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 of the Act is too evident to be explained away.
The framers of the Constitution have referred
to equality in the Preamble, and have devoted as many as five articles, namely,
articles 14, 15, 16.17, and 18 in the Chapter on Fundamental Rights, to ensure
equality in all its aspects. Some of these Articles are confined to citizens
only and some can be availed of by non-citizens also; but on reading these
provisions as a whole, one can see the great importance attached to the
principle of equality in the Constitution. That being so, it will be wrong to
whittle down the meaning of article 14, and however well-intentioned the
impugned Act may be and however reluctant one may feel to hold it invalid, it
seems to me that section 5 of the Act, or at least that part of it with which
alone we are concerned in this appeal, does offend against article 14 of the
Constitution and is therefore unconstitutional and void.
The Act is really modelled upon a
pre-Constitution pattern and will have to be suitably redrafted in order to
conform to the requirements of the Constitution.
MAHAJAN J.--I had the advantage of reading
the judgment prepared by my brother Mukherjea and I am in respectful agreement
with his opinion.
Section 5 of the West Bengal Special Courts
Act is hit by article 14 of the Constitution inasmuch as it mentions no basis
for the differential treatment prescribed in the Act for trial of criminals in
certain cases and for certain offences. The learned Attorney General argued
that the Act had grouped cases requiring speedier trial as forming a class in
themselves, differentiating that class from cases not needing expedition and
that it was on this basis that the special procedure prescribed in the Act was
applicable.
In order to appreciate this contention, it is
necessary to state shortly the scope of article 14 of the 313 Constitution. It
is designed to prevent any person or class of persons for being singled out as
a special subject for discriminatory and hostile legislation. Democracy implies
respect for the elementary rights of man, however suspect or unworthy. Equality
of right is a principle of republicanism and article 14 enunciates this
equality principle in the administration of justice. In its application to
legal proceedings the article assures to everyone the same rules of evidence
and modes of procedure. In other words, the same rule must exist for all in
similar circumstances. This principle, however, does not mean that every law
must have universal application for all persons who are not by nature,
attainment or circumstance, in the same position.
By the process of classification the State
has the power of determining who should be regarded as a class for purposes of
legislation and in relation to a law enacted on a particular subject. This
power, no doubt, in some degree is likely to produce some inequality; but if a
law deals with the liberties of a number of well-defined classes, it is not
open to the charge of denial of equal protection on the ground that it has no
application to other persons. The classification permissible, however, must be
based on some real and substantial distinction bearing a just and reasonable
relation to the objects sought to be attained and cannot be made arbitrarily
and without any substantial basis.
Classification thus means segregation in
classes which have a systematic relation, usually found in common properties
and characteristics. It postulates a rational basis and does not mean herding
together of certain persons and classes arbitrarily. Thus the legislature may
fix the age at which persons shall be deemed competent to contract between
themselves, but no one will claim that competency to contract can be made to
depend upon the stature or colour of the hair. "Such a classification for
such a purpose would be arbitrary and a piece of legislative
despotism"(1):
(1) Vide Gulf Colorado & Santa Fe Railway
Co. v. W.H. Ellis, 166 U.S. 150.
41 314 Speedier trial of offences may be the
reason and motive for the legislation but it does not amount either to a
classification of offences or of cases. As pointed out by Chakravarti J. the
necessity of a speedy trial is too vague and uncertain a criterion to form the
basis of a valid and reasonable classification. In the words of Das Gupta J. it
is too indefinite as there can hardly be any definite objective test to
determine it. In my opinion, it is no classification at all in the real sense
of the term as it is not based on any characteristics which are peculiar to
persons or to cases which are to be subject to the special procedure prescribed
by the Act. The mere fact of classification is not sufficient to relieve a
statute from the reach of the equality clause of article 14. To get out of its
reach it must appear that not only a classification has been made but also that
it is one based upon a reasonable ground on some difference which bears a just
and proper relation to the attempted classification and is not a mere arbitrary
selection. Persons concerned in offences or cases needing socalled speedier
trial are entitled to inquire "Why are they being made the subject of a
law which has short-circuited the normal procedure of trial; why has it grouped
them in that category and why has the law deprived them of the protection and
safeguards which are allowed in the case of accused tried under the procedure
mentioned in the Criminal Procedure Code; what makes the legislature or the
executive to think that their cases need speedier trial than those of others
like them?" The only answer, that so far as I am able to see, the Act
gives to these inquiries is that they are being made the subject of this
special treatment because they need it in the opinion of the provincial
government;
in other words, because such is the choice of
their prosecutor. This answer neither sounds rational nor reasonable.
The only answer for withholding from such
persons the protection of article 14 that could reasonably be given to these
inquiries would be that "Of all other accused persons they are a class by
themselves and there is a reasonable 315 difference between them and those
other persons who may have committed similar offences." They could be told
that the law regards persons guilty of offences against the security of the
State as a class in themselves. The Code of Criminal Procedure has by the
process of classification prescribed different modes of procedure for trial of
different offences. Minor offences can be summarily tried, while for grave and
heinous offences an elaborate mode of procedure has been laid down. The present
statute suggests no. reasonable basis or classification, either in respect of
offences or in respect of cases. It has laid down no yardstick or measure for
the grouping either of persons or of cases or of offences by which measure
these groups could be distinguished from those who are outside the purview of
the Special Act. The Act has left this matter entirely to the unregulated
discretion of the provincial government. It has the power to pick out a case of
a person similarly situate and hand it over to the special tribunal and leave
the case of the other person in the same circumstance to be tried by the
procedure laid down in the Criminal Procedure Code. The State government is
authorized, if it so chooses, to hand over an ordinary case of simple hurt to
the special tribunal, leaving the case of dacoity with murder to be tried in
the ordinary way. It is open under this Act for the provincial grovernment to
direct that a case of dacoity with firearms and accompanied by murder, where
the persons killed are Europeans, be tried by the Special Court, while exactly
similar cases where the persons killed are Indians may be tried under the
procedure of the Code.
That the Special Act lays down substantially
different rules for trial of offences and cases than laid down in the general
law of the land, i.e., the Code of Criminal Procedure, cannot be seriously
denied. It short-circuits that procedure in material particulars. It imposes
heavier liabilities on the alleged culprits than are ordained by the Code. It
deprives them of certain privileges which the Code affords them for their
protection. Those singled out for treatment under the 316 procedure of the
Special Act are to a considerable extent prejudiced by the deprivation of the trial
by the procedure prescribed under the Criminal Procedure Code. Not only does
the special law deprive them of the safeguard of the committal procedure and of
the trial with the help of jury or assessors, but it also deprives them of the
right of a de novo trial in case of transfer and makes them liable for
conviction and punishment for major offences other than those for which they
may have been charged or tried. The right of the accused to call witnesses in
defence has been curtailed and made dependent on the discretion of the special
judge. To a certain extent the remedies to which an accused person is entitled
for redress in the higher courts have been cut down. Even if it be said that
the statute on the face of it is not discriminatory, it is so in its effect and
operation inasmuch as it vests in the executive government unregulated official
discretion and therefore has to be adjudged unconstitutional.
It was suggested that good faith and
knowledge of existing conditions on the part of a legislature has to be presumed.
That is so; yet to carry that presumption to the extent of always holding that
there must be some undisclosed intention or reason for subjecting certain
individuals to a hostile and discriminatory legislation is to make the protection
clause of article 14, in the words of an American decision, a mere rope of
sand, in no manner restraining State action. The protection afforded by the
article is not a mere eyewash but it is a real one and unless a just cause for
discrimination on the basis of a reasonable classification is put forth as a
defence, the statute has to be declared unconstitutional. No just cause has
been shown in the present instance. The result is that the appeals fail and are
dismissed.
MUKHERJEA J.--These two appeals are directed
against the judgment of a Special Bench of the Calcutta High Court dated the
28th of August, 1951, and they arise out of two petitions presented,
respectively, by the respondent in the two appeals under article 226 of 317 the
Constitution praying for writs of certiorari to quash two criminal proceedings,
one of which has ended in the trial court, resulting in conviction of the
accused, while the other is still pending hearing. The questions requiring
consideration in both the appeals are the same and the whole controversy
centres round the point as to whether the provision of section 5(1) of the West
Bengal Special Courts Act, 1950, as well as certain notifications issued under
it are ultra vires the Constitution by reason of their being in conflict with
article 14 of the Constitution. The material facts, which are not controverted,
may be shortly stated as follows. On August 17, 1949, an Ordinance, known as
the West Bengal Special Courts Ordinance, was promulgated by the Governor of West
Bengal under section 88 of the Government of India Act, 1935. On 15th March,
1950, this Ordinance was superseded and replaced by the West Bengal Special
Courts Act which contained provisions almost identical with those of the
Ordinance. Section 3 of the Act empowers the State Government to constitute, by
notification, Special Courts of criminal jurisdiction for such areas and to sit
at such places as may be notified in the notification. Section 4 provides for
appointment of a Special Judge to preside over a Special Court and it mentions
the qualifications which a Special Judge should possess. Section 5 (1) then
lays down 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. Sections 6 to 15 set out in details the procedure
which the Special Court has to follow in the trial of cases referred to it.
Briefly stated, the trial is to be without any jury or assessors, and the court
has to follow the procedure that is laid down for trial of warrant cases by the
Magistrate under the Criminal Procedure Code. The procedure for committal in
the sessions cases is omitted altogether; the court's powers of granting
adjournment are restricted and special provisions are made to deal with
refractory accused and also for cases which are transferred from one 318
Special Court to another. The Court is expressly empowered to convict a person
of an offence with which he was not charged if it transpires from the evidence
adduced at the time of trial that such offence was committed by him, and it is
immaterial that the offence is not a minor offence. The right of revision to
the High Court has been taken away entirely, though appeals have been allowed
in all cases both at the instance of the accused as well as of the State and
they lie both on questions of fact and law.
On October 28, 1949, when the Ordinance was
still in force, the West Bengal Government appointed Shri S.N. Guha Roy, who
was then the Sessions Judge of Alipore, a Special Judge, with powers to try
cases under the Ordinance. Anwar Ali Sarkar, who is the respondent in Appeal
No. 297, along with 49 other persons, were the accused in what is known as Dum
Dum Factory Raid case, where crimes of the utmost brutality were committed by
an armed gang of men on the factory of Messrs. Jessop and Company at Dum Dum.
The raid took place on February 26, 1949. The accused or most of them were
arrested some time after the Ordinance was promulgated. On 25th of January,
1950, the State Government by a notification directed that the case of Anwar
Ali and his 49 coaccused should be tried by Mr. S.N. Guha Roy in accordance
with the provisions" of the Ordinance. A formal complaint was lodged
before the Special Judge in respect of these 50 persons on April 2, 1950, that
is to say, after the Special Courts Act was passed, superseding the Ordinance.
The trial lasted for several months and by his judgment dated the 31st of
March, 1951, the Special Judge convicted the accused under various sections of
the Indian Penal Code, some of them being sentenced to transportation for life,
while others were sentenced to undergo various terms of imprisonment according
to the gravity of their offence. The State Government applied for enhancement
of sentence with regard to some of the accused and a rule was actually issued
by the High Court upon them tO show cause why they should not be sentenced 319
to death. On May 1, 1951, Anwar Ali, the respondent in Appeal No. 297,
presented an application before Mr. Justice Bose of the Calcutta High Court
under article 226 of the Constitution and a rule was issued by the learned
Judge upon that petition calling upon the State of West Bengal to show cause
why the proceedings, conviction and sentence, passed by the Special Court on
the petitioner and his co-accused should not be quashed. On 21st of May
following, a similar application for quashing a pending criminal trial was
filed by Gajen Mali, the respondent in the other appeal, who along with 5 other
persons is being tried for offences of murder and conspiracy to murder before
Mr. M. Bhattacharya, another Special Judge, appointed under the West Bengal
Special Courts Act. A rule was issued on this application also. Both the rules
came up for hearing before Mr. Justice Bose, and as the learned Judge was of
opinion that they involved questions of general constitutional importance, he
referred them to the Chief Justice for decision by a larger Bench. Accordingly
a Special Bench was constituted, consisting of the Chief Justice and four other
Judges who heard both these cases. It was conceded during the hearing of these
rules by the State Government that although in the case of Anwar Ali the
notification was issued a day before the coming into force of the Constitution,
the provisions of the Constitution of India, which came into force on the 26th
of January, 1950, applied to his case also. On the 28th of August, 1951. the
Special Bench made the rules absolute and held that section 5 (1) of the West Bengal
Special Courts Act was void to the extent that it empowers the State to direct
any case to be tried by the Special Court. The notifications issued under that
subsection were also held to be invalid for the same reason.
It is against this decision that these two
appeals have been taken to this court by the State of West Bengal.
In order to appreciate the points that have
been canvassed before us, it would be convenient first of all 320 to refer to
the provision of article 14 of the Constitution with a view to determine the
nature and scope of the guarantee that is implied in it. The article lays down
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." It is, in
substance, modelled upon the equal protection clause, occurring in the
Fourteenth Amendment of the American Constitution with a further addition of
the rule of "equality before the law", which is an established maxim
of the English Constitution. A number of American decisions have been cited
before us on behalf of both parties in course of the arguments; and while a too
rigid adherence to the views expressed by the Judges of the Supreme Court of
America while dealing with the equal protection clause in their own
Constitution may not be necessary or desirable for the purpose of determining
the true meaning and scope of article 14 of the Indian Constitution, it cannot
be denied that the general principles enunciated in many of these cases do
afford considerable help and guidance in the matter.
It can be taken to be well settled that the
principle underlying the guarantee in article 14 is not that the same rules of
law should be applicable to all persons within the Indian territory or that the
same remedies should be made available to them irrespective of differences of
circumstances(1). It only means that all persons similarly circumstanced shall
be treated alike both in privileges conferred and liabilities imposed(2). Equal
laws would have to be applied to all in the same situation, and there should be
no discrimination between one person and another if as regards the
subjectmatter of the legislation their position is substantially the same. This
brings in the question of classification. As there is no infringement of the
equal protection rule, if the law deals alike with all of a certain class, the
legislature has the undoubted right of classifying (1) Chiranjit Lal Chowdhuri
v. The Union of India [1950] S.C.R. 869.
(2)Old Dearborn Distributing Co. v. Seagram
Distillers Corporation 299 U.S. 183.
321 persons and placing those whose
conditions are 'substantially similar under the same rule of law, while
applying different rules to persons differently situated. It is said that the
entire problem under the equal protection clause is one of classification or of
drawing lines(1). In making the classification the legislature cannot certainly
be expected to provide "abstract symmetry." It can make and set apart
the classes according to the needs and exigencies of the society and as
suggested by experience. It can recognise even "degrees of evil "(2),
but the classification should never be arbitrary, artificial or evasive. It
must rest always upon real and substantial distinction bearing a reasonable and
just relation to the thing in respect to which the classification is made; and
classification made without any reasonable basis should be regarded as
invalid(3). These propositions have not been controverted before us and it is
not disputed also on behalf of the respondents that the presumption is always
in favour of the constitutionality of an enactment and the burden is upon him
who attacks it, to show that there has been transgression of constitutional
principles.
The learned AttorneyGeneral, appearing in
support of the appeal, has put forward his contentions under two different
heads. His first line of argument is that quite apart from the question of
classification there has been no infringement of article 14 of the Constitution
in the present case. It is said that the State has full control over procedure
in courts, both in civil and criminal cases, it can effect such changes as it
likes for securing due and efficient administration of justice and a
legislation of the character which we have got here and which merely regulates
the mode of trial in certain cases cannot come within the description of
discriminatory or hostile legislation. It is further argued that the
differences that have been made in the procedure for criminal trial under the West
Bengal (1) Vide Dowling: Cases on Constitutional Law, 4th edn.
1139.
(2) Vide Skinner v. Oklahoma (316 U.S. 535 at
540).
(3) Southern Railway Co. v. Greene (216 U.S,
400 at 412).
42 322 Special Courts Act, 1950, are of a
minor character and there are no substantial grounds upon which discrimination
could be alleged or founded. The second head of arguments advanced by the
Attorney-General is that there is a classification and a justifiable
classification on the basis of which differences in the procedure have been
made by the West Bengal Act; and even if any unguided power has been conferred
on the executive, the Act itself cannot be said to have violated the equality
clause, though questions relating to proper exercise of such power or the limits
of permissible delegation of authority might arise.
As regards the first point, it cannot be
disputed that a competent legislature is entitled to alter the procedure in
criminal trials in such way as it considers proper.
Article 21 of the Constitution only
guarantees that "no person shall be deprived of his life or personal
liberty except in accordance with the procedure established by law." The
word "law" in the Article means a State made law(1), but it must be a
valid and binding law having regard not merely to the competency of the
legislature and the subject it relates to, but it must not also infringe any of
the fundamental rights guaranteed under Part III of the Constitution. A rule of
procedure laid down by law comes as much within the purview of article 14 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 relief and for defence with like protection and without discrimination(2).
The two cases referred to by the learned Attorney-General in this connection do
not really support his contention. In Hayes v. Missouri(a) the subject-matter
of complaint was a provision of the revised statutes of Missouri which allowed
the State, in capital cases, fifteen peremptory challenges in cities having a
population of 100,000 inhabitants in place of eight in other parts of the
State. This was held to be a valid exercise of legislative discretion not (1)
Vide A.K. Gopalan v. The State of Madras [1950] S.C.R. 88.
(2) Weaver: Constitutional Law, page 407.
(3) 120 U.S. 68; 30 L. Ed. 578.
323 contravening the equality clause in the
Fourteenth Amendment. It was said that the power of the Legislature to
prescribe the number of challenges was limited by the necessity of having
impartial jury. With a view to secure that end, the legislature could take into
consideration the conditions of different communities and the strength of
population in a particular city; and if all the persons within particular territorial
limits are given equal rights in like cases, there could not be any question of
discrimination. The other case relied upon by the learned AttorneyGeneral is
the case of Brown v. The State of New Jersey(1).
In this case the question was whether the
provision of the State Constitution relating to struck jury in murder cases was
in conflict with the equal protection clause. The grievance made was that the
procedure of struck jury denies the defendant the same number of peremptory
challenges as he would have had in a trial before an ordinary jury. It was held
by the Supreme Court that the equal protection clause was not violated by this
provision. "It is true", thus observes Mr. Justice Brewer, "that
here there is no territorial distribution but in all cases in which a struck
jury is ordered the same number of challenges is permitted and similarly in all
cases in which the trial is by an ordinary jury either party, State or
defendant, may apply for a struck jury and the matter is one which is determined
by the court in the exercise of a sound discretion...... That in a given case
the discretion of the court in awarding a trial by a struck jury was improperly
exercised may perhaps present a matter for consideration in appeal but it
amounts to nothing more". Thus it was held that the procedure of struck
jury did not involve any discrimination between one person and another. Each
party was at liberty to apply for a struck jury if he so chose and the
application could be granted by the court if it thought proper having regard to
the circumstances of each individual case. The procedure would be identical in
respect of all persons when it was allowed and (1) 175 U.S. 171: 44 L. Ed. 119.
324 all parties would have equal
opportunities of availing themselves of this procedure if they so liked. That a
judicial discretion has to be exercised on the basis of the facts of each case
in the matter of granting the application for a struck jury does not really
involve discrimination.
These decisions, in my opinion, have no
bearing on the present case.
I am not at all impressed by the argument of
the learned Attorney-General that to enable the respondents to invoke the
protection of article 14 of the Constitution it has got to be shown that the
legislation complained of is a piece of "hostile" legislation. The
expressions "discriminatory" and "hostile" are found to be
used by American Judges often simultaneously and almost as synonymous expressions
in connection with discussions on the equal protection clause. If a legislation
is discriminatory and discriminates one person or class of persons against
others similarly situated and denies to the former the privileges that are
enjoyed by the latter, it cannot but be regarded as "hostile" in the
sense that it affects injuriously the interests of that person or class. Of
course, if one's interests are not at all affected by a particular piece of
legislation, he may have no right to complain. But 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, I do not think that it is incumbent upon him, before he can claim
relief on the basis of his 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. For the same reason I cannot agree with
the learned AttorneyGeneral that in cases like these, we should enquire as to
what was the dominant intention of the legislature in enacting the law and that
the operation of article 14 would be excluded if it is proved that the
legislature had no intention to discriminate, though discrimination was the
necessary consequence of the Act. When. discrimination is alleged against
officials in carrying 325 out the law, a question of intention may be material
in ascertaining whether the officer acted mala fide or not(1);
but no question of intention can arise when
discrimination follows or arises on the express terms of the law itself.
I agree with the Attorney-General that if the
differences are not material, there may not be any discrimination in the proper
sense of the word and minor deviations from the general standard might not
amount to denial of equal rights. I find it difficult however, to hold that the
difference in the procedure that has been introduced by the West Bengal Special
Courts Act is of a minor or unsubstantial character which has not prejudiced
the interests of the accused.
The first difference is that made in section
6 of the Act which lays down that the Special Court may take cognizance of an
offence without the accused being committed to it for trial, and that in trying
the accused it has to follow the procedure for trial of warrant cases by Magistrates.
It is urged by the Attorney-General that the elimination of the committal
proceedings is a matter of no importance and that the warrant procedure, which
the Special Court has got to follow, affords a scope for a preliminary
examination of the evidence against the accused before a charge is framed.' It
cannot be denied that there is a difference between the two proceedings. In a
warrant case the entire proceeding is before the same Magistrate and the same
officer who frames the charge hears the case finally.
In a sessions case, on the other hand, the
trial is actually before another Judge, who was not connected with the earlier
proceeding. It is also clear that after the committal and before the sessions
judge actually hears the case, there is generally a large interval of time
which gives the accused ample opportunity of preparing his defence, he being acquainted
beforehand with the entire evidence that the prosecution wants to adduce
against him. He cannot have the same advantage in a warrant case even ii an
adjournment is granted by the Magistrate after the charge is (1) sunday Lake
Iron Company v. wakefield (247 U.S. 350.) 326 framed. Be that as it may, this
is not the only matter upon which the normal procedure has been departed from
in the Special Courts Act. One of the most important departures is that the
trial by the Special Court is without the aid of jury or assessors. The trial
by jury is undoubtedly one of the most valuable rights which the accused can
have. It is true that the trial by jury is not guaranteed by the Constitution
and section 269(1) of the Criminal Procedure Code empowers the State Government
to direct that the trial of all offences or any particular class of offences
before any sessions court shall be by jury in any district; and it may revoke
or alter such orders. There is nothing wrong therefore if the State
discontinues trial by jury in any district with regard to all or any particular
class of offences; but as has been pointed out by Mr. Justice Chakravarti of
the Calcutta High Court, it cannot revoke jury trial in respect of a particular
case or a particular accused while in respect of other cases involving the same
offences the order still remains. Amongst other important changes, reference
may be made to the provision of section 13 of the Act which empowers the
Special Court to convict an accused of any offence if the commission of such
offence is proved during trial, although he was not charged with the same or
could be charged with it in the manner contemplated by section 236 of the
Criminal Procedure Code, nor was it a minor offence within the meaning of
section 238 of the Code.
Under section a50 of the Criminal Procedure
Code, when a case after being heard in part goes for disposal before another
Magistrate, the accused has the right to demand, before the second Magistrate
commences the proceedings, that the witnesses already examined should be
re-examined and re-heard. This right has been taken away from the accused in
cases where a case is transferred from one Special Court to another under the
provision of section 7 of the Special Courts Act. Further the right of revision
to the High Court does not exist at all under the new procedure, although the
rights under the Constitution of India are retained.
327 It has been pointed out and quite
correctly by one of the learned Counsel for respondents that an application for
bail cannot be made before the High Court on behalf of an accused after the
Special Court has refused bail. These and other provisions of the Act make it
clear that the rights of the accused have been curtailed in a substantial
manner by the impugned legislation; and if the rights are curtailed only in
certain cases and not in others, even though the circumstances in the latter
cases are the same, a question of discrimination may certainly arise. The first
line of argument adopted by the learned Attorney-General cannot, therefore, be
accepted.
I now come to the other head of arguments put
forward by him and the principal point for our consideration is whether the
apparent discriminations that have been made in the Act can be justified on the
basis of a reasonable classification. Section 5(1) of the West Bengal Special
Courts Act lays down that "A Special Court shall try such offences or
classes offences or cases or classes of cases as the State Government may, by
general or special order in writing direct." The learned Attorney-General
urges that the principle of classification upon which the differences have been
made between cases and offences triable by the Special Court and those by
ordinary courts is indicated in the preamble to the Act which runs as follows:
"Whereas it is expedient to provide for
the speedier trial of certain offences".
What is said is, that the preamble is to be
read as a part of section 5(1) and the proper interpretation to be put upon the
sub-section is that those cases and offences which in the opinion of the State
Government would require speedier trial could be assigned by it to the Special
Court. In my opinion, this contention cannot be accepted for more reasons than
one. In the first place, I agree with the learned Chief Justice of the Calcutta
High Court that the express provision of an enactment, if it is clear and unambiguous,
cannot be 328 curtailed or extended with the aid of the preamble to the Act. It
is only when the object or meaning of the enactment is not clear that recourse
can be had to the preamble to explain it (1). In the case before us the
language of section 5(1) is perfectly clear and free from any ambiguity.
It vests an unrestricted discretion in the
State Government to direct any cases or classes of cases to be tried by the
Special Court in accordance with the procedure laid down in the Act. It is not
stated that it is only when speedier trial is necessary that the discretion
should be exercised.
In the second place, assuming that the
preamble throws any light upon the interpretation of the section, I am definitely
of opinion that the necessity of a speedier trial is too vague, uncertain and
elusive a criterion to form a rational basis for the discriminations made. The
necessity for speedier trial may be the object which the legislature had in
view or it may be the occasion for making the enactment.
In a sense quick disposal is a thing which is
desirable in all legal proceedings. The word used here is "speedier"
which is a comparative term and as there may be degrees of speediness, the word
undoubtedly introduces an uncertain and variable element. But the question is:
how is this necessity of speedier trial to be determined ? Not by reference to
the nature of the offences or the circumstances under which or the area in
which they are committed, nor even by reference to any peculiarities or
antecedents of the offenders themselves, but the selection is left to the
absolute and unfettered discretion of the executive government with nothing in
the law to guide or control its action. This is not a reasonable classification
at all but an arbitrary selection. A line is drawn artificially between two
classes of cases. On one side of the line are grouped those cases which the
State Government chooses to assign to the Special Court; on the other side
stand the rest which the State Government does not think fit and proper to
touch. It has been observed in many cases by the Supreme Court of America that
the fact that some (1) See Craies on Statute Law, 4th edn., 184.
329 sort of classification has been attempted
at will not relieve a statute from the reach of the equality clause. "It
must appear not only that a classification has been made but also that it is
based upon some reasonable ground--some difference which bears a just and
proper relation to the attempted classification"(1). The question in each
case would be whether the characteristics of the class are such as to provide a
rational justification for the differences introduced ? Judged by this test,
the answer in the present case should be in the negative; for the difference in
the treatment rests here solely on arbitrary selection by the State Government.
It is true that the presumption should always be that the legislature
understands and correctly appreciates the needs of its own people and that its
discriminations are based on adequate grounds (2); but as was said by Mr.
Justice Brewer in Gulf Colorado etc. Company v. Ellis (3), "to carry the
presumption to the extent of holding that there must be some undisclosed and
unknown reason for subjecting certain individuals or corporations to hostile
and discriminatory legislation is to make the protection clauses of the
Fourteenth Amendment a mere rope of sand." A point was made by the
Attorney-General in course of his arguments that the equality rule is not
violated simply because a statute confers unregulated discretion on officers or
on administrative agencies. In such cases it may be possible to attack the
legislation on the ground of improper delegation of authority or the acts of
the officers may be challenged on the ground of wrongful or mala fide exercise
of powers; but no question of infringement of article 14 of the Constitution
could possibly arise. We were referred to a number of authorities on this point
but I do not think that the authorities really support the proposition of law
in the way it is formulated. In the well known case of Yick Wo v. Hopkins (4),
the question was, whether the provision of a certain ordinance of the City and
County of San (1) Gulf Colorado etc. Go. v. Ellis (165 U.S. 150).
(2) Middleton v. Texas Power & Light Co.
(249 U.S. 152).
(3) 165 U.S. 150. (4) 118 U.S. 356.
43 330 Francisco was invalid by reason of its
being in conflict with the equal protection clause. The order in question laid
down that it would be unlawful for any person to engage in laundry business
within the corporate limits "without having first obtained the consent of
the Board of Supervisors except the same to be located in a building
constructed either of brick or stone." The question was answered in the
affirmative. It was pointed out by Matthews, J., who delivered the opinion of
the court, that the ordinance in question did not merely prescribe a rule and
condition for the regulation of the laundry business. It allowed without
restriction the use for such purposes of building of brick or stone, but as to
wooden buildings constituting nearly all those in previous use, it divided the
owners or occupiers into two classes, not having respect to their personal
character and qualifications of the business, nor the situation and nature and
adaptation of the buildings themselves, but merely by an arbitrary line, on one
side of which were those who were permitted to pursue their industry by the
mere will and consent of the supervisors and on the other those from whom that
consent was withheld at their will and pleasure. This sort of committing to the
unrestrained will of a public officer the power to deprive a citizen of his
right to carry on lawful business was' held to constitute an invasion of the
Fourteenth Amendment. The learned Judge pointed out in course of his judgment
that there are cases where discretion is lodged by law in public officers or
bodies to grant or withhold licences to keep taverns or places for sale of
spirituous liquor and the like. But all these cases stood on a different
footing altogether. The same view was reiterated in Crowley v. Christensen(1)
which related to an ordinance regulating the issue of licences to sell liquors.
It appears to be an accepted doctrine of American courts that the purpose of
the equal protection clause is to secure every person within the States against
arbitrary discrimination, whether occasioned by the express terms of the
statute or by their (1) 137 U.S. 86.
331 improper application through duly
constituted agents. This was clearly laid down in Sunday Lake Iron Cornparty v.
Wakefield (1). In this case the complaint was against a. taxing officer, who
was alleged to have assessed the plaintiff's properties at their full value,
while all other persons in the county were assessed at not more than onethird
of the worth of their properties. It was held that the equal protection clause
could be availed of against the taxing officer; but if he was found to have
acted bona fide and the discrimination was the result of a mere error of
judgment on his part, the action would fail. The position, therefore, is that
when the statute is not itself discriminatory and the charge of violation of
equal protection is only against the official, who is entrusted with the duty
of carrying it into operation, the equal protection clause could be availed of
in such cases; but the officer would have a good defence if he could prove bona
fides. But when the statute itself makes a discrimination without any proper or
reasonable basis, the statute would be invalidated for being in conflict with
the equal protection clause, and the question as to how it is actually worked
out may not necessarily be a material fact for consideration. As I have said
already, in the present case the discrimination arises on the terms of the Act
itself. The fact that it gives unrestrained power to the State Government to
select in any way it likes the particular cases or offences which should go to
a Special Tribunal and withdraw in such cases the protection which the accused
normally enjoy under the criminal law of the country, is on the face of it
discriminatory.
It may be noted in this connection that in
the present case the High Court has' held the provision of section 5 (1) of the
West Bengal Special Courts Act to be ultra vires the Constitution only so far
as it allows the State Government to direct any case to be tried by the Special
Court. In the opinion of the learned Chief Justice, if the State Government had
directed certain offences or classes of offences committed within the (1) 247
U.S. 350.
332 territory of West Bengal to be tried by
the Special Court, the law or order could not have been impeached as discriminatory.
It is to be noted that the Act itself does not mention in what classes of cases
or offences such direction could be given; nor does it purport to lay down the
criterion or the basis upon which the classification is to be made. It is not
strictly correct to say that if certain specified offences throughout the State
were directed to be tried by the Special Court, there could not be any infringement
of the equality rule. It may be that in making the selection the authorities
would exclude from the list of offences other offences of a cognate character
in respect to which no difference in treatment is justifiable. In such
circumstances also the law or order would be offending against the equality
provision in the Constitution. This is illustrated by the case of Skinner v.
Oklahorna(1). There a statute of Oklahoma provided for the sterilization of certain
habitual criminals, who were convicted two or more times in any State, of
felonies involving moral turpitudell.
The statute applied to persons guilty of
larceny, which was regarded as a felony but not to embezzlement. It was held
that the statute violated the equal protection clause. It is said that in cases
where the law does not lay down a standard or form in accordance with which the
classification is to be made, it would be the duty of the officers entrusted
with the execution of the law, to make the classification in the way consonant
with the principles of the Constitution (2). If that be the position, then an
action might lie for annulling the acts of the officers if they are found not
to be in conformity with the equality clause. Moreover, in the present case the
notification by the State Government could come within the definition of law as
given in article 13(3) of the Constitution and can be impeached apart from the
Act if it violates article 14 of the Constitution. I do not consider it
necessary to pursue this matter any further, as in my opinion even on the (1)
316 U.S. 555.
(2) Vide Willis on Constitutional Law, Page
587.
333 limited ground upon which the High Court
bases its decision, these appeals are bound to fail.
DAS J.--I concur in dismissing these appeals
but I am not persuaded that the whole of section 5(1) of the West Bengal
Special Courts Act is invalid. As I find myself in substantial agreement with
the interpretation put upon that section by the majority of the Full Bench of
the Calcutta High Court and most of the reasons adopted by Harries, C.J.
in support thereof, I do not feel called upon
to express myself in very great detail. I propose only to note the points urged
before us and shortly state my conclusions thereon.
There is no dispute that the question of the
validity of section 5 of the West Bengal Special Courts Act, 1950, has to be
determined in the light of the provisions of the Constitution of India which
came into force on January 26, 1950. The contention of the respondents, who were
petitioners before the High Court, has been and is that the whole of section 5
of the Act or, at any rate, that part of it which authorises the State
government to direct particular "cases" to be tried by the Special
Court offends against the guarantee of equality before the law secured by
article 14. If the provision of section 5 of the Act is invalid even to the
limited extent mentioned above. then also the whole proceedings before the
Special Court which was directed by the State government to try these
particular "cases" must necessarily have been without jurisdiction as
has been held by the High Court Full Bench and these appeals would have to be
dismissed.
Article 14 of our Constitution, it is well
known, corresponds to the last portion of section 1 of the Fourteenth Amendment
to the American Constitution except that our article 14 has also adopted the
English doctrine of rule of law by the addition of the words "equality
before the law." It has not, however, been urged before us that the addition
of these extra words has made any substantial difference in its practical
application. The meaning, scope and effect of 334 article 14 of our
Constitution have been discussed and laid down by this Court in the case of
Chiranjit Lal Chowdhury v. The Union of India and Others (1). Although Sastri
J., as he then was, and myself differed from the actual decision of the
majority of the Court, there was no disagreement between us and the majority as
to the principles underlying the provisions of article 14. The difference of
opinion in that case was not so much on the principles to be applied as to the
effect of the application of such principles. Those principles were again
considered and summarised by this Court in The State of Bombay v.F.N. Balsara
(2). It is now well established that while article 14 is designed to prevent a
person or class of persons from being singled out from others similarly
situated for the purpose of being specially subjected to discriminating and
hostile legislation, it does not insist on an "abstract symmetry" in
the sense that every piece of legislation must have universal application. All
persons are not, by nature, attainment or circumstances, equal and the varying
needs of different classes of persons often require separate treatment and,
therefore, the protecting clause has been construed as a guarantee against
discrimination amongst equals only and not as taking away from the State the
power to classify persons for the purpose of legislation. This classification
may be on different bases.
It may be geographical or according to
objects or occupations or the like. Mere classification, however, is not enough
to get over the inhibition of the Article. 'The classification must not be
arbitrary but must be rational, that is to say, it must not only be based on
some qualities or characteristics which are to be found in all the persons
grouped together and not in others who are left out but those qualities or
characteristics must have a reasonable relation to the object of the
legislation. In order to pass the test, two conditions must be fulfilled,
namely, (1) that the classification must be founded on an intelligible
differentia which distinguishes those that are grouped together from others (1)
[1950] S.C.R. 869. (2) [1951] S.C.R. 682.
335 and (2) that 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. In
short, while the Article forbids class legislation in the sense of making
improper discrimination by conferring privileges or imposing liabilities upon
persons arbitrarily selected out of a large number of other persons similarly
situated in relation to the privileges sought to be conferred or the liability
proposed to be imposed, it does not forbid classification for the purpose of
legislation, provided such classification is not arbitrary in the sense I have
just explained. The doctrine, as expounded by this Court in the two cases I
have mentioned, leaves a considerable latitude to the Court in the matter of
the application of article 14 and consequently has the merit of flexibility.
The learned Attorney-General, appearing in
support of these appeals, however, contends that while a reasonable
classification of the kind mentioned above may be a test of the validity of a
particular piece of legislation, it may not be the only test which will cover
all cases and that there may be other tests also. In answer to the query of the
Court he formulates an alternative test in the following words: If there is in
fact inequality of treatment and such inequality is not made with a special
intention of prejudicing any. particular person or persons but is made in the
general interest of administration, there is no infringement of article 14. It
is at once obvious that, according to the test thus formulated, the validity of
State action, legislative or executive, is made entirely dependent on the state
of mind of the authority. This test will permit even flagrantly discriminatory
State action on the specious plea of good faith and of the subjective view of
the executive authority as to the existence of a supposed general interest of
administration. This test, if accepted, will amount to adding at the end of
article 14 the words "except in good faith and in the 336 general interest
of administration." This is clearly not permissible for the Court to do.
Further, it is obvious that the addition of these words will, in the language
of Brewer, J., in Gulf, Colorado and Santa Fe Railway Co. v. W.H.
Ellis(1), make the protecting clause a mere
rope of sand, in no manner restraining State action. I am not, therefore,
prepared to accept the proposition propounded by the learned Attorney-General,
unsupported as it is by any judicial decision, as a sound test for determining
the validity of State action.
The learned Attorney-General next contends,
on the authority of a passage in Cooley's Constitutional Limitations, 8th
Edition, Vol. 2, p. 816, that inequalities of minor importance do not render a
law invalid and that the constitutional limitations must be treated as flexible
enough to permit of practical application. The passage purports to be founded
on the decision in Jeffrey Manufacturing Co. v. Blagg (2). A careful perusal of
this decision will make it quite clear that the Court upheld the validity of
the statute impugned in that case, not on the ground that the inequality was of
minor importance but, on the ground that the classification of establishments
according to the number of workmen employed therein was based on an intelligible
distinction having a rational relation to the subject-matter of the legislation
in question. That decision, therefore, does not support the proposition so
widely stated in the passage apparently added by the editor to the original
text of Judge Cooley. The difference brought about by a statute may be of such
a trivial, unsubstantial and illusory nature that that circumstance alone may
be regarded as cogent ground for holding that the statute has not discriminated
at all and that no inequality has in fact been created. This aspect of the
matter apart, if a statute brings about inequality in fact and in substance, it
will be illogical and highly undesirable to make the constitutionality of such
a statute depend on the degree of the inequality so (1) 165 U.S. 150. (2) 235
U.S. 571; 59 L. Ed. 364.
337 brought about. The adoption of such a principle
will run counter to the plain language of article 14.
At one stage of his arguments the learned
Attorney General just put forward an argument, which he did not press very
strongly, that the Article is a protection against the inequality of substantive
law only and not against that of a procedural law. I am quite definitely not
prepared to countenance that argument. There is no logical basis for this
distinction. A procedural law may easily inflict very great hardship on persons
subjected to it, as, indeed, this very Act under consideration will presently
be seen to have obviously done.
That the Act has prescribed a procedure of
trial which is materially different from that laid down in the Code of Criminal
Procedure cannot be disputed. The different sections of the Act have been
analysed and the important differences have been clearly indicated by the
learned Chief Justice of West Bengal and need not be repeated in detail.
The elimination of the committal proceedings
and of trial by jury (sec. 6), the taking away of the right to a de novo trial
on transfer (sec. 7), the vesting of discretion in the Special Court to refuse
to summon a defence witness if it be satisfied that his evidence will not be
material (sec. 8), the liability to be convicted of an offence higher than that
for which the accused was sent up for trial under the Act (sec. 13), the
exclusion of interference of other Courts by way of revision or transfer or
under section 491 of the Code (sec. 16) are some of the glaring instances of
inequality brought about by the impugned Act. The learned Attorney General has
drawn our attention to various sections of the Code of Criminal Procedure in an
endeavour to establish that provisions somewhat similar to those enacted in
this Act are also contained in the Code. A comparison between the language of
those sections of the Code and that of the several sections of this Act
mentioned above will clearly show that the Act has gone much beyond the provisions
of the Code and the Act cannot by any means 44 338 be said to be an innocuous
substitute for the procedure prescribed by the Code. The far-reaching effect of
the elimination of the committal proceedings cannot possibly be ignored merely
by stating that the warrant procedure under the Code in a way also involves a
committal by the trial Magistrate, namely to himself, for the warrant procedure
minimises the chances of the prosecution being thrown out at the preliminary
stage. as may be done by the committing Magistrate, and deprives the accused person
of the opportunity of knowing, well in advance of the actual trial before the
Sessions Court, the case sought to be made against him and the evidence in
support of it and, what is of the utmost importance, of the benefit of a trial
before and the decision of a different and independent mind. The liability to
be convicted of a higher offence has no parallel in the Code. It is true that
the State can, under section 269 (1) of the Code, do away with trial by jury
but that section, as pointed out by Chakravartti J. does not clearly
contemplate elimination of that procedure only in particular cases which is
precisely what the Act authorises the Government to do.
On a fair reading of the Act there can be no
escape from the fact that it quite definitely brings about a substantial
inequality of treatment, in the matter of trial, between persons subjected to
it and others who are left to be governed by the ordinary procedure laid down.
in the Code. The question is whether section 5 (1) which really imposes this
substantial inequality on particular persons can be saved from the operation of
article 14 on the principle of rational classification of the kind permissible
in law.
Section 5 (1) of the Act runs as
follows":-" 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".
It will be noticed that the sub-section
refers to four distinct categories, namely, "offences",' 'classes of
offences", "cases" and "classes of cases" and empowers
339 the State government to direct any one or more of these categories to be
tried by the Special Court constituted under the Act. I shall first deal with
the section in so far as it authorises the State government to direct "offences",
"classes of offences" and "classes of cases" to be tried by
a Special Court. These expressions clearly indicate, and obviously imply, a
process of classification of offences or cases. Prima facie those words do not
contemplate any particular offender or any particular accused in any particular
case. The emphasis is on "offences", ' 'classes of offences" or
"classes of cases". The classification of ' 'offences" by itself
is not calculated to touch any individual as such, although it may, after the
classification is made, affect all individuals who may commit the particular
offence. In short, the classification implied in this part of the sub-section
has no reference to, and is not directed towards the singling out of any
particular person as an object of hostile State action but is concerned only
with the grouping of "offences", "classes of offences" and
"classes of cases" for the purpose of being tried by a Special Court.
Such being the meaning and implication of this part of section 5 (1), the
question arises whether the process of classification thus contemplated by the
Act conforms to the requirements of reasonable classification which does not
offend against the Constitution.
Learned Attorney-General claims that the
impugned Act satisfies even this test of rational classification. His
contention is that offences may be grouped into two classes, namely, those that
require speedier trial, that is speedier than what is provided for in the Code
and those that do not require a speedier trial. The Act, according to him,
purports to deal only with offences of the first class. He first draws our
attention to the fact that the Act is instituted "An Act to provide for
the speedier trial of certain offences" and then points out that the
purpose of the Act, as stated in its preamble, also is "to provide for the
speedier trial of certain offences". He next refers us to the different
sections of the Act and urges 340 that all the procedural changes introduced by
the Act are designed to accomplish the object of securing speedier trial. The
Act accordingly empowers the State government to direct the offences, which, in
its view, require speedier trial, to be tried by a Special Court according to
the special procedure provided by it for the speedier trial of those offences.
This construction of the section, he maintains, is consonant with the object of
the Act as recited in the preamble and does not offend against the inhibition
of article 14 of our Constitution. Learned counsel for the respondents, on the
other hand, urge that there is no ambiguity whatever in the language used in
the sub-section, that there is no indication in the sub-section itself of any
restriction or qualification on the power of classification conferred by it on
the State government and that the power thus given to the State government
cannot be controlled and cut down by calling in aid the preamble of the Act,
for the preamble cannot abridge or enlarge the meaning of the plain language of
the sub-section. This argument was accepted by the High Court in its
application to the other part of the section dealing with selection of
"cases" but in judging whether this argument applies, with equal
force, to that part of the section I am now considering, it must be borne in
mind that, although the preamble of an Act cannot override the plain meaning of
the language of its operative parts, it may, nevertheless, assist in
ascertaining what the true meaning or implication of a particular section is,
for the preamble is, as it were a key to the understanding of the Act. I
therefore, proceed to examine this part of section 5(1) in the light of the
preamble so as to ascertain the true meaning of it.
I have already stated that this part of the
subsection contemplates a process of classification of "offences",
"classes of offences" and "classes of cases". This
classification must, in order that it may not infringe the constitutional
prohibition, fulfil the two conditions I have mentioned. The preamble of the
Act under consideration recites the expediency of providing for the speedier
trial of certain 341 offences. The provision for the speedier trial of certain
offences is, therefore, the object of the Act. To achieve this object, offences
or cases have to be classified upon the basis of some differentia which will
distinguish those offences or cases from others and which will have a reasonable
relation to the recited object of the Act. The differentia and the object
being, as I have said, different elements, it follows that the object by itself
cannot be the basis of the classification of offences or the cases, for, in the
absence of any special circumstances which may distinguish one offence or one
class of offences or one class of cases from another offence, or class of
offences or class of cases, speedier trial is desirable in the disposal of all
offences or classes of offences or classes of cases.
Offences or cases cannot be classified in two
categories on the basis of the preamble alone as suggested by the learned
Attorney-General.
Learned counsel for the respondents then
contended that as the object of the Act as recited in the preamble cannot be
the basis of classification, then this part of sub-section 5 (1) gives an
uncontrolled and unguided power of classification which may well be exercised
by the State government capriciously or "with an evil eye and an unequal
band" so as to deliberately bring about invidious discrimination between
man and man, although both of them are situated in exactly the same or similar
circumstances. By way of illustration it is pointed out that in the Indian
Penal Code there are different chapters dealing with offences relating tO
different matters, e.g., Chapter XVII which deals with offences against
property, that under this generic head are set forth different species of
offences against property, e.g., theft (section 378), theft in a dwelling house
(section 380), theft by a servant (section 381), to take only a few examples,
and that according to the language of section 5(1) of the impugned Act it will
be open to the State government to direct all offences of theft in a dwelling
house under section 380 to be tried by the Special Court according to the
special procedure laid down in the Act leaving all offences of theft by a
servant under section 381 to be dealt with in the 342 ordinary Court in the
usual way. In other words, if a stranger is charged with theft in a dwelling
house, he may be sent up for trial before the Special Court under section 380
whereas if a servant is accused of theft in a dwelling house he may be left to
be tried under the Code for an offence under section 381. The argument is that
although there is no apparent reason why an offence of theft in a dwelling
house by a stranger should require speedier trial any more than an offence of
theft in a dwelling house by a servant should do, the State government may
nevertheless select the former offence for special and discriminatory treatment
in the matter of its trial by bringing it under the Act. A little reflection
will show that this argument is not sound. The part of sub-section 5(1) which I
am now examining confers a power on the State government to make a
classification of offences, classes of offences or classes of cases, which, as
said by Chakravartti J., "means a proper classification." In order to
be a proper classification so as not to offend against the Constitution it must
be based on some intelligible differentia which should have a reasonable
relation to the object of the Act as recited in the preamble. In the
illustration taken above the two offences are only two species of the same
genus, the only difference being that in the first the alleged offender is a
stranger and in the latter he is a servant of the owner whose property has been
stolen. Even if this difference in the circumstances of the two alleged
offenders can be made the basis of a classification, there is no nexus between
this difference and the object of the Act, for, in the absence of any special
circumstances, there is no apparent reason why the offence of theft in a
dwelling house by a stranger should require a speedier trial any more than the
offence of theft by a servant should do. Such classification will be wholly
arbitrary and will be liable to be hit by the principles on which the Supreme
Court of the United States in Jack Skinner v. Oklahoma(1) struck down the
Oklahoma Habitual Criminal Sterilisation Act which (1) 216 US. 535; 86 L. Ed.
1655.
343 imposed sterilisation on a person
convicted more than twice of larceny but not on one who was convicted of
embezzlement on numerous occasions. That sort of classification will,
therefore, not clearly be a proper classification such as the Act must be
deemed to contemplate.
On the other hand, it is easy to visualise a
situation when certain offences, e.g., theft in a dwelling house, by reason of
the frequency of their perpetration or other attending circumstances, may
legitimately call for a speedier trial and swift retribution by way of
punishment to check the commission of such offences. Are we not familiar with
gruesome crimes of murder, arson, loot and rape committed on a large scale
during communal riots in particular localities and are they not really
different from a case of a stray murder, arson, loot or rape in another
district which may not be affected by any communal upheaval ? Do not the
existence of the communal riot and the concomitant crimes committed on a large
scale call for prompt and speedier trial in the very interest and safety of the
community ? May not political murders or crimes against the State or a class of
the community, e.g., women, assume such proportions as would be sufficient to
constitute them into a special class of offences requiring special treatment ?
Do not these special circumstances add a peculiar quality to these offences or
classes of offences or classes of cases which distinguish them from stray cases
of similar crimes and is it not reasonable and even necessary to arm the State
with power to classify them into a separate group and deal with them promptly ?
I have no doubt in my mind that the surrounding circumstances and the special
features I have mentioned above will furnish a very cogent and reasonable basis
of classification, for it is obvious that they do clearly distinguish these
offences from similar or even same species of offences committed elsewhere and
under ordinary circumstances. This differentia quite clearly has a reasonable
relation to the object sought to be achieved by the Act, namely, the speedier
trial of certain offences. Such a classification will not be 344 repugnant to
the equal protection clause of our Constitution for there will be no
discrimination, for whoever may commit the specified offence in the specified
area in the specified circumstances will be treated alike and sent up before a
Special Court for trial under the special procedure.
Persons thus sent up for trial by a Special
Court cannot point their fingers to the other persons who may be charged before
an ordinary Court with similar or even same species of offences in a different
place and in different circumstances and complain of unequal treatment, for
those other persons are of a different category and are not their equals.
Section 5(1), in so far as it empowers the State government to direct
"offences" or "classes of offences" or "classes of
cases" to be tried by a Special Court, also, by necessary implication and
intendment, empowers the State government to classify the "offences"
or "classes of offences" or "classes of cases ", that is to
say, to make a proper classification in the sense I have explained. In my
judgment, this part of the section, properly construed and understood, does not
confer an uncontrolled and unguided power on the State government. On the
contrary, this power is controlled by the necessity for making a proper
classification which is guided by the preamble in the sense that the
classification must have a rational relation to the object of the Act as
recited in the preamble. It is, therefore, not an arbitary power. I, therefore,
agree with Harries, C.J. that this part of section 5(1) is valid. if the State
government classifies offences arbitrarily and not on any reasonable basis
having a relation to the object of the Act, its action will be either an abuse
of its power if it is purposeful or in excess of its powers even if it is done
in good faith and in either case the resulting discrimination will encounter
the challenge of the Constitution and the Court will strike down, not the law
which is good, but the abuse or misuse or the unconstitutional administration
of the law creating or resulting in unconstitutional discrimination.
345 In the present case, however, the State
government has not purported to proceed under that part of section 5(1) which I
have been discussing so far. It has, on the other hand, acted under that part
of the section which authorises it to direct" cases" to be tried by
the Special Court, for by the notifications it has directed certain specific
cases identified by their individual numbers in the records of the particular
than as to be tried by the Special Court. There is ostensibly no attempt at, or
pretence of, any classification on any basis whatever. The notifications simply
direct certain "cases" to be tried by the Special Court and are
obviously issued under that part of section 5(1) which authorises the State
government to direct "cases" to be tried by the Special Court. The
word "cases" has been used to signify a category distinct from
"classes of cases". The idea of classification is, therefore,
excluded. This 'means that this part of the sub-section empowers the State
Government to pick out or select particular cases against particular persons
for being sent up to the Special Court for trial. It is urged by the learned
Attorney General that this selection of cases must also be made in the light of
the object of the Act as expressed in its preamble, that is to say, the State
government can only select those cases which, in their view, require speedier
trial. Turning to the preamble, I find that the object of the Act is "to
provide for the speedier trial of certain offences" and not of a particular
case or cases. In other words, this part of section 5 (1) lies beyond the ambit
of the object laid down in the preamble and, therefore, the preamble can have
no manner of application in the selection of "cases" as distinct from
"offences", "classes of offences" or "classes of
cases". I agree with Harries C.J. that the preamble cannot control this
part of the sub-section where the language is plain and unambiguous. Further,
as I have already explained, the object of the Act cannot, by itself, be the
basis of the selection which, I repeat, must be based on some differentia
distinguishing the ' 'case" from other ' 'cases" and having a relation
to the 45 346 object of the Act. It is difficult, if not impossible, to
conceive of an individual "case", as distinct from a "class of
cases", as a class by itself within the rule of permissible and legitimate
classification. An individual case of a crime committed with gruesome atrocity
or committed upon an eminent person may shock our moral sense to a greater
extent but, on ultimate analysis and in the absence of special circumstances
such as I have mentioned, it is not basically different from another individual
case of a similar crime although committed with less vehemence or on a less
eminent person. In any case, there is no particular bond connecting the
circumstances of the first mentioned case with the necessity for a speedier
trial. In the absence of special circumstances of the kind I have described
above, one individual case, say of murder, cannot require speedier trial any
more than another individual case of murder may do. It is, therefore, clear,
for the foregoing reasons, that the power to direct "cases" as
distinct from "classes of cases" to be tried by a Special Court
contemplates and involves a purely arbitrary selection based on nothing more
substantial than the whim and pleasure of State Government and without any
appreciable relation to the necessity for a speedier trial. Here the law lays
an unequal hand on those who have committed intrinsically the same quality of
offence. ]his power must inevitably result in discrimination and this
discrimination is, in terms incorporated in this part of the section itself
and, therefore, this part of the section itself must incur our condemnation.
It is not a question of an unconstitutional
administration of a statute otherwise valid on its face but here the unconstitutionality
is writ large on the face of the statute itself. I, therefore, agree with the
High Court that section 5(1) of the Act in so far as it empowers the State
Government to direct "cases" to be tried by a Special Court offends
against the provisions of article 14 and therefore the Special Court had no
jurisdiction to try these "cases" of the respondents. In ray
judgment, the High Court was right in quashing the conviction 347 of the
respondents in the one case and in prohibiting further proceedings in the other
case and these appeals should be dismissed.
CHANDRASEKHARA AIYAR J.--The short question
that arises for consideration in these cases is whether the whole, or any
portion of the West Bengal Special Courts Act, X of 1950, is invalid as being
opposed to equality before the law and the equal protection of the laws guaranteed
under article 14 of the Constitution of India. The facts which have led up to
the cases have been stated in the judgments of the High Court at Calcutta and
their recapitulation is unnecessary. I agree in the conclusion reached by my
learned brothers that the appeals should be dismissed and I propose to indicate
my views as shortly as possible on a few only of the points raised and
discussed.
The preamble to the Constitution mentions one
of the objects to be to secure to all its citizens equality of status and
opportunity. Article 14 provides:
"The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India." Then follow articles 15 and 16, the former
prohibiting discrimination on grounds of religion, race, caste, sex, place of
birth, or any of them and the latter providing for equality of opportunity in
matters of public employment.
Leaving aside articles 17 to 19 as irrelevant
for present purposes, we proceed to articles 20, 21 and 22, which deal with
prosecutions and convictions for offences and cases of preventive detention and
prescribe, in rough and general outline, certain matters of procedure. Article
21 is, so to say, the key of this group or bunch and it is in these terms :"No
person shall be deprived of his life or personal liberty except according to
procedure established by law".
There can be no doubt that as regards the
cases to be sent before the Special Court or Courts, the Act 348 under scrutiny
has deviated in many matters of importance from the procedure prescribed by the
Criminal Procedure Code for the trial of offences and that this departure has
been definitely adverse to the accused. Preliminary inquiry before committal to
the sessions, trial by jury or with the aid of assessors, the right of a de
novo trial on transfer of a case from one Court to another, have been taken
away from the accused who are to be tried by a Special Court;
even graver is section 13, which provides
that a person may be convicted of an offence disclosed by the evidence as
having been committed by him, even though he was not charged with it and it
happens to be a more serious offence. This power of the Special Court is much
wider than the powers of ordinary courts. The points of prejudice against the
accused which appear in the challenged Act have been pointed out in detail in
the judgment of Trevor Harries C.J. They cannot all be brushed aside as
variations of minor and unsubstantial importance.
The argument that changes in procedural law
are not material and cannot be said to deny equality before the law or the
equal protection of the laws so long as the substantive law remains unchanged
or that only the fundamental rights referred to in articles 20 to 22 should be
safeguarded is, on the face of it, unsound. The right to equality postulated by
article 14 is as much a fundamental right as any other fundamental right dealt
with in Part III of the Constitution. Procedural law may and does confer very
valuable rights on a person, and their protection must be as much the object of
a court's solicitude as those conferred under substantive law.
The learned Attorney-General contended that
if the object of the legislation was a laudable one and had a public purpose in
view, as in this case, which provided for the speedier trial of certain
offences, the fact that discrimination resulted as a bye-product would not
offend the provisions of article 14. His point was that if the inequality of
treatment was not specifically intended to prejudice any particular person or
group 349 persons but was in the general interests of administration, it could
not be urged that there is a denial of equality before the law. To accept this
position would be to neutralize, if not to abrogate altogether, article 14.
Almost every piece of legislation has got a
public purpose in view and is generally intended, or said to be intended, to
promote the general progress of the country and the better administration of
Government.' The intention behind the legislation may be unexceptionable and
the object sought to be achieved may be praiseworthy but the question which
falls to be considered under article 14 is whether the legislation is
discriminatory in its nature, and this has to be determined not so much by its
purpose or objects but by its effects. There is scarcely any authority for the
position taken up by the Attorney-General.
It is well settled that equality before the
law or the equal protection of laws does not mean identity or abstract symmetry
of treatment. Distinctions have to be made for different classes and groups of
persons and a rational or reasonable classification is permitted, as otherwise
it would be almost impossible to carry on the work of Government of any State
or country. To use the felicitous language of Mr. Justice Holmes in Bain Peanut
Co. v. Pinson(1) "We must remember that the machinery of government could
not work if it were not allowed a little play in its joints." The law on
the subject has been well stated in a passage from Willis on Constitutional Law
(1936 Edition, at page 579) and an extract from the pronouncement this Court in
what is known as the Prohibition Case, The State of. Bombay and Another v.F.N.
Balsara(2), where my learned brother Fazl Ali J. has distilled in the form of
seven principles most of the useful observations of this Court in the Sholapur
Mills case, ChiranLal Chowdhury v. The Union of India and Others(3) Willis says
:-"The guaranty of the equal protection of the laws means the protection
of equal laws. It forbids (1) 282 U.S. 499 at p. 501. (3) [1950] S.C.R. 869.
(2) [1951] S.C.R. 682.
350 class legislation, but does not forbid
classification which rests upon reasonable grounds of distinction. It does not
prohibit legislation, which is limited either in the objects to which it is
directed or by the territory within which it is to operate. "It merely
requires that all persons subject to such legislation shall be treated alike
under like circumstances and conditions both in the privileges conferred and in
the liabilities imposed." "The inhibition of the amendment was
designed to prevent any person or class of persons from being singled out as a
special subject for discriminating and hostile legislation." It does not
take from the states the power to classify either in the adoption of police
laws, or tax laws, or eminent domain laws, but permits to them the exercise of
a wide scope of discretion, and nullifies what they do only when it is without any
reasonable basis. Mathematical nicety and perfect equality are not required.
Similarity, not identity of treatment, is enough. If any state of facts can
reasonably be conceived to sustain a classification, the existence of that
state of facts must be assumed. One who assails a classification must carry the
burden of showing that it does not rest upon any reasonable basis." The
seven principles formulated by Fazl Ali J. are as follows :-"1. The
presumption is always in favour of the constitutionality of an enactment, since
it must be assumed that the legislature understands and correctly appreciates
the needs of its own people, that its laws are directed to problems made
manifest by experience and its discriminations are based on adequate grounds.
2. The presumption may be rebutted in certain
cases by showing that on the face of the statute, there is no classification at
all and no difference peculiar to any individual or class and not applicable to
any other individual or class, and yet the law hits only a particular
individual or class.
3. The principle of equality does not mean
that every law must have universal application for all 351 persons who are not
by nature, attainment or circumstances in the same position, and the varying
needs of different classes of persons often require separate treatment.
4. The principle does not take away from the
State the power of classifying persons for legitimate purposes.
5. Every classification is in some degree
likely to produce some inequality, and mere production of inequality is not
enough.
6. If a law deals equally with members of a
well defined class, it is not obnoxious and it is not open to the charge of
denial of equal protection on the ground that it has no application to other
persons.
7. While reasonable classification is
permissible, such classification must be based upon some real and substantial
distinction bearing a reasonable and just relation to the object sought to be
attained, and the classification cannot be made arbitrarily and without any
substantial basis." After these citations, it is really unnecessary to
refer to or discuss in detail most of the American decisions cited at the Bar.
Their number is legion and it is possible to alight on decisions in support of
propositions, apparently even conflicting, if we divorce them from the context
of the particular facts and circumstances and ignore the setting or the
background in which they were delivered. With great respect, I fail to see why
we should allow ourselves to be unduly weighted-down or over-encumbered in this
manner.
To say this is not to shut out illumining
light from any quarter; it is merely to utter a note of caution that we need
not stray far into distant fields and try to clutch at something which may not
after all be very helpful. What we have to find out is whether the statute now
m question before us offends to any extent the equal protection of the laws
guaranteed by our written Constitution. Whether the classification, ii any, is
reasonable or arbitrary, or is substantial or unreal, has to be adjudicated
upon by 352 the courts and the decision must turn more on one's commonsense
than on over-refined legal distinctions or subtleties.
The Attorney-General argued that if the
principle of classification has to be applied as a necessary test, there is a
classification in the impugned Act as it says that it is intended to provide
for the speedier trial of certain offences; and in the opinion of the
legislature certain offences may require more expeditious trial than other offences
and this was a good enough classification. But as speedy administration of
justice, especially in the field of the law of crimes, is a necessary
characteristic of every civilised Government, there is not much point in
stating that there is a class of offences that require such speedy trial. Of
course, there may be certain offences whose trial requires priority over the
rest and quick progress, owing to their frequent occurrence, grave danger to
public peace or tranquillity, and any other special features that may be
prevalent at a particular time in a specified area. And when it is intended to
provide that they should be tried more speedily than other offences, requiring
in certain respects a departure from the procedure prescribed for the general
class of offences, it is but reasonable to expect the legislature to indicate
the basis for any such classification.
If the Act does not state what exactly are
the offences which in its opinion need a speedier trial and why it is so
considered, a mere statement in general words of the object sought to be
achieved, as we find in this case, is of no avail because the classification,
if any, is illusive or evasive. The policy or idea behind the classification
should at least be adumbrated, if not stated, so that the court which has to
decide on the constitutionality might be seized of something on which it could
base its view about the propriety of the enactment from the standpoint of discrimination
or equal protection. Any arbitrary division or ridge will render the equal
protection clause moribund or lifeless.
Apart from the absence of any reasonable or
rational classification we have in this case the additional feature 353 of a
carte blanche being given to the State Government to send any offences or cases
for trial by a Special Court.
Section 5, sub-clause (1), of the impugned
Act is in these terms :-" 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." If the scope or the'
meaning of the Act is doubtful, the preamble can be referred to for
ascertaining its extent and purpose. But where the operative parts of the Act
are clear and there is no ambiguity, the preamble cannot be allowed to control
the express provisions. On the terms of section 5, it would be perfectly open
to the State Government to send before the Special Court any case, whatever its
nature, whether it has arisen out of a particular incident or relates to a
crime of normal occurrence, whether the offence involved is grave or simple,
whether it needs more expeditious trial or not. Thus, we have before us an
enactment which does not make any reasonable classification and which confers
on the executive an uncontrolled and unguided power of discrimination.
The question whether there is any proper
classification where no standard is set up by the enactment to control
executive action has arisen for consideration before the American courts and
has been differently answered. Willis says at page 586 :"Is it proper
classification to put in one class those who get the consent of a board or of
an official and into another class those who do not, where no standard is set
up to control the action of the board or official ? Some cases answer. this
question in the affirmative, while other cases answer it in the negative.
Perhaps the best view on this subject is that due process and equality are not
violated by the mere conference of unguided power, but only by its arbitrary
exercise by those upon whom it is conferred." The case cited in support of
this view, Plymouth Coal Co. v. Pennsylvania(1), is really on authority for (1)
232 U.S. 532.
46 354 any such position. In that case, the
statute provided that it was "obligatory on the owners of adjoining coal
properties to leave, or cause to be left, a pillar of coal in each seam or vein
of coal worked by them, along the line of adjoining property, of such width
that, taken in connection with the pillar to be left by the adjoining property
owner, will be a sufficient barrier for the safety of the employees of either
mine in case the other should be abandoned and allowed to fill with water; such
width of pillar to be determined by the engineers of the adjoining property
owners together with the inspector of the district in which the mine is
situated." When the Inspector of Mines wrote to the plaintiff company,
Plymouth Coal Co., asking their engineer to meet him so that they can meet the
engineer of the neighbouring coal company to decide about the thickness of the
barrier pillar to be left unmined between the two adjoining coal properties,
the plaintiff company declined to co-operate. Thereupon the Inspector filed a
bill of complaint against the plaintiff company for a preliminary and a perpetual
injunction from working its mines--without leaving a barrier pillar of the
dimensions he thought necessary. The plaintiff company urged that the Act upon
which the bill was based "was confiscatory, unconstitutional, and
void". The bill of complaint succeeded but it was provided in the final
order that it was without prejudice to the Plymouth Coal Co.'s right to get
dissolution or modification of the injunction. The matter came up on appeal to
the Supreme Court. The legislative Act was challenged by the Plymouth Coal Co.
on the grounds that the method of fixing the width of the barrier pillar
indicated in the Act was crude, uncertain and unjust, that there was
uncertainty and want of uniformity in the membership of the statutory tribunal,
that there was no provision of notice to the parties interested, that the
procedure to be followed was not prescribed, and that there was noright of
appeal. All these objections were negatived. The Court observed on the main
contention that "it was competent for the legislature to lay 355 down a
general rule, and then establish an administrative tribunal with authority to
fix the precise width or thickness of pillar that will suit the necessities of
the particular situation, and constitute a compliance with the general
rule." This case is no authority for the position that the mere conferment
of naked or uncontrolled power is no violation of the due process or c equality
clauses. it is true that the power to deal with a particular situation within
the general rule prescribed by the enactment may be conferred on an
administrative body or even on a single individual but this entrustment or
delegation is subject to the condition that the statute must itself be a valid
one, as not being opposed to the 5th or 14th Amendment of the American
Constitution, corresponding to articles 14 and 22 of our Constitution.
Discrimination may not appear in the statute
itself but may be evident in the administration of the law. If an uncontrolled
or unguided power is conferred without any reasonable and proper standards or
limits being laid down in the enactment, the statute itself may be challenged
and not merely the particular administrative act. Citing the case of Sunday
Lake Iron Co. v. Wakefield, Rogers v. Alabama and Concordia Fire Ins. Co. v.
Illinois, Prof. Weaver says at page 404 of his compendious book on
Constitutional Law under the heading of ' DISCRIMINATION IN THE ADMiNiSTRATION
OF THE LAWS':-"Discrimination may exist in the administration of the laws
and it is the purpose of the equal protection clause to secure all the
inhabitants of the state from intentional and arbitrary discrimination arising
in their improper or prejudiced execution, as well as by the express terms of
the law itself. The validity or invalidity of a statute often depends on how it
is construed and applied. It may be valid when given a particular application
and invalid when given another." A difficulty was suggested and discussed
in the course of the arguments in case article 14 was to receive a very wide
interpretation. Under article 12 of the 356 Constitution, even a local
authority comes within the definition of "the State" and section 13
provides in sub-clause (3) that "'law' includes any ordinance, order,
bye-law, rule, regulation, notification............ " Therefore any
ordinance or notification issued by a local authority acting under the powers
conferred on it by a statute might be challenged as discriminatory and if this
is permitted, the work of administration might be paralysed altogether. This,
no doubt, is a possible result but the difficulty envisaged is by no means
insurmountable. If the statute or the enactment makes a reasonable or rational
classification and if the power conferred by the statute on a local authority
is exercised to the prejudice of a person visa vis other persons similarly
situated, two answers would be possible. One is that there was no
discrimination at all in the exercise of the power. The second is that the
power was exercised in good faith within the limitations imposed by the Act and
for the achievement of the objects the enactment had in view and that the
person who alleges that he has been discriminated against will have to
establish mala fides in the sense that the step was taken intentionally for the
purpose of injuring him; in other words, it was a hostile act directed against
him. If the legislation itself is open to attack on the ground of
discrimination, the question of any act done by a local or other authority
under the power or powers vested in it will not arise. If the Act itself is
invalid on the ground that it is ultra vires, the notification, ordinance, or
rule falls to the ground with it, but if the Act remains, the validity of the
notification or order etc., when impugned, may have to be considered
independently.
There may be cases where individual acts of
state officials are questioned and not the legislation itself. As regards such
cases, Willoughby states at page 1932 of his Volume III on the Constitution of
the United States :-"It is, however, to be observed in this connection,
that the prohibitions apply to the acts of State officials even when they are
done in pursuance of some 357 State legislative direction, for, while no
constitutional objection may be made to any law of the State, it has been held
that its officials may exercise their public authority in such a discriminatory
or arbitrary manner as to bring them within the scope of the prohibitions of
the Fourteenth Amendment. This, it will be remembered, was one of the grounds
upon which, in Yick Wo v. Hopkins (118 U.S. 356) it was held that due process
of law had been denied. In Tarrance v. Florida (188 U.S. 519) the
administration of a State law and not the law itself was challenged and the
court said: 'Such an actual discrimination is as potential in creating a denial
of equality of rights as a discrimination made by law.'" There is only one
other point that I would like to deal with. Trevor Harries C.J. has taken the
view that section 5 of the Act would have been unexceptionable had it only
provided for the trial by a Special Court of certain offences or classes of
offences or certain classes of cases and that in his opinion the discrimination
arose by the provision for the trial of cases, as distinguished from classes of
cases. It is rather difficult, however, to appreciate this distinction. If the
statute makes no classification at all, or if the classification purported to
be made is not reasonable or rational but is arbitrary and illusory, as in this
case, Section 5 would be void as contravening article. 14. It is no doubt true
that totally different considerations might arise if specified offences or
groups of offences in a particular area or arising out of a particular event or
incident were to be tried by a Special Court but this is not the case here. I
am unable to see how if the Act merely provided that certain "classes of
cases" as distinguished from "cases" should be tried by a
Special Court, the attack against discrimination could be avoided, as even then
the test of rationality or reasonableness would still remain to be satisfied.
If the Act does not enunciate any principle on the basis of which the State
Government could select offences or classes of offences or cases or classes of
cases and the State Government is left free to make 358 any arbitrary selection
according to their will and pleasure then the Act is void. On this point, I
would invite special attention to the view taken by Mr. Justice Das Gupta in
the following passage of his Judgment:-"The Act lays down no principle on
which selection of "classes of offences" or "classes of
cases" should be made by the State Government. The State Government may
even arbitrarily determine the classes of cases to be tried by the Special
Court and if it does so its action will be well within its powers conferred by
the Act. The Act indicates no basis whatsoever on which such classification
should be made. I am of opinion that the whole Act is ultra vires the
Constitution and deletion of the word "cases" from section 5 would
not save the rest of the Act from being invalid." Bose J.--We are
concerned here with article 14 of the Constitution and in particular with the
words "equality before the law" and "equal protection of the law."
Now I yield to none in my insistence that plain unambiguous words in a statute,
or in the Constitution, must having regard to the context, be interpreted
according to their ordinary meaning and be given full effect. But that
predicates a position where the words are plain and unambiguous. I am clear
that that is not the case here.
Take first the words "equality before
the law". It is to be observed that equality in the abstract is not guaranteed
but only equality before the law. That at once leads to the question, what is
the law, and whether "the law" does not draw distinctions between man
and man and make for inequalities in the sense of differentiation? One has only
to look to the differing personal laws which are applied daily to see that it
does; to trusts and foundations from which only one particular race or
community may benefit, to places of worship from which all but members of
particular faith are excluded, to cemeteries and towers of silence which none
but the faithful may use, to the 359 laws of property, marriage and divorce.
All that is part and parcel of the law of the land and equality before it in
any literal sense is impossible unless these laws are swept away, but that is
not what the Constitution says, for these very laws are preserved and along
with equality before the law is also guaranteed the right to the practice of
one's faith.
Then, again, what does "equality"
mean? All men are not alike. Some are rich and some are poor. Some by the mere
accident of birth inherit riches, others are born to poverty. There are
differences in social standing and economic status. High sounding phrases
cannot alter such fundamental facts. It is therefore impossible to apply rules
of abstract equality to conditions which predicate in equality from the start;
and yet the words have meaning though in my judgment their true content is not
to be gathered by simply taking the words in one hand and a dictionary in the
other, for the provisions of the Constitution are not mathematical formula
which have their essence in mere form. They constitute a frame-work of
government written for men of fundamentally differing opinions and written as
much for the future as the present. They are not just pages from a text book
but form the means of ordering the life of a progressive people.
There is consequently grave danger in
endeavouring to confine them in watertight compartments made up of readymade
generalisations like classification. I have no doubt those tests serve as a
rough and ready guide in some cases but they are not the only tests, nor are
they the true tests on a final analysis.
What, after all, is classification? It is
merely a systematic arrangement of things into groups or classes, usually in
accordance with some definite scheme. But the scheme can be anything and the
laws which are laid down to govern the grouping must necessarily be arbitrarily
selected; also granted the right to select, the classification can be as
broadbased as one pleases, or it can be broken down and down until finally just
one solitary unit is divided off from the rest. Even those 360 who propound
this theory are driven to making qualifications. Thus, it is not enough merely
to classify but the classification must not be 'discriminatory', it must not
amount to 'hostile action', there must be 'reasonable grounds for distinction',
it must be 'rational' and there must be no 'substantial discrimination'. But
what then becomes of the classification? and who are to be the judges of the
reasonableness and the substantiality or otherwise of the discrimination? And,
much more important, whose standards of reasonableness are to be applied? --the
judges'?--the government's?--or that of the mythical ordinary reasonable man of
law which is no single man but a composite of many men whose reasonableness can
be measured and gauged even though he can neither be seen nor heard nor felt?
With the utmost respect I cannot see how these vague generalisations serve to
clarify the position. To my mind they do not carry us one whit beyond the
original words and are no more satisfactory than saying that all men are equal
before the law and that all shall be equally treated and be given equal
protection. The problem is not solved by substituting one generalisation for
another.
To say that the law shall not be discriminatory
carries us nowhere for unless the law is discriminatory the question cannot
arise. The whole problem is to pick out from among the laws which make for
differentiation the ones which do not offend article 14 and separate them from
those which do.
It is true the word can also be used in the
sense of showing favouritism, but in so far as it means that, it suffers from
the same defect as the 'hostile action' test. We are then compelled to import
into the question the element of motive and delve into the minds of those who
make the differentiation or pass the discriminatory law and thus at once substitute
a subjective test for an objective analysis.
I would always be slow to impute want of good
faith in these cases. I have no doubt that the motive, except in rare cases, is
beyond reproach and were it not for the fact that the Constitution demands 361
equality of treatment these laws would, in my opinion, be valid. But that
apart. What material have we for delving into the mind of a legislature? It is
useless to say that a man shall be judged by his acts, for acts of this kind
can spring from good motives as well as bad, and in the absence of other
material the presumption must be overwhelmingly in favour of the former.
I can conceive of cases where there is the
utmost good faith and where the classification is scientific and rational and
yet which would offend this law. Let us take an imaginary case in which a State
legislature considers that all accused persons whose skull measurements are
below a certain standard, or who cannot pass a given series of intelligence
tests, shall be tried summarily whatever the offence on the ground that the
less complicated the trial the fairer it is to their sub-standard of intelligence.
Here is classification. It is scientific and systematic. The intention and
motive are good. There is no question of favouritism, and yet I can hardly
believe that such a law would be allowed to stand. But what would be the true
basis of the decision? Surely simply this that the judges would not consider
that fair and proper. However much the real ground of decision may be hidden
behind a screen of words like 'reasonable', 'substantial', 'rational' and
'arbitrary' the fact would remain that judges are substituting their own
judgment of what is right and proper and reasonable and just for that of the
legislature; and up to a point that, I think, is inevitable when a judge is
called upon to crystallise a vague generality like article 14 into a concrete
concept. Even in England, where Parliament is supreme, that is inevitable, for,
as Dicey tells us in his Law of the Constitution, "Parliament is the
supreme legislator, but from the moment Parliament has uttered its will as
lawgiver, that will becomes subject to the interpretation put upon it by the
judges of the land, and the judges, who are influenced by the feelings of
magistrates no 47 362 less than by the general spirit of the common law, are
disposed to construe statutory exceptions to common law principles in a mode
which would not commend itself either to a body of officials, or to the Houses
of Parliament, if the Houses were called upon to interpret their own enactments."
This, however, does not mean that judges are to determine what is for the good
of the people and substitute their individual and personal opinions for that of
the government of the day, or that they may usurp the functions of the
legislature. That is not their province and though there must always be a a
narrow margin within which judges, who are human, will always be influenced by
subjective factors, their training and their tradition makes the main body of
their decisions speak with the same voice and reach impersonal results whatever
their personal predilections or their individual backgrounds. It is the function
of the legislature alone, headed by the government of the day, to determine
what is, and what is not, good and proper for the people of the land; and they
must be given the widest latitude to exercise their functions within the ambit
of their powers, else all progress is barred. But, because of the Constitution,
there are limits beyond which they cannot go and even though it fails to the
lot of judges to determine where those limits lie, the basis of their decision
cannot be whether the Court thinks the law is for the benefit of the people or
not. Cases of this type must be decided solely on the basis whether the
Constitution forbids it.
I realise that this is a function which is
incapable of exact definition but I do not view that with dismay. The common
law of England grew up in that way. It was gradually added to as each concrete
case arose and a decision was given ad hoc on the facts of that particular
case. It is true the judges who thus contributed to its growth were not
importing personal predilections into the result and merely stated what was the
law applicable to that particular ease.
But though they did not purport to make the
law and merely applied 363 what according to them, had always been the law
handed down by custom and tradition, they nevertheless had to draw for their
material on a nebulous mass of undefined rules which, though they existed in
fact and left a vague awareness in man's minds, nevertheless were neither
clearly definable, nor even necessarily identifiable, until crystallised into
concrete existence by a judicial decision; nor indeed is it necessary to travel
as far afield. Much of the existing Hindu law has grown up in that way from
instance to instance, the threads being gathered now from the rishis, now from
custom, now from tradition. In the same way, the laws of liberty, of freedom
and of protection under the Constitution will also slowly assume recognisable
shape as decision is added to decision. They cannot, in my judgment, be
enunciated in static form by hidebound rules and arbitrarily applied standards
or tests.
I find it impossible to read these portions
of the Constitution without regard to the background out of which they arose. I
cannot blot out their history and omit from consideration the brooding spirit of
the times. They are not just dull, lifeless words static and hide-boundas in
some mummified manuscript, but, living flames intended to give life to a great
nation and order its being, tongues of dynamic fire, potent to mould the future
as well as guide t, he present.
The Constitution must, in my judgment, be
left elastic enough to meet from time to time the altering conditions of a
changing world with its shifting emphasis and differing needs. I feel therefore
that in each case judges must look straight into the heart of things and regard
the facts of each case concretely much as a jury would do; and yet, not quite
as a jury, for we are considering here a matter of law and not just one of
fact: Do these "laws" which have been called in question offend a
still greater law before which even they must bow? Doing that, what is the
history of these provisions ? They arose out of the fight for freedom in this
land and are but the endeavour to compress into a few 364 pregnant phrases some
of the main attributes of a sovereign democratic republic as seen through
Indian eyes. There was present to the collective mind of the Constituent
Assembly, reflecting the mood of the peoples of India, the memory of grim
trials by hastily constituted tribunals with novel forms of procedure set forth
in Ordinances promulgated in haste because of what was then felt to be the
urgent necessities of the moment. Without casting the slightest reflection on
the Judges and the Courts so constituted, the fact remains that when these tribunals
were declared invalid and the same persons were retried in the ordinary Courts,
many were acquitted, many who had been sentenced to death were absolved. That
was not the fault of the judges but of the imperfect tools with which they were
compelled to work. The whole proceedings were repugnant to the peoples of this
land and, to my mind, article 14 is but a reflex of this mood.
What I am concerned to see is not whether
there is absolute equality in any academical sense of the term but whether the
collective conscience of a sovereign democratic republic can regard the
impugned law, contrasted with the ordinary law of the land, as the sort of
substantially equal treatment which men of resolute minds and unbiassed views
can regard as right and proper in a democracy of the kind we have proclaimed
ourselves to be. Such views must take into consideration the practical
necessities of government, the right to alter the laws and many other facts,
but in the forefront must remain the freedom of the individual from unjust and
unequal treatment, unequal in the broad sense in which a democracy would view
it. In my opinion, 'law' as used in article 14 does not mean the "legal
precepts which are actually recognised and applied in the tribunals of a given
time and place" but "the more general body of doctrine and tradition
from which those precepts are chiefly drawn, and by which we criticise,
them." (Dean Pound in 34 Harvard Law Review 449 at 452). I grant that this
means that the same things will be viewed differently at different times.
What is 365 considered right and proper in a
given set of circumstances will be considered improper in another age and vice
versa.
But that will not be because the law has
changed but because the times have altered and it is no longer necessary for
government to wield the powers which were essential in an earlier and more
troubled world. That is what I mean by flexibility of interpretation.
This is no new or startling doctrine. It is
just what happened in the cases of blasphemy and sedition in England.
Lord Sumner has explained this in Bowman's
case(1) and the Federal Court in Niharendu Dutt Majumdar's case(2) and so did
Puranik J. and I in the Nagpur High Court in Bhagwati Charan Shukla's case(3).
Coming now to the concrete cases with which
we have to deal here. I am far from suggesting that the departures made from
the procedure prescribed by the Criminal Procedure Code are bad or undesirable
in themselves. Some may be good in the sense that they will better promote the
ends of justice and would thus form welcome additions to the law of the land.
But I am not here to consider that. That is no part of a Judge's province. What
I have to determine is whether the differentiation made offends what I may call
the social conscience of a sovereign democratic republic. That is not a
question which can be answered in the abstract.
but, viewed in the background of our history.
I am of opinion that it does. It is not that these laws are necessarily bad in
themselves. It is the differentiation which matters;
the singling out of cases or groups of cases,
or even of offences or classes of offences, of a kind fraught with the most
serious consequences to the individuals concerned, for special, and what some
would regard as peculiar, treatment.
It may be that justice would be fully done by
following the new procedure. It may even be that it would be more truly done.
But it would not be satisfactorily done, satisfactory that is to say, not from
(1) [1917] A.C. 406 at 454, 466 and 467.
(2) [1942] F.C.R. 32 at 42. (3) I.L.R. 1946
Nag. 865 at 878 and 879.
366 the point of view of the governments who
prosecute, but satisfactory in the view of the ordinary reasonable man, the man
in the street. It is not enough that justice should be done. Justice must also
be seen to be done and a sense of satisfaction and confidence in it engendered.
That cannot be when Ramchandra is tried by
one procedure and Sakharam, similarly placed, facing equally serious charges,
also answering for his life and liberty, 'by another which differs radically
from the first.
The law of the Constitution is not only for
those who govern or for the theorist, but also for the bulk of the people, for
the common man for whose benefit and pride and safeguard the Constitution has
also been written.
Unless and until these fundamental provisions
are altered by the constituent processes of Parliament they must be interpreted
in a sense which the common man, not versed in the niceties of grammar and
dialectical logic, can understand and appreciate so that he may have faith and
confidence and unshaken trust in that which has been enacted for his benefit
and protection.
Tested in the light of these considerations,
I am of opinion that the whole of the West Bengal Special Courts Act of 1950
offends the provisions of article 14 and is therefore bad. When the froth and
the foam of discussion is cleared away and learned dialectics placed on one
side, we reach at last the human element which to my mind is the most important
of all. We find men accused of heinous crimes called upon to answer for their
lives and liberties. We find them picked out from their fellows, and however
much the new procedure may give them a few crumbs of advantage, in the bulk
they are deprived of substantial and valuable privileges of defence which
others, similarly charged, are able to claim. It matters not to me, nor indeed
to them and their families and their friends, whether this be done in good
faith, whether it be done for the convenience of government, whether the
process can be scientifically classified and labelled, or whether it is an
experiment in speedier trials made for the good 367 of society at large. It
matters not how lofty and laudable the motives are. The question with which I
charge myself is, can fair-minded, reasonable unbiassed and resolute men, who
are not swayed by emotion or prejudice, regard this with equanimity and call it
reasonable, just and fair, regard it 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 today ? I have but one answer to that.
On that short and simple ground I would decide this case and hold the Act bad.
Appeals dismissed.
Agent for the appellant in Case No. 297: P.K.
Bose.
Agent for the respondent in Case No. 297:
Sukumar Ghose.
Agent for Habib Mohammad (Intervener):
Rajinder Narain.
Agent for the State of Hyderabad and for the
State of Mysore (Interveners):P. A. Mehta.
Agent for the appellant in Case No. 298: P.K.
Bose Agent for the respondent in Case No. 298: Sukumar Ghose.
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