The State of West Bengal Vs. Anwar All Sarkarhabib Mohamed, The State of Hyderabad [1952] INSC 1 (11 January 1952)
SASTRI, M. PATANJALI (CJ) FAZAL ALI, SAIYID MAHAJAN, MEHR CHAND MUKHERJEA, B.K.
DAS, SUDHI RANJAN AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN
CITATION: 1952 AIR 75 1952 SCR 284
CITATOR INFO :
D 1952 SC 123 (1,2,6) R 1952 SC 235 (4,5,6) F 1952 SC 324 (15) R 1953 SC 10 (22) D 1953 SC 156 (15) D 1953 SC 404 (11) R 1954 SC 362 (3) R 1955 SC 191 (5) RF 1955 SC 424 (11,19) F 1956 SC 479 (14,17,18) RF 1957 SC 397 (16,18,24,26,31,32) F 1957 SC 503 (16,18) R 1957 SC 877 (16) D 1957 SC 927 (9) F 1958 SC 232 (14) R 1958 SC 538 (11,12) RF 1958 SC 578 (211) R 1959 SC 459 (49) F 1960 SC 457 (3,14) R 1961 SC1602 (12) D 1962 SC1764 (7) R 1963 SC 222 (51) R 1963 SC 864 (13) RF 1964 SC 370 (6) R 1967 SC1581 (11) RF 1967 SC1643 (14) R 1968 SC 1 (7,11) RF 1970 SC 494 (8) RF 1973 SC 564 (78) RF 1973 SC1461 (313,616) R 1974 SC 894 (11) RF 1974 SC1389 (251,266,271) R 1974 SC2009 (4,7,8,9,11,13,15,26,28,29,29, F 1974 SC2044 (3) R 1975 SC 583 (39) R 1975 SC2299 (344,485,681) D 1977 SC1772 (15) R 1978 SC 215 (68) R 1978 SC 597 (55) F 1978 SC 771 (42,45) E 1979 SC 478 (64,65,66,67,69,70) R 1980 SC 161 (10) RF 1980 SC1382 (114,116,121) RF 1980 SC1789 (36) R 1981 SC1001 (8) RF 1981 SC1829 (84,114) RF 1981 SC2138 (24,26) RF 1987 SC1140 (3) D 1988 SC1531 (163) F 1989 SC1335 (53) R 1990 SC 40 (8)
ACT:
West Bengal Special Courts Act (X of 1950), ss. 3, 5 Constitution of India, Art. 14--Act constituting special courts and empowering State Government to refer "cases" or "offences" or "classes of cases" or "classes of offences" to such Court--Constitutional validity--Fundamental right to equality before the law and equal protection of the laws--Construction of Act--Reference to preamble--Act not classifying cases or laying down standard for classification--Intention of legislature how far material--Validity of notification under Act--Test of equality before law--Essentials of reasonable classification--Necessity for speedier trial, whether reasonable ground for discrimination.
HEADNOTE:
The West Bengal Special Courts Act (X of 1950) was entitled "An Act to provide for the speedier trial of certain offences," and the object of the Act. as declared in the preamble, was "to provide for the speedier trial of certain offences". Section 3 of the Act empowered the State Government by notification in the official gazette to constitute Special Courts, and sec. 5 provided that "A Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing, direct." The Act laid down a procedure for trial before Special Courts which was different in several respects from that laid down by the Criminal Procedure Code for trial of offences generally.
The respondent, who was convicted by a Special Court which tried his case under a notification issued by the Government under sec. 5, contended that the said section was unconstitutional and void inasmuch as it contravened Art. 14 of the Constitution, which provides that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
285 Held, per FAZL ALl, MAHAJAN, MUKHERJEA, CHANDRASEKHARA AIYAR and Bose JJ. (PATANJALI SASTRI C.J., dissenting)--Section 5 (1) of the West Bengal Special Courts Act, 1950, contravenes Art. 14 of the Constitution and is void inasmuch as (per FAZL ALl, MAHAJAN, MUKHERJEA, and CHANDRASEKHARA AIYAR JJ.) the procedure laid down by the Act for the trial by the Special Courts varied substantially from that laid down for the trial of offences generally by the Code of Criminal Procedure and the Act did not classify, or lay down any basis for classification, of the cases which may be directed to be tried by the Special Court, but left it to the uncontrolled discretion of the State Government to direct any case which it liked to be tried by the Special Court. DAs J.--Section 5 Il) of the Act, in so far as it empowered the State Government to direct "offences" or "classes of offences" or "classes of cases" to be tried by a Special Court, does not confer an uncontrolled and unguided power on the State Government but by necessary implication contemplates a proper classification and is not void. That part of the section which empowered the Government to direct "cases" as distinct from "classes of cases" to be tried by a Special Court is void. PATANJALI SASTRI C.J.--Section 5 (1) of the Act is not void or unconstitutional wholly or even in part.
Per FAZL ALl, MAHAJAN, MUKHERJEA and CHANDRASEKHARA AIYAR JJ.--A rule of procedure laid down by law comes as much within the purview of Art. 14 of the Constitution as any rule of substantive law and it is necessary that all litigants, who are similarly situated, are able to avail themselves of the same procedural rights for rebel and for defence with like protection and without discrimination.
(ii) If it is established that the person complaining has been discriminated against as a result of legislation and denied equal privileges with others occupying the same position, it is not incumbent upon him before he can claim relief on the basis of fundamental rights to assert and prove that, in making the law, the legislature was actuated by a hostile or inimical intention against a particular person or class ; nor would the operation of Art. 14 be excluded merely because it is proved that the legislature had no intention to discriminate, though discrimination was the necessary consequence of the Act. The question of intention may arise in ascertaining whether an officer acted mala fide or not; but it cannot arise when discrimination follows or arises on the express terms of the law itself.
(iii) The language of sec. 5 (1) clearly and unambiguously vests the State Government with unrestricted discretion to direct any cases or class of cases to be tried by the Special Court, not a discretion to refer cases only when it is of opinion that a speedier trial is necessary 286 (iv) Assuming that the preamble throws any light on the section, the necessity of speedier trial is too vague, uncertain and elusive a criterion to form a rational basis for discrimination.
(v) It cannot be said that an Act does not contravene the equality rule laid down by Art. 14 simply because it confers unregulated discretion on officers or administrative bodies. The true position is that if the statute itself is not discriminatory the charge of Violation of the article may be only against the official who administers it, but if the statute itself makes a discrimination without any proper or reasonable basis, it would be void for being in conflict with Art. 14.
(vi) The notification issued under the Act in the present case would also come within the definition of law and could be impeached apart from the Act if it violates Art. 14.
DAS J.--(1) Article 14 does not insist that every piece of legislation must have universal application and it does not take away from the State the power to classify persons for the purposes of legislation, but the classification must be rational, and in order to satisfy this test (i) the classification must be founded on an intelligible differentia which distinguished those that are grouped together from others, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that there must be a nexus between them. But the mere fact that the inequality has not been made with the special intention of prejudicing a particular person or persons but in the general interest of administration will not validate a law if in fact it results in inequality of treatment. Nor can the constitutionality of a statute depend on the degree of the inequality brought about by the law.
(2) Although the preamble to an Act cannot override the plain meaning of its operative parts, it may nevertheless assist in ascertaining what the true meaning or implication of a particular section is; and the part of sec. 5 ( 1 ) of the Act which relates to "offences' ', "Classes of offences" and "classes of cases", construed in the light of the preamble, does not confer an uncontrolled and unguided power on the State Government, but by necessary implication and intendment empowers the State to classify the offences or classes of offences or classes of cases, that is to say, to make a proper classification having a relation to the object of the Act as recited in the preamble; and this part of sec.
5 (1) foes not therefore contravene Art. 14.
(3) That part of sec. 5(1) which empowers the State Government to direct "cases" as distinct from "classes of cases" to be cried by the Special Court lies beyond the ambit of the object aid down by the preamble and contemplates and involves a purely arbitrary selection based on nothing more substantial 287 than the whim and pleasure of the State Government without any appreciable relation to the necessity for a speedier trial and therefore offends against the provisions of Art.
14 and is void.
Bose J.--The test under Art. 14 is neither classification nor whether there is absolute equality in any academical sense of the term but whether the collective conscience of a sovereign democratic republic as reflected in the views of fair-minded, reasonable, unbiassed men, who are not swayed by emotion or prejudice, can consider the impugned laws as reasonable, just and fair and regard them as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India to-day.
PATANJALI SASTRI C.J. (dissenting).--Section 5 (1) of the impugned Act is not void or unconstitutional wholly or even in part because: (1)The words in the enacting part of a statute must be confined to that which is the plain object and general intention of the legislature in passing the Act and the preamble affords a good clue to discover what that object was. The title and the preamble of the Act in the present case show unmistakably that the whole object and purpose of the Act was to devise machinery for the speedier trial of certain offences. The discretion intended to be exercised by the State Government must be exercised bona fide on a consideration of the special features or circumstances which call for comparatively prompt disposal of a case or cases proposed to be referred and sec. 5 (11 must be read as empowering the Government to direct the Special Court to try such offences or classes of offences or cases or classes of cases as in its judgment, require speedier trial. (2) Article 14 of the Constitution does not mean that all laws must be general in character and universal in application. The State must possess the power of distinguishing and classifying persons or things to be subjected to particular laws and in making a classification the legislature must be allowed a wide latitude of discretion and judgment. The classification is justified if it is not palpably arbitrary but is founded on a reasonable basis having regard to the object to be attained. (3). The powers of the legislature must include the power of entrusting an administrative body With a plenary but not arbitrary discretion to be exercised so as to carry out the purpose of the Act and the mere fact that the discretion might be exercised arbitrarily by the administrative body cannot make the law itself unconstitutional. (4)The impugned Act does not in terms or by implication discriminate between persons or classes of persons nor does it purport to deny to any one equality before the law or the equal protection of the laws.
(5) Even from the point of view of reasonable classification the expediency of speedier trial is not too vague or indefinite to be the basis of classification. (6) The notification of the Government in the present case referring the case to the Special Court did not contravene Art. 14 and is not void inasmuch as there is nothing 288 to show that the Government was influenced by any discriminatory motive or design or acted arbitrarily, but on the other hand there are obviously special features which mark off the group of cases referred as requiring speedier disposal.
Judgment of the Calcutta High Court affirmed.
Romesh Tappar v. The Stale of Madras ([1950] S.C.R. 594), Chintaman Rao v. State of Madhya Pradesh ([1950] S.C.R. 759), Dr. Khare's Case ([1950] S.C.R. 519), Chiranjit Lal v. Union of India and Others ([1950] S.C R. 869) and Slate of Bombay v.F.N. Balsara ([1951] S.C.R. 682), explained.
Truax v. Corrigan (257 U.S. 312), Yick Wo v. Hopkins (118 U.S. 356) and other American cases on the right to equal protection of the laws considered.
APPELLATE CIVIL JURISDICTION: Cases Nos. 297 and 298 of 1951.
Appeals under Art. 132 (1) of the Constitution from the judgment and order dated 28th August, 1951, of the High Court of Judicature at Calcutta (Harries C.J., Chakravarthi, Das, Banerjee and S.R. Das Gupta JJ.) in Civil Revision Cases Nos. 942 and 1113 of 1951. The facts of the case and the argument of Counsel appear fully in the judgment.
M.C. Setalvad, Attorney-General for India (B. Sen, with him) for the appellant in Case No. 297.
Jitendra Nath Ghose (R. P. Bagchi, with him) for the respondent in Case No. 297.
A.A. Peerbhoy and J.B. Dadachanji for Habib Mohammad (Intervener).
V. Rajaram Iyer, Advocate-General of Hyderabad (R.
Ganapathy Iyer, with him) for the State of Hyderabad.
A.R. Sornanatha Iyer, Advocate-General of Mysore (K.
Ramaseshayya Choudhry, with him) for the State of Mysore.
B. Sen, for the appellant in Case No. 298.
N.C. Chatterjee (S. K. Kapur, with him) for the respondent in Case No. 298.
1952. January 11. The following judgments were delivered.
289 PATANJALI SASTRI C.J.--This is an appeal by the State of West Bengal from a judgment of a Full Bench of the High Court of Judicature at Calcutta quashing the conviction of the respondent by the Special Court established under section 3 of the West Bengal Special Courts Ordinance, 1949, (Ordinance No. 3 of 1949) which was replaced in March, 1950, by the West Bengal Special Courts Act, 1950, (West Bengal Act X of 1950) (hereinafter referred to as "the Act").
The respondent and 49 other persons were charged with various offences alleged to have been committed by them in the course of their raid as an armed gang on a certain factory known as the Jessop Factory at Dum Dum, and they were convicted and sentenced to varying terms of imprisonment by the Special Court to which the case was sent for trial by the Governor of West Bengal by a notification dated 26th January, 1950, in exercise of the powers conferred by section 5 (1) of the Act. Thereupon the respondent applied to the High Court under article 226 of the Constitution for the issue of a writ of certiorari quashing the conviction and sentence on the ground that the Special Court had no jurisdiction to try the case inasmuch as section 5 (1), under which it was sent to that Court for trial, was unconstitutional and void under article 13 (2)as it denied to the respondent the equal protection of the laws enjoined by article 14. The High Court by a Full Bench consisting of the Chief Justice and four other Judges quashed the conviction and directed the trial of the respondent and the other accused persons according to law. Hence the appeal.
The Act is intituled "An Act to provide for the speedier trial of certain offences ", and the preamble declares that "it is expedient to provide for the speedier trial of certain offences ". Section 3 empowers the State Government by notification in the official gazette to constitute Special Courts, and section 4 provides for the appointment of special judges to preside over such courts. Section 5, whose constitutionality is impugned, runs thus:
290 "5(1) A Special Court shall try such offences or classes of cases, as the classes of offences or cases State Government may by general or special order in writing, direct.
(2) No.direction shall be made under sub-section (1) for the trial of an offence for which an accused person was being tried at the commencement of this Act before any court but, save as aforesaid, such direction may be made in respect of an offence, whether such' offence was committed before or after the commencement of this Act." Sections 6 to 15 prescribe the special procedure which the court has to follow in the trial of the cases referred to it. The main features of such procedure which mark a departure from the established procedure for criminal trials under the Code of Criminal Procedure are the elimination of the committal procedure in sessions cases and the substitution of the procedure laid down in the Code for trial of warrant cases by the Magistrate, trial without jury or assessors, restriction of the court's power in granting adjournments, special powers to deal with refractory accused and dispensation of de novo trial on transfer of a case from one special court to another. While some of these departures from the normal procedure might, in practice, operate in some respects to the disadvantage of persons tried before the Special Court, it cannot be said that they derogate from the essential requirements of a fair and impartial trial, so as to give rise, from their very nature, to an inference of a discriminatory design. In other words, it cannot be said that the special procedure provided in the Act is, on its face, calculated to prejudice the fair trial of persons subjected to it. The departure in each case is plainly calculated to shorten the trial and thus to attain the declared objective of the statute.
Harries C.J. who delivered the leading judgment, which Das and Banerjee JJ. concurred, applied the test of what may be called "reasonable classification" and held that, although the need for a speedier trial than what is possible under the procedure prescribed 291 by the Code of Criminal Procedure might form the basis of a reasonable classification and section 5 (1) could not be regarded as discriminatory in so far as it authorises the State Government to direct that certain offences or classes of offences or classes of cases should be tried by a special court, the provision was discriminatory and violative of article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a special court for trial "any cases ", which must include an individual case, "whether the duration of such a case is likely to be long or not ". The learned Chief Justice rejected the argument that the word "cases" in the sub-section should, in view of the title and preamble of the Act. be construed as meaning cases requiring speedier trial." He found it" impossible to cut down the plain meaning of the word 'cases' as used in the section". He realised that "the powers under the sub-section could be so exercised as not to involve discrimination, but they also could, in my view, be exercised in a manner involving discrimination. When an Act gives power which may and can offend against a provision or provisions of the Constitution such an Act is ultra vires though it could be administered so as not to offend against the Constitution", and he relied in support of this view on certain observations in the judgment of the majority in the Crossroads case(1).
Chakravartti and Das JJ. delivered separate judgments agreeing with the conclusion of the Chief Justice, Das Gupta J,, however, going further and holding that section 5 (1) was unconstitutional in its entirety inasmuch as "the classification sought to be made on the expediency of speedier trial is not a well-defined classification. It is too indefinite and there can hardly be any definite objective test to determine it." Before considering whether section 5(1) infringes, to any and what extent, the constitutional prohibition under article 14, it is necessary to ascertain the true scope and intendment of the impugned provision. It (1) [1950] S C.R. 594. 603.
292 purports to provide for the matters to be tried by a special court and does not, in form, seek to define the kind or class of offences or cases which the State Government is empowered under the Act to assign to such a court for trial.
In other words, the purpose of section 5 (1) is to define the jurisdiction of a special court appointed under the Act and not the scope of the power conferred on the State Government to refer cases to such court. As the very object of the Act was to provide for speedier trials by instituting a system of special courts with a simplified and shortened procedure, it is reasonable to conclude that, so far as the legislature was concerned, its intention was that courts constituted under the Act and applying such procedure should deal only with cases requiring speedier trial and that, accordingly, the State Government should refer to such courts only cases of that description. The principle of construction applicable here is perhaps nowhere better stated than by Lord Tenterden C.J. in Halton v. Cove(1): "It is very true, as was argued for the plaintiff, that the enacting words of an Act of Parliament are not always to be limited by the words of the preamble, but must in many cases go beyond it. Yet, on a sound construction of every Act of Parliament, I take it the words of the enacting part must be confined to that which is the plain object and general intention of the legislature in passing the Act, and that the preamble affords a good clue to discover what that object was". The same view was expressed by Holmes J. in an American case, Carroll v. Greenwich Insc. Co. (2). "The object of the law, we assume, until the lower Court shall decide otherwise, is single-to keep up competition--and the general language is to be restricted by the specific provisions and to the particular end." The title and the preamble as well as the other specific provisions of the Act here in question show unmistakably that the whole object and purpose of the legislation was to devise machinery for "speedier trial of certain offences", (which must mean trial of cases involving the commission of certain (1) (1830) I B. & Ad. 538, 558. (2) 199 U.S. 401.
293 offences as there can, of course, be no trial of offences in the abstract) and the general expressions used in providing for the power to set that machinery in operation must be restricted to that end in accordance with the intention of the legislature; for, a literal construction of the general language would impute to the legislature an intention to confer an arbitrary power of reference which would be inconsistent not only with the declared object of the statute but also with the constitutional prohibition against discrimination, which the legislature must be taken to have been aware of when it deliberately re-enacted the provisions of the old Ordinance. The discretion vested in the State Government in selecting cases for reference to a special court may not be subject to judicial review and may, in that sense, be absolute, but that is very different from saying that it was intended to be arbitrary. Its exercise must involve bona fide consideration of special features or circumstances which call for a comparatively prompt disposal of the case or cases proposed to be referred. In other words, section 5 (1) must, in my opinion, be read as empowering the State Government to direct a special court to try such offences or classes of offences or cases or classes of cases as, in its judgment, require speedier trial.
The question next arises as to whether the provision, thus understood, violates the prohibition under article 14 of the Constitution. The first part of the article, which appears to have been adopted from the Irish Constitution, is a declaration of equality of the civil rights of all persons within the territories of India and thus enshrines what American Judges regard as the "basic principle of republicanism" [cf. Ward v. Flood (1)]. The second part which is a corollary of the first and is based on the last clause of the first section of the Fourteenth Amendment of the American Constitution, enjoins that equal protection shall be secured to all such persons in the enjoyment of their rights and liberties without discrimination or favouritism, or as an American Judge put it "it is a (1) 17 Am. Rep.405.
294 pledge of the protection of equal laws" [Yick Wo v. Hopkins (1)], that is, Jaws that operate alike on all persons under like circumstances. And as the prohibition under the article is directed against the State, which is defined in article 12 as including not only the legislatures but also the Governments in the country, article 14 secures all persons within the territories of India against arbitrary laws as well as arbitrary application of laws. This is further made clear by defining "law" in article 13 (which renders void any law which takes away or abridges the rights conferred by Part III) as including, among other things, any "order" or "notification", so that even executive orders or notifications must not infringe article 14. This trilogy of articles thus ensures non-discrimination in State action both in the legislative and the administrative spheres in the democratic republic of India. This, however, cannot mean that all laws must be general in character and universal in application. As pointed out in Chiranjit Lal's case(2) and in numerous American decisions dealing with the equal protection clause of the 14th Amendment, the State in the exercise of its governmental power must of necessity make laws operating differently on different groups or classes of persons within its territory to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. But classification necessarily implies discrimination between persons classified and those who are not members of that class. "It is the essence of a classification" said Mr. Justice Brewer in Atchison, Topeka & Santa Fe R. Co. v. Matthews (3), "that upon the class are cast duties and burdens different from those resting upon the general public. Indeed the very idea of classification is that of inequality, so that it goes without saying that the mere fact of inequality in no manner determines this matter of constitutionality". Commenting on this observation in his dissenting opinion in Connoly v. Union Sewer Pipe Co. (4) (which later prevailed in Tigner v. (1).118 U.S. 356, 369. (3) 174 U.S. 96, 106.
(2) [1950] S.C.R. 869. (4) 184 U.S. 540. 566, 567, 568.
295 Texas(1)) Mr. Justice McKenna posed a problem and proceeded to answer it. "It seems like a contradiction to say that a law having equality of operation may yet give equality of protection. Viewed rightly, however, the contradiction disappears...... Government is not a simple thing. It encounters and must deal with the problems which come from persons in an infinite variety of relations. Classification is the recognition of those relations, and, in making it, a legislature must be allowed a wide latitude of discretion and judgment...... Classification based on those relations need not be constituted by an exact or scientific exclusion or inclusion of persons or things. Therefore it has been repeatedly declared that classification is justified if it is not palpably arbitrary". (italics mine.) Thus, the general language of article 14, as of its American counterpart, has been greatly qualified by the recognition of the State's regulative power to make laws operating differently on different classes of persons in the governance of its subjects, with the result that the principle of equality of civil rights and of equal protection of the laws is only given effect to as a safeguard against arbitrary State action. It follows that in adjudging a given law as discriminatory and unconstitutional two aspects have to be considered. First, it has to be seen whether it observes equality between all the persons on whom it is to operate. An affirmative finding on the point may not, however, be decisive of the issue. If the impugned legislation is a special law applicable only to a certain class of persons, the court must further enquire whether the classification is founded on a reasonable basis having regard to the object to be attained, or is arbitrary. Thus, the reasonableness of classification comes into question only in those cases where special legislation affecting a class of persons is challenged as discriminatory. But there are other types of legislation such as, for instance, the Land Acquisition Act, which do not rest on classification, and no question of reasonable classification could fairly arise in respect of such (1) 310 U.S. 141, 296 enactments. Nor, obviously, could it arise when executive orders or notifications directed against individual citizens are assailed as discriminatory.
It is interesting to find that the trend of recent decisions in America has been to lean strongly toward sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination. Classifications condemned as discriminatory have been subsequently upheld as being within the powers of the legislature. In Tigner v. Texas (1), the majority view in Connolly's case(2) holding that an Illinois anti-trust law, which made certain forbidden acts criminal if done by merchants and manufacturers but declared them to be civil wrongs if done by farmers and stockmen, was "manifestly a denial of the equal protection of the laws ") was considered to be no-longer "controlling ". While in Gulf, Colorado & Santa Fe R. Co. v. Ellis (3) a Texas statute imposing an attorney's fee in addition to costs upon railway corporations which unsuccessfully defended actions for damages for stock killed or injured by their train was struck down as discriminatory because such corporations could not recover any such fee if their defence was successful, a similar provision in a Kansas statute in respect of an action against railroad companies for damages by fire caused by operating the rail-road was upheld as not discriminatory in Atchison, Topeka & Santa Fe R. Co v. Matthews (4), the earlier case being distinguished on some ground which Harlon J. in his dissenting opinion confessed he was not "astute enough to perceive". And the latest decision in Kotch v. Pilot Comm'rs(5) marks, perhaps, the farthest swing of the pendulum. A Louisiana pilotage law authorised the appointment of State pilots only upon certification by a State Board of river pilot commissioners who were themselves State Pilots. Among the prescribed qualifications was apprenticeship under a State pilot for a certain period. By admitting only their relatives and friends (1) 310 U.S. 141. (4) 174 U.S. 96.
(2) 184 U.S. 540. (5) 330 U.S. 552, (3) 165 U.S. 666.
297 to apprenticeship, the members of the board made it impossible, with occasional exceptions, for others to be appointed as State pilots. Upholding the constitutionality of the law as well as the manner in which it was administered, the Court said: "The constitutional command for a State to afford equal protection of the laws sets a goal not attainable by the invention and application of a precise formula.
This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the 14th Amendment. Otherwise, effective regulation in the public interest could not be provided, however essential that regulation might be." These decisions seem, to my mind, to reveal a change of approach marked by an increasing respect for the State's regulatory power in dealing with equal protection claims and underline the futility of wordy formulation of so called "tests" in solving problems presented by concrete cases.
Great reliance was placed on behalf of the respondent upon the decision in Truax v. Corrigan(1) and Yick Wo v. Hopkins(2). In the former case it was held by a majority of 5:4 that a law which denied the remedy of injunction in a dispute between employer and his ex-employees was a denial of the equal protection of laws, as such a remedy was allowed in all other cases. But it is to be noted that the minority, which included Holmes and Brandeis JJ., expressed the opinion that it was within the power of the State to make such differentiation and the law was perfectly constitutional. The legislation was obviously applicable to a class of persons and the decision was an instance where the classification was held to be arbitrary and is not of much assistance to the respondent. In the other case a San Francisco Ordinance, which prohibited the carrying on of a laundry business within the limits of the City without having first obtained the consent of (1) 257 U.S. 312. (2) 118 U.S. 356.
39 298 the Board of Supervisors unless it was located in a building constructed of brick or stone, was held discriminatory and unconstitutional. The undisputed facts disclosed in the record were that out of 320 laundries in San Francisco about 310 were constructed of wood, and about 240 of the 320 were owned and conducted by subjects of China. The petitioner, a chairman, and about 200 of his countrymen applied to the Board of Supervisors to continue their clotheswashing business in wooden buildings which they had been occupying for many years, but in all cases licence was refused, whereas not a single one of the petitions presented by 80 persons who were not subjects of China had been refused. Dealing with these facts the court observed: "Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as to practically make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." (Italics mine). It is to be noted that the law was "administered", i.e., not merely applied in a few stray cases, but regularly and systematically applied, making a hostile discrimination against a particular class of persons on grounds of race and colour. Such systematic discriminatory administration in practice of the ordinance though impartial on its face, was, evidently, taken to give rise to the inference that it was designed to be so administered. That is how the decision has been explained in later cases. For instance, in Atchison Topeka & Santa Fe R. Co. v. Matthews"(1) it was said "In that case (Yick Wo's case (2)) a municipal ordinance of San Francisco designed to prevent the Chinese from carrying on the laundry business was adjudged void. This Court looked beyond the mere letter of the ordinance to the condition of things as they existed in San Francisco and saw under the guise of regulation an arbitrary classification was intended and accomplished" (Italics raine).
(1) 174 U.S. 96, 105. (2) 118 U.S. 356.
299 That is to say, the ordinance was what the Privy Council called a "colourable legislative expedient" which, under the "guise or pretence" of doing what is constitutionally permissible, "in substance and purpose seeks to effect discrimination": Morgan Proprietary Ltd. v. Deputy Commissioner of Taxation for New South Wales (1). Thus explained, the Yick Wo case is no authority for the view that the vesting in a public authority of a discretion which is liable to abuse by arbitrary exercise contrary to its intendment is a sufficient ground for condemning a statute as discriminatory and unconstitutional.
On the other hand, there is ample authority in the American decisions for the view that the necessarily large powers vested in a legislature must include the power of entrusting to an administrative body a plenary but not arbitrary discretion to be exercised so as to carry out the purpose of an enactment. In Engel v. O' Malley (2) a New York statute prohibiting individuals or partnerships to engage in the business of receiving deposits of money without a licence from the controller "who may approve or disapprove the application for a licence in his discretion" was sustained as constitutional. In answer to the argument that the controller might refuse a licence on his arbitrary whim, Holmes J. said: "We should suppose that in each case the controller was expected to act for cause. But the nature and extent of the remedy, if any, for a breach of duty on his part, we think it unnecessary to consider; for the power of the state to make the pursuit of a calling dependent upon obtaining a licence is well established where safety seems to require it." In New York ex rel. Lieberman v. Van De Carr(3) a provision in the Sanitary Code of the City of New York vested discretion in Local Health Boards to grant or withhold licences for carrying on milk business in the City. Upholding the constitutionality of the (1) [1940] A.C. 838, 858. (3) 199 U.S. 552.
(2) 219 U.S. 128.
300 provision, Day J. observed after referring to certain prior decisions :-"These cases leave in no doubt the proposition that the conferring of discretionary power upon administrative boards to grant or withhold permission to carry on a trade or business which is the proper subject of regulation within the police power of the state is not violative of rights secured by the 14th Amendment. There is no presumption that the power will be arbitrarily exercised, and when it is shown to be thus exercised against the individual, under sanction of state authority, this court has not hesitated to interfere for his protection, when the case has come before it in such manner as to authorise the interference of a Federal Court." And Holmes J. added that, although it did not appear from the statute that the action of the Board of Health was intended to be subject to judicial revision as to its reasonableness, he agreed that it was not hit at by the 14th Amendment.
In the light of the foregoing discussion, it seems to me difficult to hold that section 5 (1) in whole or in part is discriminatory. It does not, either in terms or by necessary implication, discriminate as between persons or classes of persons; nor does it purport to deny to any one equality before the law or the equal protection of the laws. Indeed, it does not by its own force make the special procedure provided in the Act applicable to the trial of any offence or classes of offences or classes of cases; for, it is the State Government's notification under the section that attracts the application of the procedure. Nor is that procedure, as I have endeavoured to show, calculated to impair the chances of a fair trial of the cases to which it may be made applicable, and no discriminatory intent or design is discernible on its face, unless every departure from the normal procedure is to be regarded as involving a hostile discrimination. I have already held, as a matter of construction, that section 5 (1)vests a discretion in the State Government to refer to a special court for trial such offences or classes of offences or 301 cases or classes of cases as may, in its opinion, require a speedier trial. Such discretion the State Government is expected to exercise honestly and reasonably, and the mere fact that it is not made subject to judicial review cannot mean that it was intended to be exercised in an arbitrary manner without reference to the declared object of the Act or, as Harries C.J. put it, "whether the duration of a case is likely to be long or not." In the face of all these considerations, it seems to me difficult to condemn section 5 (1) as violative of article 14. If the discretion given to the State Government should be exercised improperly or arbitrarily, the administrative action may be challenged as discriminatory, but it cannot affect the constitutionality of the law. Whether a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. As observed by Kania C.J. in Dr. Khare's case(1), "It is improper to start with such an assumption and decide the legality of an Act on that basis.
Abuse of power given by law sometimes occurs; but the validity of the law cannot be contested because of such an apprehension." On the contrary, it is to be presumed that a public authority will act honestly and reasonably in the exercise of its statutory-powers, and that the State Government in the present case will, before directing a case to be tried by a Special Court, consider whether there are special features and circumstances which might unduly protract its trial under the ordinary procedure and mark it off for speedier trial-under the Act.
But it was said that the possibility of the Act being applied in an unauthorised and arbitrary manner was sufficient to make it unconstitutional according to the decisions of this Court in Romesh Thapar v. The State of Madras(2) and Chintaman Rao v. The State of Madhya Pradesh (3). It will be recalled that this was the main (1) [1950] S.C.R. 519, 526. (3) [1950] S.C.R. 759.
(2) [1950] S.C.R. 594.
302 ground on which the learned Judges in the High Court rested their decision. With respect, those decisions have, I think, no application here. In Romesh Thapar's case the constitutionality of a provincial enactment purporting to authorise the Provincial Government to regulate the circulation of a news-sheet in the Province of Madras for the purpose of "securing the public safety or the maintenance of public order" was challenged as being inconsistent with the petitioner's fundamental right to freedom of speech and expression conferred by article 19(1)(a) of the Constitution. But the only relevant constitutional limitation on freedom of speech was that the State could make a law directed against the undermining of the security of the State or the overthrow of it, and as the impugned enactment covered a wider ground by authorising curtailment of that freedom for the purpose of securing the public safety or the maintenance of public order, this Court held it to be wholly unconstitutional and void, observing :"Where a law purports to authorise the imposition of restrictions on a fundamental right in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action affecting such right, it is not possible to uphold it even so far as it may be applied within the constitutional limits, as it is not severable. So long as the possibility of its being applied for purposes not sanctioned by the Constitution cannot be ruled out, it must be held to be wholly unconstitutional and void. In other words, clause (2) of article 19 having allowed the imposition of restrictions on the freedom of speech and expression only in cases where danger to the State is involved, an enactment, which is capable of being applied to cases where no such danger could arise, cannot be held to be constitutional and valid to any extent." This passage, which was relied on by the learned Chief Justice, lends no support to the view that the mere possibility of an Act being used in a manner not contemplated by the legislature, though 303 such use may not be subject to judicial review on that ground, or, in other words, the mere possibility of its abuse in practice would justify its condemnation as unconstitutional. The important distinction is that in Romesh Thapar's case, the impugned enactment, having been passed before the commencement of the Constitution, did contemplate the use to which it was actually put, but such use was outside the permissible constitutional restrictions on the freedom of speech, that is to say, the Act was not condemned on the ground of the possibility of its being abused but on the ground that even the contemplated and authorised use was outside the limits of constitutionally permissible restrictions. The same remarks apply to the other decision relied on. The observations of Kania C.J. quoted above indicate the correct approach.
Even from the point of view of reasonable classification, I can see no reason why the validity of the Act should not be sustained. As already pointed out, wide latitude must be allowed to a legislature in classifying persons and things to be brought under the operation of a special law, and such classification need not be based on an exact or scientific exclusion or inclusion. I cannot share the view of Das Gupta J. that the expediency of speedier trial is "too vague and indefinite" to be the basis of a "well defined" classification. Legislative judgment in such matters should not be canvassed by courts applying doctrinaire "definite objective tests". The Court should not insist in such cases on what Holmes J. called "delusive exactness" (Truax v. Corrigan, supra). All that the court is expected to see, in dealing with equal protection claims, is whether the law impugned is "palpably discriminatory", and, in considering such a question great weight ought to be attached to the fact that a majority of the elected representatives of the people who made the law did not think so, though that is not, of course, conclusive. They alone know the local conditions and circumstances which demanded the enactment of such a law and it must be remembered that "legislatures are ultimate guardians of the liberties and 304 welfare of the people in quite as great a degree as the Courts" (per Holmes J. in Missouri K. & T.R. Co. v. Mary(1) ). After all, what the Legislature of West Bengal has sought to do by passing this Act is to regulate criminal trials within its territories by instituting a system of special courts with a shortened and simplified procedure, without impairing the requirements of a fair and impartial trial, which is to be made applicable to such cases or classes of cases as, in the opinion of the executive government, require speedier disposal. I do not think that article 14 denies to the State Legislature such regulative power. (of. Missouri v. Lewis (1)). To sustain a law as not being discriminatory is not, however, to leave the party affected by a discriminatory application of the law without a remedy, for, as we have seen, state action on the administrative side can also be challenged as a denial of equal protection and unconstitutional.
That brings us to the consideration of the validity of the notification issued in the present case. In Snowden v. Hughes (2) it was laid down that' 'the unlawful administration by State officers of a State statute fair on its face resulting in its unequal application to those who were entitled to be treated alike is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This may appear on the face of the action taken with respect to a particular class or person or it may only be shown by extrinsic evidence showing a discriminatory design to favour one individual or a class over another not to be inferred from the action itself. But a discriminatory purpose is not presumed; there must be a showing of clear and intentional discrimination''. No attempt has been made in the present case to prove that the State Government was influenced by any discriminatory motive or design. On the other hand, the facts appearing on the record would seem to justify the reference of the case to the special court for trial. As pointed out by Chakravartti J.
(1) 101 U.S. 22. (2) 321 U.S. I.
305 "The notification by which the case of Anwar Ali Sirkar (the respondent herein) was directed to be tried by the special court did not relate merely to that case but covered five more cases in each of which the accused were several in number. In Anwar Ali's case itself, there were 49 other accused. All these cases related to the armed raid on the premises of Jessop & Co. in the course of which crimes of the utmost brutality were committed on a large scale and to incidents following the raid. There can be no question at all that the cases were of a very exceptional character and although the offences committed were technically offences defined in the Indian Penal Code, the Indian Arms Act and the High Explosives Act, it would be futile to contend that the offenders in these cases were of the same class as ordinary criminals, committing the same offences or that the acts which constituted the offences were of the ordinary types..... All these cases again have arisen out of serious disturbances which, according to the prosecution, partook of the nature of an organised revolt." In view of these facts it seems to me impossible to say the State Government has acted arbitrarily or with a discriminatory intention in referring these cases to the Special Court, for there are obviously special features which mark of this group of cases as requiring speedier disposal than would be possible under the ordinary procedure, and the charge of discriminatory treatment must fail.
I would allow this appeal as also Appeal No. 298 of 1951 (The State of West Bengal v. Gajen Mali) which raises the same questions.
FAZL ALl J.--I have come to the conclusion that these appeals should be dismissed, and since that is also the conclusion which has been arrived at by several of my colleagues and they have written very full and elaborate judgments in support of it, I shall only supplement what they have said by stating briefly how I view some of the crucial points arising in the case.
40 306 There is no doubt that the West Bengal Special Courts Ordinance, 1949, which was later replaced by the impugned Act (West Bengal Special Courts Act X of 1950, to be hereinafter referred to as "the Act"), was a valid Ordinance when it was promulgated on the 17th August, 1949. The Act, which came into effect on the 15th March, 1950, is a verbatim reproduction of the earlier Ordinance, and what we have to decide is whether it is invalid because it offends against article 14 of the Constitution. In dealing with this question, the following facts have to be borne in mind:-(1) The framers of the Act have merely copied the provisions of the Ordinance of 1949 which was promulgated when there was no provision similar to article 14 of the present Constitution.
(2) The provision of the American Constitution which corresponds to article 14 has, ever since that Constitution has been in force, greatly exercised the minds of the American Judges, who, notwithstanding their efforts to restrict its application within reasonable limits, have had to declare a number of laws and executive acts to be unconstitutional. One is also amazed at the volume of case-law which has grown round this provision, which shows the extent to which its wide language can be stretched and the large variety of situations in which it has been invoked.
(3) Article 14 is as widely worded as, if not more widely worded than, its counterpart in the American Constitution, and is bound to lead to some inconvenient results and seriously affect some pre-Constitution laws.
(4) The meaning and scope of article 14 have been elaborately explained in two earlier decisions of this Court, viz., Chiranjit Lal Chowdhury v. The Union of India and Others (1) and The State of Bombay and Another v.F.N. Balsara C), and the principles laid down in those decisions have to be kept in view in deciding the present case. One of these principles is that article 14 is designed to protect all persons placed in similar circumstances against legislative discrimination, and if the legislature takes care to (1) [1950] S.C.R. 869. (2) [1951] S.C.R. 682.
307 reasonably classify persons for legislative purposes and if it deals equally with all persons belonging to a well-defined class, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons.
(5) There is nothing sacred or sacrosanct about the test of reasonable classification, but it has undoubtedly proved to be a useful basis for meeting attacks on laws and official acts on the ground of infringement of the equality principle.
(6) It follows from the two foregoing paragraphs that one of the ways in which the impugned Act can be saved is to show that it is based on a reasonable classification of the persons to whom or the offences in respect of which the procedure laid down in it is to apply, and hence it is necessary to ascertain whether it is actually based on such a classification.
With these introductory remarks, I will proceed to deal with some of the more important aspects of the case.
The first thing to be noticed is that the preamble of the Act mentions speedier trial of certain offences as its object. Now the framers of the Criminal Procedure Code (which is hereinafter referred to as "the Code") also were alive to the desirability of having a speedy trial in certain classes of cases, and with this end in view they made four different sets of provisions for the trial of four classes of cases, these being provisions relating to summary trials, trial of summons cases, trial of warrant cases and trial of cases triable by a court of session. Broadly speaking, their classification of the offences for the purpose of applying these different sets of provisions was according to the gravity of the offences, though in classifying the offences fit for summary trial the experience and power of the trying Magistrate was also taken into consideration. The net result of these provisions is that offences which are summarily triable can be more speedily tried than summons cases, summons cases can be more speedily tried than warrant cases, and warrant cases can be more speedily tried than sessions cases. The 308 framers of the Code appear to have been generally of the view that the graver the offence the more elaborate should be the procedure for its trial, which was undoubtedly an understandable point of view, and no one has suggested that their classification of offences for the four different modes of trial to which reference has been made is unreasonable in any sense.
The impugned Act has completely ignored the principle of classification followed in the Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply. Indeed section 5 of the Act, which is the most vital section, baldly states that the "Special Court shall try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing direct". I agree with my learned brothers that to say that the reference to speedier trial in the preamble of the Act is the basis of classification is to read into the Act something which it does not contain and to ascribe to its authors what they never intended. As I have already stated, the Act is a verbatim copy of the earlier Ordinance which was framed before the present Constitution came into force, and article 14 could not have been before the minds of those who framed it because that Article was not then in existence.
The second point to be noted is that in consequence of the Act, two procedures, one laid down in the Code and the other laid down in the Act, exist side by side in the area to which the Act applies, and hence the provisions of the Act are apt to give rise to certain anomalous results; some of which may be stated as follows :-(1) A grave offence may be tried according to the procedure laid down in the Act, while a less grave offence may be tried according to the procedure laid down in the Code.
(2) An accused person charged with a particular offence may be tried under the Act while another accused person charged with the same offence may be tried under the Code.
309 (3) Certain offences belonging to a particular group or category of offences may be tried under the Act whereas other offences belonging to the same group or category may be tried under the Code.
Some of my learned colleagues have examined the provisions of the Act and shown that of the two procedures one laid down in the Act and the other in the Code--the latter affords greater facilities to the accused for the purpose of defending himself than the former; and once it is established that one procedure is less advantageous to the accused than the other, any person tried by a Special Court constituted under the Act, who but for the Act would have been entitled to be tried according to the more elaborate procedure of the Code, may legitimately enquire:--Why is this discrimination being made against me and why should I be tried according to a procedure which has not the same advantages as the normal procedure and which even carries with it the possibility of one's being prejudiced in one's defence ? It was suggested that the reply to this query is that the Act itself being general and applicable to all persons and to all offences, cannot be said to discriminate in favour of or against any particular case or classes of persons or cases, and if any charge of discrimination can be levelled at all, it can be levelled only against the act of the executive authority if the Act is misused. This kind of argument however does not appear to me to solve the difficulty. The result of accepting it would be that even where discrimination is quite evident one cannot challenge the Act simply because it is couched in general terms; and one cannot also challenge the act of the executive authority whose duty it is to administer the Act, because that authority will say :--I am not to blame as I am acting under the Act. 'It is clear that if the argument were to be accepted, article 14 could be easily defeated. I think the fallacy of the argument lies in overlooking the fact that the "insidious discrimination complained of is incorporated in the Act itself", it being so drafted that whenever any 310 discrimination is made such discrimination would be ultimately traceable to it. The Act itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the application of the Act.
In the course of the arguments, it was suggested that the Act is open to criticism on two different and distinct grounds, these being--, (1) that it involves excessive delegation of legislative authority amounting to its abdication in so far as it gives unfettered discretion to the executive, without laying down any standards or rules of guidance, to make use of the procedure laid down by it; and (2) that it infringes article 14 of the Constitution.
The first criticism which is by no means an unsubstantial one, may possibly be met by relying on the decision of this Court in Special Reference No. 1 of 1951, In re Delhi Laws Act, 1912, etc.(1), but the second criticism cannot be so easily met, since an Act which gives uncontrolled authority to discriminate cannot but be hit by article 14 and it will be no answer simply to say that the legislature having more or less the unlimited power to delegate has merely exercised that power. Curiously enough, what I regard as the weakest point of the Act (viz., its being drafted in such general terms) is said to be its main strength and merit, but I really cannot see how the generality of language which gives unlimited authority to discriminate can save the Act.
In some American cases, there is a reference to "purposeful or intentional discrimination", and it was argued that unless we can discover an evil intention or a deliberate design to mete out unequal treatment behind the Act, it cannot be impugned. It should be noted however that the words which I have put in inverted commas, have been used in a few American cases with reference only to executive action, where certain Acts were found to be innocuous but they were (1) [1951] S.C.R. 747.
311 administered by public authority with "an evil eye and an unequal hand." I suggest most respectfully that it will be extremely unsafe to lay down that unless there was evidence that discrimination was "purposeful or intentional" the equality clause would not be infringed. In my opinion, the true position is as follows :--As a general rule, if the Act is fair and good, the public authority who has to administer it will be protected. To this general rule, however, there is an exception, which comes into play when there is evidence of mala fides in the application of the Act. The basic question however still remains whether the Act itself is fair and good, which must be decided mainly with reference to the specific provisions of the Act. It should be noted that there is no reference to intention in article 14 and the gravamen of that Article is equality of treatment.
In my opinion, it will be dangerous to introduce a subjective test when the Article itself lays down a clear and objective test.
I must confess that I have been trying hard to think how the Act can be saved, and the best argument that came to my mind in support of it was this :--The Act should be held to be a good one, because it embodies all the essentials of a fair and proper trial, namely, (1) notice of the charge, (2) right to be heard and the right to test and rebut the prosecution evidence, (3) access to legal aid, and (4)trial by an impartial and experienced court. If these are the requisites, so I argued with myself, to which all accused persons are equally entitled, why should a particular procedure which ensures all those requisites not be substituted for another procedure, if such substitution is necessitated by administrative exigencies or is in public interest, even though the new procedure may be different from and less elaborate than the normal procedure. This seemed to me to be the best argument in favour of the Act but the more I thought of it the more it appeared to me that it was not a complete answer to the problem before us. In the first place, it brings in the "due process" idea of the American Constitution, which our Constitution has 312 not chosen to adopt. Secondly, the Act itself does not state that public interest and administrative exigencies will provide the occasion for its application. Lastly, the discrimination involved in the application
