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Judgment
Govindan Nair, C.J.—Thiru M. Karunanidhi, former Chief Minister of Tamil Nadu, is the petitioner in the criminal revision case as well as in
the criminal miscellaneous petition. The revision is directed against the order of the Special Judge appointed u/s 6 of the Criminal Law Amendment
Act, 1952, disposing of Cri. M. P. No. 2384 of 1976 in C. C. No. 27 of 1976. The prayer in Cri. M. P. No. 2384 of 1976 was to discharge the
petitioner u/s 239 of the Cri. P. C., 1973. By the order sought to be revised the prayer was refused, Cri. M. P. No. 429 of 1977 purports to be
u/s 482 of the Cri. P. C., 1973, and the prayer therein is that the proceedings of the Special Judge in C. C. No. 27 of 1976 on his file be quashed.
The arguments advanced in the revision as well as in the criminal miscellaneous petition were the same and the revision case and the criminal
miscellaneous petition are therefore being disposed of by this common judgment.
The Acts with which we are concerned are the I.P.C., the Code of Criminal Procedure, 1973, the Prevention of Corruption Act, 1947, the
Criminal Law (Amendment) Act, 1952, and the Tamil Nadu Public Men (Criminal Misconduct) Act, 1973. We shall refer to these enactments
hereafter as the Penal Code, the Procedure Code, the Corruption Act, the Criminal Law (Amendment) Act, and the State Act and to the first four
compendiously as the Central Laws.
The main points urged by counsel on behalf of the petitioner were : (i) The State Act contained provisions repugnant to the Central Laws, the
Penal Code, the Procedure Code and the Corruption Act, and in view of Article 254(2) of the Constitution, the State Act alone could be applied
and investigated for offences thereunder can only be done under the State Act. The . investigation made under the Procedure Code, which led to
the first information report, and the sanction u/s 197 of the Procedure Code as well as the criminal complaint before the Special Judge are
therefore without the authority of law. (ii) Even assuming that the Procedure Code and the Corruption Act were available, no action could be taken
against the petitioner for most of the offences under the sections under which he had been charged, because he is not a public servant.
During the course of the arguments, which ranged over a very wide field, the interpretation to be placed on Section 29 of the State Act, as it
stood before and after it was amended in 1974 was dealt with. It was suggested that, if Section 29 as amended is interpreted to mean that the
provision would enable action being taken for offences, falling u/s 3 of the State Act under the Central Laws, Section 29 itself would be invalid as it
would be against the provisions of Article 254(2) of the Constitution. Another argument urged in this connection was that Section 29 of the State
Act having been enacted at a time when Article 14 of the Constitution had not been suspended consequent on the Emergency, the section must be
interpreted as not authorising actions being taken under the State Act or the Central laws indiscriminately. Only such an interpretation would make
the section conform to the requirements of Article 14 and every law made must be presumed to be made subject to Constitutional provisions and
an interpretation which would violate any provision of the Constitution should not be placed on the section. It was further contended that the
suspension of Article 14 of the Constitution consequent on the declaration of Emergency was only with respect to what was termed as ""Emergency
Laws'' and that the suspension would not, therefore, apply to the State Act, as it is not an Emergency Law, but one passed long before the
Emergency was declared and hence, if Section 29 of the State Act permitted one or the other of the procedure, one under the State Act and the
other under the Central laws, the State Act would be discriminatory and violative of Article 14 of the Constitution and hence ultra vires the
Constitution.
We shall now refer to the salient features of the State Act. The preamble to the Act states that it is to provide for the appointment and functions
of certain authorities for the investigation and inquiry into allegations of ''criminal misconduct'' against public men in the State of Tamil Nadu and for
matters connected therewith. ''Public man'' is defined in Section 2(c) of the Act, and the Chief Minister is a public man and Chief Minister is
specifically mentioned in Section 2(c)(i) of the Act. ''Public servant'' has the same meaning as in Section 21 of the Penal Code. ''Criminal
misconduct'' is defined in Section 3, which we shall extract in full :
Definition of criminal misconduct :-- Whoever being a public man--
(1) accepts or obtains from any person for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or
reward for doing or forbearing to do any official act or showing or forbearing to show, in the exercise of his official functions, favour or disfavour to
any person or for rendering any service or disservice to any person, with the Government or the Legislature of the State or with any local authority,
corporation or Government company referred to in Section 21 of the Indian Penal Code (Central Act 45 of 1860) or with any public servant as
such, or
(2) accepts or obtains from any person for himself or for any other person, any gratification whatever as a motive or reward for inducing, by
corrupt or illegal means any public servant to do or to forbear to do any official act, or in the exercise of the official functions of such public
servant, to show favour or disfavour to any person or to render any service or disservice to any person with the Government or the Legislature of
the State, or with any local authority, corporation or Government company referred to in Section 21 of the Indian Penal Code (Central Act 45 of
1860) or with any public servant as such, or
(3) by corrupt or illegal means or by otherwise abusing his position as a public man obtains for himself or for any other person any valuable thing or
pecuniary advance.
is said to commit criminal misconduct.
Explanation : (a) The word ''gratification'' is not restricted to pecuniary gratifications or to gratifications estimable in money.
(b) The words ''legal remuneration'' are not restricted to remuneration which a public man can lawfully demand, but include all remuneration which
is lawfully permissible.
(c) A person who received a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done
comes within the expression ''a motive or reward for doing''.
Section 4 contemplates the appointment of Commissioner of Inquiries and Additional Commissioner of Inquiries by the Government. Such
appointment shall be on the recommendation of the Chief Justice of the High Court and shall be by notification. There will be only one
Commissioner of Inquiries, but one or more persons may be appointed as Additional Commissioner of Inquiries. The Commissioner shall be a
person who is, or who is qualified for appointment as, or who has been a Judge of a High Court, and the Additional Commissioner shall be a
person who is, or who is qualified for appointment as, or who has been a District Judge. A person appointed as Commissioner or Additional
Commissioner shall hold office for a term of three years from the date on which he enters upon his office. On ceasing to hold the office, the
Commissioner and the Additional Commissioner shall be ineligible for any further employment whether as Commissioner or Additional
Commissioner or in any other capacity under the Government, for any employment under any local authority, corporation, company or society
(whether private or public). The salary payable to the Commissioner and the Additional Commissioner will be respectively Rs. 4,000 and Rs.
3,000 and the allowance and pension payable to and other conditions of service of the Commissioner or Additional Commissioner shall be the
same as admissible to a Judge of a High Court in the case of the Commissioner and to a District Judge in the case of an Additional Commissioner.
A Commissioner or Additional Commissioner can be removed from his office by the Government only on the grounds of misbehaviour and on no
other ground, and no action can be taken for that purpose unless there is a specific allegation alleging misbehaviour on their part. This is, of course,
subject to the provisions of Article 311 of the Constitution. When allegations as stated above are made, they shall be enquired into by a Special
Tribunal consisting of three Judges of the High Court nominated from time to time by the Chief Justice in that behalf, and the Special Tribunal shall
be obliged to give a finding whether or not the allegations have been substantiated.
When allegations of criminal misconduct are made against a public man, investigation by the Commissioner in the first instance, must be to find
out whether there is a prima facie case against the public man. If the investigation does not establish a prima facie case. the Commisnnner or
Additional Commissioner is obliged to dismiss the complaint. If a prima facie case is established, there shall be a detailed investigation. If, during
such detailed investigation it is made out that the allegations are false, frivolous or vexatious, the Commissioner may make an order for the payment
to the public man by the complainant damages by way of compensation. Further, the Commissioner can refuse to investigate false or frivolous
complaints and every person who makes a false, frivolous or vexatious complaint against a public man shall be liable, on conviction, to
Imprisonment for a term which may extend to three years, and shall also be liable to fine. After the final investigation, the Commissioner or the
Additional Commissioner, as the case may be, is to prepare a report stating whether it is expedient in the interests of justice that the public man
against whom criminal misconduct has been alleged should be prosecuted for an offence u/s 15, or that the allegation has not been substantiated
and therefore, recording a finding to that effect, stating his reasons therefor. If the Commissioner or the Additional Commissioner comes to the
conclusion that it is expedient in the interests of justice that the public man must be prosecuted, the Act says that the public man shall be
prosecuted, and tried u/s 6 of the Criminal Law (Amendment) Act, and, if the finding is that the allegation has not been substantiated, ''the matter
shall be dropped''.
The punishment for criminal misconduct is imprisonment for a term which may extend to seven years and the public man is also liable to fine.
The Government may refer any allegation of criminal misconduct to the Commissioner or Additional Commissioner, when such allegation
against any public man is or has been brought to the notice of the Government, if they are satisfied that it is necessary in the public interest that the
allegation of criminal misconduct should be investigated under the Act. (Section 25(1)(a)). Where a resolution is passed by the Legislative
Assembly of the State that any allegation of criminal misconduct made by any person against a person (including the Chief Minister or any other
Minister), who is or has been a member of the Legislative Assembly, shall be referred to the Commissioner, or where a resolution is passed by the
Legislative Council of the State that any allegation of criminal misconduct made by any person against a person (including the Chief Minister or any
other Minister), who is or has been a member of the Legislative Council, shall be referred to the Commissioner, the Government shall require the
Commissioner or the Additional Commissioner, as the case may be, to investigate the allegation of criminal misconduct. (Section 25(1)(b) and (c)).
The person who made the allegation of criminal misconduct, for the purpose of the section, shall be deemed to be the complainant.
We shall also extract Section 29 of the Act as it stood before it was amended by Tamil Nadu Act 16 of 1974 and as it now stands after the
amendment effected by Tamil Nadu Act 16 of 1974 : Before the amendment :
Section 29 : The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time
being in force or any custom, usage or contract or decree or order of a Court or other authority.
After the amendment :
Section 29 : The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force, and nothing
contained herein shall exempt any public man from any proceeding by way of investigation or otherwise which might, apart from this Act, be
instituted against him.
C. C. No. 27 of 1976 before the Special Judge arose in these circumstances. On the 15th of June, 1976, the Chief Secretary to the
Government of Tamil Nadu addressed a communication to the Deputy Inspector General of Police, Central Bureau of Investigation, which
concluded by stating that
since the State Government have reasons to believe that the persons who were responsible for the above decisions abused their official position
and acted mala fide with a view to cause the pecuniary advantage to the dealers concerned, the State Government would be grateful if the Central
Bureau of Investigation could make a detailed investigation into the matter and let us know the results.
The Deputy Inspector General of Police, Central Bureau of Investigation, endorsed on the communication from the Chief Secretary :
As this prima facie discloses cognisable offences under the P. C. Act and related sections of I.P.C., S. P. II Shri Ratna Rao may register a case,
investigate and take action according to law.
And the S. P. recorded :
As the complaint disclosed commission of an offence u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act (Act II of 1947) by
officials of the Food Department, Government of Tamil Nadu, Madras, this F.I.R. is registered.
An investigation followed and Criminal Complaint No. 27 of 1976 was initiated. A charge-sheet has also been filed and the charge related to
offences u/s 120-B read with Section 161, Penal Code, Section 5(2) of the Corruption Act, Sections 420 and 468, Penal Code, Section 5(3)(a)
of the Corruption Act, Section 5(2) read with Section 5(1)(d) of the Corruption Act, Section 420 of the Penal Code, Section 109 read with
Section 468, Penal Code and Section 468, Penal Code.
In support of the first contention formulated in paragraph 4 above, counsel referred in detail to the various sections of the State Act, the
Corruption Act and the Penal Code and prepared a statement comparing Section 3(1) of the State Act with Section 161 of the Penal Code and
Section 3(3) of the State Act with Section 5(1)(d) of the Corruption Act. This statement is appended to this judgment for ready reference. With
the assistance of that statement it was urged that Section 3(1) of the State Act was in pari materia with Section 161 of the Penal Code and Section
3(3) of the State Act was similar to Section 5(1)(d) of the Corruption Act. In so far as the procedure prescribed for investigation under the State
Act is materially different from the investigation contemplated by the Procedure Code and the Corruption Act, which would be the procedure to
be followed in the case of offences falling exclusively under the Penal Code and the Corruption Act, it was urged that the State Act contained
irreconcilably inconsistent provisions relating to investigation of the offences u/s 3(1) of the State Act committed by public men, that such
irreconcilably inconsistent provisions in the State Act are repugnant to the provisions of the Central Laws and hence Article 254(2) of the
Constitution was attracted and that the State Act must, therefore, prevail. Though after investigation under the State Act, if a prosecution is
decided upon, the prosecution must be before the Special Judge in view of Section 19 of the State Act read with Section 6 of the Criminal Law
(Amendment) Act and the procedure for trial would be as provided by the Procedure Code, the provisions for investigation under the State Act
are special provisions containing special safeguards in favour of public men, which would include a Chief Minister, and these special provisions
which confer special protection to the public cannot be denied by applying the Central Laws. This in substance was the argument of the counsel
and it proceeded on the basis that some at least of the offences under the State Act are the same as those under the Corruption Act and the Penal
Code, which, as we said, was sought to be made out by a comparison of the corresponding sections which are set out in the annexure. While
dealing with this aspect, the following arguments were advanced. The tests to be applied to find out whether the provisions of the State law are
repugnant to the provisions in a Central law, for the purpose of Article 254(2) of the Constitution, it was suggested, are different from the tests that
are to be applied for the purpose of deciding the question whether there is an implied repeal of an earlier law by a later legislative enactment
resulting from irreconcilable inconsistency. It was urged that the repugnancy contemplated by Article 254(2), is a repugnancy between a State law
and a Central law ; whereas in ordinary cases of repugnancy, which may result in implied repeal, the question would have arisen between two laws
passed in succession by the same Legislature. So it .was contended that the tests of ""occupied field"" and ""complete code"" are available for finding
out whether a State law is repugnant to a law of Parliament for the purpose of Article 254(2), whereas those tests may not be applicable for
deciding the question of implied repeal, when the question of a later law or statute passed by the same Legislature overriding an earlier statute
arose We see no justification for laying down different tests for determining repugnancy ; one for the purpose of Article 254(2) and another for
implied repeal by a later statute. The tests have often been stated and relied on without specifying which test should be applied in a given
circumstance. The attempt must always be to find out whether the provisions in one law are so different from another that the two laws cannot co-
exist because of the conflict. If the two laws occupy different areas, though in the same field, or are to apply for different periods, or deal with
different subjects, no question of conflict can arise and, therefore, there will be no repugnancy. It will, therefore, be often necessary to find out first
whether a field has been occupied by a legislation, be that of a paramount Legislature such as that of the Parliament in India or a Federal
Legislature in other Constitutions such as that of Canada and Australia or an earlier law made by a State Legislature. If the earlier law or the law
passed by what may be called the paramount Legislature, as the case may be, did not occupy the field and the later legislation or the one passed
by the State Legislature did not relate to the same matter, subject or area, dealt with by the earlier law or the law of the paramount Legislature, no
repugnancy would arise. But without enacting laws for every conceivable subject in the field, the paramount Legislature can evince an intention to
occupy the entire field. In such case, a State Law cannot make any provision which would fall within that field, though there is no provision in the
paramount law relating to the matter dealt with by the State law, for the paramount law, though silent on a matter falling within the field, must be
taken to have intended that no provision is necessary for that matter and when the State Legislature steps in and makes a law for that matter, it
impinges on the paramount law by acting against the intention of the paramount Legislature. Such a result can follow when, without making an
exhaustive code, i.e., without making provision for all conceivable and possible circumstances and situations, a law of the paramount Legislature
provided a code and indicated clearly that its Act must cover the entire field. In such circumstances, any State legislation, which pertains to the
matters that can fall within the field covered by the Act of the paramount Legislature, that legislation having evinced a clear intention to occupy the
entire field, will necessarily clash with the paramount law and its provisions would become irreconcilably inconsistent with the provisions of the
paramount law.
The Supreme Court, in dealing with inconsistencies arising from the provisions in a later enactment with those in an earlier enactment passed by
the same Legislature (in that case the Parliament), observed in T.S. Baliah Vs. T.S. Rengachari, :
Before coming to the conclusion that there is a repeal by implication, the Court must be satisfied that the two enactments are so inconsistent or
repugnant that they cannot stand together ,and the repeal of the express prior enactment must flow from necessary implication of the language of
the late enactment.
We are not in these cases concerned with the questions arising from the clash between two enactments passed by the same Legislature. As we
indicated, the test to be applied, even in such cases, will be irreconcilable inconsistency between the two enactments. Irreconcilable inconsistency
can, as will be seen from the discussions that are to follow, arise, either from incompatibility between specific provisions in two enactments that of a
Paramount Legislature and of a State Legislature, or because the Act of the Paramount Legislature was a complete code occupying the entire field
of legislation on the subject or because, though the paramount Legislature did not make provisions for all the matters that could be provided for
within the field of legislation, but clearly indicated its intention to occupy the entire field, and the State Legislature made provisions in a State
enactment for matters which would fall within the area of the Paramount Legislature, and thus provided a law for matters on which the Paramount
Legislature evinced a clear intention not to have any law. These tests of occupying the entire field or of intention to occupy the entire field can arise
even in the case of clashes between enactments of the same Legislature. We need not pursue the question of clash between the laws of the same
Legislature further and need not express any opinion thereon, because that question does not arise here. We shall now proceed to discuss the
question arising under Article 254(2) of the Constitution. We shall at this stage extract the whole of Article 254 of the Constitution :
254(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is
competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the
provisions of Clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the
case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy be void.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision
repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law, so made by the
Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State :
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law
adding to, amending, varying or repealing the law so made by the Legislature of the State.
The general rule is that the law made by Parliament, or the existing law, shall prevail in the case of repugnancy between such law and the law
made by the State Legislature, Parliament and the State being both competent to legislate. Not only is this so by virtue of Article 254(1), but the
State law shall, to the extent of the repugnancy, be void. This is subject to Clause (2) of Article 254, which is in the nature of an exception. Even in
cases of repugnancy, if the law made by the Legislature of a State has been reserved for the consideration of the President and has received his
assent, the State law shall prevail in that State. The actual wording of Article 254(2) is that the law of the State Legislature must he with reference
to one of the matters enumerated in the Concurrent List and that it contains ''any provision repugnant to the provisions of an earlier law made by
Parliament or an existing law with respect to that matter''. The Article as such does not contemplate the whole of the law made by Parliament being
replaced by the State law, falling under Article 254(2). All that it says is that any provision in the State Law repugnant to the provisions of an
earlier law made by Parliament or an existing law with reference to a subject-matter enumerated in the Concurrent List, the State law shall prevail
in that State. Normally therefore the Article will come into play more with reference to any specified provision in a State law prevailing over the
corresponding provision in a Central law, when the former is repugnant to the latter, and when the conditions of Article 254(2) are satisfied. But
we do not think that it will be proper to confine the ambit of the Article merely to specific provisions of the State law prevailing over specific
provisions of the Central law. The State law can be a complete Code or may occupy an entire field by virtue of the specific provisions containel in
that law or even .by State Legislature evincing an intention to occupy the entire field of the subject-matter. In such cases, an earlier law made by
Parliament or an existing law will be displaced. Similar questions have arisen both in Australia and Canada. It will be useful to refer to some of the
aspects which had been dealt with at length by the Courts of Australia with reference to Section 109 of the Australian Constitution. The Parliament
of a State in Australia retains any power which it had at the time of federation, unless that power by the Constitution is ""exclusively vested in the
Parliament of the Commonwealth or withdrawn from the Parliament of the State"". (Section 107). These powers are enumerated in Section 51 of
the Constitution and are called concurrent powers. The majority of the Legislative powers are neither exclusively vested in the Parliament of the
Commonwealth nor withdrawn from the Parliaments of the States. There have been a number of cases arising from the situation where the
Commonwealth and the State Laws on a particular subject happened to be inconsistent with each other. We may at this stage extract Section 109
of the Australian Constitution :
When a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail, and the former shall, to the extent of the
inconsistency, be invalid.
This section provides for what is stated in Article 254(1) of the Constitution of India, but the principle applicable to find out whether one law
will prevail over another for the purpose of Article 254(1) and Article 254(2) of the Constitution must be the same, and the important aspect is :
are the laws inconsistent? In our Constitution also in matters falling under Article 254(1), when there is such inconsistency, not only will the law
made by Parliament prevail over the law made by the Legislature of the State to the extent of the repugnancy, but such law shall be void. The
Constitution has used the word ''repugnancy'' both in Article 254(1) and Article 254(2). We do not think that this expression has any meaning
other than irreconcilable inconsistency that has been considered for the purpose of Section 109 of the Australian Constitution.
In earlier days the concept of inconsistency centered on the occurrence of direct conflict between laws, that is, where there happened to be
detailed conflicts between the provisions of the law made by a State and the law made by the Commonwealth. Where there were such detailed
provisions in the laws made by the State and the Commonwealth, the question of inconsistency would have to be decided with reference to the
specific provisions in the two enactments, and the question has been to find out whether the two sets of provisions were irreconcilably inconsistent.
But where the Commonwealth intends its Act to be a complete statement of law on a given subject, and a State intends its own Act also to apply
to that subject, there may be no detailed conflict because on some topics within the general subject-matter the Commonwealth has not legislated,
whereas the State has. Nonetheless there will be substantial inconsistency between the legislative intention of the Commonwealth and the legislative
intention of the State. These are cases where irrespective of detailed inconsistency or incompatibility the Commonwealth intends its own Act to be
the law. In such a case there may be no direct conflict between particular laws. The Commonwealth law might have said nothing about some
situations because of a policy decision that they were best left unregulated by a statute. If that be so, when a State statute regulates those situations
such regulations will be in conflict with the intention of the Commonwealth Act. This result was explained by what is called ''covering the field'' test.
When that test is satisfied, the entire State Legislation on the subject in question, and not merely that part of it which has directly clashed with the
Commonwealth law, would be invalidated. We need not tarry any more, except to notice certain refinements in the concepts of obvious
inconsistency. One of such tests was whether it was possible to obey both laws at the same time. This test, though useful, may not be a satisfactory
test, and it was finally rejected in Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466. It may be possible to obey both laws and still
there may be inconsistency and this can be illustrated with reference to R. v. Licensing Court of Brisbane, ex parte Daniell (1917) 28 CLR 23.
With reference to the facts of the case, the critical question was whether voting on the local option was compulsory, if it was, obedience to both
State and Commonwealth law was incontestably impossible, if it was not, it was possible. This example illustrates the inadequacy of the obedience
test for, even if voting was not compulsory, the conclusion that there was therefore no inconsistency between, the State and Common wealth laws
was unsatisfactory.
The second refinement of the test of direct inconsistency is perhaps more productive of useful results. The judgments of Knox. C. J. and Gavan
Duffy. J. (Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466) rested it on this aspect. Their Lordships observed :
Two enactments may be inconsistent although obedience to each of them may be possible without disobeying the other. Statutes may do more than
Impose duties : they may, for instance, confer rights ; and one statute is inconsistent with another when it takes away a right conferred by that
other, even though the right be one which may be waived or abandoned without disobeying the statute which conferred it.
Collin Howard, writing on. the Australian Federal Constitutional Law observed :
There is no doubt that many cases of direct or obvious inconsistency can be explained on this ground. The difficulties occasioned by applying the
obedience test to the local option vote in R. v. Licensing Court of Brisbane, ex parte Daniell (1917) 28 CLR 23 are avoided. State law gave a
right to vote which Commonwealth law took away. Equally in Clyde Engineering Co. Ltd. v. Cowburn (1926) 37 CLR 466 itself State law gave a
right to be paid a week''s wages for 44 hours of work which Commonwealth law took away. In Hume v. Palmer (1927) 38 CLR 116 it might be
said that Commonwealth law imposed a liability to conviction and punishment which State law took away. In ex parte Mc Clean (1932) 43 CLR
472 State law imposed a liability to punishment for breach of contract which Commonwealth law took away. In Colvin v. Bradley Bros. Ltd.
(1957) 68 CLR 151 Commonwealth law gave a right to employ women which State law took away. In Wenn v. Attorney General (Victoria)
(1966) 77 CLR 84 State law gave a right to preference in employment which Commonwealth law took away.
But the author proceeds to point out that even this explanation on the basis of rights is not all-embracing in respect of obvious inconsistencies.
In view of the development of the ''covering the field'' approach to inconsistency, the development of a satisfactory criterion of obvious or direct
inconsistency is probably not a matter of great import, when ''covering the field'' test can be satisfactorily applied.
The first clear enunciation of the principle of ''covering the field'' test of inconsistency is perhaps that of Isaacs, J, in Clyde Engineering Co. Ltd.
v. Cowburn (1026) 37 CLR 466 where he observed :
But surely the vital question would be : was the second Act on its true construction intended to cover the whole ground and, therefore, to
supersede the first? If it was so intended, then the Inconsistency would consist in giving any operative effect at all to the first Act, because the
second was intended entirely to exclude it....
If such a position as I have postulated be in fact established, the inconsistency is demonstrated, not by comparison of detailed provisions, but by
the mere existence of the two sets of provisions. Where that wholesale inconsistency does not occur, but the field is partly open, then it is
necessary to enquire further and possibly to examine and contrast particular provisions. If one enactment makes or acts upon as lawful that which
the other makes or acts upon as lawful, the two are to that extent inconsistent. It is plain that it may be quite possible to obey both simply by not
doing what is declared by either to be unlawful and yet there is palpable inconsistency. In the present case there is inconsistency in both of the
senses I have described.
We may also refer to a passage from the judgment of Dixon, J. in ex parte Mc Lean (1932) 43 CLR 472 :
When the Parliament of the Commonwealth and the Parliament of a State each legislate upon the same subject and prescribe what the rule of
conduct shall be, they make laws which are inconsistent, notwithstanding that the rule of conduct is identical which each prescribes and Section
109 applies. That this is so is settled, at least when the sanctions they impose are diverse, Hume v. Palmer (1927) 38 CLR 441. But the reason is
that, by prescribing the rule to be observed, the Federal statute shows an intention to cover the subject-matter and provide what the law upon it
shall be. If it appeared that the Federal Law was Intended to be supplementary to or cumulative upon State law, then no inconsistency would be
exhibited in imposing the same duties or inflicting different Penalties. The inconsistency does not lie in the mere co-existence of two laws which are
susceptible of simultaneous obedience. It depends upon the intention of the paramount legislature to express by its enactment, completely,
exhaustively or exclusively what shall be the law governing the particular conduct or matter to which its attention is directed. When a Federal
statute discloses such an intention, it is inconsistent with it for the law of a State to govern the same conduct or matter.
(The emphasis is supplied by us).
It will be seen from paragraph 13 above that two contentions have been raised by counsel on this aspect of the case. The first related to
obvious inconsistencies between the provisions in the State Act and the Central law. The second one was that the State law had provided a
complete code in relation to offences u/s 3 of the State Act with reference to ''public men'', that the procedure therein being different from that
applied to offences under the Corruption Act and the Penal Code, namely, the procedure under the Criminal Procedure Code, the provision in the
State Act was repugnant to the provision in the law made by Parliament and that the State Act, being a complete Code, the State law alone could
be applied for offences under the State law committed by public men.
If the two laws, one made by Parliament and the other made by the State, covered different areas, though in the same field, or different
subject-matters, or if the offences were different, there is no scope for applying one or the other of the tests relied on by counsel for the petitioner.
It was not contended or suggested that either the Penal Code or the Corruption Act was an exhaustive Code. It is evident from the provisions of
the Penal Code that it does not purport to lay down all possible cases of offences nor are we able to gather any intention on the part of Parliament
to make the Corruption Act a complete Code or to cover the entire field. As we said, it was not even contended that either the Penal Code or the
Corruption Act covered the entire field or evinced an intention to cover the entire field, The argument, on the other hand, was that the State Act,
with reference to its subject-matter .and offences defined in that Act committed by public men, is an exhaustive Code, and therefore is repugnant
to the Corruption Act and the Penal Code and prevailed over those enactments because the procedure prescribed for investigation and the
punishment provided by that Act are different from those for the offences under the Penal Code and the Corruption Act though some at least of the
offences therein are the same as those under the State Act.
We have already in paragraphs 6 to 10 analysed the provisions of the State Act. On a reading of the whole of that Act, it is evident that the
Act is intended to provide a high-power machinery for investigation into allegations of ''criminal misconduct'' made against public men as defined in
the Act, by a member of the public. We have referred to the high status given to the Commissioner and the Additional Commissioner under the Act
and the irremovability of those officers except on ground of misbehaviour. On ceasing to hold office, they should not hold any other office, either
under the Government or even under a private establishment and they are to be appointed on the recommendation of the Chief Justice. These are
provisions which are intended, we consider, to provide a guarantee, in public interest, that any allegations of corruption against public men, which
would include such high dignitaries as Chief Ministers, will be carefully scrutinised by a very impartial person of high status and learning and
experience and of the highest integrity. This provision is meant to ensure that highly placed officers or authorities (who are public men under the
State Act) should not interfere with any investigation into allegations of misconduct by ordinary citizens of the land. A reference to Sections 9, 11,
16 and 25 makes the position clear. A person making allegations of criminal misconduct to the Commissioner is called the complainant. The
Commissioner can order compensatory costs in respect of false, frivolous or vexatious complaints (Section 11). If the allegations are false,
frivolous or vexatious, the complainant can be punished (Section 16). Section 25 can now be noticed :
25(1)(a) Where any allegation of criminal misconduct against any public men is or has been brought to the notice of the Government, the
Government may, if they are satisfied that it is necessary in the public interest that the allegation of criminal misconduct should be investigated under
this Act, or
(b) Where a resolution is passed by the Legislative Assembly of the State that any allegation of criminal misconduct made by any person against a
person (including the Chief Minister or any other Minister) who is or has been a member of the Legislative Assembly shall be referred to the
Commissioner, the Government shall, or
(c) Where a resolution is passed by the Legislative Council of the State, that any allegation of criminal misconduct made by any person against a
person (including the Chief Minister or any other Minister) who is or has been a member of the Legislative Council, shall be referred to
Commissioner, the Government shall.
by order in writing, require the Commissioner or Additional Commissioner, as the case may be, to investigate the allegation of criminal misconduct,
and notwithstanding anything contained in this Act, the Commissioner or Additional Commissioner shall comply with such order.
(2) For the purposes of this Act, the person who made the allegation of criminal misconduct, referred to in subs. (1) shall be deemed to be the
complainant.
In order that this section may be attracted, there must be a person who makes the allegation of criminal misconduct. When, in pursuance of
allegations, resolutions are passed by the Legislative Assembly or the Legislative Council falling under Clauses (b) and (c) of Section 25(1), the
Government have no option, but to refer such allegation for investigation to the Commissioner or Additional Commissioner, as the case may be.
When allegations of misconduct come to the notice of the Government under Clauses (a) of Section 25(1), it has a discretion either to refer the
matter to the Commissioner or not refer the matter to the Commissioner. Two aspects have to be emphasised at this stage. There must be a person
making the allegation of criminal misconduct for the application of Clause (a), (b) or (c) of Section 25(1), and such a person is liable to be
proceeded against u/s 11 or Section 16 as the case may be, if the complaint turns out to be false, frivolous or vexatious. The other aspect is that
the Government as such by itself is not obliged by Section 25(1)(a) to take any steps under the Act, When all the relevant provisions of the Act are
read together, it appears to be clear that the provisions in the State Act are intended to be supplementary to or cumulative upon the Central laws.
This aspect has been referred to by Dixon, J. in ex parte Mc Lean (1932) 43 CLR 472 and the passage has already been extracted. As we
indicated earlier, the provisions of the Act are meant to enable the general public to make allegations of misconduct with the assurance that those
allegations would be seriously and thoroughly investigated. It was argued that the high office in the post of Commissioner has been created for the
protection of public men holding important positions such as that of a Chief Minister. We do not think that the Act is meant so much for the
protection of persons holding high office, as to ensure a satisfactory procedure to enable the public to come forward, if they are dissatisfied with
the functioning of high authorities, in that they were committing criminal misconduct. This is a salutary provision. It is intended in public interest, and
for enabling any citizen to make allegations of criminal misconduct against any high authority if there are reasons for that and ensuring that such
allegations would be investigated by a high authority of unquestionable integrity. Such a right conferred on a citizen is capable of misuse. So
Incidentally the Act provides for restraining false, frivolous or vexatious complaints. This is a necessary provision of limitation which is meant as
deterrent against frivolous complaints. When the flood-gates are opened enabling any one to make any allegation against any public man, high or
low some restraining force is necessary to prevent the Commissioner being inundated by a flood of complaints. But this restraint is not the essence
of the Act. As we see it, the Act is intended to give an assurance to the general public that there is a satisfactory machinery for looking into their
complaints regarding the criminal misconduct committed by public men particularly of high status. To say that the Act is meant for the protection of
the public men is to misunderstand the scope, effect and the purpose of the Act, Submissions made by counsel for the petitioner that the main
purpose of the Act is the protection of the public men cannot be accepted. The provisions in the State Act are enabling provisions and are certainly
supplementary to and cumulative upon the Central laws and from such provisions no inconsistency can be spelt out, because there can be different
types of investigations under the Central Act and under the State Act or because different penalties are provided by the State Act and the Central
Laws.
We must again emphasise one aspect to which we have already adverted, at the risk of repetition. The provision in Section 25(1)(a) does not
compel the Government to take action under the Act and refer the matter to the Commissioner, The contention, therefore, that the Government, if
it came across facts or material, which indicated that a criminal misconduct had been committed by a public man, must proceed to refer the matter
to the Commissioner for investigation, does not seem to be a sound one. The Government as such cannot be said to be a person : at any rate, there
is nothing to indicate that the Government is obliged to act u/s 25(1)(a) of the State Act. For that matter, we do not see any restriction on the right
of am individual person either to complain to the Commissioner under the State Act or file a complaint before the appropriate Court for offences
under the State Act or under the Corruption Act or under the Penal Code. The State Act and the Central Law can co-exist and we are therefore
not able to discern any inconsistency.
If this be the correct position, a minute examination of the offences under the Penal Code and the Corruption Act on the one hand, and the
State Act on the other, is unnecessary.
Even if we analyse the ingredients of the offences created u/s 3 of the State Act and compare them with the offences u/s 5(1) of the Corruption
Act and Section 161 of the Penal Code, it is clear that the offences are not the same. The status and character of the person who commits the
offence is also an ingredient of the offence. The person committing an offence u/s 3 of the State Act must be a ''public man'' as denned in that Act,
while the person committing an offence under the Central Laws must be a ''public servant'' as defined in Section 21 of the Penal Code. The State
Act makes a distinction between ''public servants'', ''Government servants'' and ''public men''. The expression ''public servant'' defined in Section
21 of the Penal Code, which applies for the purpose of the Corruption Act as well, will not cover ''public men'' as defined in the State Act. The
status of the persons who would fall for consideration under the State Act and those who would fall under the Central Laws is therefore different.
The offences created by the State Act on the one hand, and those u/s 5(1) of the Corruption Act and Section 161 of the Penal Code, on the other,
are therefore not identical. In such circumstances, there can be no repugnancy. This is so, notwithstanding the fact that there may be a common
area, in that there may be public servants who are also public men. The existence or otherwise of repugnancy cannot be determined on the ''basis
that in a particular case the person committing the offence may fall within the scope of the definition of the term ''public man'' as contained in the
State Act and also under the definition of the expression ''public servant'' as contained in Section 21 of the Penal Code. Repugnancy has to be
considered with reference to the ingredients of the offence created by the statutes and so long as there is no identity of the ingredients, the offences
have to ''be held to be different and separate, and in such cases there can be no repugnancy. The offences u/s 3 of the State Act are, we consider,
distinct and separate and are of different import from those under the Corruption Act and the Penal Code. If the offences are distinct and separate,
there can be no question of the State Act displacing the Central Laws. This principle has been accepted by the Supreme Court in Om Prakash
Gupta Vs. State of U.P., . The Court came to the conclusion that the offence u/s 5(1)(c) of the Corruption Act is different and separate from that
u/s 409 of the Penal Code. This conclusion was reached by analysing the ingredients of the offences u/s 5(1)(c) of the Corruption Act and Section
409 of the Penal Code, After analysing the ingredients of the sections, it was held that the ingredients were not the same. The offences are different
and there could therefore be no repugnancy or inconsistency by which the later enactment would override the provisions of any other enactment.
No doubt, the question there related to two Acts of the Parliament and the problem that might arise under the provisions of a State law, different
from the provisions of the law made earlier by Parliament did not arise in that case.But, as far as the principle of inconsistency is concerned, the
same rule must apply in both the cases. We have already observed that repugnancy with reference to Article 254(2) of the Constitution must be
understood as irreconcilable inconsistency. If the decision in Om Prakash Gupta Vs. State of U.P., is read with the decision in Dalpat Singh and
Another Vs. State of Rajasthan, , there can be no doubt that the offences u/s 3 of the State Act are distinct and separate and of a different import
from those under the Central laws contained in the Corruption Act and the Penal Code. In analysing the ingredients of the offences dealt with in
Dalpat Singh and Another Vs. State of Rajasthan, Hegde, J., referred to the status of the person committing the offence as a ''public servant'' as
being the first ingredient of the offence dealt with in that judgment. It is evident therefore that, if the offences under the State Act related to a person
of a different status from ''public servants'', dealt with by the Corruption Act and the Penal Code, there can be no question of repugnancy arising.
A glance at the definition of the term ''public man'' under the State Act and a comparison of that definition with the definition of the term ''public
servant'' u/s 21(12) of the Penal Code, which definition would apply to the Corruption Act as well, clearly indicates that ''public man'' is different
from a ''public servant''. In fact, the State Act, as has already been mentioned, makes a distinction between ''public servants'', ''public man'' and
''Government servants''. For this reason also we are of the view that there can be no question of clash between the State Act and the Central laws
and Article 254(2) of the Constitution is not attracted.
In any view of the matter, therefore, we are unable to accept the contention that Article 254(2) of the Constitution has been attracted so as to
nullify the Central laws and make the State law alone applicable to offences under that law committed by public men.
During the course of the arguments reference was made to Section 29 of the State Act, as it stood before and after the amendment. We have
already extracted this section, as it stood before and after its amendment. For the purpose of Article 254(2) of the Constitution and by the vigour
of that provision and for the Article to be attracted there must be a law made by the Legislature of a State which contains provisions repugnant to
the provisions of an earlier law made by Parliament or an existing law. The State Legislature, without enacting laws which are repugnant to laws
made by Parliament or an existing law, cannot by enacting merely a section such as Section 29 of the State Act provide that the State law alone
would apply. So, Section 29 of the State Act, even as it stood before its amendment, cannot be assigned the meaning attributed to it by counsel for
the petitioner that the section has the effect of superseding the Central laws. Section 29 as it stood can only mean that, when action is taken under
the State Act, the procedure under the State Act will have to be followed, notwithstanding anything inconsistent therewith contained in any other
law for the time being in force or any custom, usage or contract or decree or order of a Court or other authority. This only means that, if a person
had made a complaint before the Commissioner, the Commissioner will have to investigate the matter as envisaged by the provisions in the State
Act and not follow any other procedure. In this view, it is unnecessary to consider the elaborate arguments advanced by counsel that Section 29 of
the Act had not become law before it was sought to be amended or even the effect of the amendment. The wording of the section as it stood
before the amendment did not make the State law exclusively applicable. If the amended provision is that which should be considered it is quite
clear that by the wording of that section no intention at all is expressed by the State Legislature to override the Central laws.
In the light of the above discussions, we need not refer to the numerous decisions cited at the Bar on various other aspects. For the real
question arising in the case, we do not consider them to be important or even of assistance.
In the view of that we have taken, there is no question of Article 14 of the Constitution being violated. We think that the principle of the
decision of the Supreme Court in T.S. Baliah Vs. T.S. Rengachari, will be applicable. With reference to Section 177 of the Penal Code and
Section 52 of the Income Tax Act, 1922, and the choice of prosecution for submitting false statements in verification of incometax returns, the
Supreme Court observed that such a choice was not violative of Article 14 of the Constitution on the ground that arbitrary or unguided discretion
was vested in the Income Tax Officer. The Supreme Court said :
The offence provided for in Section 52 of 1922 Act is an offence specially constituted and the prosecution for that offence requires the sanction of
the Inspecting Assistant Commissioner. No prosecution also can take place, if penalty has been imposed u/s 28 of the 1922 Act. The institution of
a complaint u/s 52 of the 1922 Act is therefore circumscribed by sufficient safeguards and we do not consider that there is any violation of the
guarantee under Article 14 of the Constitution.
It is not as though any complaint made under the State Act should always result in a prosecution. In fact, the Commissioner or Additional
Commissioner, as the case may be, will have to investigate, first preliminarily, and afterwards finally and decide whether there is a case to go for
prosecution. The scrutiny by the Commissioner or Additional Commissioner, as the case may be, is a closure scrutiny perhaps than the scrutiny by
the Government for granting sanction for prosecution u/s 197 of the Cri. P. C., and we have already held that the offences under the State Act are
separate and distinct offences. There can, therefore, be no question of discrimination under Article 14 of the Constitution.
The only other point remaining to be considered in this case is whether the charges levelled against the petitioner are prima facie sustainable. It
was contended that for charging any person under the provisions of the Penal Code and the Corruption Act, it has to be established that he is a
''public servant''. Thiru Venugopal, counsel for the petitioner, strenuously contended that the petitioner is not a public servant. He invited our
attention to the definition in Section 21(12) of the Penal Code and argued at length that the first limb of the section dealing with a ''person in the
service or pay'' of the Government will not apply to a Chief Minister. It was his submission that by no stretch of imagination can it be said that the
Chief Minister is a person ''in the service or pay'' of the Government. The argument was that what is meant by the expression ''in the service or pay
of the Government'' is that there should be a relationship of master and servant. A number of decisions in support of this argument were cited
before us and it was contended that it is too well-established a principle and beyond controversy that, if the master and servant relationship is not in
existence, there could be no question of the person being a public servant. Analysing the ingredients which have to be established for position an
employer employee relationship, it was emphasised that there must be (i) choice or selection ; (ii) control over the manner of discharge of duties ;
(iii) power to take disciplinary action, including dismissal ; and (v) payment of remuneration. It was urged that in the matter of appointment of a
Chief Minister, there was no question of choice or selection in the appointing authority, that there was no control over the manner of discharge of
his duties and that there could be no disciplinary action or dismissal. It was also urged that between the elected representative and the Government
no contractual relationship existed and that the rights and duties of the Chief Minister are those provided for under the Constitution (Articles 163 to
167), Further, when reliance was placed by the Additional Solicitor-General appearing on behalf of the Central Government on the latter limb of
Section 21(12)(a) of the Penal Code and it was urged that it was enough if a person performed any public duty on receipt of fees or commission,
that the Chief Minister was certainly discharging public duties and that he was being paid fees or commission counsel for the petitioner urged that
fees or commission was different from remuneration and that the Chief Minister could not be said to be in receipt of any fees or commission.
We think that the matter is concluded by the decision of the Supreme Court in Dattatraya Narayan Patil v. State of Maharashtra AIR 1975 SC
1685. In paragraph 8 of the judgment in that case, it is observed as follows :--
Under the orders of the Government, therefore, its officers including the Minister of the District were to carry out certain public duties in connection
with the reviewing of the working of Zilla Parishads and Panchayat Samitis which, of course, were constituted under the statutes. The Minister, a
public servant, was to be the Chairman of the Committee. The Divisional Commissioner was to be the convener of the meeting. The Deputy
''Commissioner (Development) of the Division concerned was to act as the Secretary. They were all public servants. Is it possible to take the view
that the Divisional Commissioner or the Deputy Commissioner, while performing the functions aforesaid under orders of the Government conveyed
in the circular dated 5-8-1964 were performing any private functions and not public duty? Obviously it was a part of the public duty assigned to
them by the Government. The duty assigned to a public servant by his master, be it under a statute or by an executive order, will assume the
character of public duty, provided the duty assigned is not illegal or against public policy. Will it make any difference in the case of a Minister? In
our judgment, not. The Minister is a public servant -- not disputed. In accordance with the instructions issued by the Government he was to
preside over the meetings of the advisory committee. He was doing so as a Minister and in execution and in discharge of hie duty as such public
servant.
Counsel for the petitioner, however, contended that the decision was. based on a concession made by counsel. He emphasised the words
The Minister is a public servant - not disputed,"" in the portion of the judgment we have just now extracted, and we were reminded that a decision
based on a concession cannot form a binding precedent. We need not consider this aspect, because, a reading of the passage from the decision of
the Supreme Court which we have extracted above clearly shows that the Court had come to the conclusion that the person concerned was a
public servant and that conclusion was not based on any concession by counsel. After having come to that conclusion, the Court also referred to
the concession made by counsel. This decision of the Supreme Court is binding on us and we do not think that we should or are entitled to labour
the point and come to a different conclusion.
A reference to Section 199(2) of the Code of Criminal Procedure also indicates that the Procedure Code has treated a Minister as a public
servant, for reference is made to the President, Vice-President, Governor of a State, the Administrator of a Union Territory or a Minister of the
Union or of a State or of a Union Territory, and then follow the words ''or any other public servant employed in connection with the affairs of the
Union or of a State'', ""This necessarily implies that the persons mentioned earlier are public servants ; and there can be no doubt that the Chief
Minister is a person performing public duties. We, therefore, negative the contention that the Chief Minister is not a public servant.
In the result we dismiss these petitions.