Rai Sahib Ram Jawaya Kapur and Ors. Vs The State of Punjab On 12 April, 1955

Judicial Activism
Black's Law Dictionary

defines judicial activism as a "philosophy of judicial decision-making whereby judges allow
their personal views about public policy, among other factors, to guide their decisions.
Judicial activism refers to judicial rulings that are suspected of being based on personal opinion,
rather than on existing law.
One good example is Roe v. Wade. ... The majority of the Supreme Court decided that an
individual's right to privacy includes the right to have an abortion.
Rai Sahib Ram Jawaya Kapur And Ors. vs The State Of Punjab on 12 April, 1955
From 1905 to 1950, in the State of Punjab, the recognized schools of Punjab had to refer to the
books from the list of alternate text as approved by the Education Department of Punjab. For the
purpose of approval, various publishers or independent authors submitted their textbooks that
were prepared with their own money, to the Government of Punjab. The Education Department
then approved a few text books out of various text books published by various publishers in
accordance with the principles laid down by it.
In May 1950, post partition of the erstwhile Punjab into three zones, this procedure was changed
by certain resolutions passed by the Government of Punjab. The Government prepared and
published textbooks on few subjects without inviting them from the publishers and authors. On
the remaining subjects, the earlier procedure was followed but instead of approving a list of
textbooks, the Government only approved one textbook on each subject. The Government also
charged 5% of the sale price as royalty on all the approved textbooks.
Through another notification in August 1952, the Government only invited textbooks from
authors for approval. Also, the authors whose textbooks were approved were made to enter an
agreement according to which the copyright in these books vested absolutely in the Government
and the authors would get only 5% royalty on the sale of the text books at the price or prices
specified in the list. Thus the Government took the publishing, printing and selling of the books
exclusively in their own hands.
The present petition was filed under Article 32 of the Indian Constitution against the notification
of the Government passed in August 1952. The six petitioners, who were individuals engaged in
the occupation of publishing, printing and selling textbooks, contented that the Government of
Punjab, was not only imposing on them, unwarranted restriction on the regular carrying out of
their occupation of publishing books but had altogether oust the petitioners and other fellow
traders from their business. It was contended by the petitioner that this act of government was
not only violative of their fundamental right of carrying any type of trade or commerce
mentioned in Art. 19 (1)(g), but was also ultra-vires to the constitutional power vested in the
government, as the government being an executory body of the State did not have the power to
do so without any specific legislation empowering them to enter into that activity or trade.
HELD
In the present case, the Government of Punjab, had estimated and shown the
expenses to be incurred in the process in the annual financial statement and
were also sanctioned by the State Legislature and due Appropriation Acts were
passed. Hence, the Court did not agree with the petitioners on their contention
that the Government of Punjab was not entitled to make such a notification
without a specific legislation sanctioning such course.
With respect to the question of violation of FR, the Court held that the
government action in question was not in violation of the fundamental right of the
petitioner, which are mentioned in Art. 19(1)(g) of the Constitution of India; as the
government by the said notice may have restricted the book used in schools but
still these publishers and authors were free to approach the private book shops
for business.
The Court further held that since there was no violation of any FR of the
petitioners in the first place, the Government could not be said to have infringed
such FR through the notifications.
Hence, the Court dismissed the petition holding that in India, there is a strict
separation of powers but the separation of functions is not observed in strictest
sense.
The Indian Constitution has not indeed recognized 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(emphasis supplied

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Judicial Activism

Black's Law Dictionary

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