been brought to my notice. S. 12-B, with the amendments referred to above, reads as follows:-
'12 B. Pension (1) There shall he paid a pension of two hundred and fifty rupees per mensem to every person who after the 15th day of August 1947, had been or is a member of the Legislative Assembly or of the Legislative Council, or of both, for one term:
Explanation For the purpose of this subsection -
(a) a Member of the Legislative Assembly shall include a Member of the Legislative Assembly of the former state of Travancore Cochin, representing any territory which after the 1st day of Nov. 1956, forms part of the state of Tamil Nadu.
(b) a Member of the Legislative Assembly or of the Legislative Council, shall include a Member of the Legislative Assembly or of the Legislative Council of the State of Andhra Pradesh, representing any territory which after the 1st day of April 1960, forms part of the State of Tamil Nadu.
'Provided that where any person has served either as a Member of the Legislative Assembly or as a Member of the Legislative Council or as both for a period exceeding five years, there shall be paid to him an additional pension of fifty rupees per mensem for every further period of one year as member, so however that in no case the pension payable to such person shall exceed five hundred rupees per mensem.
Provided further that no pension under this sub-section shall be paid to any person
(a) who is in receipt of pension from any other State for having been a Member of the Legislative Assembly or of the Legislative Council of such State.
(b) who was a Member of the Legislative Assembly or of the Legislative Council, of the former State of Madras, representing any territory which ceased to form part of the State of Tamil Nadu.
(2)(i) If any person who has been paid any pension under this Act, as in force before the date of publication of the Tamil Nadu Payment of Salaries (Amendment) Act 1980 in the Tamil Nadu Government Gazette, becomes entitled to increase in the amount of pension so paid by virtue of the said Amendment Act, the increase shall be given effect only on and from the date of such publication and he shall not be entitled to any arrears of such increase.
(ii) If any person becomes entitled to pension for the first time by virtue of this section, he shall be paid such pension only with effect on and from the date of publication of the Tamil Nadu Government Gazette and he shall not be entitled to any arrears of such pension.
(2 A) If any person becomes entitled to pension for the first time or to any increase in pension by virtue of this section, as amended by the Tamil Nadu Payment of Salaries (Amendment) Act l982 he shall be paid such pension or such increase in pension, as the case may be only with effect on and from the date of publication of the said Act in the Tamil Nadu Government Gazette and he shall not be entitled t any arrears of such pension.
(3) The State government may make rules providing for the conditions and restrictions subject to which such pension may be granted
Provided that no such pension shall be paid to any person for the period during which such person was or is in receipt of any salary or any emoluments other than traveling allowance either from any State or the Central Government, or from any company or statutory body owned or controlled by State or the central Government, and if any such income was or is received, the payment of pension shall be suspended for that period;
Provided further that -
(a) no such pension shall be paid to any person for the period during which such person was or is, in receipt of any other pension or honorarium either from any State or the Central Government, or from any company or statutory body owned or controlled by any State or the Central Government, or in receipt of any political pension either from any State or the Central Government, if the amount of such other pension, honorarium or political pension, is equal to, or in excess of, the pension to which he is entitled under sub-sec (1)
b) where the amount of such other pension, honorarium or political pension is less than the pension to which he is entitled under subsection (1) such person shall be entitled to receive only the difference as pension under that sub-section.
Explanation I- For purposes of sub-sec. (1), the expression 'one term' shall mean a period of not less than one year and not more than five years of membership on the Legislative Assembly or in the Legislative Council or in both, whether continuous or not.
Explanation II- For the purpose of additional pension referred to in the proviso to su-sec(i), the period of membership in the Legislative Assembly or in the Legislative Council or in both need not be continuous.
Explanation III For purposes of this section, salary includes salary received under this Act and salary received as -
(i) a Member of the Parliament or any other State Legislature-
(ii) a Minister or Deputy Minister of the Government of India or of any other State.
(iii) the Chairman or Deputy Chairman of the Council of States or the Legislative Council of any other State
(vi) the Speaker or Deputy Speaker of the House of the People or of the Legislative Assembly of any other State.'
3. The initial attack by Mrs. Lily Thomas of the provision, S. 12B was that there is a total lack of power to enact it. The makers of our Constitution did not adopt the British principle of supremacy of Parliament according to which the British Parliament is an omnipotent body, the validity of whose enactments is not liable to be questioned in a court of law. Indian Legislature is no sovereign in character but within the limits imposed by the Constitution, the Indian legislature has plenary powers of legislation. The Legislatures under our Constitution are the creatures of our Constitution. They owe their existence to the Constitution. Their powers are derivable from the Constitution. The Constitution is their commission and naturally, every act of theirs must conform to the Constitution. The Constitution fixes the limits for the exercise of the powers of the Legislature and presents the orbit within which they should move or act. Any act of the legislature repugnant to the Constitution is absolutely void.
4. In Maharaj Umeg Singh v. State of Bombay, : 2SCR164 the vires of the Bombay Merged Territories and Areas (Jagirs Abolition) Act 1953 (Bombay Act XXXIX of 1954) was challenged mainly relying on the agreements of merger entered into by the Rulers of the respective States with the Dominion of India on or about the 19th March 1948 and the collateral letters of guarantee passed by the Ministry of States in their favour on subsequent dates, the contents of which were regarded as part of the merger agreements entered into by them with the Dominion of India. Repelling the arguments I advanced in this behalf, the Supreme Court observed as follows: -
The fetter of limitation upon the Legislative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists Il and III of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which had been undertaken by either the Dominion Government or the Province of Bombay or even the State of Bombay. Under Art. 246 the State Legislature was invested with the power to legislate on the topics enumerated in Lists II and III of the Seventh Schedule to the Constitution and this power was by virtue of Art. 245(i) subject to the provisions of the Constitution. The Constitution itself laid down the fetters of limitations on this powers e.g, in Art. 303 or Art. 286(2). But unless and until the court came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of the State Legislature to enact legislation within its legislative competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists II and III of the Seventh Schedule to the Constitution the fetter of limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter of limitation to be found there the State Legislature had full competence to enact the impugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Government or the Province of Bombay or even the State of Bombay' Pp. 179-180 (of SCR : (At p. 547 of AIR).
5. We can take it as a well settled rule that the State Legislatures are endowed with plenary powers of legislation and if there are limitations to such powers they are to be gleaned from the Constitution itself and there is absolutely no scope for bringing in any extraneous principle, legal though it may be. The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it. The presumption is always in favour of the constitutionality of an enactment since it is legitimate to assume that the legislature understands and correctly appreciates the needs of the situation and caters to the same. Unless the opposition between the Constitution and the law made by the Legislature are incompatible with each other and a clear and a strong conviction is brought to the mind of the court to that effect the rule to be applied is one favouring constitutionality. It is not any adverse implication from the stand point view of the citizen or conjectures of arbitrariness that could persuade the court to frown upon an otherwise perfectly valid legislation within ambit of the Constitution.
6. In the oft quoted decision of the Supreme Court in K. C. Gajapati Narayan Deo v. State of Orissa : 1SCR1 it has been held that-
'....... the doctrine of colourable legislation does not involve any question of bona fides and mala fides on the part of the legislature. ... Whether a statute is constitutional or not is .........always a question of power....... If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to the subject matter of the statute or in the method of enacting it transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect, and it is to this latter class of cases that the expression colourable legislation has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet, in substance and in. reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be mere pretence or disguise.'
In the present case, there is no attack before me that the introduction of S. 12-B into the Act is a colourable legislation.
7. In J. K. Jute Mills Co. v. State of U. P : 2SCR1 , it has been recognised that the power of a legislature to enact a law with reference to a topic entrusted to it is unqualified subject only to any limitation imposed by the Constitution, in the exercise of such power.
7A. In re, under Art. 143 Constitution of India, : AIR1965SC745 , it has been observed as follows -
'Our legislatures has undoubtedly plenary powers, but these powers are controlled by the basic concepts of the written Constitution itself and can be exercised within the legislative fields allotted to their jurisdiction by the three Lists under the Seventh Schedule: but beyond the Lists, the Legislature cannot travel They can no doubt exercise their plenary legislative authority and discharge their legislative functions by virtue of the powers conferred on them by the relevant provisions of the Constitution, but the basis of the power is the Constitution itself. Besides, the Legislative supremacy of our Legislatures including the Parliament is normally controlled by the provisions contained in Part III of the Constitution. If the legislatures step beyond the legislative fields assigned to them or acting within their respective fields, they trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are liable to be struck down by courts in India. Therefore, it is necessary to remember that though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions by the Constitution.'
In Harikrishna v. Union of India. : 59ITR243(SC) and Jalan Trading Co. v. Mill Mazdoor Sabha. : (1966)IILLJ546SC the principle recognised in K. C Gajapati Narayana Deo v. State of Orissa : 1SCR1 has been adverted to.
8. Mrs. Lily Thomas would contend that the source of power of the State Legislature in this behalf could be gathered only from Arts. 186 and 195 read with entry 38 of List II of the Seventh Schedule, and the said constitutional provisions are silent as to 'pension' for Members of Legislative Assembly or of the Legislative Council, and hence the enactment of S. 12-B must be held to be lacking in power and struck down. The answer given by the respondent is that Entry 42 of List II of the Seventh Schedule empowers the State Legislature to enact S. 12B and introduce it into the Act. Entry 42 reads as follows-
'State pensions, that is to say, pensions payable by the State or out of the Consolidated Fund of the State.'
In this context, I have to advert to Arts. 245 and 246 which stand extracted as follows:
'245.(1) Subject to the provisions of this Constitution Parliament may make laws for the whole or an part of the territory of India and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extraterritorial operation.
246(l). Notwithstanding anything in Cls. (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the 'Union List'
(2) Notwithstanding anything in Cl. (3) Parliament and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to an of the matters enumerated in List III in the Seventh Schedule In this Constitution referred to as the 'Concurrent list''
(3) Subject to Cls. (1) and (2) the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule in this Constitution referred to as the 'State List'
(4) Parliament has power to make law with respect to any matter for any part of the territory of India, not included in a State notwithstanding that such matter is a matter enumerated in the State List'.
Art. 245 confers legislative powers on Parliament and on the Legislatures of the States. It determines the extent of laws made by Parliament and by the Legislatures of the States and fxes their territorial jurisdiction. Art. 246 is the one which specifies and allocates the powers of the Parliament and of the legislatures of the States with regard to the exercise of the power conferred by Art. 245. Certain matters are within the exclusive purview of the Parliament. Certain other matters are within the exclusive purview of the Legislatures of the States. With regard to certain matters, both have concurrent powers. In the light of the any of the constitutional provisions and the powers to be gleaned there from for the Legislature of the States. I am not able to appreciate and sustain the submission of Mrs. Lily Thomas that for the purpose of finding out the source of powers in this behalf, one should not travel beyond Arts. 186 and 195. Entry 42 is generally couched, With regard to the construction of the items in the lists, Gwyer C. J. observed in United Provinces v. Mst Atiqa Begum , as follows-
'None of the items in the Lists is to he read in a narrow or restricted sense and that each general word should be held to extend to all ancillary or subsidiary matters which can fairly reasonably be said to he comprehended in it. I deprecate any attempt to enumerate in advance all the matters which are to be included under any of the more general descriptions it will be sufficient and much wiser to determine each case as and when it comes before the court.'
The rule of construction of the entries in the Lists is undoubtedly well established that they should be construed broadly and not in a narrow or pedantic sense. vide Dunichand v. Bhuwalka Brothers Ltd., : 1SCR1071 , and Waverly Jute Mills v. Raymond and Co., : 3SCR209 .
9. In Banarasidass v. Wealth Tax Officer, : 56ITR224(SC) after referring to the observations of Lawyer C J. in United Provinces v. Mt. Atiqua Begum, it has been further held as follows:
'Another rule of construction which is also well established is that it may not be reasonable to import any limitation interpreting a particular Entry in the List by comparing the said Entry or contrasting it with any other Entry in that very List While the Court is determining the scope of the area covered by a particular Entry, the Court must interpret the relevant words in the Entry in a natural way and give the said words the widest interpretation. What the Entries purport to do is to describe the area of legislative competence of the different legislative bodies and so, it would be unreasonable to approach task of interpretation in a narrow or restrictive manner' -page 1390.
10. In Navnit Lal v. I. T. App. Asstt Commr., : 56ITR198(SC) , it has been recognised as follows-
The legislative entries purport to confer legislative powers on the respective legislatures in respect of areas or fields covered by the said entries: and it is an elementary rule of construction that the widest possible construction must be put upon their words.'
11. In Punjab Industries v I. T. Commr. AIR 1965 SC 1862 the rule of construction of the entries in the legislative lists runs as follows -
The entries in the legislative lists should be construed most liberally and in their widest aptitude, and not in a narrow or restricted sense. Each general word should be held to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended by it.'
12. The subjects enumerated in the three legislative lists have not been set out with scientific precision. It would be a practical impossibility to define each item in the State list. But the Court should not lose sight of the fact that every effort was made by the makers of the Constitution to make the three Lists as comprehensive and exhaustive as well as exclusive as possible. If an Entry is found in the State List, it is the duty of the Court to consider it in the broadest sense possible so as to uphold the vires of the statute. Mrs. Lily Thomas made an attempt to get out of the implications of Entry 42 of List II of the Seventh Schedule by saying that it may not include what she calls as membership pension or pension payable to ex-members of the Legislative Assembly or the Legislative Council. She also made a reference to Art. 240(l) to state that the legislative power should always be exercised for the peace, progress and good government. Entry 42, as I stated above, is generally couched. In the absence of any constitutional inhibition to warrant exclusion of the pension as provided by S. 12-B of the Act, from the purview of Entry 42, it is not possible to bring in these conceptions to strike at the power of the Legislature of the State which is otherwise available under the Constitution. The rule of construction of the Entries in the Legislative Lists being what it is, as exemplified by the highest Court in the land, I cannot countenance the submissions made by the petitioner. The petitioner advanced her submission that what has not been provided by Arts. 186 and 195 must be deemed to have been expressly excluded. This submission omits to take note of Arts. 245 and 246, which adumbrate powers of the Parliament and the Legislatures of the State and in particular Art. 246 which along with the Legislative Lists specifies and enumerates matters in respect of which the Parliament, and the Legislatures of the States should exercise their respective powers.
13. The petitioner also drew my attention to the various provisions in the Constitution, some providing for payment of salaries, emoluments and allowances and some specifically providing for pensions to the offices concerned and the petitioner wants this Court to draw the inference that since there is no particular article in the Constitution envisaging conferment of pension to members of Legislative Assemblies and Legislative Councils of a State and who are also not public servants, the conferment of pension on them must be deemed to have been excluded by the Constitution. This argument is also built without reference to Arts. 245 and 246 read with the Legislative Lits. To my mind, there is no ambiguity that there is a power available to the Legislature of the State under Entry 42, of List II of the Seventh Schedule to enable it to legislate providing for pension of the type set out in S. 12-B of the Act It is not a case of lack of power and it is not a case of the Legislature of the State traveling beyond its legislative competency.
14. Mrs. Lily Thomas conceived of certain factors and expressed them before me as coming in the way of legislative competency with regard to S. 12B of the Act She would state that the Members of the Legislative Assembly and of the Legislative Council are trustees of the public exchequer and in common law, trustees are incompetent to provide for their own beneficial enjoyment of the trust funds during their term as trustees and much more so, after the expiration of the trusteeship unless the deed of trust which, in this context, is the Constitution of India, makes provision therefore either expressly or by necessary implication. She would further urge that the payment of pension is an illegal and gratuitous cash dole without any considerations or quid pro quo which the members of the Legislative Assembly and of the Legislative Council, who are trustees, have voted for themselves as a life-long reward for themselves in abuse of their high constitutional powers. These submissions are high sounding and may took attractive if looked at besides the constitutional sphere. So far as this Court is concerned, it shall confine its adjudication of the controversy raised before it over the legislative comptency by the yard-stick found in the Constitution itself If a power has been assumed, which has no foundation in the Constitution, that will be an incompetent power and the resultant statute would be struck down. But, if the power is available and could be spelt out under the constitutional provisions, it is not possible for this Court to bring in any other legal conceptions; or any ethical, social and political conceptions and strike down the legislation which is otherwise constitutionally valid.
15. In Ahmed Moideen v. Inspector, D' Division, : AIR1959Mad261 , a Bench of this Court, consisting of Panchapekesa Ayyar and Ganapatia Pillai JJ. opined that while considering whether a certain act of State Legislature is within its legislative powers, the Court can consider the items of Legislative Lists and the Bench repelled an argument put forth before it that the Legislature in modern times is expected to act with maximum wisdom and straight-forwardness and perspicacity and any enactment passed by it not satisfying these criteria must be held suspect The Bench pointed out that if an enactment is valid under the Constitution of India it will not become ultra vires, because the deal criteria urged by the learned counsel before the Bench are not satisfied.
16. In shankarnarayana v. State of Mysore AIR 1466 Sec 1571 while explaining the doctrine of colourable legislation it has been noted as follows -
'The whole doctrine of colourable legislation resolves itself in the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass the particular law the motives which impel it to pass the law are really irrelevant '.
17. In R. S. Joshi v. Ajit Mills : 1SCR338 , Krishna Iyer J exemplified the duty of Courts while examining the alleged unconstitutionality of a Legislation in the following terms: -
'When examining a legislation from the angle of its vires, the Court has to be resilient, not rigid, forward-looking not static, liberal, not verbal in interpreting the organic law of the nation. The Court must also remember the constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislation bodies Moreover, while trespasses will not he forgiven a presumption of constitutionality must colour judicial construction. These factors, recognised by the Supreme Court are essential to the modus vivendi between the judicial and legislative branches of the State, both working beneath the canop of the Constitution'
18. At the risk of repetition I must state that the State Legislatures are endowed with plenary powers of legislation and the limits imposed on such plenary powers are to be found in the Constitution itself and not importing any extraneous legal principle and the ultimate touchstone of constitutionality is the Constitution itself and not any general legal principle outside it The grievance of the petitioner that the provision S. 12B is not in accordance with the spirit of the constitution could have an appreciation elsewhere and not before this court courts are not free to declare an Act void because in their opinion it is opposed to a spirit supposed to pervade the constitution, though not expressed in words. There is always the presumption about the constitutionality of a provision of a statute and the courts should always lean towards holding the vires of the statute unless it is demonstrated as absolutes lacking in legislative competence.
19. Mrs. Lily Thomas attempted to state that S 12B will come within the mischief of Art 14 of the Constitution in the sense that it creates a class within a class, bringing in discrimination She has to frankly concede that this aspect has not been exemplified and delineated with any precision in her affidavit filed in support of the writ petition Rightly Mr. R. Krishnamurthi learned Advocate General appearing for the respondent, submitted that the burden being on those pleadin violation of Art 14 they cannot urge a grievance on this aspect without setting forth the particulars of the alleged discrimination. The affidavit of the petitioner singularly lacks in particulars in this behalf The onus of proving unconstitutionality of a statute lies upon the person challenging it and the matter cannot be adjudicated on unambiguous and unspecified grounds. Hence it is not possible to take note of this vague and specified plea urged by the petitioner. It is true that if the Legislatures acting within their respective fields trespass on the fundamental rights guaranteed under the Constitution and in a manner not justified by the relevant Articles dealing with fundamental rights, their legislative actions are liable to be struck down by Courts. This principle also comes within the Constitution. But, there is scope for application of the principle when there is no specific plea and when there is no exposure of the relevant particulars with regard to the same.
20. The principles discussed above oblige me to discountenance the case of the petitioner. Accordingly, the writ petition fails and the same is dismissed. I make no order as to costs.
21. Petition dismissed.