College: Banasthali Vidyapith
The preamble of various constitutional provision of constitution of India obligated that state build an egalitarian society for the people of india.these obligation detailed discussed in part 4 of the construction heading of Directive principle of state policy. Part 4 with article 37 dealing the part not enforceable in the court of law is however fundamental in the governence of the country. Therefore while making law parliament must apply this provision.state control industry it should great acheive of end of socialism.Since Independence the distribution of credit in rural areas was at a great low. This was because of the inaccessibility of banks and other financial institutions in the rural areas. Therefore, in order to target the rural area, the government schemed a plan to target the needy sectors. This solution they devised was Nationalization.Earlier in 1955, Imperial bank of India was taken under the SBI Act and just in four years its 7 subsidiaries were also amalgamated into the SBI branch. The Reserve Bank of India also played a pro-active role in regulating the banking sector and reduced the number of commercial banking institutions from 569 in 1951 to 89 in 1969.The Indira Gandhi government in 1969 at the instance of the then Acting PresidentM. Hidayatullah promulgated the Banking Companies (Acquisition & Transfer of Undertaking) Ordinance, 1969 nationalizing the 14 banks. These 14 banks were chosen on the basis that they had deposits exceeding 50 crores. The ordinance was promulgated just two days before the Session of Parliament. The ordinance w.e.f. 19 July 1969 broght more than 75% banking sector under state control along with its assets, liabilities, entire paid-up-capital.The most horrific and controversial part of the Ordinance was the second schedule it contained. The second schedule provided that:
Where an amount of compensation could be fixed by an agreement; it would be determined by such agreementWhere no such agreement could be reached in the provided time, the matter would be referred to tribunal. The compensation fixed by the tribunal will be awarded after 10 years from the date when the agreement failed.2 days later when Parliament came in session it enacted the Banking Companies (Acquisition & Transfer of Undertaking) Act, 1969 with the same provisions as were in the Ordinance. Therefore, Rustom Cavasjee Cooper the majority shareholder of Central Bank of India & Bank of Baroda filed a writ petition in Supreme Court u/a 32 for the violation of his Fundamental Rights mentioned under articles 14, 19(1)(f) & 31(2).
Whether a shareholder can file a petition for remedy against violation ofhis fundamental rights when the company in which the shares are held is taken over.
Whether the Ordinance was properly promulgated.
Whether the Parliamentary Act was within Parliamentary Competence.
Whether the impugned Parliamentary Act was violative of Article 19(1)(f) & 31(2) of Constitution of India.
Whether the method of ascertaining compensation was valid
1- The writ petition is maintainable because the petitioner has filed it for enforcement of his Fundamental Rights and not that of company. Since Company is not a citizen within the context of Indian Citizenship Act, 1955 and the Constitution of India, a company cannot claim the protection of those FR’s which are solely available to citizens of India.
2- Since in just two days the Parliament was coming in monsoon session the President promulgated an ordinance which is in direct contravention of condition precedent for promulgation of Ordinance. Therefore, the President’s promulgation of Ordinance is invalid and that the SC has power to annul an invalid Ordinance.
3- The three lists under Schedule VII of the Constitution Union, State & Concurrent List clearly demarcate the area of operation of Union Parliament, State Legislature and areas where both can operate respectively. The Parliament can only legislate in the matters of “Banking” as defined in the Section 5(b)of Banking Regulation Act, 1949 by the virtue of Entry 45 of List I. Further, the legislature by the virtue of Entry 42 of list III can only make laws for effectuating laws under List I. Therefore, the Parliament did not possess the required valid competence to initiate the acquisition process.
4- The impugned act of 1969 is violative of Fundamental Rights mentioned in Article 19(1)(f) and Article 31. Therefore, the act is in direct contravention of Article 13 which clearly provides that any law which is in violation of the said provision will be unconstitutional and the courts are bound to strike it down.
5- The Schedule II of the impugned act that provides for the procedure in which the Compensation is to be given to the shareholders is draconian in its entirety. The said provision is too much irrational and vague. No valid law can make a person realize the fruits of the agreement after 10 years. Such illogical and illegal condition must be struck down.
1-The writ petition is not maintainable because the petitioner is seeking the protection of Fundamental Rights of the Company which is not a citizen as per the Indian Citizenship Act, 1955. The rights mentioned under Article 19 are only available to the Citizens of the nation whereas company is only a juristic person and not a citizen.
2- The President’s power to promulgate an Ordinance u/a 123 is a subjective power and the President cannot be asked to adduce his reasons before the courts as to why the ordinance was promulgated.
3- The courts must see the Socialist obligations upon the state to make an egalitarian society in which there is no sort of inequality. Therefore, the court should, keeping in perspective these obligations, must construe the word “Banking” under Entry 45 of List I to mean all the activities which the respondent ought to undertake.
4- The act is not violative of Article 19(1)(f) since it falls within the provisions of Article 31 and since in K. Gopalan v. Union of Indiathe court held that each Fundamental Right is exclusive of one another and distinct.
The court delivered this landmark judgment on February 2, 1970 & speaking in 10:1 majority held that the shareholder or director cannot move to the courts for the protection of infringement of Fundamental Right’s of the company unless it is proved that by the impugned action his rights are also violated. The majority opinion was written by Justice Shah for himself and on the behalf of Grover, Vaidialingam, Mitter, Dua, Shelat, Hegde, Reddy, Sikri and Bhargava, JJ. while justice A.N. Ray wrote the dissenting opinion.
The major findings of the majority bench were as follows:
The apex court overruled the 20 years law laid down by K. Gopalan rejecting the mutual exclusivity theory. The court held that we cannot overlook the violation of citizens of the nation on mere technicalities. If due to state action the fundamental rights of a citizen are violated the court is bound to prohibit such violation. The court by holding this laid down the Effect test and overruled the Object test. Therefore, now the courts won’t look into the objects of the impugned act and rather they will look into the effect of the impugned act. In case effect of such act violates the FR’s of citizens it would be violative of Constitution and liable to be struck down.
Since the Ordinance was already replaced by the act of Parliament therefore, the court held that deciding the validity of the said impugned Ordinance is fruitless. This discussion is relevant for academic purposes only.
The court rejected both the Petitioner’s & Respondent’s argument on legislative competence to acquire banking Companies. The court held that the term Property in itself constitutes the rights, liabilities, organization etc. that accrue to the property. The power to acquire property was held to be an independent power of Parliament and it required no separate legislation under List II or List III.
The court found the impugned act in contravention of the Article 31 since the act failed to comply with said provision. The said provision provided that the in case any property is acquired by the government then they have to provide compensation to the property owner. Since there was clear violation of the said provision therefore, the court struck down the said act.
However, the court upheld the validity of the act in the context of Article 19(1)(f). The court said that the act is not violative of the freedom to carry trade & business. The justification for the said ruling that the state can always create a partial and absolute monopoly.
But the court held the said act in clear violation of Article 14c since only these 14 banks were restrained from conducting banking business n the future while other banks including the foreign banks were allowed to continue Banking in India. The court this discrimination as a flagrant hostile discrimination.
Justice Ray’s opinion was the sole dissent in the judgment. However, he agreed with the majority in two instances which were as follows:
That the said act is not in violation of Article 19(1)(f) i.e. freedom to carry trade & occupation.
That the Parliament was competent to legislate on the acquisition of banking and that the said law was valid as far as Legislative Competence is considered.
Further, he held that the Ordinance promulgation power vested within the President of India is a subjective power that cannot be challenged in courts. However, he rejected the majority’s opinion that the shareholder can approach the apex court for the violation of his rights which were directed against a company i.e. a non-citizen. He also affirmed the mutual exclusivity theory as was propounded in Gopalan judgment
Indian constitution article 123