Smt. Deokali
Vs. Nand Kishore & Ors [1996] INSC 612 (24 April 1996)
Sen,
S.C. (J) Sen, S.C. (J) Singh N.P. (J) Sen, J.
CITATION:
JT 1996 (5) 243 1996 SCALE (3)769
ACT:
HEAD NOTE:
The
validity of a will executed by one Shivnarayan is under challenge in this case.
Shivnarayan's wife had predeceased him. He had two daughters Ramkali and Deokali.
Suresh
Kumar & Ors Vs. Union of India & Ors [1996] INSC 613
(25 April 1996)
K. Ramaswamy,
S. Saghir Ahmad, G.B. Pattanaik K. Ramaswamy, J.
ACT:
HEAD NOTE:
WITH TRANSFER
CASE [C] NO.177 OF 1988 T.C. [C] Nos. 178-189, CMP No. 10091/89, 14930/89, IA
Nos. 5 & 6/90 in TC No. S.1-7/89, CPM No. 25857/88, CPM No. 17552/89, TC
Nos. 25-26/89, CPM Nos. 5913-14/89, 8736/89, TC No. 27/89, WP No. 1235/89,
1277/90, 1278/90, IA Nos. 1 & 5/89, in WP No. 922/90, 1164/90, IA No. 6/92,
WP No. 921/92, IA Nos. 5-6/93 in T.P. No. 286/94, 294/94 W.P. Nos. 778/95 and
826/95.
In
this bunch of cases the petitioners are manufacturers of cement, sugar and
other commodities and Plastic bags (for short, 'HDPE'). The HDPE industries are
a small-scale sector that secured loans from the banks. They allege that due to
operation of the Jute packaging Material (compulsory Use in Packing
Commodities) Act, 1987 (for short, the 'Act') their industries are running into
losses and many of them are compelled to close their business. The capital obtained
from the nationalised bends has become bad debt. Repeal of the Act of gradually
phasing out compulsory packing of the commodities with gunny bags would relieve
hardships to them. The would relieve hardships to them. The constitutionality
of the Act and the Jute Packaging Material (compulsory Use in Packing
commodities) Rules and standing order No. 539(E) dated May 29, 1987 are impugned as ultra vires and
mandatory direction to the respondents to forbear enforcement thereof in
packing their finished products with jute bags etc., is sought for.
We
have had the advantage of fearing galaxy of learned senior counsel with their
forensic legal skills to assail the constitutionality of Section 3 to 5 of the
Act and the orders issued by the central Government on the anvil of Articles
14, 19(1) (9) and 301 of the constitution and their repudiation with equal
vehemence by counsel appearing for respondent. The petitioners' fundamental
premise is that their right to carry on trade and business guaranteed by
Article 19(1) (9) and free flow of trade and commerce throughout the territory
of India under Article 301 has been impeded by operation of the Act, the Rules
and the orders issued by the central Government the restriction by way of
compulsory packing of their finished products with gunny bags is an
unreasonable restriction; further, it is not in the interests of general
consumer public. The word 'general' qualifies the whole public; in other words,
the restriction must be in the interest of the entire general public, namely,
the consumers of diverse goods. It must not merely be small section of the
public, namely, the producer of jute. The restriction also must be or the
advancement of , or to benefit of the society as a whole. Packing with jute
bags made compulsion irrespective of costs, suitability, availability,
consumers, is arbitrary. Executive priority, or preference to Jute sector at
the cost, of and in total disregard of the interests of other sectors like
cement, sugar or alternative industry or alternative industry or general public
would be unreasonable, arbitrary and total prohibition. Therefore, the Act is
illegal and void. No law should impose restriction for the benefit of a small
section of the public at the detriment of an over-whelmingly large majority of
the people. The Act intends to benefit only a small section of the society as
is disclosed bu the statement of objects and Reasons, namely, vague and
indeterminate 4 million rural agricultural families and 2.5 lacs industrial
workers in the jute industry in comparison with general consumers' community
for whose benefit the Essential commodities Act, 1955 and the orders issued thereunder
was made regulating equitable distribution of the essential commodities at
reasonable price.
The
compulsion to pack cement, sugar and other essential commodities, with jute
bags, not only, as stated earlier, hampers free flow of trade and commerce but
also escalates the cost of the essential commodities. Jute bags are unsuitable
to particular commodity. Emphasis in this behalf is laid on cement. Packing
cement with jute bags causes loss in weight during the course of handling in
transit, recurring wastage of raw material like minerals and electricity, an d
loss to the consumers was repeatedly reiterated bu the counsel. The wastage
worked out, for the year 1987-88, is to the tune of approximately 3 million tonnes
of lime stone, a non-renewable natural resource, 240 million units of
electrical energy land 0.5 million tonnes of coal which is another
non-renewable natural resource of the country. The statistical data is only
illustrative. On the other hand, packing cement with HPDE prevents, apart from
cost factors, loss of the essential commodities, pollution and health hazards
to the workmen. The Act casts no corresponding obligation on jute manufacturers
to supply gunny bags as per growing demand nor are they obligated to pass on
the benefits to the growers of raw jute. The report of the High power committee
of 1992 would show that the growers are victims of exploitation at the hands of
the manufacturers to supply gunny bags as per growing demand nor are they
obligated to pass on the benefits to the growers of raw jute. The report of the
High power committee of 1992 would show that the growers are victims of
exploitation at the hands of the manufactures. They are not receiving any
benefit from the Act.
The
Act does not provide any guidelines to protect the interests of the growers. On
the other hand, compulsory packing of the commodities with jute bags is
intended to benefit only jute will owners who have already taken large sums of
money by way of subsidy from the central Government and modernised their mills.
Yet jute bags are not available to the required demands, which would establish
that they had diversified the jute products. No guidelines are provided to
strike a balance between the interests of the Jute Sector and of the general
consumers and producers of other commodities.
The
fact that the Government of India had issued orders permitting the petitioners
to purchase second-hand gunny bags for packing the essential commodities is an
admission that the required quantity of qualitative jute bags are not being
produced. The study reports establish gradual decrease in cultivation area of
jute. The Jute industry has diversified the manufacture of jute products in
India which are exported abroad. The jute industry is importing raw jute from
Bangladesh. The Act does not expressly intend to operate as permanent measure,
and being a temporary enactment to tide over the business crisis in jute
industry, the Act is required to gradually phase out compulsion packing of the
commodities with jute bags proportionately.
The
committee appointed by the central Government had recommended to the central
Government to phase out compulsory packing of the essential commodities with
jute bags by the end of Eighth Five Years Plan, namely, 1995-96.
Instead
of repealing the Act, fresh orders, the central Government have imposed hundred
per cent use of gunny bags in sugar industry etc. No heed was paid by the
central Government to several representations made by the manufacturers,
individually and collectively, through their associations. The High power
committee's report in para 6.3 has been repeatedly referred to and relied on by
Sri G.L. Sanghi. It reads thus:
"The
Jute industry cannot be artificially propped up by this piece of legislation
for an indefinite period, in a liberalised economy when free market forces have
come to operate. In any case, this legislative measure was only intended to
provide support to the industry as an interim measure for a brief period during
which the industry was expected to restructure and readjusts its capacity
linked to production value added diversified products for the domestic and
international market.
The
committee is award of the fact that the constitutional validity of the Jute
packaging Act is pending before the supreme Court of a decision. Hence, without
any prejudice to the out come of the court proceedings, the committee recommend
that the provisions in there existing orders should be diluted gradually in two
or three stages, and by 1994-95 it should be rescinded altogether." In
addition, they relied on paragraphs 6.1; 2.9; 2.10; 9.1 and 9.6.
The
standing Advisory committee constituted under section 4 of the Act is not a
representative committee nor the manufacturers find their representatives in
the committee. The HDPE is much cheaper than the gunny bag. The incidence of
cost of the gunny bag being component of the sale price of the essential
commodity, needless burden would be passed on to the consumers. In this regard,
the sugar industry pointed out that there is increase in the sugar factories
and production of sugar industry pointed out that there is increase in the
sugar factories and production of sugar over the years from 216 to 435 from
37.40 lac tonnes to 146.35 lac tonnes respectively. On the other hand, there is
gradual decline in jute cultivated area from 11.03 hectors to 9.10 hector.
Consequently, import of jute from Bangladesh has been increased from 3.10 to 54
tonnes. It is , contended that it is no longer feasible to obtain sufficient
quantity of 'A' class bags fit for packing sugar.
The
Act being a penal Act, the Rules made and the orders issued thereunder are,
therefore, arbitrary offending Article 14.
Interplay
of the operational efficacy of the Act, the Rules and orders, on fundamental
rights of the petitioners to carry on trade or business guaranteed by Articles
19(1),14 and 301 of the constitution would be better appreciated only if we
have a grasp of their backdrop. India lives in villages. agricultural economy
is the bed-rock for rural India. Property assures them social dignity and
economic equality. Agriculture is the main source for economic sustenance and
equality of status to the tillers of the soil who too have fundamental rights
to equality of status and of opportunity and right to livelihood.
Agricultural
operations are their prime source of livelihood and sustained of the business
and of urban population.
Professor
Harold Laski, an inconoclastic humanist, expressing his belief in Indian
Independence and its socialist destiny stated in his "Congress
socialist" of April 11, 1936, thus:
"Attainment
of natural self- government to mean no more than the exchange of the control by
British capitalism for that by Indian capitalism. Those who know the normal
life of the poor ...will realise enough that without economic security, liberty
is not worth living." The Avadi Resolution of congress envisaged to redeem
the plight of the tiller of soil granting permanent tenures and conferment
title to the lands held under feudalistic social order. Karachi resolution of
1931 assured that "Political freedom must include real economic freedom of
starving millions". The founding fathers of the constitution, therefore,
in the objective Resolution, speaking on behalf of, "we, the people of
India", pledged on their behalf to accord justice, social, economic and
political to all the citizens, equality of status and opportunity and dignity
of person with stated liberties.
a
constitution Bench of this court to which one of us, K. Ramaswamy, J., was a
member was to consider the inter-play of life, liberty and equality. The
evolution to the state from police state to a welfare state accepted democratic
society to safe-guard the life, liberty and equality of the citizens. The
exercise of right to liberty is subject to social control, lest it would become
anti-social or would undermine the security of the state. Indian democracy,
product of rule of law, aims not only to protect the fundamental rights of its
citizens but also to establish an egalitarian social order. Individual has to
live within the social confines suppressing his unsocial and unbridled growth
for reconciling individual liberty with social control. Liberty must be
controlled in the interests of the society. The societal interest must never br
overbearing to justify total deprivation of individual liberty. Liberty cannot
stand alone. It must be paired with a companion virtue; liberty and morality;
liberty law; liberty and justice; liberty and common good; liberty and
responsibility which are concomitants for orderly progress and social
stability. Man being a rational individual has to live in harmony with the
equal rights of others more differently for the attainment of antithetic
desires. Liberty would not, therefore, be always an absolute licence but must
arm itself within the confines of law. In that case, the question was:
whether
TADA Act is constitutionally valid? while declaring part of the Act as invalid,
the above statement of law came to be laid therein. In Kesawananda Bharati vs.
Union of India [(1973) Supp. SCR 1], the Full court had held that preamble of
the constitution is integral part of the constitution. In S.R. Bommai vs. Union
of India [(1994) 3 SCC 1], the preamble has been held to be the basic structure
of the constitution.
The
preamble of the constitution is the epitome of the basic structure guilt in the
constitution guaranteeing justice-social, economic and political- equality of
status and of opportunity with dignity of person and fraternity. To establish
and egalitarian social order, the trinity, the preamble, the fundamental Rights
in Part III and Directive principles of state policy (for short, `Directives')
in chapter IV of the constitution delineated the socioeconomic justice. The
word 'justice' envision in the preamble is used in broad spectrum to harmonise
individual rights with the general welfare of the society. The constitution is
the supreme law. The purpose of law is realisation of justice whose content and
scope vary depending upon the prevailing social environment. Every social and
economic change causes change in the law. In a democracy governed by rule of
law, it is not possible to change the legal basis of socio- economic life of
the community without bringing about corresponding change in the law, endeavor
needs to be made to harmonise the individual interest with the paramount
interest of the community keeping pace with the realities of ever changing
social and economic life of the community envisaged in the constitution.
Justice in the preamble implies equality consistent with the competing demands
between distributive justice with those of cumulative justice. Justice aims to
promote the general well-being of the community as well as individual's
excellence. The principal end of society is to protect the enjoyment of the
individuals subject to social order, well-being and morality. Establishment of
priorities of liberties is a political judgment.
Law is
the manifestation of principles of justice, equity and good conscience. Rule of
law should establish a uniform pattern for harmonious existence in a society
where every individual would exercise his rights to his best advantage to
achieve excellence, subject to protective discrimination. The best advantage of
one person could be the worst disadvantage to another. Law steps in to iron out
such creases and ensures equality of protection to individual as well as group
liberties. Man's status is a creature of substantive as well as procedural law
to which legal incidents would attach. justice, equality and fraternity are
trinity for social and economic equality. Law is the foundation on which the
potential of the society stands. Law is an instrument for social change as also
defender for social change. In Madhu Kishwar & Ors. etc. v. state of Bihar
& Ors. [Writ petition (C) No. 5723 of 1982 dated April 17,1996], the
question was: whether the tribal women are entitled to equality in matters of
succession with male members? One of us (K. Ramaswamy, J.) has held that they
are entitled to equality in matters of succession.
Social
justice is the comprehensive form to remove social imbalances by law harmonising
the rival claims or the interests of different groups and/or sections in the
social structure or individuals by means of which alone it would be possible to
build up a welfare state. The ideal of economic justice is to make equality of
status meaningful and the life worth living at its best removing inequality of
opportunity and of status- social, economic and political.
The
content ambit and interplay of justice and social justice was elucidated in
Consumer Education & Research Centre & Ors. v. Union of India & Ors. [(1995) 3 SCC 42] by a Bench of
three Judges of this Court in paragraph 18 at page 67. The court observed that
the constitution is the supreme law envisaging social justice as its arch to
ensure life to everyone to be meaningful and livable with human dignity.
Jurisprudence is the eye of law giving an insight into the environment of which
it is the expression. it relates the law to the spirit of the time and makes it
richer. Law is the ultimate aim of every civilised society, as a key system in
a given era, to meet the needs and demands of its time. Justice, according to
law, comprehensive social urge and commitment. Justice, liberty, equality and
fraternity are supreme constitutional values to establish the egalitarian
social, economic and political democracy. Social justice, equality and dignity
of person are cornerstones of social democracy. social justice consists of
diverse principles essential for the orderly growth and development of
personality of every citizen.
Justice
is the generic sense and social justice is its facet, a dynamic device to
mitigate the sufferings of the disadvantaged and to eliminate handicaps so as
to elevate them to the level of equality to live life with dignity of person,
social justice is not a simple or single idea of a society but is an essential
part of complex social change to relieve the poor etc. from handicaps, penury,
to ward them off from distress and to make their lives livable for greater good
of the society at large. social justice, therefore, gives substantial degree of
social, economic and political equality, which is the constitutional right of
every of every citizen. In para 19, it is further elaborated that social
justice is one of the disciplines of justice which relates to the society. What
is due cannot be ascertained by absolute standard which keeps changing
depending upon the time, place and circumstances. The constitutional concern of
social justice, as an elastic continuous process, is to transform and accord
justice to all sections of the society by providing facilities and
opportunities to remove handicaps and disabilities with which the poor etc. are
languishing. It aims to secure dignity of their person. It is the duty of the
state to accord justice to all members of the society in all facets of human
activity. The concept of social justice embeds equality to flavour and enlivens
practical content of life. social justice and equality are complementary to
each other so that both should maintain their vitality. Rule of law, therefore,
is a potent instrument of social justice to bring about equality in result.
Article 1 of the universal Declaration of Human Rights envisions that all human
beings are born free and equal in dignity and rights and each should act
towards one another in a spirit of brotherhood.
In
that case the question was: whether rights to social security is a fundamental
right to workman? to make the life of the workman worth living with health, it
was held that right to health is a fundamental right and it is the duty of the
state and the employer to provide facility and opportunities for ensuring
sustained good health and leisure to the workman as facet of right to life
under article 21.
In
Mrs. Valsamma Paul v. Cochin University & Ors. [JT 1996(1) SC 57], a Bench of this court has
held that human rights are derived from the dignity and worth inherent in the human
person. Human rights and fundamental freedoms have been reiterated in the
universal declaration of human rights. Democracy, development and respect for
human rights.
Democracy,
development and respect for human rights and the fundamental freedoms are inter-dependent
and have mutual reinforcement. Article 29(2) of the Declaration of Human Rights
provides that "in the exercise of this rights and freedoms, everyone shall
be subject only to such limitations as are determined by law solely for the rights
and freedoms of others and of leading the just requirements of morality, public
order and general welfare in a democratic society." The concept of
equality and equal protection of law guaranteed by Article 14 of the
constitution in its propers spectrum encompasses social and economic justice in
a political democracy as its species to eliminate inequalities in status and to
provide facilities and opportunities among the individual and groups of people
to secure adequate means of livelihood which is the foundation for stability of
political democracy.
Social
democracy means a way of life which recognises liberty, equality and fraternity
as principles of life. They are the trinity. One cannot diverse from the other.
Without equality, liberty would produce supremacy of the few over the many.
Equality without liberty would denude the individual of his initiative to
improve excellence. Without fraternity, liberty and equality would not nurture
as their natural habitat. Social and economic justice is a constitutional right
to socio-economic justice in the trinity, the preamble, Fundamental Rights and
Directives is to make the quality of life of there disadvantaged people
meaningful. Equal protection in Article 14, therefore, requires affirmative
action by the state to those unequals by providing facilities and
opportunities. The question therein was: whether right to reservation is
available to women belonging by birth to forward section of the society but
married to male member of disadvantaged section of the society on par with the
persons from the caste to which reservation was provided ? In that context, the
right to socio-economic justice, equality and fraternity was considered and the
above law was laid down.
Gandhiji,
the Father of the Nation, on the eve of independence had stated that "
independence did not mean mere freedom from British Rule by breaking the bonds
of slavery but it meant more than that. It meant justice to all citizens of India, irrespective of religion, caste,
creed or language, each getting his legitimate due". The 42nd amendment
Act of the constitution introduced, " secularism and socialism" in
the preamble which are implicit in the Directives and the Fundamental Rights
read together. Social and economic justice in the context of our Indian constitution
must, therefore, be understood in a comprehensive sense to remove every
inequality and to provide opportunity to all citizens in social as well as
economic justice means the abolition of those economic conditions which
ultimately result in the inequality of economic values between mem. It means to
establish a democratic way of life built upon socio-economic structure of the
society to make the rule of law dynamic.
Article
14 of the constitution is a shining star among the fundamental rights which guarantees
equality to every citizen and equal protection of laws to all persons.
Equality
before laws ins correlative to the concept of rule of law for all-round
evaluation of healthy social order.
Directives
set forth social principles to eliminate inequalities in income, in status and
opportunity and to provide facilities and opportunities to every citizen to
make the fundamental rights meaningful and the life of every citizen worth
living and at its best, with the dignity of person and fraternity, lest they
remain empty- vessels and teasing illusions to majority population .
The
constitution adopted mixed economy and the planned development has become a
constitutional scheme to realise egalitarian social order. The second Five year
plan envisaged that "The patron of development and the structure of the
socio-economic relation should be so planned that they result in appreciable
increase in income and employment but also in greater equality in income and
wealth." The Directives of the state policy have delineated in broad
spectrum socio-economic justice to all people. "The socialistic patron of
society is a more comprehensive expression of the approach. Economic polity and
constitutional changes have to be planned in a manner that would ensure economic
advance along with democratic and egalitarian lines." In the Eighth Five
Year plan 1992-97, the planning commission, in its blue-print has stated on
agricultural economy and need for stepping up production in para 1.1.1 that
agriculture and allied activities constitute the single largest contributor to
the Gross Domestic product(GDP), accounting for almost 33% if the total. They
are vital to the national well-being as, besides providing the basic needs of
the society and the raw materials for some of the important segment of Indian
industry, they provide livelihood for almost two thirds of the work force. The
share of the agricultural products in the total export earnings, both in
primary and processed forms, is very significant. In paragraph 1.2.7 Jute and Mesta,
it is stated that the average production of jute and mesta in the seventh plan
was 8.8 million bales. Inadequate availability of improved seeds and retting
facilities are the main constraints to increasing the production of quality
jute and mesta. Development of jute and mesta during the seventh plan was
undertaken through a special Jute Development program, funded by the Ministry
of Textiles. Use of natural fiber as the packing material is on the revival
trail and diverse jute products are now exported. The minimum support price
policy to the farmers and the role of Jute corporation of India (JCI) need to
be reviewed for their effective operation. It is stated in para 1.11.1 that the
Eighth plan aims at consolidating the gains from the base built over the years
in agricultural production sustaining the improvement in productivity and
production. To meet the increasing demands of the growing population enlarging
the income of the farmers and realising the country potential by stepping up
agricultural exports effective steps are directed to be taken. In paragraph
1.11.7, it is stated that marketing infrastructure has to be further augmented
and streamlined, especially in respect of perishable commodities. In the light
of the technological advancement and gains, agricultural produce requires to
promote diversification within and outside the country which gains importance
in the coming years. In paragraph 1.11.9, it is stated that the changes in the
trade policies have vastly improved the prospects for realising the full
potential of the country with its varied agro-climatic conditions from tropical
to temperate regions, in producing commodities for export.
Maximising
the production of the traditional export commodities etc. requires to be
stepped up on modern technologies and sustained efforts should be made in the
coming years. In paragraph 1.11.11, it is stated that the promotion of
initiatives outside the Government to further socioeconomic development is of
cardinal importance and is central to the strategy of the Eighth plan. In
paragraph 1.11.12, it is stated that many a programme and scheme will have to
be continued from the previous plans, with necessary refinements or
modifications to address themselves sharply to the problems for their overcome.
A policy was made in eloquent terms promising in para 11 that "Government
will endeavour to create a positive trade or investment climate for agriculture
at par with industries to develop effective systems and to bestow similar
benefits on agricultural as exit in industry. They issued and ensured that
agriculturists are not subjected to the regulatory and tax collection machinery
of Government." Article 38 of the Constitution enjoins the state to strive
to promote the welfare of the people by securing and protecting, as effectively
as it may, the social order in which justice-social, economic and
political-shall, inform all the institutions of the national life striving to minimise
inequalities in income and endeavour to eliminate inequalities in status,
facilities, opportunities amongst individuals and groups of people residing in
different areas or engaged in different avocations. As stated earlier,
agriculture is the main stay to rural economic and empowerment of the
agriculturists. Agriculture, therefore, is an industry. To the tiller of the
soil, livelihood depends on the production and return of the agricultural
produce and sustained agro-economic growth. The climatic conditions throughout Bharat
are not uniform. The climatic conditions throughout Bharat are not uniform.
They vary from tropical to moderate conditions. Tillers of the soil being unorganised
sector, their voice is scarcely heard and was not even remotely voiced in these
cases. Their fundamental right to cultivation is as a part of right to
livelihood. It is a bastion of economic and social justice envisaged in the
preamble and Article 38 of the constitution. As stated earlier, the rights,
liberties and privileges assured to citizen are linked with corresponding
concept of duty, public order and morality. Therefore, the jural postulates
form the foundation for the functioning of just society. The fundamental rights
ensured in part III are, therefore, made subject to restrictions i.e. , public
order in the interest of general public. In enliving the fundamental rights and
the public interest or public purpose in part IV Directives, parliament is the
best Judge to decide what is good for the community by whose suffrage it comes
into existence and the majority political party assumed governance of the country.
The
Directive principles are the fundamentals in their manifestos. Any digression
is unconstitutional. The constitution enjoins upon the Executive, Legislature
and the Judiciary to balance the competing and conflicting claims involved in a
dispute so as to harmonise the competing claims to establish an egalitarian
social order. It is a settled law that the Fundamental Rights and the Directive
principles are two wheels of the chariot; none of the two is less important
than the other. Snap one, the other will lose its efficacy. Together, they
constitute the conscience of the constitution to bring about social revolution
under rule of law. The Fundamental Rights and the directives are, therefore,
harmoniously interpreted to make the law a social engineer to provide flesh and
blood to the dry bones of law.
The
Directives would serve the court as a beacon light to interpretation.
Fundamental Rights are rightful means to the end, viz., social and economic
justice provided in the Directives and the preamble. The Fundamental Rights and
the Directives establish the trinity of equality, liberty and fraternity in an
egalitarian social order and prevent exploitation.
Social
justice, therefore, forms the basis of progressive stability in the society and
human progress.
Economic
justice means abolishing such economic conditions which removed the inequality
of economic value between man, concentration of wealth and means of production
in the hands of a few and are detrimental to the vast. Law, therefore must seek
to serve as a flexible instrument of socioeconomic adjustment to bring about
peaceful socio-econnomic revolution under rule of law. The constitution, the
fundamental supreme lex distributes the sovereign power between the Executive,
the Legislature and the Judiciary.
The
three instrumentalities, within their play endeavour to elongate the
constitutional basic structure built in the preamble, Fundamental Rights and
Directives, namely, establishment of an egalitarian social order in which every
citizen receives equality of opportunity and of status, social and economic
justice. The court, therefore, must strive to give harmonious interpretation to
propel forward march and progress towards establishing an egalitarian social
order.
From
this perspective, let us consider the constitutionality of the provisions of
the Act. The statement and objects and the preamble of the Act, would, in
unmistakable terms, indicate that it intends to provide livelihood to nearly 4
million rural agricultural families and 2.5 lacs industrial workers The ancient
agro-based jute industry occupied a significant position in our national
economy, in particular in the economy of the north-eastern region of the
country. It is agro-based and labour-intensive industry. It is also an
export-oriented one and its raw material is based entirely on indigenous jute
produced by the above agricultural families. Parliament avowedly intended to
protect the interests of the persons involved in jute production; jute
industry, therefore, require protection.
A balanced
view of the developments in the national economy requires to be taken into
consideration to protect the interests of the farmers who produce jute or any
other agricultural produce and in the interests of agro-based industry of the
country and workers who deliver finished products. with that objective in view,
the Act was made for compulsory use of jute packing material in the supply and
distribution of certain commodities in the interest of production of raw jute
packing material and the persons engaged in the production thereof for the
matters connected therewith. Section 3,4 and 5 reads thus:
"3.
(1) Notwithstanding anything contained in any other law for the time being in
force, the Central Government, may, if it is satisfied, after considering the recommendations
made to it by the standing Advisory committee, that it is necessary so to do in
the interest of production of raw jute and jute packaging material, and of
persons engaged in the production thereof, by order published in to time, that
such commodity or class of commodities or such percentage thereof, as may be
specified in the order, be packed for the purposes of its supply or
distribution in such jute packaging material as may be specified in the order:
(a) the
existing level of usage of jute material;
(b) the
quantity of raw jute available;
(c) the
quantity of jute material available:
(d) the
protection of interest of persons engaged in the jute industry and in the
production of row jute;
(e) the
need for continued maintenance of jute industry;
(f) the
quantity of commodities which, in its opinion, is likely to be required for
packing in jute material;
(g) such
other matters as the standing Advisory committee may think fit.
5.
Where an order has been made under Section 3 requiring any commodity, class of
commodities or any percentage thereof to be packed in jute packaging material
for their supply or distribution, such commodity, class of commodities of
percentage thereof shall not, on and from the date specified in such order, be
supplied or distributed unsell the same is packed in accordance with that
order:
Provided
that nothing in this section shall apply to the supply or distribution of any
commodity before that date such commodities or three months from the aforesaid
date such if immediately before that date such commodity before that date such
commodity, class of commodities or percentage, thereof were being packaging
material other than jute packging material." Provided that until such time
as the standing Advisory committee is constituted under section 4, the central
Government shall, before making any order under this sub- section(2) of section
4, and any order so made shall cease to operator at the expiration of three
months from the date on which the standing Advisory committee makes its
recommendations.
(2)
Every order made under sub- section (1) shall be laid, as soon as may be after
it is made, before each House of parliament, while it is in session, for a
total period of thirty days which may be comprised in one session or in two or
more successive sessions, and if, before the expiry of the session immediately
following the session or the successive sessions aforesaid, both Houses agree
in making any modification in the order or both Houses agree that the order
should not be made, the order shall thereafter have effect only in such
modified form or br of no effect, as the case may be; so, however, that any
such modification or annulment shall be without prejudiced to the validity of
anything previously done under that order. (emphasis supplied) 4.(1) The
Central Government shall, with a view to determining the commodity thereof in
respect of which jute packaging material shall be used in their packing,
constitute a standing Advisory committee consisting of such Government the
necessary expertise to give advise in the matter.
(2)
The standing Advisory committee shall, after considering the following matters,
indicate its recommendations to the central Government, namely :
Sections
6 to 8 are machinery provisions. Section 9 to 11 are penal provisions. Section
16 gives power to the Central Government, to exempt by notification published
in the official Gazette, any commodity or class of commodities from the
operation of any order made under section 3. The order should be laid under
sub-section (2) before each House of parliament as provided therein. The orders
issued under section 3 are subject to modification by the parliament.
Section
17 gives rule- making power to the central Government. Rules, namely, the Jute
packaging Materials (compulsory use in packing commodities) Rules, 1987 (for
short, the 'Rules') were made. Rule 3 provides for constitution of the
commodities.
Sub-section
(1) of section 3, with a non-obstante clause, excludes, excludes the operation
of any other law for the time being in force and, regulates use of jute or jute
packaging material in supply and distribution of certain commodities. It gives
power to the Central Government, on being satisfied, on consideration of the
recommendations made to it by the standing Advisory Committee empowered to
issue direction from time to time for use of the packing material. The primary
purpose and object of such directions is to protect the interests of producer
of raw jute and jute making material. The Central Government is enjoined to
protect the interests of persons engaged in the production thereof. Such orders
should be published in the official Gazette. The orders need to be passed from
time to time. From the date of such order specified therein, such commodity or
class of commodities or such percentage thereof, as specified in the order
should be packed with jute packaging material specified in there order for the
purpose of supply or distribution of such commodity or commodities. Under the
proviso, before making any order, the matter as specified in sub-section (2) of
section 4. The Central Government, may make an order there under which shall
cease to operate at the expiration of 3 months from the date of the
recommendations of the standing Advisory committee.
Every
such order shall be laid before each House of parliament while it is in
session, for a period of 30 days.
It
would be open to the parliament to make any modification to the order. Both the
Houses of parliament may also agree that such order should not be made. After
making modifications, if any, such amended or modified order will be the
operative order. Any action taken on the on going order, before modification,
shall be without prejudice to the action already taken.
Under
sub-section (1) of section 4, the central Government should constitute a
standing Advisory committee consisting of such persons as have, in its opinion,
the necessary expertise to give advice in the matter with a view to determine
the commodity or class of commodities or percentage thereof in respect of which
jute packaging material shall be used in the packing. The standing Advisory
committee, after considering the matters enumerated in clauses (a) to (9),
would furnish its recommendations to the Government. Section 5 created embargo
on the supply and distribution of such specified commodity or class of
commodities or any percentage thereof with reference to which an order under
section 3 came to be made. Rule 3 of the Rules carries out the purpose of
section 4 in establishment and constitution of the standing Advisory committees
consisting of chairman and members not exceeding 20, nominated by the central
Government for a term of three years. The date of the constitution of the
committee and of filling up of all the vacancies and manner in which it is to
be done is provided thereunder.
It is
true that though a committee was constituted by the central Government, in
addition to the Advisor committee which recommended to the Government to
abolish compulsory use of jute packing material by 1997, the Government and the
Advisory committee did not consider it desirable to completely phase out
compulsory use of Jute packaging Material. It issued directions for compulsory
packing of the commodities with jute packaging material with varying
percentage. In the case of sugar, 100% use of jute packaging material is
insisted to be continued.
The
question, therefore, is: whether direction issued by the central Government for
the compulsory packing of the commodities with jute packaging material, [in
respect of sugar 100% use of the gunny bags and at varying percentage for other
commodities is unconstitutional? As stated earlier, the Act aims to accord
socio-economic justice to the tillers of the soil by protecting the cultivation
of raw jute and employment of the workmen engaged in the jute manufacturing
industry. Jute is being produced and manufactured in north-eastern states, West Bengal and Andhara Pradesh etc. as
mentioned in the affidavit. A reading of the Debates on the floor of the
parliament on the Bill, does establish, cutting across the party lines, all the
members have spoken in favour of directing compulsory use of jute packaging
material (gunny bags) for supply and distribution of the commodities. As stated
earlier, the object of the benign measure primarily is to protect the interests
of growers of agricultural produce, who cultivate of growers of agricultural
produce, who cultivate raw jute. Incidentally, the manufacturers and the
workman get benefit therefrom. Agricultural economy accords to the grower socio-economic
justice economy accords to the grower socio-economic justice to provided
dignity of person, equality of opportunity to have his produce used in industry
etc. Agriculture is treated as industry on par with any other any other
industry. the state should provide. by legislative or executive measure all
facilities and opportunities to get them due price for their products and have
them marketed for use in are made subjection to parliamentary control and
subject to modification by both Houses.
Equally,
the competing right to carry on trade or business guaranteed to a citizen or
person is also to be protected. In the clash of competing rights of socio-
economic justice of the producers of the agricultural commodities and of the
individual right of a citizen to carry on trade or business, the latter yield
place to the paramount social right. However, as rightly pointed out by the
counsel, a balances view has to be struck by the central Government in
directing use of jute packaging material at the percentage of jute bags to be
used for compulsory packing of the commodities which is subject to
parliamentary control and approval. Parliament is the spokesmen to the people
where the need is felt most accute. When the orders passed under section 3 are
subject to modification by the parliament, parliament preserved to itself a
great salutary control over executive exercise of power under section 3(1).
It is
such a valuable public protection and safeguard kept with the parliament
itself. Parliament would be the best Judge to discuss in each House as to what
extent competing interests of the agricultural industry and the industry
involved in commercial products need to be protected and would guide the
central Government appropriately by resolution or otherwise. When parliament
debates on the subject, it focuses its attention on all its constituents and it
would be open to debate, on the subject by participants from all the members of
the parliament and political parties and of shades of opinion. Parliament is
entitled to direct the Central Government to place on the floor of each House
the necessary factual material for discussion. They are the best judges to
direct the central Government to act on their advice in a particular way, based
on the existing factual material. The parliament is empowered to overrule of
the central Government under section 3(1) by disapproval.
It is
a question of fact, to be considered in each case, as to what percentage is
required to be used it is primarily of the central Government to be decide as
executive policy. The central Government is guided by the material placed
before it and the advice tendered to it by the standing Advisory committee
constituted under Section 4 of the Act. It depends upon the availability of the
jute and its products in the market, the quantum of raw jute produced by the
agriculturists, its demand in the market and its capability for diversification
into other industry for ancillary use of the jute material and hosts of other
factors enter into the decision making process. The exercise is required to be
undertaken from time to time. The Act, the Rules and the material placed before
it by the Committee and the advice tendered by the expert body form the basis.
The decision taken and directions issued cannot be said to smack of
arbitrariness. Guidelines are available under the Act and the Rules made in
this behalf. They are Parliamentary control. Paramount public interest is to
provide economic security and equality and justice to the producers of the raw
jute and the workers engaged in manufacturing and other jute packaging
material.
In Shri
Sitaram Sugar Co. Ltd. & Anr. vs. Union
of India & Ors. [(1990) 3 SCC 223], the question arose; whether fixation of
price for sugar under Section 3 (3-C) of the Essential Commodities Act, 1955
was an administrative or legislative function and whether the Court could
interfere in fixation of price thereof? A Constitution Bench of this Court had
held that price fixation is legislative function.
In
paragraph 57, it was held that judicial review is not concerned with matters of
economic policy. The Court does not substitute its judgment for that of the
Legislature or its agents as to matters within the province of either. The
Court does not supplant the "feel of the expert" by it own views.
When the Legislature acts within the sphere of its authority and delegates
power to its agent, it may empower the agent to make findings of fact which are
conclusive provided such findings satisfy the test of reasonableness.
In all
such cases, judicial inquiry is confined to the question whether the findings
of fact are reasonably based on evidence and whether such findings are
sustainable at law of the land. Judicial function in respect of such matters is
exhausted when the court finds rational basis to the conclusion reached by the
authority. In the matters of policy and planning, it should adopt one or other
system of control in the best economic interest of the sugar industry and the
general public grouping sugar factories on geographical-cum-agro-economic
factors to determine the price. It was held that the fixation of price to the
sugar was not amenable to judicial review.
In
R.K. Garg etc. vs. Union of India & Ors. [(1981) 4 SCC
675], when Special Bearer Bonds (Immunities and Exemptions) Act, 1981 was
challenged in this Court under Article 32 of the Constitution, this Court per
majority, had held that legislation particularly in economic matters, is
essentially empiric and it is based on experimentation.
There
may be crudities, inequities and even possibilities of abuse but on that
account alone, it cannot be struck down as invalid. These can always be
remedied by the legislature by passing amendments. The Court must, therefore,
adjudge the constitutionality of such legislation by the generality of its
provisions and not by its crudities. Laws relating to economic activities
should be viewed with greater latitude than laws touching civil rights such as
freedom to speak or practise any religion. There is always a presumption in favour
of the constitutionality of the Act. Burden is on the petitioner to show that
there has been a clear transgression of constitutional principles. The
legislature understands and correctly appreciates the needs of its own people;
its laws are directed to problems made manifest by experience and its
discrimination is based on adequate grounds. In adjudging, the Court may take
into consideration common knowledge, matters of common report, the history of
the time and may assume every state of affairs which can be conceived of as existing
at the time of legislation. The Act was made and held to be valid.
In
Morey vs. Doud [354 Us 457 = L.Ed. 2nd 1485], in dissenting judgment, Frankfaster,
J. held that in the utilities, tax, economic regulation cases judicial self-
restraint, if not judicial deference to legislative judgment was emphasised.
The court is always to remember that the parliament has affirmative
responsibility to solve problems that were felt most accute. In economic
measure, the court while claiming the constitutionality of a legislation must
defer to legislative judgment.
In
Peerless General Finance & Investment Co. Ltd. & Anr. VS. Reserve Bank
of India [(1992) 2 SCC 343], one of us, K. Ramaswamy, J., in a separate but
concurrent judgment held in paragraph 69 that it is well settled law that the
court is not tribunal from the crudities and inequities of complicated
experimental economic legislation. The discretion in evolving economic measures,
rests with the policy makers and not with the judiciary. Indian social order is
beset with social and economic inequalities and of status, and in our socialist
secular, democratic republic, inequality is an anathema to social and economic
justice.
The
Reserve Bank of India Act assigned the power to the Reserve Bank of India to
regulate monetary system and the experimentation of the economic legislation,
can best be left to the executive unless it is found to be unrealistic or
manifestly arbitrary. Even id a law is found to be wanting on trial, it is
better that its defects are demonstrated and removed by amendment than that law
should be aborted by judicial fiat. Such an assertion of judicial power
deflects responsibilities from those on whom a democratic society ultimately
rests. The court has to see whether the scheme, measure or regulation adopted
is relevant or appropriate to the power exercised by the authority. In that
case, the directions issued by the Reserve Bank of India for regulating the
money circulation were held valid.
In
City of New Oreleans vs. Nancy dukes [427 US 297 = 49 L.Ed. 2nd 511 at 518),
the dissenting view of Frankfaster, J. was upheld and the court had stated
that" Morey was the only case in the last half century to invalidate a
wholly economic regulation solely on equal protection and now we are satisfied
that the decision was erroneous".
In
Charles Roberts & Co. Ltd. vs. British Railways Board [(1965) 1 W.L.R. 396]
, the chancery Division had held that, in general, Judges are not qualified to
the said questions of economic policy and such questions by their nature are
not justiciable. But, in England, judicial review of parliamentary enactment
was not available. That decision may not be of much assistance.
Robert
Jackson, J. in H.P. Hood & sons vs. Dumond (1949), had stated that our
system is that every farmer and every craftsman shall be encouraged to produce
by the certainty that he will have free access to every market in the nation,
that no home embargo will withhold his exports and that no foreign state will
by custom, duties or regulation exclude them [vide: The Encyclopedia of
American Constitution on the chapter Economic Analysis and the constitution at
page 597]. At page 598, it is stated that " since 1937, the court has
consistently declined to invalidate economic legislation on substantive due
process grounds and has stubbornly refused to subject such legislation to even
minimal review". Economic analysis is an acquired taste; courts should not
insist that legislature be educated in basic economic concepts let alone that
they keep abreast of the current literature on externalities and public goods.
Most economists would acknowledge that a legislature may properly choose to
sacrifice economic efficiency in order to achieve some desired distribution of
wealth among social groups. Even if a private conduct is economically
acceptable, a legislature could properly conclude that the conduct is
interpersonally unfair in the particular way, it enables to cause harm to
people.
It
would, thus, be clear that the Court is not will equipped to adjudge crudities
and inequities emerging from economic legislation. The legislature is empowered
to experiment on economic legislation in its attempt to remove inequalities in
income or status or provide social and economic justice to the society or a
particular descernable segments of society or toe remove the defect where the
legislature felt most acute. There is always presumption in favour of
constitutionality. The legislature appreciates the needs of the people and
directs the laws to the problems made manifest by experience and discrimination
is based on adequate grounds. The court does not supplant the feel and
experiment of the expert by its own views. Court in deference to legislative judgement,
imposes self-restraint to adjudge on crudities and experiment but concern on
core constitutionality.
Another
serious contention of the petitioners is that the Act is a class legislation
intended to benefit a small sector of jute or the producers of raw jute or
their workmen while the total impact on the consumers at large or right to
trade or business in another commodities is disproportionately large.
Therefore, the Act is ultra vires as devoid of substance. The diversity is so
vast that no comparison would be possible in terms of population. In the entire
south India, paddy cultivation is primary
economy while in Kerala spices and in Andhra Pradesh, Karnataka and Tamil Nadu
sugarcane, Tobacco, pulses, cotton and other commercial commodities would
supplement paddy cultivation.
In Gujarat and Maharashtra, commercial crops would supplement the paddy cultivation.
In coastal Andhra Pradesh, jute also is cultivated as a second crop. In other
areas in south Eastern region, as is evident, apart from agriculture, jute also
is the main agricultural product. In Uttar Pradesh, sugarcane gets intensive
cultivation apart from paddy and wheat. In Gangatic platue, apart from
agriculture intensive sugarcane cultivation is the special feature. In Punjab and Haryana, wheat and paddy are
the main cultivation. In Rajasthan, bazra, pulses etc. are cultivated.
Throughout the country but cultivation of agriculture produce is the sole
resource of the rural population as majority is compared to urban population in
the country. It is, therefore, clear that raw agriculture produce is an input
of finished product for commercial purposes and its regulation, by the Acts or
Rules or orders, cannot be assailed as ultra vires the legislature on the basis
of the population of the agriculturists when it affects consumer public or
manufacturers of finished products whose business avocation incidentally gets
affected. On that account, the Act cannot be declared void or Ultra vires the
power of the parliament to enact the law.
The
main Plank of the petitioners, to demolish the validity of the Act as ultra vires
of Article 19(1) (9) , is founded on the ratio in Chintaman Rao vs. The state
of Madhya Pradesh [(1950) SCR 759]. The central Provinces and Berar Regulation
of Manufacture of Bidis (Agriculture purposes) Act (LXIV of 1948),
(pre-consolidation Act) was made empowering the Deputy commissioner by a
notification to fix a period to be agricultural season with respect to
specifies villages to prohibit deployment of labour in bidi manufacturing of bidis
in certain villages which came to be challenged under Article 32 of the constitution.
This court had held that the object of the statute being a measures to provide
supply of adequate labour for agricultural purposes in the area of the
province, the purpose would have been achieved by legislation restricting the
employment of the agricultural labour in the manufacture of bidis during the
aforesaid season without prohibiting altogether manufacture of bidis
themselves. Therefore, it was held that the Act has no reasonable relation to
the object in view and it did not impose any reasonable restriction under
Article 19(6) of the constitution. Reasonable restriction cannot that there is
a limitation imposed in enjoyment of the right which should not be arbitrary or
excessive in nature beyond what is required in the interest of the public.
Reasonableness implies intelligent care and deliberation, i.e., the choice of a
course which reason dictates an arbitrary or excessively invades the right
cannot be said to contain the quality of reasonableness unless it strikes
proper balance between the freedom guaranteed under Article 19(1) (9) and the
social control permitted under clause (6) of Article 19, must be held to be
wanting to be reasonable. As pointed out by this court, the legislature could
have prohibited use of labour during the particular period of agricultural
season in the area in which bidis are manufactured; instead the Act permitted
the offer to issue notification imposing total prohibition on manufacture of
bides. It was, therefore, held that it was unreasonable restriction not saved
by Article 19(6). Far from helping appellants, the ratio indicates that if the
Act strikes a reasonable balance between the exercise of the fundamental rights
and reasonable restrictions in the interest of the general public, the Act
would be valid. In Narendra Kumar & ors. vs. The Union of India & ors. [1960
(2) SCR 375]. This court upheld imposition of total prohibition in the purchase
and import of copper and fixation of the prices in view of policy of
eliminating the dealers from such trade as not violative of Article 19(a) (9)
of the constitution. It was held that restriction includes total prohibition.
In view of the foreign exchange crunch, the prohibition on import of copper,
lead etc. Was upheld that the court is to see whether the test of reasonableness
is satisfied by considering the question in the background of factual
circumstances under which the order came to be made, taking into account the
nature of the evil that was sought to be remedied by law, the ratio of the harm
caused to the individual citizens by the proposed remedy, the beneficial effect
reasonably expected to the general public and whether the restrain caused by
the law was more than necessary in the interest of the general public. In M/s. Dwarka
Prasad Laxmi Narayan vs. Stateof Utter Pradesh & Two ors. [(1954) SCR 803],
it was held that regulating the trade or business in normally available
commodities was unreasonable. U.P. coal control order had given absolute power
to the licensing authority to renew the licence under the order. In that case,
since the commodities were freely available in the market, it was held that the
restriction was not a reasonable restriction under Article 19(6) of the
constitution. It is not necessary to pursue this reasoning after the Essential
commodities Act, 1955 was enacted giving power to regulate distribution, sale
and supply of the essential commodities to general public and fixing prices
thereof.
In Parvej
Aktar & Ors. vs. Union of India & Ors. [JT 1993 (1) SC 453], a Bench of
three Judges was to consider the reservation of certain articles for exclusive
production by the hand-looms whether violative of Articles 19 and 14 of the
constitution. This court held that there is no question of monopoly create in favour
of the handloom industry.
Certain
articles were reserved for the handloom on traditional looms engaged since
1950. Recently, when the power-loom started manufacturing the items which were
traditionally being manufactured by the handlooms that caused a serious inroad
into the handloom industry.
Consequently,
the stepped into the business and regulated the use of certain specified
articles for being manufactured by handlooms with traditional methods. Same is
the view in G.T.N. Textiles Ltd. & Anr. vs. Assistant Directors, R.O.T. Commissioner
& ors. [JT 1993 (2) SC 416]. Therein, pack of yarn was regulated by
direction issued by notification by the Textile commissioner to use certain
percentage of production in hank form. Clause 16 of the Textile (control)
order, 1986 was challenged as violative of Articles 19(1) and 14 noticing that
the Textile (control) order was issued only in respect of packing yarn in hank
form exclusively for handloom sector which is the largest cottage industry in
India. The regulation was held to be not ultra vires Articles 19 and 14 but a
reasonable restriction under Article 19(6).
In
Municipal corporation of the city of Ahmedabad & ors. vs Jan Mohammed Usmanbhai
& Anr. [(1986) 3 SCC 20], a constitution Bench of this court held that
normally the legislature is best judge of what is good for the community but
the court should not shirk its duty to determine the validity of the law. In
determining the reasonableness of the restriction imposed by the law under
Article 19(6), the court cannot proceed on a general notion of what is
reasonable in the abstract or even on a consideration of what is reasonable
from the view of the person or persons on whom the restrictions are imposed.
The court has to consider whether the restrictions are reasonable in the
interest of the general public. The question of the interest of general public
is of wide import comprehending public order, economic welfare of the public,
public security, morals and the objects mentioned in the Directive principles.
The test of reasonableness has to be viewed in the context of the issues which
faced the legislature. In constructing such laws and judging their validity,
courts must approach the problem from the point of view of furthering the
social interest which is the purpose of the legislation to promote.
They
are not in these matters functioning in vacuo but as part of society which is
trying, by the enacted law, to solve the problems and further the moral and
material progress of the community as a whole.
In Sushila
Saw Mill vs. State of Orissa & ors. [(1995) 5 SCC 615], the orissa saw
mills and saw pits (control) Act, 1991 and in particular section 4 thereof was
challenged as violative of Articles 19(1) (g) and 301 of the constitution.
Section
4 imposed restriction on establishing saw mill within the notified prohibited
zones. It was held that the right to carry on trade or business is subject to
public interest. The restriction imposed total bar on saw mills operating in
the prohibited area. Prohibition was held not violative either of Article 14 or
301. It was held that it is class regulation to protect forest. Therefore,
prohibition on establishing saw mills within the prohibited zone cannot be on
geographical contiguity and was held to be reasonable restriction in the
interest of society. In State of Kerala vs. Joseph Antony [(1994) 1 SCC 301], Kerala
marine Fishing Regulation Act, 1980 and the notification issued under section
4(1) thereof, prohibiting fishing by mechanized vessels in territorial waters
by use of gears like purse, seine, ring seine, pelagic trawl and mid-water
trawl etc. were challenged as violative of Article 19(1) (g). In considering
the above question, this court, in paragraph 9, had held that the court has to
keep the background facts of social and marine life at the back of the mind of
the court to appreciate the issue involved in the case. After careful
examination, this court had held that the High court was not right in striking
down the notification on the ground that the Government had issued two fresh
notifications on the basis of the report submitted by the special officers. In
paragraphs 20, confining to the fact of 98.5% of the fishing corporation who
were engaged in the traditional fishing were pushed below the poverty line.
Therefore,
it was held that the Act was to protect their rights. This court had upheld the
regulatory measure.
In Kerala
Swathanthra Malaya Thozhilali Federation & ors. Kerala Trawlnet Board
operators Association & ors.[(1994) 5 SCC 23]. the Kerala marine Fishing
Regulation Act, 1980 (10 of 1981) and the Rules made thereunder were challenged
on the ground that restrictions upon all the boats or all the horse power of
the engine and particulars of fishing gear to be carried in boats going for
bottom- trawling beyond territorial waters, was impugned to be violative of
Article 19(1) (g). This court negatived the contention holding that regulation
was intended to ensure livelihood to lacs and lacs of fisherman engaged in
fishing by traditional methods.
The
next question is: whether the prohibition of 100% use of gunny bags by sugar
industry and 70% by the cement is reasonable? It is true that the committee
constituted by the Government had recommended to phase out use of gunny bags on
the ground that in a free market. It is not justified primarily to encourage free
market. It is seen that the state has not abandoned and cannot abandon the
mixed economy and power of regulation as mandated by constitutional policy. The
Act was made in implementation of socio-economic equality and policies. Even a
private industry by operation of Directive contained in part IV, is bound to
adopt them implement them and the Government policies to establish an
egalitarian social order. The committee in its free market frenzy became
oblivion of the policy resolution of Eighth Five year plan, the Trinity,
Preamble, Fundamental Rights and Directives. The executive policy of the state
would be cognizant to these mandated which should always bind the Government
and all agencies including private agencies. As seen, the Advisory committee constituted
under section 4 has recommended 100% use of packing the sugar with gunny bags.
On
consideration of the report, the Government had acted upon the same. the
economic policy to render socio-economic justice to the growers of the raw jute
and the workman is based on the above constitutional policy. Lest the report of
the committee on the basis of the free market economy would be in negation of
the preamble, the Directive principles and the Fundamental Rights to economic
justice to the agriculturists. So the contention is clearly unsustainable.
The
standing Advisory commit, therefore, had properly advised and the Government
obviously has taken decision to continue the policy of compulsory packing of
commodities or class of commodities with jute bags, regulated under section 3
the Act. The parliament did not negate the same.
The
further contention that on account of the regulation, HDPE industry has become
unviable and is on the brink of liquidation and the Act tends to create
monopoly in favour of private industry which does not get protection under Art.
19(6), is untenable. This viability of the respective industries. It would be
for the central Government and parliament and not for this court to take into
consideration declaring the Act as void. The court has to see whether the Act
serves public purpose and the restriction are reasonable. The Advisory
committee goes into factual details. The Government examines and takes policy
decision. It lays the order on the table of both the Houses.
The
parliament controls exercise of policy. Restrictions are in-built and
self-evident.
Further
contention that the jute is being import from Bangladesh which would show that no adequate supply of jute is
available in India and that no gunny bags are
adequately available to meet the growing demand of sugar industry etc. , cannot
be given acceptance. It is state by the respondents that imported jute from
Bangladesh is a finer quality for use as a component in exportable jute
products but not for domestic consumption. It is next contended that jute
production has fallen due to decrease in the cultivated area of raw jute and
the order to use gunny bags as arbitrary is without force. From the report
submitted by the jute industry and from the Eight Five year plan material, it is
seen that considerable increase in the quantity of the jute is produced. The
further contention is that the Act is aimed to benefit only the manufacturers
of jute who has taken huge sums as loans or subsidy from the central Government
for modernisation of their industry; They have diversified their production for
export. Neither the workman nor the growers of the jute are benefited from the
regulation. We cannot decide the validity of the Act on that basis. May be that
there does not appear to be any control on the prices of the raw jute supplied
by the farmers to the jute factories. If that is the situation, the Government
should look into the problem and met out justice to the producers for whose
benefits the Act was primarily enacted. Corrective steps should be taken to
protect the interests of the growers. For the labour, they demands. But on that
account, the Act cannot be struck down.
The
further contention that since the Act is a temporary measure to benefit the
jute industry, the regulation should be phased out gradually, is without
substance. From the Eighth plan and the Resolution, it is evident that the
Government intends to continue the regulation. The further contention that the
jute products are being diversified and the need for regulation, therefore, no
longer subsists , cannot be accepted. It is for the Central Government to take
into consideration, on the basis of the material placed before it, as to what
extent the regulation would need modification. The further contention is since
no adequate supply of the jute bags is available to meet the demand, the order
is bad in law and cannot be gone into to invalidate the Act on that basis. It
would be for the Central Government subject to parliamentary control to take a
decision and equally of the alleged wastage.
Yet
another contention that requires consideration is that in the committee
constituted under section 4(1) only secretaries represented and no one
represents the petitioners in the committee and that, therefore, the Act is
void. This contention also cannot be accepted as sound principle of law.
However, as seen from the record, the committee consists of the secretaries
representing various of industries through recognised office bearers of the
associations may be nominated or given notice before the Advisory committee
meets to place their view and material in support thereof to evaluate the need
for regulation and extent of regulation thereof. The persons representing the
particular advice the Government before issuing directions/orders under section
3. The provisions of the Act contain guidelines as is self-evident.
Socio-economic justice is the public policy. It is subject to parliamentary
control. They bear reasonable nexus to the object sought to be achieved by the
Act.
Considered
from this perspective, we hold that the provisions of sections 3, 4 and 5 are
not violative of Article 14 or 19(1) (g) of the constitution. The Act and
orders impose reasonable restriction saved by Article 19(6) of the
constitution.
There
is no restriction on the stream of transport of commodities or class thereof by
the citizens nor is there any impediment on its movement by the Act. The Act
regulates only packing of the commodities or class of commodities with jute
packaging material. Transportation on account thereof stands no impediment for
the said trade and commerce. The commerce clause in Art.301, therefore, stands
no impediment for free flow of trade and commerce in the commodities for free
flow of trade and commerce in the commodities for class of commodities covered
by the provisions of the Act.
Considered
from this perspective, we hold the Act is not violative of Article 301 of the
constitution.
The
Transfer cases and writ petitions are accordingly dismissed and the
applications disposed of but, in the circumstances, with costs quantified at
Rs.10,000/- payable to the supreme court legal Aid committee within a period of
three months from the date of receipt of this order. On failure thereof, it
would open to the supreme court Legal Aid committee to have this order executed
as decree according to law.
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