Keeping up the high voltage reporting in the aftermath of the passage of SYL canal blocking bill, here is the piece that I filed two days after the Termination Act was passed. By this time, I had access to the legal advice documents.
How CM’s Team Legal found
an enabling loophole
S P Singh
Chandigarh:
PUNJAB’s legal team poring over ‘Operation Termination’ to knock out the premise of the Supreme Court judgement requiring Punjab to hand over the SYL construction agency to a Central agency found its job made simpler by something as simple as the failure of the Darbara Singh Government in early-1982 to put the Agreement before the cabinet or execute it in the name of the Governor.
Amarinder Singh was pleasantly surprised when the legal team, which he said was headed by former Attorney general Soli J. Sorabjee, tendered its most crucial piece of advice – that the 1981 Agreement signed by the Chief Ministers of Punjab, Haryana and Rajasthan was “neither expressed to be made by the Governor … nor executed on his behalf. Hence the Agreement is not under Section 299 of the Constitution.” Had it been, the Bill could not have found its way to the Punjab Assembly.
Article 299 says: “All contracts made in the exercise of the executive power of the Union or of a state shall be expressed to be made by the President or Governor … and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor.”
Legal advice documents, accessed by The Indian Express, reveal an interesting aspect which was discussed: Will the earlier Central Government notification of 1976 come into effect immediately if the Assembly terminated the 31.12.1981 Agreement? Sources said in the talks with the Prime Minister and discussions with Central Government officials and legal hawks within the AICC, this question was repeatedly raised. “We had done our homework well. In fact, this issue was debated at length,” said a legal team member.
“Although the Tribunal decision is under Section 5 (2) of the Inter-State Water Disputes Act, 1956 is not binding upon the State for want of the Gazette publication under Section 6 of the Act 1956. But as a proposition of the law laid down therein, it is, to the extent it holds by reason of merger no part of the 1976 Award, and the Award completely lost its identity and existence with the termination of the 1981 Agreement,” the written legal advice to the Government said.
It said the order/award of 1976 cannot survive automatically unless the Central Government acquires the power to pass fresh orders under Section 78 of the Punjab Reorganization Act, 1966. Any such move, however, was politically fraught with dangers of high-decibel protests as this Section 78 is the target of ire of all political parties of Punjab.
“In law, the 1976 Award cannot revive once it automatically ceased to exist by reason of variation and merger with the 1981 Agreement. It has been so held by the Supreme Court in B.N. Tiwari Vs Union of India – 1965 (2) SCR 421:AIR 1965 SC 1430.” In the B.N. Tiwari case, a carry forward rule of 1952 was substituted by a Rule made in 1955. The 1955 Rule was held unconstitutional by the Supreme Court in 1964. “In the 1965 Tiwari case, the apex court held that after striking down of the 1955 Rule, the Rule of 1952 which already ceased to exist by reason of its substitution of the 1955 Rule did not survive automatically,” Punjab’s legal team concluded.
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The litmus tests
-- Whether the Legislature, enacting the validating Act, has competence over the subject matter. -- Whether by validation, the Legislature has removed the defect which the courts had found in the previous law -- Whether the validating law is consistent with the provisions of part III of the Constitution
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July 14, 2004