of Andhra Pradesh & Ors Vs. Smt. P. Laxmi Devi  Insc 282 (25 February 2008)
Sema & Markandey Katju
APPEAL NO.8270 OF 2001 MARKANDEY KATJU, J
This appeal by special leave has been filed against the impugned judgment of
the Andhra Pradesh High Court dated 8.5.2001 in Writ Petition No.12649 of 2000.
Heard learned counsel for the parties and perused the record.
writ petition was filed in the High Court praying for a declaration that
Section 47A of the Indian Stamp Act as amended by A.P. Act 8 of 1998 which
requires a party to deposit 50% deficit stamp duty as a condition precedent for
a reference to the Collector under Section 47A is unconstitutional. By the
impugned judgment the High Court has declared it unconstitutional. Hence, this
Under Section 3 of the Indian Stamp Act, 1899 certain instruments are
chargeable with the duty mentioned in the Schedule to the Act. Item 23 in the
Schedule to the Act mentions a `conveyance' as one of the documents requiring
payment of stamp duty. A `conveyance' is defined in Section 2(10) of the Act
and includes a sale deed. Since in the present case we are concerned with
payment of stamp duty on a sale deed, we have referred to the above provisions.
Experience showed that there was large scale under valuation of the real value
of the property in the sale deeds so as to defraud the Government's proper
revenue. In the original Stamp Act there was no provision empowering the
revenue authorities to make an enquiry about the value of the property conveyed
for determining the correct stamp duty.
amendments were made to the Indian Stamp Act from time to time in several
States including amendments by the Andhra Pradesh Legislature e.g. by the
Indian Stamps (A.P. Amendment) Act 22 of 1971, Indian Stamps (A.P. Amendment)
Act 17 of 1986 and ultimately by the AP Act 8 of 1998 (with effect from
1.5.1998). The scheme of Section 47A was to deal with such cases where parties
clandestinely undervalued the property to evade payment of the correct stamp
After the 1998 amendment, Section 47A(1) of the Indian Stamp Act as applicable
in the State of Andhra
Pradesh reads as
Instruments of conveyance, etc. how to be dealt with
Where the registering officer appointed under the Registration Act, 1908, while
registering any instrument of conveyance, exchange, gift, partition,
settlement, release, agreement relating to construction, development or sale of
any immovable property or power of attorney given for sale, development of
immovable property, has reason to believe that the market value of the property
which is the subject matter of such instrument has not been truly set forth in
the instrument, or that the value arrived at by him as per the guidelines
prepared or caused to be prepared by the Government from time to time has not
been adopted by the parties, he may keep pending such instrument and refer the
matter to the Collector for determination of the market value of the property
and the proper duty payable thereon.
that no reference shall be made by the registering officer unless an amount
equal to fifty per cent of the deficit duty arrived at by him is deposited by
the party concerned."
Under sub-clause (2) of Section 47A of the Stamp Act on receipt of a reference
under sub-section(1), the Collector has to give opportunity of making a
representation to the parties, and after holding such enquiry as prescribed by
the Rules, shall determine the market value of the property which is the
subject matter of the instrument, and the duty thereon.
respondent herein, had agreed to purchase land bearing S.No.594/B situated at
village Kapra of Keesara Mandal of Ranga Reddy District. The agreement of sale
was entered into on 25.1.1989 and as there was breach of performance of the
contract on the part of the prospective vendor, a suit being O.S. No.1416 of
1997 was filed before the II Additional Senior Civil Judge, Hyderabad and the same was decreed. When the
sale deed was not executed pursuant to the decree, Execution Petition No.5 of
2000 was filed. An officer of the Court was deputed to present the sale deed,
which was stamped according to the directions of the Senior Civil Judge.
registering authority raised objection with regard to the quantum of
non-judicial stamp on which the sale deed was engrossed. By letter no.288/2000
dated 19.2.2000, the registering authority, the Sub-Registrar, Malkajigiri, Ranga
Reddy District, conveyed to the Second Senior Civil Judge, City Civil Court,
Hyderabad that the document has to be referred under Section 47A and as a
condition precedent for such reference, called upon the party i.e. the
respondent herein, to pay duty on 50% of the differential amount according to
the estimate made by him. Against this demand the respondent filed a writ
petition in the High Court.
the writ petition filed by the respondent herein, it was inter-alia, contended
that the estimate made by the registering authority was only provisional, and
that will attain finality only after the Collector on a reference under Section
47A adjudicates the same, and for the reference for such adjudication no
obligation can be imposed to deposit 50% of the deficit duty. Hence the said
provision contained in the proviso to Section 47A is arbitrary and unreasonable
violating the Fundamental Rights guaranteed in Articles 14 and 19(1)(g) of the
counter affidavit was filed by the State Government in the writ petition. The
relevant paragraphs in the counter affidavit are quoted below :
reply to the allegations made in the affidavit it is submitted that a sale deed
was executed by II Senior Civil Judge, City Civil Court on 6.1.2000 and presented before me on 7.1.2000 through one
of the staff members.
sale deed was admitted to registration and kept pending for want of
clarification with regard to market value. The market value is arrived at
Rs.6,17,80,500/- as per the market value guidelines for 33 acres 12 guntas
whereas the sale deed executed was for a consideration of Rs.2,40,000/-. Thus
there is huge loss to the Government Exchequer to a tune of Rs.70,77,160/- in
I sought clarification from the District Registrar, R.R. District (2nd
Respondent). The 2nd respondent in his letter dated 473/G1/2003 dated 9.2.2000
ordered me to take action under Section 47A of Indian Stamp Act for
determination of market value.
the action taken by the 3rd respondent i.e. Sub- Registrar, Malkajgiri is true
and proper in the matter.
reply to the allegations made paras 6 to 8 of the petitioner's affidavit it is
submitted that the petitioners are liable to pay 50% of the deficit amount as
per the Indian Stamp (A.P. Amendment) Act, 1998. The appeal filed by the
petitioner is without any merits and is liable to be dismissed with a direction
to the petitioner that 50% of the deficit amount assessed by the Sub-Registrar
concerned and as per the directions of the Hon'ble Chief Judge, City Civil
Court, Hyderabad should be deposited before a reference could be made under
Section 47A of the Indian Stamp Act, as amended through Act No.8 of 1998. It is
submitted that the proviso under Section 47A(2) was amended and the amendment
has come into force with effect from 1.5.1998. Hence, it is necessary that the
petitioner shall deposit the deficit duty as determined by the registering
the impugned judgment the High Court has declared Section 47A of the Indian
Stamp Act as applicable to State Government to be unconstitutional.
the impugned judgment the High Court has observed :
imposition of deposit of 50% of the differential stamp duty for referring the
document to the Collector runs beyond the object and intendment of the above
statutory provision. The object and intendment of the Stamp Act is to collect
the proper stamp duty and such proper stamp duty is dependent upon the
determination of the market value of the subject matter of the document and
such determination is only made by the Collector and until such determination
is made by the Collector, the document which is received for registration even
after collection of whatever stamp duty deposited and the registration fee is
paid by the party, is not released to the party, but is kept pending
registration and such document kept pending registration is not having any
evidentiary value and is not entered into the books of registration and no
certified copy of the same can be granted and no rights flow from such
document, be it sale, exchange, gift, mortgage, lease, etc. By keeping the
document pending registration, there is enough safeguard for collecting the
deficit stamp duty, as in the event of the Collector accepting the valuation
suggested by the Registering Office and the party not paying the said stamp
duty, the document remains under pending registration and even may be returned
to the party for want of the payment of the differential stamp duty. This being
the aim and intendment of the stamp duty protecting the public exchequer, there
is absolutely no nexus for calling upon the party to deposit 50% of the
differential stamp duty as a condition for making reference. It is not that a
party seeks a reference on his own, but the Registering Officer is duty bound
to refer the moment a party does not accept the valuation suggested by him. The
party presenting a document is the master of his choice as to whether he should
deposit the deficit stamp after determination of the Collector or not. If he
feels that the market value determined by the Collector is exorbitant, then he
may resile from going ahead with the registration of the document and may take
return of the document. There is nothing to stop him from doing so. Stamp duty
is not skin to a compulsory tax such as, property taxes levied upon the house
properties, sales tax levied upon the turn-over, income- tax levied upon the
income prescribed etc. If a party wants to have his document registered, he
should pay stamp duty and should he feel that it is exorbitant and he cannot
bear the same, he can resile from the same even after presenting the document.
The authority under the Stamp Act cannot force upon the party to compulsorily
pay the stamp duty. Such compulsion is imposed only upon the party's insistence
for registration of the document and not otherwise. In such circumstances, the
imposition of deposit of 50% of the amount towards the differential stamp duty
as a condition for referring the matter to the Collector runs beyond the scope,
intendment and object of the act and, thus, offends equal protection of laws
guaranteed under Article 14 of Indian Constitution and thus, is arbitrary and
the said proviso to Section 47A of Indian Stamp Act which reads :
that no reference shall be made by the registering officer unless an amount
equal to fifty per cent of the deficit duty arrived at by him is deposited by
the party concerned."
unconstitutional and is accordingly struck down."
regret our inability to agree with the view taken by the High Court that the
amended Section 47A is unconstitutional.
Section 33(1) of the Stamp Act states :
person having by law or consent of parties authority to receive evidence, and
every person in charge of a public office, except an officer of police, before
whom any instrument, chargeable, in his opinion, with duty, is produced or
comes in the performance in his functions shall, if it appears to him that such
instrument is not duly stamped, impound the same".
perusal of the said provision shows that when a document is produced (or comes
in the performance of his functions) before a person who is authorized to
receive evidence and a person who is in charge of a public office (except a
police officer) before whom any instrument chargeable with duty is produced or
comes in the performance of his functions, it is the duty of such person before
whom the said instrument is produced to impound the document if it is not duly
stamped. The use of the word 'shall' in Section 33(1) shows that there is no
discretion in the authority mentioned in Section 33(1) to impound a document or
not to do so.
opinion, the word 'shall' in Section 33(1) does not mean 'may' but means
`shall'. In other words, it is mandatory to impound a document produced before
him or which comes before him in the performance of his functions. Hence the
view taken by the High Court that the document can be returned if the party
does not want to get it stamped is not correct.
our opinion, a registering officer under the Registration Act (in this case the
Sub-Registrar) is certainly a person who is in charge of a public office.
Section 33(3) applies only when there is some doubt whether a person holds a
public office or not. In our opinion, there can be no doubt that a
Sub-Registrar holds a public office. Hence, he cannot return such a document to
the party once he finds that it is not properly stamped, and he must impound
our opinion, there is no violation of Articles 14, 19 or any other provision of
the Constitution by the enactment of Section 47A as amended by the A.P
Amendment Act 8 of 1998. This amendment was only for plugging the loopholes and
for quick realization of the stamp duty. Hence it is well within the power of
the State legislature vide Entry 63 of List II read with Entry 44 of List III
of the Seventh Schedule to the Constitution.
is well settled that stamp duty is a tax, and hardship is not relevant in
construing taxing statutes which are to be construed strictly. As often said,
there is no equity in a tax vide Commissioner of Income Tax vs. Firm Muar AIR
1965 SC 1216. If the words used in a taxing statute are clear, one cannot try
to find out the intention and the object of the statute.
the High Court fell in error in trying to go by the supposed object and
intendment of the Stamp Act, and by seeking to find out the hardship which will
be caused to a party by the impugned amendment of 1998.
Partington vs. Attorney-General (1969) LR 4 HL 100, Lord Cairns observed as
the person sought to be taxed comes within the letter of the law he must be
taxed, however great the hardship may appear to the judicial mind. On the other
hand if the court seeking to recover the tax cannot bring the subject within
the letter of the law, the subject is free, however apparently within the
spirit of the law the case might otherwise appear to be."
above observation has often been quoted with approval by this Court, and we
endorse it again. In Bengal Immunity Co. Ltd. vs. State of Bihar AIR 1955 SC
661 (685) this Court held that if there is hardship in a statute it is for the
legislature to amend the law, but the Court cannot be called upon to discard
the cardinal rule of interpretation for mitigating a hardship.
has been held by a Constitution Bench of this Court in Income Tax Officer vs.
T.S Devinatha Nadar AIR 1968 SC 623 (vide paragraph 23 to 28) that where the
language of a taxing provision is plain, the Court cannot concern itself with
the intention of the legislature. Hence, in our opinion the High Court erred in
its approach of trying to find out the intention of the legislature in enacting
the impugned amendment to the Stamp Act.
this connection we may also mention that just as the reference under Section
47A has been made subject to deposit of 50% of the deficit duty, similarly
there are provisions in various statutes in which the right to appeal has been
given subject to some conditions. The constitutional validity of these
provisions has been upheld by this Court in various decisions which are noted
Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation of the city of Ahmedabad
and Ors. 1999(4) SCC 468, this Court referred to its earlier decision in Vijay Prakash
D. Mehta vs. Collector of Customs (Preventive) 1968(4) SCC 402 wherein this
Court observed :
right to appeal is neither an absolute right nor an ingredient of natural
justice the principles of which must be followed in all judicial and
quasi-judicial adjudications. The right to appeal is a statutory right and it
can be circumscribed by the conditions in the grant."
Anant Mills Ltd. vs. State of Gujarat 1975(2) SCC 175 this Court held that the
right of appeal is a creature of the statute and it is for the Legislature to
decide whether the right of appeal should be unconditionally given to an
aggrieved party or it should be conditionally given. The right to appeal which
is a statutory right can be conditional or qualified.
M/s. Elora Construction Company vs. The Municipal Corporation of Gr. Bombay and
Ors. AIR1980 Bombay 162, the question before the Bombay High Court was as to
the validity of Section 217 of the Bombay Municipal Act which required
pre-deposit of the disputed tax for the entertainment of the appeal. The Bombay
High Court upheld the said provision and its judgment has been referred to with
approval in the decision of this Court in Gujarat Agro Industries Co. Ltd. vs.
Municipal Corporation of the city of Ahmedabad and Ors. (supra). This Court has
also referred to its decision in Shyam Kishore and Ors. vs. Municipal
Corporation of Delhi and Anr. 1993(1) SCC 22 in which a similar provision was
may be noted that in Gujarat Agro Industries Co. Ltd. vs. Municipal Corporation
of the city of Ahmedabad and Ors. (supra) the appellant had challenged the
constitutional validity of Section 406(e) of the Bombay Municipal Corporation
Act which required the deposit of the tax as a precondition for entertaining
the appeal. The proviso to that provision permitted waiver of only 25% of the
tax. In other words a minimum of 75% of the tax had to be deposited before the
appeal could be entertained. The Supreme Court held that the provision did not
violate Article 14 of the Constitution.
view of the above, we are clearly of the opinion that Section 47A of the Indian
Stamp Act as amended by A.P. Act 8 of 1998 is constitutionally valid and the
judgment of the High Court declaring it unconstitutional is not correct.
may, however, consider a hypothetical case. Supposing the correct value of a
property is Rs. 10 lacs and that is the value stated in the sale deed, but the
registering officer erroneously determines it to be, say, Rs. 2 crores. In that
case while making a reference to the Collector under Section 47A, the
registering officer will demand duty on 50% of Rs.2 crores i.e. duty on Rs.1 crore
instead of demanding duty on Rs. 10 lacs. A party may not be able to pay this
exorbitant duty demanded under the proviso to Section 47A by the registering
officer in such a case. What can be done in this situation?
our opinion in this situation it is always open to a party to file a writ
petition challenging the exorbitant demand made by the registering officer
under the proviso to Section 47A alleging that the determination made is
arbitrary and/or based on extraneous considerations, and in that case it is
always open to the High Court, if it is satisfied that the allegation is
correct, to set aside such exorbitant demand under the proviso to Section 47A
of the Indian Stamp Act by declaring the demand arbitrary. It is well settled
that arbitrariness violates Article 14 of the Constitution vide Maneka Gandhi
vs. Union of India AIR 1978 SC 597. Hence, the party is not remedy-less in this
However, this would not mean that the proviso to Section 47A becomes
unconstitutional. There is always a difference between a statute and the action
taken under a statute. The statute may be valid and constitutional, but the
action taken under it may not be valid. Hence, merely because it is possible
that the order of the registering authority under the proviso to Section 47A is
arbitrary and illegal, that does not mean that the proviso to Section 47A is
also unconstitutional. We must always keep this in mind when adjudicating on
the constitutionality of a statute.
Since we have dealt with the question about constitutionality of Section 47A of
the Stamp Act, we think it necessary to clarify the scope of judicial review of
statutes, since Courts often are faced with a difficulty in determining whether
a statute is constitutionally valid or not. We are, therefore, going a little
deep into the theory of judicial review of statutes, as that will give some
guidance to the High Courts in future.
Courts have the power to declare an Act of the Legislature to be invalid? The
answer to the above question is : Yes. The theoretical reasoning for this view
can be derived from the theory in jurisprudence of the eminent jurist Kelsen
(The Pure Theory of Law).
According to Kelsen, in every country there is a hierarchy of legal norms,
headed by what he calls as the `Grundnorm' (The Basic Norm). If a legal norm in
a higher layer of this hierarchy conflicts with a legal norm in a lower layer
the former will prevail (see Kelsen's `The General Theory of Law and State').
India the Grundnorm is the Indian Constitution, and the hierarchy is as follows
The Constitution of India;
Statutory law, which may be either law made by Parliament or by the State
Delegated legislation, which may be in the form of Rules made under the Statute,
Regulations made under the Statute, etc.;
Purely executive orders not made under any Statute.
a law (norm) in a higher layer in the above hierarchy clashes with a law in a
lower layer, the former will prevail. Hence a constitutional provision will
prevail over all other laws, whether in a statute or in delegated legislation
or in an executive order. The Constitution is the highest law of the land, and
no law which is in conflict with it can survive. Since the law made by the
legislature is in the second layer of the hierarchy, obviously it will be
invalid if it is in conflict with a provision in the Constitution (except the
Directive Principles which, by Article 37, have been expressly made non
The first decision laying down the principle that the Court has power to
declare a Statute unconstitutional was the well-known decision of the US
Supreme Court in Marbury vs. Madison 5 U.S. (1Cranch) 137 (1803).
principle has been followed thereafter in most countries, including India.
and when should the power of the Court to declare the Statute unconstitutional
be exercised? Since, according to the above reasoning, the power in the Courts
to declare a Statute unconstitutional has to be accepted, the question which
then arises is how and when should such power be exercised.
This is a very important question because invalidating an Act of the
Legislature is a grave step and should never be lightly taken. As observed by
the American Jurist Alexander Bickel "judicial review is a counter majoritarian
force in our system, since when the Supreme Court declares unconstitutional a
legislative Act or the act of an elected executive, it thus thwarts the will of
the representatives of the people; it exercises control, not on behalf of the
prevailing majority, but against it." (See A. Bickel's `The Least
The Court is, therefore, faced with a grave problem. On the one hand, it is
well settled since Marbury vs. Madison (supra) that the Constitution is the
fundamental law of the land and must prevail over the ordinary statute in case
of conflict, on the other hand the Court must not seek an unnecessary
confrontation with the legislature, particularly since the legislature consists
of representatives democratically elected by the people.
The Court must always remember that invalidating a statute is a grave step, and
must therefore be taken in very rare and exceptional circumstances.
have observed above that while the Court has power to declare a statute to be
unconstitutional, it should exercise great judicial restraint in this
connection. This requires clarification, since, sometimes Courts are perplexed
as to whether they should declare a statute to be constitutional or
solution to this problem was provided in the classic essay of Prof James
Bradley Thayer, Professor of Law of Harvard University entitled 'The Origin and
Scope of the American Doctrine of Constitutional Law' which was published in
the Harvard Law Review in 1893. In this article, Professor Thayer wrote that
judicial review is strictly judicial and thus quite different from the
policy-making functions of the executive and legislative branches. In
performing their duties, he said, judges must take care not to intrude upon the
domain of the other branches of government. Full and free play must be
permitted to that wide margin of considerations which address themselves only
to the practical judgment of a legislative body. Thus, for Thayer, legislation
could be held unconstitutional only when those who have the right to make laws
have not merely made a mistake (in the sense of apparently breaching a
constitutional provision) but have made a very clear one, so clear that it is
not open to rational question. Above all, Thayer believed, the Constitution, as
Chief Justice Marshall had observed, is not a tightly drawn legal document like
a title deed to be technically construed; it is rather a matter of great
outlines broadly drawn for an unknowable future.
reasonable men may differ about its meaning and application. In short, a
Constitution offers a wide range for legislative discretion and choice.
judicial veto is to be exercised only in cases that leave no room for
reasonable doubt. This rule recognizes that, having regard to the great,
complex ever-unfolding exigencies of government, much which will seem
unconstitutional to one man, or body of men, may reasonably not seem so to
another; that the Constitution often admits of different interpretations; that
there is often a range of choice and judgment; that in such cases the
Constitution does not impose upon the legislature any one specific opinion, but
leaves open this range of choice; and that whatever choice is not clearly in
violation of a constitutional provision is valid even if the Court thinks it
unwise or undesirable. Thayer traced these views far back in American history,
finding, for example, that as early as 1811 the Chief Justice of Pennsylvania
had concluded: "For weighty reasons, it has been assumed as a principle in
constitutional construction by the Supreme Court of the United States, by this
Court, and every other Court of reputation in the United States, that an Act of
the legislature is not to be declared void unless the violation of the Constitution
is so manifest as to leave no room for reasonable doubt" vide Commonwealth
ex. Rel. O'Hara vs. Smith 4 Binn. 117 (Pg.1811).
Thus, according to Prof. Thayer, a Court can declare a statute to be
unconstitutional not merely because it is possible to hold this view, but only
when that is the only possible view not open to rational question. In other
words, the Court can declare a statute to be unconstitutional only when there
can be no manner of doubt that it is flagrantly unconstitutional, and there is
no way of avoiding such decision. The philosophy behind this view is that there
is broad separation of powers under the Constitution, and the three organs of
the State the legislature, the executive and the judiciary, must respect each
other and must not ordinarily encroach into each other's domain. Also the
judiciary must realize that the legislature is a democratically elected body
which expresses the will of the people, and in a democracy this will is not to
be lightly frustrated or obstructed.
Apart from the above, Thayer also warned that exercise of the power of judicial
review "is always attended with a serious evil", namely, that of
depriving people of "the political experience and the moral education and
stimulus that comes from fighting the question out in the ordinary way, and
correcting their own errors" and with the tendency "to dwarf the
political capacity of the people and to deaden its sense of moral
Justices Holmes, Brandeis and Frankfurter of the United States Supreme Court
were the followers of Prof. Thayer's philosophy stated above. Justice
Frankfurter referred to Prof Thayer as "the great master of constitutional
law", and in a lecture at the Harvard Law School observed "if I were
to name one piece of writing on American Constitutional Law, I would pick
Thayer's once famous essay because it is the great guide for judges and
therefore, the great guide for understanding by non-judges of what the place of
the judiciary is in relation to constitutional questions". (vide H.
Phillip's `Felix Frankfurter Reminisces' 299-300, 1960).
our opinion, there is one and only one ground for declaring an Act of the
legislature (or a provision in the Act) to be invalid, and that is if it
clearly violates some provision of the Constitution in so evident a manner as
to leave no manner of doubt. This violation can, of course, be in different
ways, e.g. if a State legislature makes a law which only the Parliament can
make under List I to the Seventh Schedule, in which case it will violate
Article 246(1) of the Constitution, or the law violates some specific provision
of the Constitution (other than the directive principles). But before declaring
the statute to be unconstitutional, the Court must be absolutely sure that there
can be no manner of doubt that it violates a provision of the Constitution. If
two views are possible, one making the statute constitutional and the other
making it unconstitutional, the former view must always be preferred. Also, the
Court must make every effort to uphold the constitutional validity of a
statute, even if that requires giving a strained construction or narrowing down
its scope vide Mark Netto vs. Government of Kerala and others AIR 1979 SC 83 (para
6). Also, it is none of the concern of the Court whether the legislation in its
opinion is wise or unwise.
a dissenting judgment in Bartels vs. Iowa 262 US 404 412(1923), Justice Holmes
while dealing with a state statute requiring the use of English as the medium
of instruction in the public schools (which the majority of the Court held to
invalid) observed "I think I appreciate the objection to the law but it
appears to me to present a question upon which men reasonably might differ and
therefore I am unable to say that the Constitution of the United States
prevents the experiment being tried".
The Court certainly has the power to decide about the constitutional validity
of a statute. However, as observed by Justice Frankfurter in West Virginia vs. Barnette
319 U.S. 624 (1943), since this power prevents the full play of the democratic
process it is vital that it should be exercised with rigorous self restraint.
this connection we may quote from the article titled 'The Influence of James B
Thayer Upon the Work of Holmes, Brandeis & Frankfurter' by Wallace Mendelson
published in 31 Vanderbilt Law Review 71 (1978), which is as follows:
then, the Thayer tradition of judicial modesty is outmoded if judicial
aggression is to be the rule in policy matters, as in the 1930's some basic
issues remain. First, how legitimate is government by judges ? Is anything to
be beyond the reach of their authority ? Will anything be left for ultimate
resolution by the democratic processes for what Thayer called "that wide
margin of considerations which address themselves only to the practical
judgment of a legislative body" representing (as courts do not) a wide
range of mundane needs and aspirations ? The legislative process, after all, is
a major ingredient of freedom under government.
is a process slow and cumbersome. It turns out a product laws that rarely are
liked by everybody, and frequently little liked by anybody. When seen from the
shining cliffs of perfection the legislative process of compromise appears
shoddy indeed. But when seen from some concentration camp as the only
alternative way of life, the compromises of legislation appear but another name
for what we call civilization and even revere as Christian forbearance.
philosophy fret about ideal justice. Politics is our substitute for civil war
in a constant struggle between different conceptions of good and bad. It is far
too wise to gamble for Utopia or nothing to be fooled by its own romantic
verbiage. Above all, it knows that none of the numerous clashing social forces
is apt to be completely without both vice and virtue. By give and take, the
legislative process seeks not final truth, but an acceptable balance of
community interests. In this view the harmonizing and educational function of
the process itself counts for more than any of its legislative products.
intrude upon its pragmatic adjustments by judicial fiat is to frustrate our
chief instrument of social peace and political stability.
if the Supreme Court is to be the ultimate policy-making body without
political accountability how is it to avoid the corrupting effects of raw
power? Can the Court avoid the self-inflicted wounds that have marked other
episodes of judicial imperialism? Can the Court indeed satisfy the expectations
it has already aroused? A third cluster of questions involves the competence of
the Supreme Court as a legislative body.
any nine men master the complexities of every phase of American life which, as
the post 1961 cases suggest, is now the Court's province? Are any nine men wise
enough and good enough to wield such power over the lives of millions? Are
courts institutionally equipped for such burdens? Unlike legislatures, they are
not representative bodies reflecting a wide range of social interest. Lacking a
professional staff of trained investigators, they must rely for data almost
exclusively upon the partisan advocates who appear before them.
or misleading information invites unsound decisions. If courts are to rely upon
social science data as facts, they must recognize that such data are often
tentative at best, subject to varying interpretations, and questionable on
methodological grounds. Moreover, since social science findings and conclusions
are likely to change with continuing research, they may require a system of
ongoing policy reviews as new or better data become available. Is the judiciary
capable of performing this function of supervision and adjustment traditionally
provided by the legislative and administrative processes? Finally, what kind of
citizens will such a system of judicial activism produce a system that trains
us to look not to ourselves for the solution of our problems, but to the most
elite among elites: nine Judges governing our lives without political or judicial
accountability? Surely this is neither democracy nor the rule of law. Such are
the problems addressed by and at least in the minds of jurists like Holmes,
Brandeis, and Frankfurter resolved by Thayer's doctrine of judicial
respectfully agree with the views expressed above, and endorse Thayer's
doctrine of self restraint.
our opinion judges must maintain judicial self-restraint while exercising the
power of judicial review of legislation.
view of the complexities of modern society", wrote Justice Frankfurter,
while Professor of Law at Harvard University, "and the restricted scope of
any man's experience, tolerance and humility in passing judgment on the worth
of the experience and beliefs of others become crucial faculties in the
disposition of cases. The successful exercise of such judicial power calls for
rare intellectual disinterestedness and penetration, lest limitation in
personal experience and imagination operate as limitations of the Constitution.
These insights Mr.Justice Holmes applied in hundreds of cases and expressed in
is a misfortune if a judge reads his conscious or unconscious sympathy with one
side or the other prematurely into the law, and forgets that what seem to him
to be first principles are believed by half his fellow men to be wrong."
(See Frankfurter's 'Mr. Justice Holmes and the Supreme Court')
our opinion the legislature must be given freedom to do experimentations in
exercising its powers, provided of course it does not clearly and flagrantly
violate its constitutional limits.
observed by Mr. Justice Brandeis of the U.S. Supreme Court in his dissenting
judgment in New State Ice Co. vs. Liebmann 285 U.S. 262 (310-11) :
discoveries in physical science, the triumphs in invention, attest the value of
the process of trial and error. In large measure, these advances have been due
to experimentation There must be power in the States and the Nation to
re-mould, through experimentation, our economic practices and in situations to
meet changing social and economic needs.
stay experimentation in things social and economic is a grave responsibility.
Denial of the right to experiment may be fraught with serious consequences to
writing a biographical essay on the celebrated Justice Holmes of the U.S.
Supreme Court in the dictionary of American Biography, Justice Frankfurter
was not for him (Homes) to prescribe for society or to deny it the right of
experimentation within very wide limits. That was to be left for contest by the
political forces in the state. The duty of the Court was to keep the ring free.
He reached the democratic result by the philosophic route of skepticism by his
disbelief in ultimate answers to social questions. Thereby he exhibited the
judicial function at its purest." (see 'Essays on Legal History in Honour
of Felix Frankfurter' edited by Morris D. Forkosch)
this connection Justice Frankfurter while Professor of Law at Harvard
University wrote in 'The Public and its Government' -- "With the great men
of the Supreme Court constitutional adjudication has always been statecraft. As
a mere Judge, Marshall had his superiors among his colleagues.
supremacy lay in his recognition of the practical needs of government. The
great judges are those to whom the Constitution is not primarily a text for
interpretation but the means of ordering the life of a progressive
same book Justice Frankfurter also wrote "In simple truth, the difficulties
that government encounters from law do not inhere in the Constitution.
are due to the judges who interpret. That document has ample resources for
imaginative statesmanship, if judges have imagination for statesmanship."
Keshvananda Bharati vs. State of Kerala AIR 1973 SC 1461 (vide para 1547) Khanna
exercising the power of judicial review, the Courts cannot be oblivious of the
practical needs of the government. The door has to be left open for trial and
our opinion adjudication must be done within the system of historically
validated restraints and conscious minimization of the judges personal
preferences. The Court must not invalidate a statute lightly, for, as observed
above, invalidation of a statute made by the legislature elected by the people
is a grave step. As observed by this Court in State of Bihar vs. Kameshwar
Singh AIR 1952, SC 252(274) : "The legislature is the best judge of what
is good for the community, by whose suffrage it comes into existence".
our opinion, the Court should, therefore, ordinarily defer to the wisdom of the
legislature unless it enacts a law about which there can be no manner of doubt
about its unconstitutionality.
observed by the Constitution Bench decision of this Court in M.H. Quareshi vs.
State of Bihar AIR 1958 SC 731 (vide para 15): "The Court must presume
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
that its discriminations are based on adequate grounds. It must be borne in
mind that the legislature is free to recognize degrees of harm and may confine
its restrictions to those cases where the need is deemed to be the clearest,
and finally that in order to sustain the presumption of constitutionality the
Court may take into consideration matters of common knowledge, common report,
the history of the times, and may assume every state of facts which can be
conceived existing at the time of the legislation. (See also Moti Das vs. S.P. Sahi
AIR 1959 SC 942(947).
the light of the above observations, the impugned amendment is clearly
constitutional. The amendment was obviously made to plug a loophole in the
Stamp Act so as to prevent evasion of stamp duty, and for quick collection of
the duty. There are other statutes e.g. the Income Tax Act in which there are
provisions for deduction at source, advance tax, etc. which aim at quick
collection of tax, and the constitutional validity of these provisions have
always been upheld.
Application of Thayer's Doctrine by the Courts :
America, after the activist period of the US Supreme Court which was at one
time declaring Act after Act of the U.S. Congress to be invalid on the ground
that it violated the due process clause in the U.S. Constitution or the right
to liberty of contract, there was a realization by the Judges of the U.S.
Court that they were following a confrontationist path vis-`-vis the U.S.
Congress which was causing all kinds of major problems. Hence in 1937 the U.S.
Supreme Court accepted Thayer's doctrine of judicial restraint, and the same
was followed thereafter (except for the period of the Warren Court).
The U.S. Supreme Court enunciated the principle that there is a presumption in favour
of the constitutionality of Statute, and the burden is always upon the person
who attacks it to show that there has been a clear transgression of a
constitutional provision. This view was adopted by the Constitution Bench of
this Court in Charanjit Lal Chowdhury vs. Union of India and others AIR 1951 SC
41 (para 10), which observed :
facie, the argument appears to be a plausible one, but it requires a careful
examination, and while examining it, two principles have to be borne in mind :
that a law may be constitutional even through it relates to a single
individual, in those cases where on account of some special circumstances or
reasons applicable to him and not applicable to others, that single individual
may be treated as a class by himself;
it is the accepted doctrine of the American Courts, which I consider to be
well-founded on principle, 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 a clear transgression of the constitutional
principles. A clear enunciation of this latter doctrine is to be found in
Middleton vs. Texas Power and L. Company, (248 U.S. 152 and 157), in which the
relevant passage runs as follows :
must be presumed that a legislature understands and correctly appreciates the
need of its own people, that its laws are directed to problems made manifest by
expression and that its discriminations are based upon adequate grounds."
supplied) and this view has been consistently followed thereafter.
Thus in M/s. B.R. Enterprises vs. State of U.P. and others AIR 1999 SC 1867
this Court observed :
principle which has to be borne in mind in examining the constitutionality of a
statute is that it must be assumed that the legislature understands and
appreciates the need of the people and the laws it enacts are directed to
problems which are made manifest by experience and that the elected
representatives assembled in a legislature enact laws which they consider to be
reasonable for the purpose for which they are enacted.
is, therefore, in favour of the constitutionality of an enactment, vide Charanjit
Lal Chowdhury vs. Union of India 1950 SCR 869: AIR 1951 SC 41); State of Bombay
vs. F.N. Bulsara, 1951 SCR 682: (AIR 1951 SC 318), Mahant Moti Das vs. S.P. Sahi
(AIR 1959 SC 942)".
following passage in Seervai, Constitutional Law of India (3rd Edn.) page 119
found approval in Delhi Transport Corporation vs. D.T.C. Mazdoor Congress, 1991
(Supp) 1 SCC 600 : (AIR 1991 SC 101). The Court held:
in his book Constitutional Law of India (3rd Edn) has stated at page 119 that:
"the courts are guided by the following rules in discharging their solemn
duty to declare laws passed by a legislature unconstitutional:
There is a presumption in favour of constitutionality and a law will not be
declared unconstitutional unless the case is so clear as to be free from doubt;
'to doubt the constitutionality of a law is to resolve it in favour of its
statute cannot be declared unconstitutional merely because in the opinion of
the court it violates one or more of the principles of liberty, of the spirit
of the Constitution, unless such principles and that spirit are found in the
terms of the Constitution"
Similarly in Union of India vs. Elphinstone Spinning and Weaving Co. Ltd. and
others AIR 2001 SC 724 (vide para 9) a Constitution Bench of this Court
is always a presumption that the legislature does not exceed its jurisdiction
and the burden of establishing that the legislature has transgressed
constitutional mandates such as, those relating to fundamental rights is always
on the person who challenges its vires. Unless it becomes clear beyond
reasonable doubt that the legislation in question transgresses the limits laid
down by the organic law of the Constitution it must be allowed to stand as the
true expression of the national will Shell Company of Australia vs. Federal
Commissioner of Taxation, 1931 AC 275(Privy Council). The aforesaid principle,
however, is subject to one exception that if a citizen is able to establish
that the legislation has invaded his fundamental rights then the State must
justify that the law is saved. It is also a cardinal rule of construction that
if one construction being given the statute will become ultra vires the powers
of the legislature whereas on another construction which may be open, the
statute remains effective and operative, then the Court will prefer the latter,
on the ground that the legislature is presumed not to have intended an excess
State of Bihar and others vs. Bihar Distillery
Ltd. AIR 1997 SC 1511 (vide para 18) a Constitution Bench of this Court observed
approach of the Court, while examining the challenge to the constitutionality
of an enactment, is to start with the presumption of constitutionality. The
Court should try to sustain its validity to the extent possible. It should
strike down the enactment only when it is not possible to sustain it. The Court
should not approach the enactment with a view to pick holes or to search for
defects of drafting, much less inexactitude of language employed. Indeed, any
such defects of drafting should be ironed out as part of the attempt to sustain
the validity/constitutionality of the enactment. After all, an Act made by the
Legislature represents the will of the people and that cannot be lightly
interfered with. The unconstitutionality must be plainly and clearly
established before an enactment is declared as void."
The same view has been taken by the Constitution Bench of this Court in Hamdard
Dawakhana and another vs. Union of India AIR 1960 SC 554 (vide para 9) which
principle which has to be borne in mind in examining the constitutionality of a
statute is that it must be assumed that the legislature understands and
appreciates the need of the people, that the laws it enacts are directed to
problems which are made manifest by experience, and that the elected
representatives assembled in a legislature enact laws which they consider to be
reasonable for the purpose for which they are enacted. Presumption is,
therefore, in favour of the constitutionality of an enactment. Charanjit Lal
vs. Union of India, 1950 SCR 869: (AIR 1951 SC 41); State of Bombay vs. F.N. Baulsara,
1951 SCR 682 at p.708; (AIR 1951 SC 318 at p. 326); AIR 1959 SC 942."
observed by the Privy Council in Shell Company of Australia vs. Federal Commissioner of
Taxation (1931) AC 275 (298):
it becomes clear beyond reasonable doubt that the legislation in question
transgresses the limits laid down by the organic law of the Constitution it
must be allowed to stand as the true expression of the national will."
Hence if two views are possible, one making the provision in the statute
constitutional, and the other making it unconstitutional, the former should be
preferred vide Kedarnath vs. State of Bihar AIR 1962 SC 955.
if it is necessary to uphold the constitutionality of a statute to construe its
general words narrowly or widely, the Court should do so vide G.P. Singh's
`Principles of Statutory Interpretation, 9th Edition, 2004 page 497'.
the word `Property' in the Hindu Women's Right to Property Act, 1937 was
construed by the Federal Court in In re Hindu Women's Right to Property Act AIR
1941 FC 72 to mean `property other than agricultural land', otherwise the Act
would have become unconstitutional.
The Court must, therefore, make every effort to uphold the constitutional
validity of a Statute, even if that requires giving the statutory provision a
strained meaning, or narrower or wider meaning, than what appears on the face
of it. It is only when all efforts to do so fail should the Court declare a
statute to be unconstitutional.
Some difficulties in the practical application of Thayer's Doctrine:
laying down the above broad principles in relation to the Thayer doctrine of
Judicial Review of Statutes (which we respectfully agree with) we may now
consider some practical difficulties which arise in this connection.
stated above, it is only when there is no manner of doubt that the Statute is
unconstitutional that it should be declared to be so. However, even reasonable
men can sometimes differ as to whether there is a doubt or not about the
constitutional validity. In other words, sometimes there can be a doubt whether
there is a doubt at all. About some statutes there can be no doubt that they
are unconstitutional e.g. if discriminatory treatment is given to redheads, or
if a statute excluded owners of a certain make of motor vehicle from voting in
a general election. However, there are other statutes about which one cannot be
absolutely sure about their constitutional validity, and difficulties would
then arise in this connection.
Some broad principles to resolve these difficulties are given below.
regards fiscal or tax measures greater latitude is given to such statutes than
to other statutes. Thus in the Constitution Bench decision of this Court in R.
K. Garg vs. Union of India and others 1981 (4) SCC 675 (vide para 8) this Court
rule of equal importance is that laws relating to economic activities should be
viewed with greater latitude than laws touching civil rights such as freedom of
speech, religion etc. It has been said by no less a person than Holmes, J. that
the legislature should be allowed some play in the joints, because it has to
deal with complex problems which do not admit of solution through any
doctrinaire or strait-jacket formula and this is particularly true in case of
legislation dealing with economic matters, where, having regard to the nature
of the problems required to be dealt with, greater play in the joints has to be
allowed to the legislature. The court should feel more inclined to give
judicial deference to legislative judgment in the field of economic regulation
than in other areas where fundamental human rights are involved. Nowhere has
this admonition been more felicitously expressed than in Morey v. Doud where
Frankfurter, J. said in his inimitable style:
utilities, tax and economic regulation cases, there are good reasons for
judicial self-restraint if not judicial deference to legislative judgment. The
legislature after all has the affirmative responsibility. The courts have only
the power to destroy, not to reconstruct. When these are added to the
complexity of economic regulation, the uncertainty, the liability to error, the
bewildering conflict of the experts, and the number of times the judges have
been overruled by events self- limitation can be seen to be the path to
judicial wisdom and institutional prestige and stability.
court must always remember that "legislation is directed to practical
problems, that the economic mechanism is highly sensitive and complex, that
many problems are singular and contingent, that laws are not abstract
propositions and do not relate to abstract units and are not to be measured by
abstract symmetry"; "that exact wisdom and nice adaptation of remedy
are not always possible" and that "judgment is largely a prophecy
based on meagre and uninterrupted experience". Every legislation
particularly in economic matters is essentially empiric and it is based on
experimentation or what may one call trial and error method and therefore it
cannot provide for all possible situations or anticipate all possible abuses.
There may be crudities and inequities in complicated experimental economic
legislation but on that account alone it cannot be struck down as invalid. The
courts cannot, as pointed out by the United States Supreme Court in Secretary
of Agriculture v. Central Reig Refining Company, be converted into tribunals
for relief from such crudities and inequities. There may even be possibilities
of abuse, but that too cannot of itself be a ground for invalidating the
legislation, because it is not possible for any legislature to anticipate as if
by some divine prescience, distortions and abuses of its legislation which may
be made by those subject to its provisions and to provide against such
distortions and abuses. Indeed, howsoever great may be the care bestowed on its
framing, it is difficult to conceive of a legislation which is not capable of
being abused by perverted human ingenuity. The court must therefore adjudge the
constitutionality of such legislation by the generality of its provisions and
not by its crudities or inequities or by the possibilities of abuse of any of
its provisions. If any crudities, inequities or possibilities of abuse come to
light, the legislature can always step in and enact suitable amendatory
legislation. That is the essence of pragmatic approach which must guide and
inspire the legislature in dealing with complex economic issues".
All decisions in the economic and social spheres are essentially ad hoc and
experimental. Since economic matters are extremely complicated, this inevitably
entails special treatment for special situations. The State must therefore be
left with wide latitude in devising ways and means of fiscal or regulatory
measures, and the Court should not, unless compelled by the statute or by the
Constitution, encroach into this field, or invalidate such law.
Justice Frankfurter of the U.S. Supreme Court observed in American Federation
of Labour vs. American Sash and Door Co. 335 U.S. 538 (1949):
where the social undesirability of a law may be convincingly urged,
invalidation of the law by a Court debilitates popular democratic government.
Most laws dealing with social and economic problems are matters of trial and
error. That which before trial appears to be demonstrably bad may belie
prophecy in actual operation. But even if a law is found wanting on trial, it
is better that its defects should be demonstrated and removed by the
legislature than that the law should be aborted by judicial fiat. Such an
assertion of judicial power defeats responsibility from those on whom in a
democratic society it ultimately rests. Hence rather than exercise judicial
review Courts should ordinarily allow legislatures to correct their own
mistakes wherever possible".
Similarly, in his dissenting judgment in New State Ice Co. vs. Liebmann 285
U.S. 262 (1932) Mr. Justice Brandeis, the renowned Judge of the U.S. Supreme
Court observed that the government must be left free to engage in social
experiments. Progress in the social sciences, even as in the physical sciences,
depends on a "process of trial and error" and Courts must not
interfere with necessary experiments.
Secretary of Agriculture vs. Central Reig
Refining Co. (1949) 338 U.S. 604 (617): 94 Law Ed. 381-292, Mr. Justice
Frankfurter of the U.S.
was ... confronted with the formulation of policy peculiarly within its wide
swath of discretion. It would be a singular intrusion of the judiciary into the
legislative process to extrapolate restrictions upon the formulation of such an
economic policy from those deeply rooted notions of justice which the Due
Process Clause expresses."
However, though while considering economic or most other legislation the Court
gives great latitude to the legislature when adjudging its constitutionality, a
very different approach has to be adopted by the Court when the question of
civil liberties and the fundamental rights under Part III of the Constitution
paragraph 8 of the Constitution Bench decision in R.K. Garg's case (supra) it
was observed (as quoted above) that laws relating to economic activities should
be viewed with greater latitude than laws touching civil rights such as freedom
of speech, freedom of religion etc.
the Constitution Bench decision in R.K Garg's case (supra) is an authority for
the proposition which has been stated herein, namely, when a law of the
legislature encroaches on the civil rights and civil liberties of the people
mentioned in Part III of the Constitution (the fundamental rights), such as
freedom of speech, freedom of movement, equality before law, liberty, freedom
of religion etc, the Court will not grant such latitude to the legislature as
in the case of economic measures, but will carefully scrutinize whether the
legislation on these subjects is violative of the rights and liberties of the
citizens, and its approach must be to uphold those rights and liberties, for
which it may sometimes even have to declare a statute to be unconstitutional.
Some scholars regarded it a paradox in the judgments of Justice Holmes (who, as
we have already stated above, was a disciple of Thayer) that while he urged
tolerance and deference to legislative judgment in broad areas of lawmaking
challenged as unconstitutional, he seemed willing to reverse the presumption of
constitutionality when laws inhibiting civil liberties were before the Court.
However, we find no paradox at all. As regards economic and other regulatory
legislation judicial restraint must be observed by the Court and greater
latitude must be given to the legislature while adjudging the constitutionality
of the statute because the Court does not consist of economic or administrative
experts. It has no expertise in these matters, and in this age of
specialization when policies have to be laid down with great care after
consulting the specialists in the field, it will be wholly unwise for the Court
to encroach into the domain of the executive or legislative and try to enforce
its own views and perceptions.
this connection we may refer to the famous dissenting judgment of Mr. Justice
Holmes in Lochner vs. York, 198 U.S. 45(1903). In that case,
the validity of a law made by the New York Legislature providing for a maximum
of 10 hour a day and 60 hour a week work in the bakery industry was challenged.
While the majority, who believed in the laissez faire theory of economics, held
that the law violated the liberty of contract, which they perceived as part of
the Bill of Rights to the U.S. Constitution, Mr. Justice Holmes pointed out
that the Constitution was not intended to embody any particular economic
theory, whether of paternalism or of laissez faire. He further observed that
reasonable men might think the impugned statute is a proper measure to ensure
the health of the workers, and hence it was well within the power of the legislature
to enact it. To use his own words in the judgment, "The Fourteenth
Amendment (to the U.S. Constitution) does not enact Mr. Herbert Spencer's
However, when it came to civil liberties, Mr. Justice Holmes was an activist
Judge. Thus, in Schenck vs. U.S. 249 U.S. 47 (1919) he laid down his famous
"clear and present danger" test for deciding whether restriction on
free speech was constitutionally valid. As Mr. Justice Holmes observed, the
question in every case is "whether the words used are used in such
circumstances and are of such a nature as to create a clear and present danger
that they will bring about substantive evils that Congress has a right to
respectfully endorse the view of Mr. Justice Holmes, as stated above.
Abrams vs. U.S. 250 U.S. 616 624 (1919), Mr. Justice Holmes observed :
for the expression of opinions seems to me perfectly logical. If you have no
doubt of your premises or your power and want a certain result with all your
heart you naturally express your wishes in law and sweep away all opposition.
To allow opposition by speech seems to indicate that you think the speech
impotent, as when a man says that he has squared the circle, or that you do not
care wholeheartedly for the result, or that you doubt either your power or your
premises. But when men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very foundations of
their own conduct that the ultimate good desired is better reached by free
trade in ideas that the best test of truth is the power of the thought to get
itself accepted in the competition of the market, and that truth is the only
ground upon which their wishes safely can be carried out. That, at any rate, is
the theory of our Constitution. It is an experiment as all life is an
his famous 'Footnote Four' in United States
vs. Carolene Products Co. 304 U.S. 144, Mr. Justice Stone of the United States
Supreme Court observed :
may be narrower scope for operation of the presumption of constitutionality
when legislation appears on its face to be within a specific prohibition of the
Constitution, such as those of the first ten amendments, which are deemed
equally specific when held to be embraced within the Fourteenth".
letter to Stone in the first Flag Salute case, in which Stone was the lone
dissenter, Justice Frankfurter said:
am aware of the important distinction which you so skillfully adumbrated in
your footnote 4 . In the Carolene Products Co.
case. I agree with that distinction;
regard it as basic. I have taken over that distinction in its central aspect . in
the present opinion by insisting on the importance of keeping open all those
channels of free expression by which undesirable legislation may be removed,
and keeping unobstructed all forms of protests against what are deemed
invasions of conscience".
respectfully agree with the above views.
For Justice Holmes, democracy was not hurt but strengthened whenever courts
protected the individual freedoms which alone make the democratic process
meaningful and valid. For the substance of decisions to be truly democratic,
the process by which they are reached must give as much free play as possible
for the transmutation of present minorities into future majorities by the
unencumbered operation of freedom of thought, communication, and discussion.
From this point of view, reasonably equal access to the political processes and
reasonably uninhibited freedom to argue and discuss (limited only by imminently
impending danger to the state itself) is in fact an integral part of, although
antecedent to, the formal legislative processes of democracy. Hence to uphold
the restrictions on freedom of thought and communication and access to the
political processes which may be placed in effect by a temporary majority would
be actually to reduce the integrity of the processes of transforming that
transient majority into a minority - a processes essential to the very concept
of democracy. Professor Chafee years ago remarked the fact that the Justices,
including Holmes, who tended to uphold wide legislative control over business
were often the very same men who tended to invalidate wide legislative control
Justices", said Chafee, "know that statutes, to be sound and
effective, must be preceded by abundant printed and oral controversy.
Discussion is really legislation in the soft. Drastic restrictions on free
discussion are similar to rigid constitutional limits on lawmaking".
our opinion, therefore, while Judges should practice great restraint while
dealing with economic statutes, they should be activist in defending the civil
liberties and fundamental rights of the citizens. This is necessary because
though ordinarily the legislature represents the will of the people and works
for their welfare, there can be exceptional situations where the legislature,
though elected by the people may violate the civil liberties and rights of the
people. It was because of this foresight that the Founding Fathers of the
Constitution in their wisdom provided fundamental rights in Part III of the
Constitution which were modeled on the lines of the U.S. Bill of Rights of 1791
and the Declaration of the Rights of Man during the Great French Revolution of
may be mentioned that during feudal times citizens had no civil rights. There
was no freedom of speech, no equality, no freedom to practice one's own
religion, no liberty etc. The Great English Revolution of 1688 emphasized the
importance of liberty and the Great French Revolution of 1789 underscored
equality and freedom of religion. The Great American Revolution championed all
these rights. Our founding fathers borrowed these lessons from history and
provided for the fundamental rights in our Constitution to protect the
citizens' liberties not only against the executive but even against the
legislature, if need be.
may be noted that there were no fundamental rights in the Government of India
Act, 1935. The Founding Fathers of our Constitution, who were also freedom
fighters for India's Independence, knew the value of these rights, and that is why they
incorporated them in the Constitution.
must be understood that while a statute is made by the peoples' elected
representatives, the Constitution too is a document which has been created by
the people (as is evident from the Preamble). The Courts are guardians of the
rights and liberties of the citizens, and they will be failing in their
responsibility if they abdicate this solemn duty towards the citizens.
this, they may sometimes have to declare the act of the executive or
legislature as unconstitutional.
Terminiello vs. Chicago 337 US 1 (1949), the U.S. Supreme Court observed that
free speech may best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, even stirs people
Bridges vs. California 314 US 252 (1941) the U.S. Supreme Court observed that
freedom of the press must be allowed the broadest scope compatible with the
supremacy of order.
Wood vs. Georgia 370 U.S. 375(1962), the U.S. Supreme Court observed that
Judges may use their contempt power to punish disorder in the courtroom, but
not to penalize any editor who assails the performance of the Court in print.
Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning observed:
man's liberty of movement is regarded so highly by the law of England that it is not to be hindered or
prevented except on the surest ground."
The above observation has been quoted with approval by a Constitution Bench
decision of this Court in Maneka Gandhi vs. Union of India, AIR 1978 SC 597
(vide para 99).
Why is it that the Courts both in India and in America have taken an activist approach in
upholding the civil liberties and rights of the citizens? In our opinion, this
is because freedom and liberty is essential for progress, both economic and
social. Without freedom to speak, freedom to write, freedom to think, freedom
to experiment, freedom to criticize (including criticism of the Government) and
freedom to dissent there can be no progress.
Scientific ideas initially were often condemned because they were regarded as
opposed to religious dogma. For instance, Charles Darwin's theory or
Copernicus' theory at one time were condemned because they were regarded as
opposed to the Bible. It was only by freedom of speech, freedom to think and
freedom to dissent that human progress was possible.
is for this reason that our founding fathers in their wisdom provided for the
fundamental rights in Part III of the Constitution. It is the solemn duty of
the Courts to uphold the civil rights and liberties of the citizens against
executive or legislative invasion, and the Court cannot sit quiet in this
situation, but must play an activist role in upholding civil liberties and the
fundamental rights in Part III, vide Maneka Gandhi vs. Union of India, AIR 1978
SC 597, Joginder Kumar vs. State of U.P., AIR 1994 SC 1349, D. K. Basu vs.
State of West Bengal, AIR 1997 SC 610, etc.
view of the fact that the impugned amendment is an economic measure, whose aim
is to plug the loopholes and secure speedy realization of stamp duty, we are of
the opinion that the said amendment, being an economic measure, cannot be said
to be unconstitutional.
view of the above observation, this appeal is allowed and the impugned judgment
is set aside and the constitutional validity of the amended Section 47A of the
Stamp Act is upheld. In the facts and circumstances of the case, there shall be
no order as to costs.
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