Sunday, February 26, 2006

Re-reading Ram Jawaya Kapoor

I never had the opportunity of reading Ram Jawaya Kapoor v. State of Punjab, AIR 1955 SC 549, in law school. Recently, I had to look at it for one section of my book, and I realized how important this case is. It is actually a fairly brief judgment. Yet, it is an authority for at least three important propositions. First, our Constitution does not embody the full separation-of-powers doctrine, only a separation-of-functions principle. Second, despite what some scholars may tell you, our democracy embodies a parliamentary form of government. Third, the cabinet, formulates all important questions of foreign policy.

I found this passage especially nicely written, although Chief Justice Mukherjea borrows the hyphen-joining-the-buckle metaphor without proper attribution from Walter Bagehot's The English Constitution.

In the Indian Constitution, therefore, we have the same system of
parliamentary executive as in England and the council of ministers, consisting,
as it does, of the members of the legislature is, like the British Cabinet, “a
hyphen, which joins, a buckle, which fastens the legislature part of the State
of the executive part.” The Cabinet enjoying, as it does, a majority in
the legislature concentrates in itself the virtual control of both legislative
and executive functions; and as the Ministers constituting the Cabinet are
presumably agreed on fundamentals and act on the principle of collective
responsibility, the most important questions of policy asre all formulated by
them.


1 comment:

Red said...

Granville Austin has a fascinating account of the Rajendra Prasad- Nehru dialouge over presidential powers with Nehru threatening to resign twice. There seems to have been a polite but charged exchange of memos through the early years of the Republic which drageed in both B.N Rau and Setalvad..

Now both Ayyar and Setalvad insist that it is perfectly clear that the President's position is analogous to the role played by the English monarch. Yet, the constitutional text itself expressly requires certain tasks to be carried out with the aid and advice of the cabinet, but doesn't mention it in others. From what little I have read of the CAD I don't see the "presidential question" being given much importance. If we see the constitution as a successor of the GoI Act, 1935 one could argue that the President was expected to enjoy greater discretion.

So was the question as settled as their Lordships seem to suggest in Ram Jawaaya Kapoor?